Decree 649 of 2022: Authorization of home-based work

What did this Decree regulate?

This Decree regulated the authorization of home-based work for employers and private sector employees, the procedure, obligations and conditions necessary for the development of this authorization and to be able to make use of the legal figure of home-based work.

Likewise, given that home-based work was regulated and defined by Law 2088 of May 12, 2021 as a form of service provision in occasional, exceptional or special situations, which arise within the framework of an employment, legal and regulatory relationship, the Decree specified what is understood by occasional, exceptional or special circumstances and indicated that are extraordinary and non-habitual situations, which are deemed to be surmountable (able to overcome) in time, attributable to external, non-work-related events or events within the orbit of the employee or the employer that allow the worker to perform their tasks in a place different from the usual place of work.

Therefore, if there are no such exceptional or special circumstances, it is not the legal figure of home-based work.

the Decree also regulated the application and procedure for the authorization of home-based work for both, employees and employers, as follows:

On the part of the employer:

1. Communication sent to the employee, physically or digitally. Such communication must contain at least the following:

1.1. The brief description of the occasional, exceptional or special situation that allows granting the home-based work authorization.

1.2. The term of the home-based work authorization.

1.3. The functions to be performed by the employee during the home-based authorization.

1.4. The means of communication through which the employer and the employee may inform any new development.

1.5.  The channels of complaint or petition to present concerns or claims for violation of the right to work disconnection and/or labor harassment.

1.6.  The address from which the tasks will be performed, which must be reported by the employer to the Labor Risk Management Company (ARL), as well as any modification thereto.

1.7. If the worker has his own equipment to perform the tasks, there must be a mutual agreement to do so.

1.8.  If the equipment is supplied by the employer, the list of equipment, programs, as well as the responsibilities regarding the custody of the work elements and the procedure for their delivery and return by the worker must be indicated in the communication.

1.9.  The computer security measures that the employee must know and comply with during the authorization of home-based work.

Some employer's obligations regarding home-based work:

1. Prior to the authorization of home-based work, the employer shall communicate to the Labor Risks Administrator (ARL) about the authorization of home-based work, indicating the address from which the tasks will be developed, as well as any modification to it, and the period for which the authorization was granted, filling out the form adopted for such purpose and provided by the Labor Risks Administrator (ARL).

2.  Prior to the authorization of home-based work, the employer must have the necessary procedure to protect the right to work disconnection.

3.  Prior to the authorization of home-based work, the employer shall guarantee the adequate use of information and communication technologies, through training.

4.  Make employees aware of the communication mechanisms for reporting any new developments arising from the authorization of home-based work and instruct employees on the reporting of work- related accidents or disease.

By the employee:

1. Written communication to the employer in physical or digital form, clearly stating the reason that motivates it, for which he/she shall attach proof that accredits such request.

2.  The employer shall review the origin of the cause pleaded by the employee in a term not exceeding five (5) days and shall give a positive or negative answer to the employee in writing, either physically or digitally.

3.  In addition to the existence of exceptional, special or occasional circumstances, among the criteria to be taken into account for the authorization of home-based work are:

3.1. That the work can be performed outside the usual place of work, without prejudice to the adequate personal provision of the contracted service.

3.2. That the required tools are available for the authorization of home-based work;

3.3. That the authorization of home-based work does not generate a lower productivity of the employee.

Some obligations of the employee regarding to home-based work: 

The employee who has the authorization of home-based work commits to:

1. Provide for the comprehensive care of his or her health, as well as to provide the employer with clear, truthful and complete information on any change in his or her health condition that affects or may affect his or her own ability to work.

2.  Comply with the rules, regulations and instructions of the company's Occupational Safety Management System.

5.  Comply with the instructions regarding computer security, carried out by the employer.

7.  Provide the employer in advance, no less than five (5) days in advance, with express, clear, truthful and complete information about the changes of address that he/she plans to make.

From when does this Decree apply?

This Decree is effective as of its promulgation, that is, April 26, 2022.

Other provisions as follows:

- Compensation for the use of work tools owned by the employee. The employer and the employee may, by mutual agreement, settle on a monthly value of compensation for the use of work tools owned by the employee.

- Alternation. The employer may determine that the home-based work is carried out under the alternation model, that is the development of the tasks can be carried out some days of the week in person and other days, through home-based work.

- Home-based work abroad. The authorization to home-based work may be granted to work from abroad in any country, for which the employee must have the express authorization of the employer.

- Termination of the authorization to home-based work. Upon expiration of the term of the authorization to home-based work, the termination and the return to the usual place of work shall be immediately notified.