In accordance with the decrees and recommendations issued by the various entities of the Republic of Colombia, measures must be sought to guarantee the personal provision of services when possible through the alternative use of teleworking or flexible schedules, promoting isolation when the material provision of work at the workplace is not necessary.
Thus, the alternatives provided for the present situation range from teleworking to the eventual but probable suspension of employment contracts, either by mutual consent of the parties upon the granting of unpaid leave or, in the particular case of “quarantine or prohibitions of the Colombian State to leave the place of residence,” the conditions of force majeure or fortuitous event:
- Vacations: This alternative may be offered to those who, having accrued vacations, have not yet enjoyed them, thereby allowing them not to appear at the workplace, but rather to enjoy a mandatory labor benefit. This would also cease the burden of over-accumulation of vacation periods for workers at any level.
- Family Day: Although the legislation prescribes that one working day will be granted per semester, this may be the occasion and opportunity to use this instrument and fulfill the mandatory labor norm.
- Teleworking: Even though teleworking has special legislation and certain parameters must be met, with Circular No. 0018 of 2020, the possibility has been opened for this modality of service provision to be granted and coordinated without the full rigor of current legislation, but ensuring that the service is provided safely for the worker. It is highlighted that the main subjects of this measure are persons who present symptoms or have been diagnosed with COVID-19, but its use as a tool to avoid the movement of people within the national territory will be perfectly valid.
- Flexible Work Shifts: In accordance with Article 161, literal d, and the shift workday referred to in Article 166, a shift schedule may be adopted that prevents the concentration of the working population in the same space-time, while maintaining the company's operations.
Now then, in the eventual but probable case in which the company must cease the provision of services, the adoption of the following measures is recommended:
- Suspension of the Employment Contract due to Unpaid Leave: As you are aware, this must be executed through a common act between the worker and the employer, with the worker's request being a prerequisite. Therefore, it is suggested to sign documents where there is full evidence that the subordinate has requested the leave from the employer.
- Suspension of the Employment Contract due to Force Majeure or Fortuitous Event: When the provision of services is impossible, whether in person or through teleworking, and in the face of the worker's refusal to sign the granting of unpaid leave, the suspension of the employment contract may be adopted as a last measure as a consequence of force majeure or fortuitous event, attributable exclusively to the health guidelines or public order prescriptions issued by the government or municipal or departmental authorities, such as the cessation of services or limits thereto that imply the impossibility of the worker performing any function within the company.
Once the main options for addressing labor disruptions have been preliminarily stated, we proceed to detail them:
TELEWORKING:
According to Decree 0884 of 2012, teleworking is a form of work organization consisting of performing remunerated activities or providing services to third parties using information and communication technologies as support for contact between the worker and the company, without requiring the physical presence of the worker at a specific workplace.
In Colombia, Law 1221 of 2008 establishes three modalities of teleworking or types of teleworkers, which correspond to the spaces where work is performed, the tasks to be executed, and the worker's profile.
- Autonomous Teleworking: Independent workers or employees who use ICT to carry out their tasks, executing them from any place chosen by them.
- Supplementary Teleworking: Workers with an employment contract who alternate their tasks on different days of the week between the company and a place outside it, using ICT to comply. It is understood that they telework at least two days a week.
- Mobile Teleworking: Workers who use mobile devices to perform their tasks. Their work activity allows them to frequently be away from the office. They do not have a defined place to perform their tasks.
Through Circular No. 0018 of 2020, the possibility has been opened for this modality to be granted and coordinated without the full rigor of current legislation, allowing its execution in a simplified manner.
SUSPENSION OF THE EMPLOYMENT CONTRACT:
In accordance with Article 51 of the Substantive Labor Code, the employment contract is suspended due to force majeure or fortuitous event that temporarily prevents its execution, thus contemplating the possibility that the employment contract may be suspended, which entails the cessation of most of the employer's obligations insofar as the worker does not provide his services precisely because of the suspension of the contract.
This provision applies in those cases where the worker can work but it is impossible to perform his duties, which is why the employment contract cannot be terminated, but it can be suspended.
The event that prevents the execution of the employment contract must be sudden, fortuitous, not planned or premeditated by the employer.
The suspension of employment contracts causes the cessation for the worker of the obligation to provide his services and, for the employer, the obligation to pay salaries and social benefits, which is why it may be deducted from the vacation settlement for the period during which the employment contract was suspended.
GRANTING VACATIONS:
The employer may determine the worker's vacations, by mutual agreement with the worker or unilaterally with 15 calendar days' prior notice (numeral 2, Article 187 of the CST), as well as grant anticipated vacations. It is a valid option if it can be done by mutual agreement or if it is estimated that the company's closure situation may extend beyond 15 calendar days.
FLEXIBLE SCHEDULES:
The ordinary working day tends to be rigid in the sense that if it is exceeded, overtime is incurred. Therefore, the legislator provided for the flexible working day, under which, under certain circumstances, overtime is not incurred and allows workers to arrive at their workplace during less congested hours with less impact on the company's operations.
“The employer and the worker may agree that the weekly working day of forty-eight (48) hours be carried out through flexible daily working days, distributed over a maximum of six days a week with one mandatory rest day, which may coincide with Sunday. In this case, the number of daily working hours may be distributed variably during the respective week and may be a minimum of four (4) continuous hours and up to ten (10) hours per day without any surcharge for supplementary work, when the number of working hours does not exceed the average of forty-eight (48) weekly hours within the ordinary working day from 6 a.m. to 10 p.m.”
It should be noted that none of these options allows the termination of the employment contract with just cause; they correspond to legal mechanisms whose proper use allows the protection of companies as vital actors in the economy and society.
Author: Andrés F. Zafra P. Attorney Consultant AZC