On February 25, 2021, the Ministry of Health and Social Protection issued Resolution 223 of 2021, which modifies the technical annex of Resolution 666 of 2020. The latter adopted the biosafety protocol for all economic activities, public or private, through its technical annex, with the exception of the health sector, promptly providing, in accordance with the guidelines issued by the WHO at that date, the minimum standards of the biosafety protocols that should be followed and guaranteed by the employer and, in turn, those suggested for entering and leaving home, the treatment of workers with suspected COVID-19, and coexistence with infected individuals or those with diseases considered comorbidities.
In a comparative study of the two Resolutions, we find, first, that Resolution 223 is presented as a modification to Resolution 666; however, upon further reading, we find that it modifies Article 2 of Resolution 666, adding the following paragraphs:
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From the above, we find a contradiction in the text of Resolution 223, since its purpose uses the verbs "modify" and "substitute," but upon reading the second paragraph, it indicates that Resolution 666 should be understood as complemented by this one. This situation is reiterated when reading the technical annex. In the same sense, and to continue with such contradiction, Article 2 establishes: "This resolution shall take effect as of the date of its publication and replaces the technical annex that is an integral part of Resolution 666 of 2020."
Now, upon a detailed reading of the technical annex of Resolution 223 of 2021, we find that it brings with it points that require the employer and all sectors of the economy in general to rethink their infrastructure. Since, in the biosafety measures, it adds the item "adequate ventilation," with numerals referring to ventilation in each of the protocols. Such as numeral 3.5, entitled "adequate ventilation," where they established the minimum standards to consider, including: "all work environments must have a high flow of natural air, make necessary adaptations to ensure adequate ventilation, and avoid groups of people working in low-ventilation places" and "in enclosed places, the following ventilation and distancing conditions must be considered" (point 3.5.8), a point in which it specifies the way air should circulate, with artificial systems, air conditioners, suggesting that they operate in maximum air renewal mode and minimum recirculation, guaranteeing at least 4 renewals of the ventilated volume per hour, and it does not recommend the use of fans.
Also, new additions to the technical annex are evident, which are considered relevant; such as that set out in point 3.7.13, where they list mixtures of chemicals used for cleaning, asepsis, and disinfection that should be avoided, since it has been shown that they generate inhalation poisoning. Similarly, point 4.11 on "management of risk situations by the employer" gives the employer the possibility of not only better management but also more flexible management when facing a possible contagion or a risk situation. As in the technical annex of Resolution 666, it establishes "isolation of confirmed cases will be 10 days, unless medical criteria or the health authority considers it necessary to prolong the isolation further." One of the inclusions that draws attention is item 4.11.6, which allows the employer to have certainty about the need for isolation of the worker without a medical disability, and including asymptomatic carriers, who, contrary to the technical annex of Resolution 666, were considered unnecessary to be incapacitated and tested.
Recently, there has been controversy regarding the need or requirement for temperature measurement for entry to commercial establishments, as well as workplaces. In this sense, we must make a distinction between (i) entry to commercial establishments and (ii) to workplaces. We have that, for the first case, both Resolution 666 and Resolution 223 require me as a service provider to "restrict the entry of people who present symptoms of flu, respiratory condition, or fever equal to or greater than 38°C," an item set out in both technical annexes. Although it is true that the Technical Annex contained in Resolution 223 does not expressly require temperature measurement as the previous one does, it not only restricts entry to people with a temperature above 38°C but also obliges me as a service provider to "establish a protocol for verifying suppliers and clients when there is any type of entry to the facilities." Thus, the temperature level of each client, supplier, or third party is not information that can be extracted visually; it is information that requires suitable utensils to obtain such data. Consequently, temperature measurement using a digital thermometer, scanner type, or other means becomes necessary.
Now, regarding the second point, we find that the employer has the obligation to guarantee the good health and environment of the worker (Article 21, Decree 1295 of 1994). Consequently, and given the obligation to restrict the entry of personnel with suspicion, symptoms, or fever, it is the employer's duty to ensure that personnel in the facilities do not have such alteration in temperature, having to take temperature measurements. Thus, it is equally the worker's obligation, in terms of compliance with institutional policies and self-care, not to oppose temperature measurement when entering the company's facilities.
It is worth noting that the "new" technical annex, in its point 3.6.4, "does not recommend the use of disinfectant mats, nor the disinfection of wheels or shoes to reduce transmission." However, by using the verb "recommend," it leaves its use to the discretion of the service provider or employer.
In general terms, the technical annex of Resolution 223 of 2021 starts from the assumption of compliance with biosafety protocols to mitigate and prevent contagion that companies must have, integrating the points set out in a more concrete and concise manner, allowing the employer or service provider better monitoring of compliance with the prevention and self-care protocol for both its clients and suppliers as well as its workers, with clearer and more concrete standards.
Author: Nathaly Muñoz Parra – Consulting Attorney