This law was designed to maintain emotional stability and reduce worker stress levels, which were severely affected by the changes resulting from the Covid-19 pandemic, as well as the digitalization of work and the labor hyperconnectivity that such change has demanded, which has not allowed for a clear distinction between working hours and personal, family, rest, and vacation time.
Various studies conducted by the ILO, NGOs, and universities have pointed out the impacts not only on the quality of life of individuals in situations of hyperconnectivity, but also the negative impacts this has on companies, since fatigue is a cause that significantly reduces worker productivity, as well as their analytical and problem-solving capacity, and even affects the rate of absenteeism and the development of occupational diseases such as technological fatigue, burnout, among others. In addition to the above, the Constitutional Court and the Supreme Court of Justice – Labor Chamber, have developed jurisprudential guidelines on the implications of performing functions, tasks, or activities outside the established working hours, as well as the economic implications of worker availability.
Now, in accordance with Law 2191 of 2022, labor disconnection is the right of all workers and public servants not to be contacted by any means, whether technological or not, for matters related to their work activity, outside working hours. Consequently, the employer must refrain from issuing orders or requirements outside working hours, vacations, or rest periods.
However, this right will correspond to the nature of the position.
Therefore, the employer must guarantee the effective enjoyment of leaves, permits, rest periods, vacations, and non-working hours, through the implementation of a labor disconnection policy that will be an integral part of the Internal Regulations and in which the following will be defined:
a) The manner in which such right will be guaranteed and exercised, including guidelines regarding the use of information and communication technologies.
b) A procedure that determines the mechanisms and means for workers to file complaints regarding the violation of the right, on their own behalf or anonymously.
c) An internal procedure for handling complaints that guarantees due process and includes conflict resolution mechanisms and verification of compliance with agreements reached and cessation of the conduct.
Consequently, the worker may bring to the attention of both the company and the Labor Inspector or the Office of the Attorney General, situations that they believe are violating their right to labor disconnection, providing summary evidence that supports and details the facts subject to the complaint.
Similarly, Law 2191 of 2022 established exceptions to labor disconnection that go hand in hand with the position held by the worker:
a) workers and public servants holding positions of direction, management, and trust.
b) Those who, due to the nature of the activity or function they perform, must be permanently available, including the public force and relief organizations.
c) Situations of force majeure or fortuitous event, in cases where it is necessary to fulfill extra duties of collaboration with the company or institution, when they are necessary for the continuity of the service or to resolve difficult or urgent situations in the operation of the company or institution, provided that the absence of another viable alternative is justified.
In this sense, and in cases where the worker is requested to perform work or activities during non-working hours, the time spent executing the action will be recognized as overtime or supplementary work, at the percentages and amounts established in the CST; however, it is clarified that the purpose of the law is that there be no work or requirements outside working hours.
This law has a particularity since it expands the actions considered as workplace harassment stipulated in Law 1010 of 2006, considering the persistent and demonstrable failure to observe disconnection as conduct of workplace harassment.
Similarly, all clauses or agreements that go against the purpose of this law are considered ineffective, which applies to private workers and public servants.
Prepared by: Nathaly Muñoz. Consulting Attorney.