Decree 1227 of 2022, which came into force on July 18, 2022, amends and adds certain articles to Decree 1072 of 2015, the sole regulatory decree for the labor sector, regarding teleworking. These amendments and additions were made to promote teleworking as a form of work organization, seeking to eliminate barriers that hinder its implementation.
TELEWORKING CONTRACT OR EMPLOYMENT RELATIONSHIP
Decree 1227 of 2022 amended the requirements that the teleworking contract must contain, emphasizing that the following must be expressly stated therein: 1) the conditions necessary for the performance of the assigned functions, the required technological and environmental means, as well as the description of equipment and computer programs, together with the restrictions and responsibilities that may arise from their breach. 2) the teleworking modality to be executed (mobile, supplementary, or autonomous) and the applicable weekly schedule. 3) the responsibilities regarding the custody of work tools and the procedure for the return of equipment by the teleworker upon termination of the teleworking modality. 4) the digital security measures that the teleworker must know and comply with. 5) the description of the minimum requirements of the workstation for the development of the contracted work, in ergonomic and technological aspects.
Although these requirements were set forth in other teleworking regulations, this decree places greater emphasis on all matters related to the description, responsibilities, and restrictions regarding equipment and computer programs, and the description of the minimum requirements that the workstation must have.
ELIMINATION OF THE ADDITION TO THE INTERNAL WORK REGULATIONS AND CREATION OF AN INTERNAL TELEWORKING POLICY
On the other hand, the decree eliminated the obligation imposed on the employer to include in the Internal Work Regulations matters related to the implementation of teleworking. Instead, it established that those who have not implemented teleworking in the Internal Work Regulations must adopt and publish virtually an internal policy regulating the terms, characteristics, and conditions of teleworking according to the needs and particularities of the service and in accordance with the provisions of Article 2.2.1.5.18 of Decree 1227 of 2022.
OBLIGATIONS OF THE EMPLOYER, WORKER, AND ARL
Third, the obligations of each party in the development of teleworking are enumerated and expressly set forth, namely, the obligations of the employer, the worker, and the ARL (Occupational Risk Administrator). In relation to the obligations that could be logically deduced from previous regulations, this decree places greater emphasis on the employer's obligations, including the duty to inform the ARL of the chosen teleworking modality, to guarantee the right to digital disconnection, to register teleworkers by completing the digital form proposed by the Ministry of Labor, to order occupational medical evaluations, to train the teleworker in person or virtually prior to the implementation of said modality, and to inform the teleworker of the restrictions and sanctions that may arise from non-compliance with digital security measures.
ELIMINATION OF BARRIERS TO THE IMPLEMENTATION OF TELEWORKING
It is also established that, whenever there is an agreement between the parties regarding the implementation of teleworking, its implementation cannot be conditioned based on requirements that imply barriers such as: requiring prior visits to the workstation and requiring information systems to monitor teleworking activities, among others. Likewise, it indicated the possibility that the visit to the workstation could be carried out virtually, not limiting it to in-person visits.
REVERSIBILITY OF TELEWORKING
Regarding the reversibility of teleworking, it is indicated that if there was previously a conventional employment contract and subsequently the worker begins to work under the teleworking modality, at any time, the employer or the worker may request the definitive return to the performance of their duties at the company's, entity's, or workplace's facilities, while workers hired for the first time under this teleworking modality cannot later demand to perform their work at the employer's facilities, unless the parties mutually agree otherwise.
COMPENSATORY ALLOWANCE FOR PUBLIC UTILITY COSTS AND AGREEMENT ON EXEMPTION FROM PAYMENT TO THE EMPLOYER
The possibility of stipulating in the employment contract a monthly compensatory allowance for public utility costs such as internet, landline and mobile telephony, and electricity is established. However, the possibility of making an exemption agreement with the worker so that the latter assumes the full cost of public utilities is also expressly stated. This agreement must be expressly agreed in the contract.
COMPENSATORY ALLOWANCE FOR THE USE OF WORK TOOLS OWNED BY THE TELEWORKER
On the other hand, the possibility is stipulated that the work equipment and tools may be provided by the teleworker himself and not necessarily by the employer, in which case, by mutual agreement with the worker. A monthly allowance must be set in the contract to compensate for the use of work tools owned by the worker, and likewise, the worker will be obliged to maintain the equipment in good functional condition to meet the requirements of the service.
Juliana Tobón T. – AZC CONSULTING ATTORNEY