Law 2088 of 2021 regulates work from home, a modality that has been embraced by many employers during the COVID-19 pandemic period, seeking to facilitate the execution of their workers' activities and thus continue with the company's operations, which was initially outlined by Circular 041 issued by the Ministry of Labor. We find that Law 2088 of 2021 does not differ much from the initial guidelines established by the Ministry of Labor.
We have that Law 2088 of 2021 indicates that the work-from-home modality, in the forms it stipulates, applies to both the public and private sectors, being incompatible for positions that cannot be performed from home and for those workers or public servants covered by special constitutional or legal regimes.
Work from home is defined as the "enablement of the public servant or private sector worker" to perform the functions assigned to them outside the usual workplace on a temporary basis, prioritizing the use of information and communication technologies, computer or analogous means. This enablement does not modify the original contractual aspects of the relationship, nor does it allow for its deterioration. That is, the labor guarantees established in the original and in-person employment relationship will remain intact during the enablement for execution under the work-from-home modality. Consequently, the working hours during this period may be the same as those habitually established at the company's facilities, which implies the generation of overtime, night surcharges, or Sunday surcharges when the worker is requested to carry out activities or functions outside working hours.
The enablement for work from home by the employer, in accordance with Article 2 of Law 2088 of 2021, will occur when "occasional, exceptional, or special circumstances arise that prevent the worker from performing their functions at their workplace," a condition of use that, as indicated, does not differ from that used during the health emergency and mandatory preventive confinement period experienced in 2020.
The right to salaries and social benefits is not subject to modification, since the worker's service continues and, therefore, their right to salary. Regarding the payment of the transportation allowance, as was well established in 2020 by Decree 771 of 2020, a connectivity allowance is generated which is not cumulative with the mobility allowance. However, Decree 2088 expands this concept and establishes that, while the worker or public servant is enabled to perform work from home and also has the right to a transportation allowance, this emolument will be "recognized and paid as a digital connectivity allowance," so the amount of the latter will be equivalent to that granted as a transportation allowance.
Up to this point, we find that Decree 2088 brings together all the conditions and guidelines established in Circular 041 of the Ministry of Labor and other transitional regulations. So, what new elements does Decree 2088 of 2021 contain? Upon a detailed study of the regulation, we have that it establishes certain conditions that are the employer's responsibility so that the work-from-home modality allows the effective execution of both the functions assigned to the worker and the full compliance with the economic activity carried out, as follows:
First, guarantees of enablement are established for officials and public servants regarding the satisfaction of principles inherent to administrative function, essential principles of the Social State of Law, and labor and social prerogatives.
Second, it establishes criteria for the application of work from home, such as coordination, where it requires the employer and worker to develop activities and/or functions harmoniously towards the objectives or goals set, with follow-up on assignments or activities, setting means that allow reporting or evaluation, prioritizing constant communication. Likewise, it establishes the guarantee of labor disconnection with the enjoyment of rest times, permits, vacations, holidays, and leaves for the integral development of the worker, their personal, family, and work environment. And it expressly establishes that "the employer shall refrain from issuing orders or other requirements to the worker outside the working day," since, as indicated before, the enablement for work from home must be carried out under the same labor guarantees, including working hours. Consequently, requesting activities or functions outside the usual working hours generates overtime with its respective surcharges.
Third, the enablement of work from home does not nullify the employer's subordination; consequently, the employer retains the power to supervise the worker's duties, along with actions or acts representing rights, duties, obligations, and prohibitions established in the company. Therefore, forms of monitoring and performance evaluation models must be established, which must be agreed upon and established in advance.
Linked to the previous point, we find fourthly, the obligation of the employer to notify in writing all its workers of the enablement, as well as its duration. Likewise, it obliges the employer to establish procedures for the implementation of work from home, that is, to provide training for the proper use of information and communication technologies or of the elements used by the company that may generate limitations in their use; such training must be included in the company's wellness program.
Fifth, it establishes that the worker may use their own equipment or tools; for this, an agreement must be established between employee and employer. In the absence of an agreement, the employer must supply the computer equipment and systems for the performance of functions. Therefore, in both cases, clear criteria must be established regarding responsibilities, care, custody, and confidentiality not only of the company's information but also of the equipment used for the exercise of their functions.
Sixth, the ARL (Occupational Risk Administrator) must be informed about the work-from-home enablement, indicating the name, ID number, and address of the place where the worker will perform the usual activities of their position. Consequently, the ARL must promote programs that guarantee physical and mental health conditions and safety at work.
Seventh, in companies or entities where communication with citizens or users is required, the company must implement and establish official communication channels that allow their full operation during the work-from-home enablement, keeping a record of requests, channels, and responses issued. It is important to note that the work-from-home enablement must not represent a setback, delays, or lack of quality in attention to functions or service provision to users or citizens.
Finally, the decree establishes a term for the work-from-home enablement, which is three months, extendable only once for an equal period, i.e., a total of 6 months. However, if the occasional, exceptional, or special conditions that prevent the worker from performing their functions on-site persist, the enablement will be extended until such conditions disappear.
Thus, it is important to clarify and differentiate between work from home and teleworking regulated by Law 1221 of 2008, Law 884 of 2012, and Law 2886 of 2016, as follows.
We have then that work from home arises from the occasional, exceptional, and special impediment to perform the worker's functions at the company's facilities or the place it designates, requiring an enablement by the employer to perform such functions at home, while teleworking is the contractual modality in the labor field where the teleworker performs their functions through information technologies.
In the case of teleworking, it is established through an employment contract or an amendment, complying with the requirements set forth in Article 3 of Law 884 of 2012 and Article 39 of the Substantive Labor Code, while work from home is notified by the employer in writing and does not modify the employment contract, nor is it established therein.
Work from home is limited in time according to Law 2088 of 2021, corresponding to a maximum of 6 months or conditioned on the existence of the conditions that gave rise to the enablement, while teleworking does not stipulate a duration different from the duration of the employment contract itself – Teleworking.
Author: Nathaly Muñoz Parra. – Consulting Attorney