Within labor relations, employers must comply with the obligations agreed upon in the employment contract, as well as those contained in Article 57 of the Substantive Labor Code, which includes, among others, the affiliation and payment of contributions to comprehensive social security: health, pension, and occupational risk insurance for their workers, as regulated by Law 100 of 1993.
Thus, workers affiliated with comprehensive social security are entitled to economic benefits, such as the recognition and payment of temporary disability subsidies, compensation for permanent partial disability, disability pension, old-age pension, survivor's pension, and funeral assistance.
Now, regarding the stage of social security in health, under Law 100 of 1993 and Law 1753 of 2015, in cases where workers have medical disabilities of common origin and occupational illness, the responsible parties for the economic recognition of disabled workers have been determined, establishing time limits to identify those responsible for payments, as follows: the first two (2) days of disability correspond to the employer; from day 3 to 180, it is the responsibility of the EPS (Health Promoting Entity); from day 181 to 540, it is the AFP (Pension Fund Administrator); and from day 541 onwards, the EPS must make the payment of medical disabilities. When the disability is of occupational origin, the ARL (Occupational Risk Administrator) is responsible for the recognition and payment of the economic benefit.
However, a question arises regarding those relationships that are not of labor origin but where there is a relationship that may resemble subordination, such as apprenticeship contracts. The aforementioned contractual modality, which lacks a labor nature, is framed within the professional development of students who are pursuing technical studies through public training entities such as SENA, or in private higher education institutions, where they are hired by sponsoring companies to carry out their professional internship stage, in exchange for economic support, which does not constitute any salary. It is important to highlight that in this type of contractual relationship, the sponsoring company must affiliate the interns to social security in health and occupational risks, depending on the stage they are developing: if the intern is in the learning stage, they must recognize 50% of a minimum wage as economic support and must affiliate them to the EPS; when they are in the productive phase, they must recognize 100% of the minimum wage and must affiliate them to the ARL, as indicated by Article 30 of Law 789 of 2002. However, they do not have the legal burden to make the affiliation to the pension social security system, as there is no legal or jurisprudential provision that obliges sponsoring companies to contribute.
Now, returning to the concept of social benefits of the comprehensive social security system regarding medical disabilities, delving into the apprenticeship contract, and as previously studied, if the intern suffers from a disease of common origin, in application of the provisions of Law 100 of 1993, being affiliated with social security in health, it will be the EPS who will recognize and pay the medical disabilities for the first 180 days. The doubt arises when, in the same contractual scenario, said medical disability exceeds 180 days, since there is no legal, contractual, or even jurisprudential provision that orders sponsoring companies to bear the burden of affiliating apprentices to the pension system, therefore, there is a clear gap when such disabilities extend over time, surpassing the term where the EPS is responsible.
Therefore, in Judgment T-425 of 2021, the Constitutional Court, when reviewing the particular case of an apprentice who was disabled for more than 180 days, where the recognition and payment of disabilities was requested from the EPS and the sponsoring company, indicated that there is no legal support that obliges the EPS, sponsoring company, or any other responsible party of the comprehensive social security system to recognize and pay medical disabilities of common origin exceeding 180 days, as it is a contract that lacks a labor link.
The above allows us to understand that apprentices do not have the opportunity to access the economic benefit in the payment of medical disabilities after day 181 from the AFPs, since the law did not contemplate the obligation to affiliate them to the pension system within the framework of the apprenticeship contract.
Finally, it is concluded that companies with apprentices should only comply with the burden of affiliation to the social security system in health and pension respectively at the time of the development of the internship. Meanwhile, the scope of apprenticeship contracts is clarified, it is recommended that sponsors guide apprentices regarding a potential risk that generates a disability exceeding 180 days, make voluntary contributions to the pension system, since in this way they can guarantee, in the event of a medical contingency of common origin, the recognition of the economic benefit that allows them to cover the expenses of the respective treatment.ovilidad between EPS.