Decree 649 of 2022 was issued by the Ministry of Labor to regulate the enablement of work from home for employers and workers in the private sector, as well as the necessary conditions for its development, a modality that was regulated by the Congress of the Republic through Law 2088 of 2021.
In this sense, it was established that work from home will be an option for those workers who request it from their employer or, on the contrary, for those employers who decide to choose to enable work from home for one or more of their workers.
Now, we may ask ourselves when this enablement of work from home can be made effective. In this regard, the regulation establishes that when occasional, exceptional, or special circumstances occur, understood as those extraordinary and unusual situations that are estimated to be surmountable over time and are attributable to external events, workers may request the employer to enable working from home or, on the contrary, the employer may determine by its own will to grant this enablement to one or more of its workers.
In addition to the above, the following criteria must also be taken into account to determine whether the enablement of work from home is appropriate, namely: i) that the work can be performed outside the usual place of work, without prejudice to the adequate personal provision of the contracted service; ii) that the required tools for the enablement of work from home are available; and iii) that the enablement of work from home does not generate lower productivity of the worker.
Now, the regulation mentions that in any case, the request for the enablement of work from home must be in writing and must be supported by one of the aforementioned causes, if it is by the worker; but if the decision is the employer's initiative, the employer must send the respective communication physically or digitally. The Decree also stipulates that the mere request for this enablement by the worker does not give the right to opt for it immediately, since the employer's positive response is mandatory.
On the other hand, the regulation establishes special obligations that fall on the employer, the worker, and the Occupational Risk Administrators, so that the enablement of work from home is possible.
On one hand, it indicates that the first thing the employer must do is communicate to the Occupational Risk Administrator about the enablement of work from home, indicating the address from which the contracted work will be performed, as well as any modification to it, and the period for which the enablement was granted; in this case, the Occupational Risk Administrator will be obliged to implement all necessary promotion and prevention actions, taking into account the Occupational Safety and Health Management System. In addition, it must make pertinent recommendations to the employer and the worker so that work from home is safe and the risks of illness or accidents at work are reduced.
In turn, the employer must have the necessary procedure to protect the worker's right to digital disconnection; it must guarantee the appropriate use of information and communication technologies through training; it must include work from home in its methodology for the identification, evaluation, assessment, and control of hazards and risks of the company, adopting the necessary actions according to its annual Work Plan of the Occupational Safety and Health Management System; it must inform workers of the communication mechanisms to report any developments arising from the enablement of work from home and instruct workers on reporting occupational accidents or illnesses; and finally, the employer must carry out actions and programs for the protection and respect of human dignity for the enablement of work from home, equal treatment regarding access to information, and the worker's right to intimacy and privacy.
Likewise, the worker must strive for the comprehensive care of their health and, if applicable, communicate to the employer any changes in this regard; secondly, they will be obliged to participate in prevention and promotion activities organized by the company; they must also report occupational accidents, incidents, and disabilities, and generally follow all recommendations of the employer and the Occupational Risk Administrator; they must use all personal protection elements, must follow all instructions regarding computer security issued by the employer; and must provide the employer, in advance, with no less than five days' notice, of any changes of address they plan to make, likewise, they must provide the new address of their home and maintain the agreed site to perform the contracted work.
The decree under study also regulated the possibility that the employer and worker, by mutual agreement, may agree on a monthly compensation value for the use of work tools owned by the worker and, on the other hand, the possibility of developing work from home under the modality of alternation, that is, that the development of the contracted work is carried out some days of the week in person and other days through the enablement of work from home.
Finally, the decree establishes the possibility that the enablement of work from home can be carried out to work from abroad, provided that there is express authorization from the employer and that the employer, in turn, complies with all the obligations described above. In addition, the employer must ensure that the worker is affiliated with the Occupational Risk Administrator and the Comprehensive Social Security System so that the worker can enjoy all the benefits granted.
Finally, it is important to emphasize that the enablement of work from home should not be confused with or given the same treatment as remote work and telework in any of its modalities, since all have different characteristics, conditions, and procedures for their effective application.
LABOR LAW.