Since the coronavirus pandemic, the labor world has accelerated the adoption of one of the contracting modalities already regulated by our legal system, “TELEWORK”, because, although this type of contract has existed for decades, the health crisis, coupled with the need to use new technologies and digitalization, allowed the consolidation of telework as one of the predominant contracts in the labor sector today. In Colombia, Law 1221 of 2008 and its Regulatory Decree 884 of 2012, as well as Resolution 2827 of 2017 of the Ministry of Labor, regulate the purpose and aim of this type of contract, and also establish the minimum occupational safety and health conditions that must be guaranteed; these regulations oblige employers to implement adequate OSH measures for teleworkers, who must have the same conditions of protection as those working in the company's offices.
The Colombian regulatory framework on telework has represented a great advance in the formalization of this labor modality, which has positive aspects as well as areas for improvement, among which we find certain key points to consider. One of them is that not all workers have access to the same technological and infrastructure conditions in their homes, which can affect the proper performance of their labor obligations. It is also foreseeable that isolation and the lack of separation between work and personal life can have negative effects on the mental health of teleworkers, an aspect that is not yet sufficiently addressed by current legislation.
On the positive side, it is emphasized that telework has allowed many companies to continue operating and employees to keep their jobs, but it has also revealed the need to adapt minimum and necessary measures in the field of occupational health, with a direct focus on preventing occupational accidents and the derivation of occupational diseases, ensuring a safe work environment even outside the traditional company facilities.
Now, in relation to occupational safety and health, we understand that the employer must guarantee the delivery of the elements and tools for development under conditions adequate to the contract entered into. In the case of telework, a general concern arises for companies: Are the tools, equipment, and elements supplied by the employer or by the teleworker? To answer this question, we have that, according to the provisions of Resolution 2827 of 2017, the employer is the one who must supply the tools for carrying out telework, such as: computer equipment, software, virtual repositories, and programs required for the development of the contracted work, with the teleworker being responsible for the obligation and duty of care of the equipment and tools supplied. Another scenario may also arise in which, for example, the worker is the one who makes their own equipment and work tools available to the employer, in which case the employer is obliged to recognize a monthly compensatory amount for the use of these tools.
On the other hand, directly addressing the risk factors that may arise in telework, Decree 884 of 2012, in Article 8, maintains the obligation for the employer not only to establish an occupational safety and health policy, but also to include strategies that promote the health of the worker, as a way to prevent risk factors, especially psychosocial risks. In addition to the above, the creation of Law 2191 of 2022, better known as the Labor Disconnection Law, became necessary, which is consistent with Law 1562 of 2012 to provide greater protection for the worker, regarding respect for the spaces in which the teleworker cannot be required.
In relation to psychosocial risks and possible occupational diseases that may arise, the availability of the worker, the number of working hours, the household burden, the use of technologies, the digital divide, burnout syndrome, both extra-occupational and intra-occupational factors, among others, can harm the physical and/or mental health of the teleworker and can also generate both objective and subjective liability, the latter in accordance with Article 216 of the Substantive Labor Code (private sector) or with the elements of direct reparation (public sector).
Under this context, we have that, although the current regulations in Colombia offer a solid foundation, it is necessary to continue adjusting and perfecting them to address emerging challenges. To this end, companies can put into practice certain actions such as, (i) conducting an adequate risk assessment with the active participation of teleworkers, (ii) implementing continuous training programs on ergonomics, time management, and mental well-being, (iii) providing teleworkers with the necessary equipment to perform their tasks safely, such as ergonomic chairs and appropriate technological devices, (iv) establishing clear labor disconnection policies to avoid burnout and promote a healthy balance between work and personal life, and (v) facilitating non-invasive supervision mechanisms and offering psychological support to workers who need it.
In conclusion, it is clear that telework has become an essential part of the modern labor landscape. Ensuring that teleworkers have adequate safety and health conditions is fundamental to their well-being and productivity, guaranteeing that all workers, regardless of where they are, can work in a safe and healthy environment.