Decrees, orders or guidelines in effect and pertaining to reopening facilities.
From 25 March 2020 until 1 July (00:00), different mandatory preventive isolation measures have been implemented throughout the country restricting most activities, allowing some under precise conditions to guarantee the life, health and survival rights of all inhabitants, while trying to minimise the impact of the COVID-19 epidemic on health systems, social services and overall economic activity. All professional and technical occupations, general services and retail trade are among the few activities exempt as from 1 June, and is understood as reflecting the entirety of the nation’s reopening.
Thus, the Colombian government permitted a gradual reopening of different activities on a stage-by-stage basis, as long as the companies had fulfilled the protocols and the authorities had granted the necessary permissions.
In addition, the Ministry of Health and Social Protection has declared the National Health Emergency as of 12 March and until 31 August (Resolutions 385 and 844), which:
- restricts all international and domestic flights during the emergency period, with some specific exceptions (force major or humanitarian reasons);
- significantly limits travel between cities; and
- suspends the pertinent administrative procedures followed by most authorities.
Optimal approach to keep track of the latest updates.
During this Health Emergency, Lopez & Asociados has granted access to the public to the firm’s online newsletters, in order for employers to gain insights on the latest COVID-19 related legal developments:
- English version: https://lopezasociados.net/eng/news-3/
- Spanish version: https://lopezasociados.net/actualidad-2/
 Decrees 457, 531, 593, 636, 689 and 749 of 2020.
Government subsidies and special relief resources allocated to support employers, and workers, in their efforts to maintain employment and pull through the crisis.
On two separate occasions in 2020, the Colombian government declared a nationwide State of economic, social, and ecological Emergency, allowing the President to take any decision required to cope with the COVID-19 crisis. As a result of the powers afforded to address this pandemic, the government further approved exceptional aid in order to provide support and to minimise the economic impact of the outbreak:
Regarding the unemployed:
- access to the Layoff Protection Mechanism has been simplified and its scope has been magnified, while the requirements for access to the severance aid payment (one month of salary payed yearly by the employer to a fund) have been moderated. Lastly, economic aid for the unemployed, up to USD $430 (approximately two months of minimum wage) has also, under certain conditions, been extended.
Regarding the formal sector (e.g. encompasses all jobs with normal hours and regular wages, and are recognised as income sources on which income taxes must be paid):
- for the months of April and May 2020, employers, employees and independent workers in Colombia could contribute with a reduced pension rate of 3% (regularly 16%), which will only be considered for minimum pensions (1 minimum salary).
- for the months of May, June, July and August 2020, the government has granted a subsidy of 20% or more to the income of every employer in the country, financially affected by the outbreak of COVID- 19. Once the authority has verified the fulfillment of the minimum conditions, the employer could be entitled to receive a subsidy equivalent to (approximately) USD $95 per qualified employee.
- to pay the legal service bonus in June 2020, the government created a subsidy in favor of employees earning the monthly minimum wage up to US $260 (approximately), which is equivalent to (approximately) USD $58 per qualified employee.
- finally, for those employees whose employment contracts have been suspended, the government will grant aid up to (approximately) USD $42, on three occasions (3x).
Requirements mandated by law or any official guidance.
The Ministry of Health and Social Protection issued Resolution 666 of 2020 to adopt the General Biosecurity Protocol as a means to mitigate, control, and adequately manage the COVID-19 pandemic, which has been received as a novel approach in the region in order to effectively cope with the risks of the virus. Broadly, Resolution 666 requires from companies:
- the design and implementation of a suitable Biosecurity Protocol;
- the adoption of administrative measures to reduce the employees’ exposure to COVID-19;
- the update on the matrix for the assessment, valuation and control of occupational risks;
- the request to the Occupational Risks Insurance Companies (ARL by its acronym in Spanish) for support and assessment;
- the creation of interaction protocols for the company’s suppliers, clients and external providers; and
- the consolidation and update of a complete database.
Furthermore, local governments may have additional requests or limitations applicable to both companies and inhabitants of the region, respectively, according to the current infection rates and the DORSCON levels (Disease Outbreak Response System Condition), which has already transpired in some sectors in Bogota and other cities (Cali and Cartagena) nationwide.
Measures typically implemented by employers and the associated legal risks, limitations, obligations and issues to consider.
Aiming at the fulfillment of their obligations, companies have designed innovative protocols to prevent the expansion of the COVID-19 virus. Among the measures taken, they have established:
- frequent temperature checks;
- daily health reports logged in a database by employees, contractors, suppliers and, in general, any individual in the company’s facilities;
- rational use of Personal Protective Equipment (PPE);
- physical distancing (two square meters of space per person);
- gatherings limited to up to five people;
- shift work rearrangements to avoid unhealthy working times and crowds;
- continuous sanitation and disinfection of workplaces; and
- provisions on alcohol and sanitising elements.
Policies and procedures for telework once the business reopens.
As of 1 June, most services can now be provided throughout the country under certain conditions, while employers have been persuaded to maintain measures for remote work and teleworking for as long as possible during the National Health Emergency. Home-based work and teleworking are two different and separate labour arrangements in Colombia. The former is occasional, temporal, and has been used broadly during the pandemic. On the other hand and during the COVID-19 Emergency, teleworking conditions have been relaxed. Normally, the parties should agree to, or at least have a view towards policies, concerning exceptional shift work rules, occupational risks, labour accident reports, work equipment and extraordinary allowances (payment of utilities, wi-fi), among others (Law 1221 of 2008).
Management of quarantine, childcare and medical leave for employees affected by COVID-19.
The provisions that the Colombian government has enacted to support most common COVID-19 employee issues are by some means limited:
- as of now, Colombia’s government has not created any special leave for parents that would allow them to take care of their children during school closures, which could likely be extended until August (most schools in Colombia have the normal long break at the end of the year);
- in any case, Colombian law recognises paid leave when the employee is unable to perform work as a result of a calamity that, for the employee, should be external, unforeseeable and unpredictable;
- the government included COVID-19 as a work-related disease exclusively for workers in the health sector. This classification essentially impacts the amount of the payment that the employee may receive in case of a medical-leave, or a disability support pension, as a consequence of the disease;
- a difficult and common situation facing employees, who are neither infected nor entirely healthy, but who also present symptoms of the COVID-19 virus. In those cases, even when they do not receive an unable-to-work certificate, employers concede a paid isolation measure.
Employees who fear infection and refuse to work.
Having the severity of the General Biosecurity Protocol that every employer needs to adopt previously to call their employees back to work to their facilities, they should not have a reasonable excuse or fear of returning. Therefore, any refusal could be a reason to initiate a disciplinary procedure. However, those employees categorised as a vulnerable person to the virus, according to the Resolution 666, are legally allowed to work remotely.
Disclosure of employees who are infected.
The Colombian government requires health reports to be logged in a database and updated daily, exclusively to control and prevent the spread of COVID-19, requesting specific information concerning details about livelihood, location, health symptoms and results of any COVID-19 testing, among others. Therefore, certain mobile applications have been developed to easily track such valuable data (e.g. CORONAPP, at a national level or GABO in Bogota), which everyone should download and keep up-to-date.
To what extent can employers implement the following cost-reduction strategies as a result of COVID-19, and what are the primary limitations on each?
In order to guarantee the rights of employees, the Ministry of Labour has announced extraordinary investigative procedures (Rigorous Labour Audits) that carry with them severe penalties for violations thereof.
Colombian Law specifies seven circumstances in which a contract of employment could be suspended. During the COVID-19 outbreak, there are, in particular, three that may be used:
- First, the employer could be prevented from any service by a force majeure. In this event, a notice must be sent to the Ministry of Labour, so they may verify the force majeure.
- Second, if the activities have been suspended up to 120 days, the employer should petition the Ministry of Labour for authorisation to suspend the contracts of employment, based on technical, economic, or other reasons beyond their will, prior to the commencement of such suspensions.
- Third, the parties to the contract may freely and willingly agree to the suspension of the contract.
The effect of the suspension of the contract of employment, for any reason, will mainly be a cost reduction, as the employer will not have to pay any salary, wages, entitlements to annual paid leave (vacations) or severance payments to the employee.
- Salary reductions.
The Colombian government has not enacted any changes with respect to the possibility for the parties to the contract of employment to reduce the salary, or even adjust the shift work to the current and real working conditions. Therefore, as long as any agreement is reached freely and willingly, the parties to the contract may acquiesce to temporarily reducing the employee’s salary.
- Working time arrangements.
During the National Health Emergency, the parties to the contract could agree to institute special conditions for shift work, in order to avoid crowds in public transportation and workplace settings, as well reducing the overtime payment.
- Redundancy and Facility closure.
Finally, the law establishes a collective dismissal procedure for employers in case of complete or partial facility closures. Employer should petition the Ministry of Labour for authorisation to terminate the contract of employment of a large number of employees, depending on the headcount, while proving the grounds for the collective dismissal.
Tips, recommendations and common pitfalls.
We recognise four principles that should be applied in any reactivation plan: graduality, reasonability, timeliness, and clarity in the protocol to be implemented. Moreover, based on the UN recovery plan and the ILO four-pillar policy framework, the following general steps are recommended:
- First, companies should analyse each activity in the light of the General Biosecurity Protocol, with the aim of structuring their own reactivation plan accordingly.
- Second, having a suitable company-wide protocol in place will harmonise the employment and administrative arrangements for every employee. Such agreements could include the reduction of shift work, salaries, aids or allowances, the implementation of permanent teleworking measures or the organisation of worktime between the employees. Lastly, the parties to the contract of employment could also agree to its termination, providing for an expedited activation process that also avoids any anticipated claims. Whichever strategy is adopted, when the company is structuring any agreement with their employees, it is critical to foresee any eventual claim based on a lack of willingness to adhere to the agreement; therefore, a virtual signing protocol should be in place to guarantee that the employees are entering into the employment agreement freely and willingly.
- Third, in case the company should notice an economic impact due to the COVID-19 pandemic, it is highly recommendable to analyse the opportunities available to employers to apply for aid and relief measures which the Colombian government has created in order to provide support to the formal sector.
All things considered, each measure should be analysed carefully and on a case-by-case basis. It is equally imperative that employers remain well-informed of the current and ongoing changes to the law, enacted to cope with the emergency.
If you have any questions, please contact either of the following representatives:
Mr. Alejandro Miguel Castellanos López, Partner
López & Asociados
T: +57 1 3406944
Ms. Luz Ángela Duarte, Leader – Business Structure
López & Asociados
T: +57 1 3406944