The coronavirus worldwide outbreak has caused the Colombian Government to undertake the following measures:
Newsletter 017 of February 24, 2020 from the Ministry of Labor
- Channels of communication with the Health Authorities in order to report suspected cases of COVID-19 in a timely manner. As well as the obligation for workers and contractors to follow the guidelines issued by authorities regarding the preparation, response and care for these types of cases.
- Follow-up of guidelines. Compliance with the protocols determined by the Ministry of Social Protection regarding the preparation, response and care of cases with COVID-19.
- Implementation of internal actions. Companies duty to train their employees regarding hand washing; provision of soaps and disinfectants and disposable towels; provision of personal protection elements; reinforcement of cleaning measures in workplaces, especially of devices frequently used by workers (such as telephones, printers).
- In case a Company has employees arriving from China, they must comply with a series of special obligations during the first 14 days after arriving in Colombia, such as: working from your home; reduction of face to face meetings; in the event that there are meetings, they must be held in ventilated spaces and must maintain distance from attendees; relocation in case of customer service.
Newsletter 018 of March 10, 2020, From the Ministry of Health and Social Protection
- To minimize negative health effects in the public and private sector:
- Promote permanent hand washing and disinfection of workspaces.
- Provide clear and timely information on measures taken.
- Employees and public officials must report any suspected symptoms or contact with a diagnosed person.
- Provide training for the prevention of coronavirus.
- Inform the health secretary or territorial health directorate about cases where there is suspicion of COVID-19.
- Temporary and exceptional preventive measures:
- Authorize telecommuting work to those who have arrived from any country with incidences of coronavirus cases, as well as to those who have come in contact with patients diagnosed with COVID-19 and to those who suspect they have the virus.
- Implement flexible work hours.
- Decrease the number of face-to-face meetings.
- Avoid crowded areas or places.
Newsletter 11 of March 9, 2020 from the Ministry of Health and The Ministry of Commerce
- For those responsible for places or events that have a high influx of people and for the community in general:
- Report all prevention measures, symptoms and diagnosed through all media sources used to promote the event.
- Promote the use of the CoronAPP.
- Have antiseptic gel available.
- Have toiletries in the bathrooms on site.
- Train and inform workers regarding the disease, its prevention, diagnosis, risk detection measures as well as how to manage it within the event.
- Verify the use personal barrier protection elements.
- Shopping centers: disinfect and clean all common areas.Disinfection of all Internet and communication areas.
Decree 081 Of 2020 of March 11, 2020 from Bogota District.
- Article 4 – The aim is to urge citizens to adopt the following measures:
- Companies must try to organize employees to work from home when possible.
- For those who must provide their services on company premises, the Company must schedule at least three entry and exit shifts.
- Universities and colleges should try to have online classes.
- Disinfection of stations and buses of the public transportation system (Transmilenio system).
- Schools and public establishments must wash and disinfect all common areas daily.
- Sinks and hygienic material will be installed in some Transmilenio stations.
- Optimal aseptic conditions for potable water tanks.
- Article 6 – Social State Companies, Health providers, administrators of benefit plans, ARL and administrative authorities, will carry out all necessary actions to comply with the aforementioned measures.
Resolution 385 of March 12, 2020 from the Ministry of Health and Social Protection
- Article 1: Declaration of a health emergency until May 30, 2020.
- Article 2 ° Sanitary measures – mandatory compliance:
- Suspension of events with more than 500 people.
- Commercial establishments and supermarkets must adopt hygienic measures that allow the community and its workers access to their hygienic services.
- Suspension of transit of passenger and merchandise vessels originating from international waters.
- All managers, legal representatives, public and private administrators must adopt preventive measures. Use of telecommuting work should be promoted as much as possible.
- All responsible of means of transportation must adopt hygienic measures.
- Comply with binding measures determined in newsletters issued by Colombian ministries regarding the prevention of spread of the virus.
- Order the mass media to provide free information regarding the current health situation as well as all protective and preventive measures.
- Order all health service providers to facilitate access to the health system.
- Article 4 ° – 14 days of Isolation and quarantine. Travelers who reside in Colombia, must be moved to their place of residence, and assume all expenses.
Newsletter 021 of March 17, 2020 from the Ministry of Labor
- Guidelines for employers in order to protect employment:
- Work from home: occasional, temporary and exceptional measure, different from telecommuting.
- Telecommuting work: Must comply with current regulations. Law 1221 of 2008.
- Flexible hours: in accordance with the provisions of literal d) of article 161 of the Colombian Labor Code, literal c) of said article.
- Paid vacation leave (annual, anticipated or collective): Mitigate the consequences of the health emergency that is currently causing decrease in production and income or in case the Colombian Government orders any mandatory isolation measures.
- Paid leave: Article 57 of the Colombian Labor Code: proven domestic calamity.
- Salary without provision of the service: as contemplated in article 140 of the Colombian Labor Code.
Resolution 380 of March 10, 2020 from the Ministry of Health and Social Protection
- Article 1 – Orders mandatory isolation and quarantine for people arriving from China, Italy, Spain and France.
Resolution 407 of March 13, 2020 from the Ministry of Health and Social Protection
- Article 2º – Orders employers to implement health control measures to prevent the spread of COVID – 19, by promoting telework and work from home.
Resolution 408 of March 15, 2020 from the Ministry of Health and Social Protection
- Article 1: Deny entry into Colombian territory to everyone except:
- Colombians and foreigners residing in Colombia.
- Foreigners who initiated their flight before the Resolution comes into effect.
- Aircraft crew.
Regarding foreigners who were denied entry, the airline must return them on the next available flight.
- Article 2: Quarantine and isolation for 14 days for people entering the country by air travel, a measure applied to the people mentioned in Article 1. The quarantine will take place in the travelers’ residence or a lodging location chosen for this purpose.
- Article 3: airline responsibilities:
- Verification of documentation.
- Deny boarding to those who do not have documentation or do not meet the requirements to enter the country.
- Inform all passengers of the sanitary recommendations to avoid spread and the consequences of non-compliance, before boarding the plane.
Presidential Directive No. 2 of March 12, 2020
- Work from home with use of technology of information: does not constitute telework, as telework is regulated by Lay 1221 of 2008 which determines the obligations for the employer such as an adequate workspace as well as payment for expenses towards the worker. While working from home is done occasionally and does not require any of those conditions.
- Use of collaborative tools:
- Minimize face-to-face meetings, make use of ICT.
- Make use of virtual platforms for trainings that cannot be postponed.
Decree 412 of March 16, 2020 from the Ministry of Internal Affairs
- Article 1º – Closing of borders with Panama, Ecuador, Peru and Brazil as well as continue with the closure of the border with Venezuela which was ordered through Decree 402 of March 13, 2020 from the Ministry of Internal Affairs.
- Article 2 – exceptions to border closures:
- Transits due to fortuitous event or force majeure.
- Freight transport
Press Conference of March 16 of 2020 from the Ministry of Health and Social Protection.
- The Minister announced that as of Monday, March 16, 2020, all gatherings of more than 50 people would be banned in order to prevent the spread of the virus and stated that public establishments such as pubs, clubs and nightclubs would be closed.
Agreement from the Superior Council of the Judiciary, of March 15, 2020
- The Superior Council suspended legal terms for judicial proceedings starting March 16, 2020 until March 20, 2020, allowing proceedings regarding writs of amparo and habeas corpus.
Presidential speech from March 17 of 2020
- The President announces that a State of Emergency based on article 215 of the Political Constitution will be decreed and ordered mandatory isolation for people over 70 years of age until May 31.
Bogota District Announcement March 17 of 2020
- Home isolation mandatory drill during March 20, 21, 22 and 23, 2020.
Decree 417 of 2020 of March 17, 2020 from the Colombian Government
- Article 1: Declaration of a State of Economic, Social and Ecological Emergency for 30 days.
Decree 147 of March 18, 2020 from the Province of Cundinamarca
- Article 1: Suspension of meetings, agglomerations, economic or social, civic, political or religious activities, whether public or private, of more than 50 people.
Decree 418 of March 18, 2020 from the Ministry of Internal Affairs
- Article 1º – The President is in charge of the direction of public order for the prevention of COVID – 19.
- Article 3º – All public order decisions adopted by mayors and governors must be communicated to the Ministry of Internal Affairs.
Presidential Speech from March 19 of 2020
- Deny entry to all international travelers including Colombian citizens for a period of 30 days, starting March 23, 2020.
Decree 420 of March 18, 2020 from the Colombian Ministries
- Article 2º – Prohibition of consumption of intoxicating beverages in public places, meetings and crowds:
- The consumption of alcoholic beverages in public places is prohibited starting from March 19, 2020 at 6:00 p.m. until May 30, 2020 at 6:00 a.m.
- Prohibition of meetings or agglomerations of more than 50 people.
- Article 3 – Mayors and governors may decree a curfew for children and adolescents.
- Article 4 – Additional Public Order instructions that mayors and governors must take into account when making decisions that restrict the right of movement:
- Prevent the transportation of passengers by road.
- Transit restriction on roads of national order.
- The suspension of activities in establishments and commercial premises does not apply to the following industries: food, beverage, basic necessities, pharmaceutical, medical, optical, orthopedic products, grooming, food and medicine for pets.
- The closure of establishments and commercial premises will not extend to online sales or deliveries.
Decree 090 of March 19, 2020 from Bogota District
- Completely limits the free movement of vehicles and people in Bogota starting March 19 at 11:59 p.m. until March 23 11:59 p.m.
- The following Vehicles and people are exempted:
- Purchase and Supply of food, pharmaceutical, health and basic necessity products. Only one person from each family may circulate.
- Provision of administrative, operational or professional health services in the public and private sector.
- Institutional or home care for the elderly, people under 18 years of age, dependents, the sick, people with disabilities or especially vulnerable people, and animals.
- Public order, general security and health care.
- Address matters of force majeure or extreme need.
Newsletter 022 of March 19, 2020 from the Ministry of Labor.
- Suspension of legal terms.
- No authorization has been made regarding collective dismissals nor suspension of employment contracts.
- Declaration of force majeure corresponds to a Colombian Judge.
- Employers must take into consideration all alternatives determined in newsletter 021 of 2020.
- Implementation of a Rigorous Labor Audit regarding the inspection, vigilance and control over all measures taken by employers towards employment contracts during the course of the current Health Emergency and Social, Economic and Ecological Emergency declared by the President.
Resolution 803 of March 19, from the Ministry of Labor
- Prioritize investigations regarding all requests for collective dismissals and suspension of contracts due to force majeure due to the high economic impact.
Agreement from the Superior Council of the Judiciary, of March 19, 2020
- Extends the measures taken in the agreement of March 15, 2020. The Superior Council extended the suspension of legal terms for judicial proceedings starting March 21, 2020 until April 03, 2020, allowing proceedings regarding writs of amparo and habeas corpus.
Agreement 1420 of March 19, 2020 from the Supreme Court of Justice
- The Supreme Court of Justice closed all of its establishments until April 3, 2020.
Presidential Speech of March 20, 2020
- The President of Colombia ordered a mandatory and permanent isolation for the entire Colombian population for a duration of 19 days starting March 24, 2020 until April 12, 2020.
We are currently awaiting for the president to issue the decree that regulates this mandatory isolation
BRIEF EXPLANATION REGARDING THE POSSIBILITY OF SUSPENDING EMPLOYMENT CONTRACTS AND SUSPENDING PAYMENT OF WAGES DUE TO FORCE MAJEURE IN COLOMBIA
Furthermore, and having explained the above measures, it is important to understand the concept of Force Majeure to suspend employment contracts:
- Article 51 of the Colombian Labor Code determined that in the event of Force Majeure, employment contracts can be suspended until the event is overcome; however, Colombian law is not clear in the definition of force majeure.
- Law 95 of 1890 defines Force Majeure as “the unforeseen event that cannot be resisted, such as a shipwreck, an earthquake, the arrest of enemies, acts of authority executed by a public official, etc.”.
- The Colombian Constitutional Court in Ruling T-1165 of 2003, exemplified force majeure in the following terms: in order for there to be a force majeure, there must be unpredictable and irresistible circumstances that physically or materially prevents the provision of the service. Additionally, the Colombian Supreme Court of Justice has stated that, force majeure must be an unpredictable action beyond the employers will, and it should cause the complete inability for the employer to comply with their employment obligations.
- Furthermore, in order to claim the existence of force majeure, there must exist an unpredictable, irresistible event beyond the employer´s will that absolutely prevent the provision of the service.
- Therefore, if the Government restricts the provision of services, because of its location, or need of groups larger than 50 people that cannot be modified by altering schedules, the Company could eventually claim force majeure. However, currently there are no Government decisions preventing the provisions of any type of service.
- Moreover, once force majeure is declared, the employer must inform the Ministry of Labor regarding their decision to suspend employment contracts. Additionally, the Ministry has the competence to review the existence of the situation claimed as force majeure.
- Once the event claimed force majeure has passed, the Company must notify their workers with three days’ notice in advance of the date of reinstatement, personally or by publishing it in a local newspaper, and until the third day after being notified for the workers to begin providing their services.
We will remain attentive to any questions or doubts you may have regarding our legal advice.
For additional information on any matter related to labor issues in Colombia, please contact Alejandro Castellanos (Partner) of López & Asociados at email@example.com or visit www.lopezasociados.net
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