Updated: April 14, 2020

On March 12, 2020, the Health and Social Protection Ministry declared a “Sanitary Emergency” situation in Colombia. The issued Resolution, among other things, orders the implementation of hygienic and health measures in contagion spaces, such as workspaces. The Resolution also imposes a duty to incentivize, to the extent  possible, teleworking for services and labor .

On March 22, 2020, the President issued a Decree in which he ordered a mandatory preventive isolation for all Colombian residents, starting March 25, 2020, until April 13, 2020. However, this has now been extended until April 27, 2020, restricting the circulation of people and vehicles throughout the nation´s territory.

Given the spread of the novel coronavirus (COVID-19), employers are confronting difficult questions regarding how to handle safety and health rules, travel restrictions, compensation, immigration, and other employment issues.  The following Frequently Asked Questions (FAQs) are designed to address some of the more common questions that employers with operations in Colombia currently face. Employers are also encouraged to consult relevant guidance and FAQs put forth by the World Health Organization (WHO) and the Colombian government.

As this is a fluid and fast-changing situation, please keep in mind that different or additional facts may warrant the re-assessment of policies and practices so they can serve the best interest of employees, employers and the community.  Accordingly, employers should consult with their employment counsel so that they are always informed on any new legislation or related legal development.

TRAVEL RESTRICTIONS

1. Should an employer restrict travel to all “affected areas” where there have been confirmed cases of COVID-19 infections, as reported by the World Health Organization (WHO)?

While employers may discourage travel to any affected area, they do not have the legal authority to restrict an employee’s personal travel.  Employers can, however, deny vacation requests based on legitimate business reasons.

However, as stated before, every Colombian resident should be under preventive isolation by now, as it was ordered by the President. There are  exceptions included in the Decree.

Therefore, all national and international flights are cancelled. This means that nobody will be able to travel until April 27, 2020, unless the government states otherwise.

2.  What should an employer do if an employee shares that they plan to travel to an affected area?

While not mandatory, it is recommended for the employer to restrict non-essential travel to countries that have been identified as high-risk countries. The employer cannot restrict personal travel but can deny the employee’s vacation request. Restrictions on employees upon return need to be analyzed on a case-by-case basis, and all the quarantine measures issued by the authorities must be implemented.

Now, in case somebody enters the country within the preventive isolation period, due to a humanitarian flight, they should be placed in isolation for 14 days, and they could work from home during that time. If this is not possible, the company can suspend the employment contract due to a force majeure and only when the employee had to travel due to personal reasons.

Please keep in mind the preventive isolation period that has been declared by the President, which runs until April 27, 2020.

3.  How should an employer handle employees who have family members who have traveled to affected areas?

Employers may request employees to inform them of any family members with whom they have had close contact and have traveled to high-risk areas, in order to determine if the exposure has resulted in the employee posing a direct threat to the health and safety of others.

The Ministry of Health advises that individuals who have been in contact with anyone that has been diagnosed with COVID-19 and develop symptoms must seek immediate medical attention.

Now, if an employee has to be placed under quarantine after being exposed to the virus, the company can only suspend the employment contract due to a force majeure if the employee is not able to work from home.

Please keep in mind the preventive isolation period that has been declared by the President, which runs until April 27, 2020.

4.  Can we prevent employees from traveling to affected areas for personal reasons?

See answers to Questions #1 and #2.

DISCRIMINATION LAW

5.  What discrimination issues should employers address/be aware of?

Any measures taken by employers, including requiring employees to work from home due to a quarantine period, must be implemented consistently across the workforce and without regard to race, gender or any other classification of individuals.

However, as stated before, every Colombian resident (baring certain exceptions in the Decree) should be under preventive isolation by now, as it was ordered by the President.

The activities exempted from mandatory isolation are determined under Decree 457/2020.

For the verification of these activities, we recommend the following:

1. Decree 457/2020 must be read in its entirety; in other words, it is important to observe the Decree’s objective and all previous considerations.
2. The exempted activities established in Article 3 of the Decree are a guide; these activities should be analyzed considering the main objective of the regulation, which is:  “To preserve health and life by avoiding contact and containing the spread of the COVID-19, guarantee the supply and  availability of basic foods and services that, by their very nature, should not be interrupted, since it could affect the right to life, health and survival.”

If there is any doubt, we recommend verifying with the corresponding authority (Ministry of Interior) whether the company´s activity is exempted or not.

If the corresponding authority confirms that the activity is in fact exempted, we recommend that the company implement measures in order to prevent occupational exposure to COVID-19 and follow Resolution No. 385 from the Ministry of Health.

If the company fits the exemption, we still recommend implementing home-office work if and when possible.

6.  What are the employer’s obligations to prevent harassment of those suspected of being infected?

To the extent possible, employers should avoid disclosing personal information of infected employees and remind the workforce of the employees’ duty not to harass co-workers.  Likewise, employers should explain that any decision to ask an employee to self-isolate is to protect the workforce.

DISABILITY LAW

7.  Can employers take the temperature of employees who are coming to work?

Yes, however, this cannot be forced. Employers should inform their employees of this process,, letting them know that this measure is being taken to protect the company´s personnel. We also suggest using non-invasive methods.

If an employee refuses to have their temperature taken, the company can deny their access to the office; however, we recommend first communicating this to the employees by means of a policy. 

8.  Are there any rules on what employers are allowed to do concerning subjecting employees to medical examinations or health-related tests that would apply to an emergency situation involving a communicable illness such as COVID-19?

So far, there are no rules on this subject.  The local authorities are encouraging the population to self-report to their local health departments if they suspect they are infected with the COVID-19 virus.

SAFETY & HEALTH RULES

9.  Are non-healthcare employees required to wear respirators or other personal protective equipment?

No. 

However, in a recent official statement, the WHO advised the massive use of face masks; therefore, companies can recommend that employees wear respirators. Companies can also hand the face masks directly to their employees.

Circular notes have been issued by the different ministries, in which they have ruled the ways in which the risk of contagion must be mitigated, specifically for industries such as infrastructure and food, among others.

Please keep in mind that, in the health industry, the Labor Risk Management Entity (ARL) is the one responsible for providing these respirators and health elements.

10.  Can an employer with a public-facing business prevent employees from wearing a surgical mask or respirator?

No, employees are free to wear a surgical mask or respirator even if they do not have a health issue. 

11.  What if an employee requests to wear some type of mask as an accommodation?

According to the WHO´s recent statements, mass use of face masks is recommended. Employees are free to wear surgical masks or respirators even if they do not have a health issue.  Notably, employees with a disability enjoy a special job protection and employers are required to provide accommodations to enable them to work.  

12.  For employers that have events for large gatherings scheduled, should they cancel them?

Please bear in mind that, as stated before, every Colombian resident should be under preventive isolation by now, as it was ordered by the President; bearing in mind the exceptions included in the Decree.

Furthermore, there are several prohibitions for massive meetings in Colombia. In certain cities, gatherings cannot exceed 10 people and, in others, 30 or 50 people.   

UNEMPLOYMENT & OCCUPATIONAL RISK LIABILITY

13.  Do employer-instituted quarantines or temporary shutdowns or mass layoffs entitle workers to unemployment benefits or severance?

• Under a telework (work from home) arrangement, employees’ salary must continue to be paid. 
• However, if the employer’s operation shuts down temporarily or permanently, the employer can send employees on individual or collective vacations, and there is no need to exercise the 15-day notice.
• Parties can also agree over an unpaid leave.
• The contract may be suspended due to a force majeure that impedes its execution. Under the scenario of a contract suspension, the employer is not obligated to pay salaries to employees but must pay all social security contributions to the health and pension funds, and employers must notify the Labor Ministry of this situation. 

However, if the employer carries out layoffs, employees will be entitled to receive severance pay. Please bear in mind that there is a prohibition over collective layoffs in Colombia.

14.  What are an employer’s workers’ compensation obligations if an employee traveled to an affected area for work and contracted COVID-19?

While not mandatory, it is recommended for the employer to restrict non-essential travel to countries that have been identified as high-risk countries.

Now, if an employee contracts COVID-19 during business travel, their health situation can be declared as a labor one, and the Social Security entities will be responsible.

Likewise, if it is declared a labor health issue and it is proven that the preventive measures were not taken, the company can be held liable. 

However, as stated before, every Colombian resident should be under preventive isolation by now, as it was ordered by the President, while keeping in mind the exceptions included in the Decree.

Therefore, all national and international flights are cancelled. This means that nobody will be able to travel until April 27, 2020, unless the government states otherwise.

WORKS COUNCIL/INDUSTRIAL UNIONS

15.  In the event of a government-declared quarantine or state of emergency, does your country’s law override contractual provisions and allow for actions that might contradict a collective bargaining agreement (CBA)?

Yes, a government-declared quarantine or state of emergency may override contractual provisions; however, the government has not yet issued any circular note that suspends the effects of collective bargaining agreements.

PRIVACY

16.  According to your government’s health department, what are the steps that employees should follow to notify the authorities that they suspect or are confirmed to be infected with COVID-19?

The employees should immediately contact their local heath institution.

17.  Can an employer require employees to self-report if they are infected with COVID-19?

Pursuant to guidance issued by the Ministry of Labor and the Health Ministry, employers can require employees to self-report in the event of sickness.   

18.  If one of our employees is quarantined, what information can we share with our employees?  Who can we share it with?

Employers should avoid disclosing the identity of the infected employee and protect their personal health information.  Employers should take the necessary measures in order to protect the workforce without having to pinpoint the infected employee.

19.  What privacy concerns do we need to be aware of when we are asking for the health information of our employees in order to evaluate whether they need to be quarantined?

In Colombia, the privacy of personal information, including medical data, is a fundamental constitutional right, protected by rigorous laws.  Although employers can require employees to self-report any sickness related to COVID-19 or the flu, companies are under strict obligation to protect employees’ privacy.