On March 11, 2020, Colombia’s Health Ministry declared that every person arriving from China, Spain, Italy and France must self-isolate for 14 days from the date of their arrival in Colombia.
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 rapidly-changing situation, please keep in mind that different or additional facts may warrant re-assessment of policies and practices so they can serve the best interest of employees, employers and the community at large. Accordingly, employers should consult with their employment counsel to keep updated on any new legislation or related legal development.
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 legal authority to restrict an employee’s personal travel. Employers can, however, deny vacation requests based on legitimate business reasons.
2. What should an employer do if an employee shares that they plan to travel to an affected area?
On March 11, 2020, Colombia’s Health Ministry declared that every person arriving from China, Spain, Italy and France must self-isolate for 14 days from the date of their arrival in Colombia. Pursuant to guidance issued by Colombia’s Ministry of Labor, employers may require such employees to work from home for 14 days following their arrival.
3. How should an employer handle employees who have family members who have traveled to affected areas?
There is no official guidance from the Ministry of Labor concerning this issue. Employers can ask such employees to work from home for 14 days following their family members’ arrival in Colombia.
4. Can we prevent employees from traveling to affected areas for personal reasons?
See answers to Questions #1 and #2.
5. What discrimination issues should employers address/be aware of?
Any measures employers undertake, including requiring employees to work from home due to a quarantine, must be implemented uniformly across the workforce and without regard to race, gender or other classification of individuals.
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 the infected employee and remind the workforce of 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.
7. Can employers take the temperature of employees who are coming to work?
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?
To date, 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. In fact, the health institutions are asking that such equipment be used only by those in medical need due to COVID-19 or other condition.
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?
While the health institutions are asking the public to use respirators only if infected with the virus or flu, as noted in response to Question #10, 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?
Employers are not required to cancel such gatherings. However, per official guidance, companies should not hold meetings with people who have recently traveled to China until 14 days have lapsed since their arrival in Colombia.
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 may suspend the employment contracts based on a “force majeure” or unforeseen event. Complex rules apply, including that the employer must obtain the approval of the Ministry of Labor. If a force majeure shutdown occurs, the employer is not obligated to pay salaries to the workers, but must pay its social security contributions to the health and pension funds. If, however, the employer conducts layoffs, employees will be entitled to severance.
14. What are an employer’s workers’ compensation obligations if an employee traveled to an affected area for work and contracted COVID-19?
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 would override contractual provisions.
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 undertake measures to protect the workforce without identifying 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 protection of 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.