By: Luz Maria Arbeláez Velásquez
Firm: Brigard Urrutia Abogados
This article sets out the main developments in employment law in Colombia in 2017.
Enhanced maternity rights
In January 2017, the Colombian government adopted a set of rules that reaffirm the special protection granted to newborns and new mothers in Colombia.
In this context, Law 1822 of 2017, amended articles 236 and 239 of the Colombian Employment Code, and extended paid maternity leave from 14 to 18 weeks. The pre-partum and postpartum weeks are also distributed differently as a result of this law.
With the extension of maternity leave to 18 weeks, it became necessary to define the operational rules for the recognition and payment of maternity and paternity leave. Circular 024 of 2017 of the Ministry of Health, establishes the following general rules:
- To be entitled to maternity and paternity leave and pay, employees must have contributed during the time that corresponds to the gestation period. If an employee has contributed for a shorter period, a proportional amount will be attributed under the system.
- For premature births, the duration of maternity leave will be 18 weeks plus the difference between the gestational date and the birth date.
- For multiple births, the duration will be 20 weeks, if the infants are born alive.
- Leave is extended for the father or whoever has custody, in the case of death or illness of the mother.
- In cases of miscarriage or premature non-viable delivery, the duration of the leave will be two to four weeks. The exact duration will be defined by the treating physician.
- Recognition of maternity leave will also apply to an adopting father without a spouse. It may be extended to two weeks, as in the case of multiple births, when more than one child is adopted.
Enhanced rights for partners of pregnant or breastfeeding women
The Constitutional Court also issued a judgment (C-005 of 2017) examining whether the articles of the Colombian Employment Code relating to protection of maternity and minors were constitutional. The Court criticised the abovementioned rules, for ignoring the increased employment security to which the partner of a pregnant or breastfeeding woman should be entitled, if she is economically dependent upon her partner.
As a result of this ruling, employees whose spouse or permanent partner is pregnant or breastfeeding will have the same rights to increased employment security and guaranteed medical care during the pregnancy and the first months of the baby’s life. Unilateral termination of the employee partner during the pregnancy and in the three months following the birth must be for a just cause, duly authorised by the Ministry of Labour.
Breastfeeding in the workplace
Law 1823 of 2017, adopted a ‘Friendly Rooms for breastfeeding families in the workplace’ strategy, that must be implemented by public and private employers. The most important aspects of this strategy are listed below.
- The purpose of these rooms is to allow breastfeeding mothers to extract breast milk and ensure its adequate handling and preservation.
- This obligation applies to private companies with capital equal to or greater than 1,500 minimum legal salaries (for this year this is around COP 1,171,873,000) or with capital of less than 1,500 minimum legal salaries but with a staff of more than 50 employees.
- Public entities and private companies with more than 1000 employees will have two years to perform the works necessary to comply with this obligation. Private companies with fewer than 1000 employees will have five years to complete the necessary adaptations.
- The Ministry of Health and Social Protection will be responsible for the surveillance and control of these rooms’ implementation. For this purpose, the Ministry will regulate the technical parameters, hygiene and sanitation specifications, as well as the minimum resources that the rooms must provide
Adapted working hours to protect family life (Law 1857 of 2017)
According to Article 3 of this Law, employers may adjust employee working hours to facilitate employees’ relationships with members of their family and to allow employees to fulfil their familial duties towards spouses or permanent partners, their underage children, elderly members of the family, or relatives within the 3rd degree of consanguinity (such as cousins or great-grandparents); as well as dependent or disabled family members.
Employers must facilitate, promote and manage a half-yearly day, which the employees can spend with their family in a space provided by the employer or the Family Compensation Bureau with which the employer is affiliated. If the employer cannot provide this half-yearly family day, it should allow employees to spend time with their families, without this affecting mandatory rest days, and without prejudice to any agreed complementary working hours.
Amendments to night shift hours (Law 1846 of 2017)
This law amends Article 160 of the Colombian Employment Code relating to the concept of day and night working hours, establishing 21:00 as the start time for night shifts (until 6:00).
This measure has an economic effect for employers, since the night surcharge will apply an hour earlier than previously. It must be clarified that this rule does not alter the maximum number of working hours, or the possibility of employers and employees agreeing flexible working hours, as provided by law. It simply means that the night surcharge applies one hour earlier, and that flexible working hours can only be agreed in daytime working hours, from Monday to Saturday, that is, from 6:00 to 21:00.
Please note that this legal change will require the updating of Internal Working Regulations, since these must regulate, among other subjects, working hours, surcharges and the particular schedules of a Company.
Implementation of the initial phases of the Occupational Health and Safety Management System (‘SG-SST’)
In accordance with the provisions of Article 188.8.131.52.1. Of Decree 1072 of 2015, all public and private employers (regardless of the number of employees), contractors, solidarity economy organisations and cooperatives and temporary service agencies must implement an SG-SST, covering all employees, contractors, suppliers, temporary employees, visitors, and other stakeholders.
Pursuant to Resolution No. 1111, 2017, issued by the Ministry of Labour, implementation of SG-SST must be adjusted and appropriate for each particular company or entity, according to the number of employees and economic activity and must respect the following phases and dates.
- Phase I (Initial Evaluation): this took place from June to August 2017. This assessment had to be documented and should form the basis for all decisions identifying the top occupational safety and health priorities.
- Phase II (Improvement): the implementation of improvements following the initial evaluation took place from past September to December 2017.
- Phase III (Execution of the SG-SST): January to December 2018.
- Phase IV (Follow-up and improvement):From January to March, 2019.
- Phase V (Inspection, surveillance and control by the Ministry of Labor): From April 2019 onwards.
In December 2019, companies shall perform a self-evaluation according to the Minimum Standards, and propose an Improvement Plan and an Annual SG-SST Plan for 2020. From January 2020, every SG-SST will be executed on an annual basis from January to December. The Minimum Standards self -evaluations and the improvement plans for the years 2017, 2018 and the first semester of 2019, must be kept available by companies for possible inspection by the Ministry of Labour. As of December 2019, companies must send a copy of their Minimum Standards self-assessment and improvement plan to the ARL (labour risks body) for study, analysis, comments and recommendations.
Failure to comply with the obligations related to SG-SST, may lead to fines of between 1 and 500 legal minimum monthly salaries (that is, between COP 781,242 and COP 390,621,000), imposed by the Ministry of Labor. In cases of recidivism, the Ministry may order the suspension of activities or closure of the workplace.
Judgment on rights of ‘on call’ workers
In Judgment SL5584 of 2017, the Supreme Court of Justice held that the simple fact of an employee being available and on call in the event an employer requires their services can entitle that employee to receive payment for supplementary work, if in practice certain conditions of such availability are met.
The Court in this case, took into consideration the fact that constant monitoring work had to be carried out by the employees, which did not allow them to carry out activities of a personal nature. Employees had to be ready for any call from their employer, and to deal with any inconvenience related to the services they were expected to provide.
It should be noted that, whilst influential, the findings in this judgment only apply to the parties and facts in the case in question. According to the Minister of Labour, even if this judgment is very important, it is still crucial to determine with clarity which situations are covered, which workers are considered to be on call and how to identify them. Therefore, the judgment’s applicability will depend on the circumstances of each case.
New visa categories and requirements (Resolution 6045 OF 2 August 2017)
Pursuant to the new regulations, the formerly applicable visa subcategories will be grouped into the following three categories: Visitor (or visa type V), Migrant (visa type M) and Resident (visa type R). Some of the main new provisions are set out below.
- Each visa type will allow the exercise of activities that were permissible under the visa subcategories previously available under Resolution 5512 of 2015.Nevertheless, even though visa subcategories have been eliminated, the visa applicant will still need to submit to any requirements that are specific to the activities that he or she will perform in the country.
- The term ‘work permit’ has been introduced and is automatically granted in certain cases, allowing the visa holder to work and provide paid services in Colombia. This permit is part of the visa, which means that the applicant is not required to apply for the visa and permit separately.
- The term ‘transversal permit’ is also introduced and automatically granted to visitor visa holders, allowing them to carry out business negotiations, market research, direct investment plans and enterprise creation. This permit is part of the visa, which means that the applicant is not required to apply for the visa and permit separately.
- Showing proof of professional accreditations to exercise a regulated profession or occupation in Colombia was not previously a visa requirement. However, under Resolution 6045 of 2017, this has become a requirement for those applying for a migrant visa as a self-employed person (formerly known as TP-7 visa).
- Under Resolution 5512 of 2015, if the visa was granted electronically, the visa holder had to request the visa stamp or tag within the two months following the visa approval date. Resolution 6045 of 2017 reduced this term to 30 days.
- One of the requirements for work visa TP-4 was the provision of copies of the last six bank statements of the Colombian company in question reflecting a total balance of at least 100 legal minimum salaries. Under Resolution 6045 of 2017 it will be necessary to submit bank statements showing a balance of at least 100 legal minimum monthly salaries per month.
- Resolution 6045 of 2017 makes no mention of the specific activities authorised by the former TP-13 visa (provision of specialised technical assistance, with or without a work contract, to public or private companies). The expectation is that these activities will be covered under the visitor visa granted to provide temporary services to an individual or legal person in Colombia. A key requirement to apply for a visitor visa for the provision of temporary services is submission of a Contract Summary Form.
- A courtesy visa will be granted to foreigners who have filed a refugee request and have not yet been given refugee status. The visa will be granted at the discretion of the Advisory Commission for Determining Refugee Status and the Visas office.
- Submitting a motivation letter is now an essential requirement to obtain any type of visa.
- A resident visa will not be granted to foreigners who have been out of the country for more than 180 continuous days.
- One of the requirements for a migrant visa for the spouse of a Colombian national will be an application letter signed by the sponsoring spouse accompanied by a special power of attorney.
- The Ministry of Foreign Affairs already asked for recently issued documents, but this practice has been formalised by Resolution 6045 of 2017, which made it mandatory that visa supporting documents should not be more than three months old.
- The Ministry of Foreign Affairs already asked for a copy of the employment contract for work visa TP-4, but Resolution 6045 of 2017 has now made this requirement official for migrant employees.
- Visas issued prior to the entry into force of Resolution 6045 of 2017 will keep their validity and conditions. Before expiration, a new visa must be requested in accordance with the regulations established in Resolution 6045 of 2017.