New Colombian legislation regulates the procedure for reviewing entitlement to medical leave from work and the payment of related benefits to employees or self-employed workers.

Author: Catalina Santos

Firm: Brigard & Urrutia Abogados

On 27 July 2018, the Colombian Ministry of Labour issued Decree 1333, which aims to regulate the procedure for periodic reviews of medical leave due to illness by the Health Promoting Entities (‘EPS’ for its initials in Spanish) and violations or abuses of employees’ medical leave rights.

The Decree established a procedure for EPSs to periodically review the criteria for general medical leave. It also set the minimum content of the rehabilitation assessment that must be issued by the EPS before the 120th day of an employee’s medical leave.

The Decree also established that EPS will recognise and pay for medical leave exceeding 540 days arising from illness in the following cases:

  • When the attending doctor issues a declaration that there is a favourable prospect of rehabilitation, stating that continued medical treatment is required.
  • When the patient has not recovered during the illness or injury that caused the disability, despite having followed the protocols, care guides and recommendations of the attending doctor.
  • When new circumstances have prolonged the recovery time of the patient as a result of related or concurrent medical conditions.

Abuse of the medical leave system

With the aim of avoiding abuse of the medical disability leave system, Decree 1333 defined the following behaviours as violations:

  1. When the EPS or other responsible entity establishes that an employee has not followed the treatment and therapies ordered by the attending doctor, has not attended assessments, examinations and controls or has not complied with the procedures and recommendations necessary for his or her rehabilitation at least 30% of the time.
  2. When the employee does not attend examinations or assessments to determine their inability to work.
  3. When an alleged change in condition or possible fraud is detected when the employee is on medical leave.
  4. When the employee allegedly commits illegal acts or conduct in relation to his or her health status.
  5. When fraud is detected when granting the medical leave certificate.
  6. When the authorities become aware that the contributor is seeks recognition of and payment for the same condition or disability from both the EPS and the Labor Risk Administrator (‘ARL’), creating a double cost to the social security system.
  7. When changes are made to information held in the health social security system using false data.
  8. When the authorities become aware that the employee is undertaking an alternative activity that prevents him or her from recovering and from which he or she receives an income during the period in which they were on medical leave from work.

The conduct described in 1, 2 and 6 above must be dealt with by the EPS and that described in 3, 4, 5 and 7 must be brought to the attention of the competent authorities. In the event of 8, the employer must inform the EPS regarding the conduct in question and provide relevant evidence.

When will payment be suspended?

According to the Decree, the EPS or the competent authority may suspend disability payment in the following circumstances:

  • When the EPS or the competent authority determines that any of the abuses described above took place.
  • When the employee does not comply with the requirements set out in article 2.1.13.4 of Decree 780 of 2016 (Regulatory Decree of the Health and Social Protection Sector), that is, when the affiliate has not been paying contributions for at least four weeks.
  • When the contributor is in default according to the articles 2.1.9.1 and 2.1.9.3 of Decree 780 of 2016, that is, when he or she has failed to pay contributions due, meaning that services and benefits are suspended.
  • When the disability due to illness was caused by cosmetic treatments or their complications, or if it is the result of treatments excluded by the criteria in article 15 of Law 1751 of 2015.

Rules relating to benefit payments

Finally, Decree 1333 has regulated the payment of benefits for disabilities due to illness, establishing the following rules:

  • Once the master accounts of ADRES (the entity responsible for managing health contributions made by employers and employees) are finalised for collection, employees and independent workers will not be able to deduct the amounts corresponding to medical leave due to illness, maternity and paternity leave from their health contributions.
  • The EPS or other appropriate entity will pay benefits directly to the contributor, directly or by wire transfer within a maximum period of five business days, counted from authorisation of the benefit payment. If the EPS or competent entity does not make payment with this term, it must pay default interest to the contributor.
  • Applications for recognition of entitlement to benefits will be reviewed and a decision will be taken on them within 15 business days following the employee’s request.