The COVID-19 pandemic and the measures put in place in countries around the world – including Colombia – in response has compelled both employers and employees to adopt a new vision for work. How did this happen? Globally, countless companies and government agencies have sustained themselves during the ongoing crisis by having workers move from the office and conduct their duties at home.
Now, nine months after the beginning of the pandemic, many employers and employees are realizing that temporary measures like home-office remote work are proving so efficient they could and should be continued in the future. But implementing innovations like remote work raises a host of legal and administrative considerations. This article, based on the webinar The Future is Now: The New World of Work in Colombia that was hosted by employment lawyers Sandra Mora and Pablo Albornet with CMS Colombia, explores how telework and home-office work are impacting the dynamic of the Colombian workplace, and the challenges these forms of employment pose.
The pros and cons of telework vs. home-office work
Many countries were forced to embrace remote work for the first time with the advent of the pandemic. Not so Colombia. Introduced by lawmakers in Colombia through legislation in 2008 (Law 1221 of 2008) and 2012 (Decree 884 of 2012), "telework" is an established and regulated form of labour in Colombia, explained CMS employment lawyer Sandra Mora.
In fact, "telework" is legally distinct from "home-office" work in the following ways:
Telework is regulated by the state
This form of work has strict "health and safety requirements" for employees that are monitored and enforced by inspectors. Furthermore, employers must inform the Ministry of Labour if they have teleworking employees, and they must provide these workers with all tools, equipment and resources necessary to get the job done.
To be considered a teleworker, employees must meet certain criteria in terms of job description and responsibilities, and
Telework is considered a permanent employment status for.
In short, telework has existed in the Colombian labour market long before the current crisis erupted. Home-office work, on the other hand, is a new phenomenon: a temporary measure that is unaffected by regulations surrounding telework.
What are the origins of home-office work? When Colombia went into lockdown after the outbreak of the pandemic earlier this year, both government and business faced a legal quandary. When it became clear that lockdown measures would last more than a few weeks, businesses needed to adopt a remote-working system for employees, but not all businesses met the strict legal prerequisites for teleworking as defined by Colombian law.
In response, in mid-March the Colombian Ministry of Labour drafted Newsletter 21, introducing the concept of "home-office" work, which is distinct from teleworking and would give employers the flexibility to introduce remote-working measures without violating teleworking regulations.
As defined by the government, home-office work contains the following characteristics:
Home office – as already stated – is considered a "temporary" measure put in place in response to specific challenges facing a company or agency;
Home office work is loosely regulated, which gives businesses great flexibility in its use; and
Home office does demand some obligations from employers, but because of its temporary nature, these obligations are minor.
Creating home-office work, according to CMS's Mora, "gave a solution to the problem." It provided a lifeline to business at the start of the lockdown by giving scores of Colombian employers the legal flexibility to implement remote work immediately, which in turn allowed them to maintain operations and keep staff members employed.
For the present, home-office work in Colombian is considered a stopgap government measure in response to the crisis. According to Mora, it remains to be seen whether the Colombian government will adopt home office as a permanent status of employment once the pandemic is over.
Whether home office becomes permanent will depend on the verdict of employees and employers on its overall efficacy. CMS's Pablo Albornet points out that the home-office arrangement has had mixed reviews in Colombia and around the world. According to Albornet, although embraced in the beginning by workers who enjoyed the convenience and proximity to family that it posed, many of these same workers later admitted that they missed "interaction time with coworkers", the resources of the office, and ultimately looked forward to returning to the workplace.
Mora confirms that evidence suggests that home working poses many challenges for its adherents. Although absolutely necessary from a childcare point of view during school closures, many home workers (specifically women) struggled to balance home-making duties (e.g. cooking, cleaning and children) with their professional responsibilities.
In addition, home working has created added expenses for many employees, such as higher utilities bills, which Mora states will need to be addressed if the government opts to make home working permanent. During the crisis, the Colombiangovernment has attempted to respond to some of these deficiencies. In June, the Colombian government passed a regulation requiring businesses to provide a "connectivity allowance" to home workers making less than the equivalent of a double minimum wage. Although welcomed by these workers, higher paid employees were left with no state allowance a gap that many businesses have filled by stepping in and providing their home-office workers with the resources and technology they need to work effectively.
According to CMS's Albornet, certain conclusions can be made from the government's conduct vis-à-vis remote work. So far, the state appears undecided about whether to introduce home office as a permanent employment status, but both government and businesses appear to understand that the nature of work is changing and that both the public and private sectors must recognise this.
Maintaining and sustaining jobs
Despite the success of home office during the crisis, this solution is not universal, explained CMS's Mora. There are many jobs that cannot be conducted remotely, which raises the thorny issue of "staff mobility." In normal times, staff mobility refers to the ability to move workers between offices in different regions and countries.
During the crisis, many Colombian companies have been forced to adopt different types of staff mobility in order to remain in operation. Some companies, for example, have been forced to cancel the contracts of workers who cannot be employed remotely.
Hence, in a larger macro sense, the pandemic has affected Colombian employment in the following ways:
Increased the overall unemployment rate to 15.8% in October 2020;
Adversely affected certain industries, such as entertainment and tourism, including hospitality services such as hotels and restaurants, and according to CMS's Albornet, the pandemic has been devastating for small business and those firms (e.g. construction companies, manufacturing) that cannot conduct operations remotely.
Placed pressure on businesses to reduce their labour costs, which has led to firings since Colombian labour law (Article 64 of the Labour Statute) makes redundancies possible within certain limitations, such as the inability to terminate sick or pregnant employees and restrictions on mass redundancies.
According to CMS's Mora, the first employees in Colombia to face dismissals during the crisis were low-wage earners and recently hired workers still in their trial periods. (In Colombia, employers do not need to pay severance to employees released during the trial juncture.) Later, fixed-term contractors were let go after the expiration of their terms.
Also, because many workers in Colombia are past retirement age and also collecting a pension, some employers specifically targeted these employees for dismissal.
Those companies that sealed "mutual agreement termination plans" with employees, which granted workers severance packages higher than that mandated by the state, were able to reach mutually acceptable terms on downsizing. But downsizing is and was not the only solution for these companies. Many businesses have been able to remain in operation by furloughing employees in the following ways:
Applying vacation time;
Negotiating short-time working schemes with staff, such as reducing the pay and working hours of employees;
Granting unpaid leave;
Allowing employees flexible working schedules;
Tapping government assistance such as the PAEF programme (in which the state provided salary subsidies of 40% of the minimum wage per working employee); the PAP programme (in which state aid is used to help companies pay legal premiums); and granting aid to employees whose contracts were suspended.
As much as government subsidies have helped businesses cope with the pandemic's impact, both Mora and Albornet point out that many businesses have used technology (e.g. modern communication systems, widespread access to the Internet) to keep workers working and their operations operating. But a reliance on remote work raises the vital question: how can workplace safety and health standards be maintained for workers conducting their duties remotely?
Healthy and safety measures for remote work
During the pandemic, employers have faced multiple concerns regarding employee health and safety: how to maintain the safety of workers forced to remain in the workplace during the pandemic; and how to ensure that staff working remotely are operating in a safe environment.
Regarding remote workers, the greatest safety issue concerned over work. If a worker's home becomes his workplace, the question remains: when does the working day conclude? In response, the Colombian Ministry of Labour specified in Newsletter 41 that all home workers were guaranteed a certain period of rest and "family time" each day. (In short, home workers were given the right to turn off phones and devices and to be unreachable after the conclusion of the work day).
The government did not provide employees with a special allowance to facilitate home-working costs, but – as previously stated – many companies were quick to provide their employees with the tools and technology necessary to perform their duties at home.
As for the physical safety of home workers, the government stated that home-working employees must report details of their remote-working environment to their Occupation Hazard Insurance Company, which will provide health and safety recommendations that employees must comply with.
As for employees unable to work remotely, state regulations were passed on the specific safety measures companies must implement for staff (e.g. creating a biologically safe work environment, providing personal protection equipment to employees) in order to make the workplace as safe as possible vis-à-vis COVID-19 infection.
New technology and digitalisation
In all the ways that the pandemic has affected the institution of work, arguably the greatest impact has been the Colombian employee's changing relationship with technology and digitalization, stated CMS's Albornet.
Previously, many Colombian families were one-computer homes in which a laptop was shared among family members. But the demands of remote working compelled many companies to issue laptops to their home-working employees who quickly began to rely on state-of-the-art digital communication tools to perform even basic tasks, such as liaising with colleagues and communicating with superiors.
In addition to video conferencing tools like Zoom, which were virtually unheard of prior to the pandemic, some Colombian employers have been using artificial-intelligence systems, which have proven useful for recruiting and HR, and electronic signatures for concluding contracts.
This rapid reliance on digital tools has not been welcome by all employees. Some workers, chiefly older people with less experience with digital technology, have had a hard time adjusting. But the experienced has enabled more technologically savvy workers to become even more proficient with digital tools.
Indeed, technology as a tool of business has not only grown in importance during the pandemic, it promises to change the future of employment in the years to come, long after COVID-19 is relegated to history.
Contact us directly
For more information about the changing nature of work in Colombia, contact our local CMS employment law experts: Adriana Escobar, Partner (CMS Colombia), Sandra Mora, Senior Associate (CMS Colombia), Pablo Albornet, Associate (CMS Colombia).
Join our colleagues in other jurisdictions in the webinar series on this topic The Future is Now: The New World of Work.