The challenges that came with the pandemic.
The pandemic caused by Covid-19 has brought great challenges globally. Although technological advances recently have been significant, we were not yet ready to go completely virtual. Many companies had to adapt telecommuting measures to provide continuity to economic activities and jobs. However, many doubts about the applicable regulations have arisen with the economic recovery.
Although telework began its implementation before the pandemic, the number of teleworkers increased significantly, bursting into the labor markets of Latin America as a response to the obstacles that came with the confinement measures adopted by governments to control the health emergency. According to a study by the International Labor Organization (ILO), about 23 million people moved to telework, increasing this modality significantly, considering that the percentage went from 3 to 20 to 30 percent. In this same study, it was revealed that teleworking was one of the tools that has been more used since the beginning of the pandemic, and although many companies returned to in-person work, it is still used.
Regulatory developments.
In Colombia, the possibility of implementing these telecommuting forms was not contemplated to happen so soon; therefore, the lack of regulation left us in a legal limbo from which we are just emerging. Before the pandemic, the approximate number of teleworkers in Colombia was 122,000, according to the Ministry of Information Technology and Communications. In 2008 the Colombian government had regulated telework through law 1221. The objective of this law was to promote a modality of work where the use of technologies was privileged, leaving in the background the place from where the service is provided.
However, this work modality became more of a benefit than an option and the requirements established by law regarding the conditions of implementation seemed to be possible only concerning specific trades and particular workers.
Due to the limits that arose in this modality, the Ministry of Labor issued Decree 1227 of July 18, 2022, which seeks to eliminate gaps in the implementation of telework. Some of the main obstacles were the face-to-face visit, before the implementation of telework, by the employer and the occupational risk insurer to determine the conditions of the job. In addition, it excluded the requirement for the employer to add the Internal Working Regulations.
Faced with the health emergency, the government’s first response was to encourage employers to implement this alternative, but they had to face several obstacles. As an alternative, the figure of work at home emerged through pronouncements of the Ministry of Labor in Circulars 018, 021, 022 and 041 of 2020. Finally, with the need to counteract the legal weaknesses, Law 2088 of 2021 was passed, which includes the postulates of the ministerial circulars with limitations of applicability to exceptional and non-permanent situations.
Main characteristics and differences of each modality.
• Telework, Law 1221 of 2008.
This modality contemplates two scenarios: i) Alternation between attendance and non-attendance; ii) Absolute independence from a physical workstation. It is necessary to adapt the internal work regulations and the occupational health and safety management system for its implementation.
Three modalities of teleworking were also established: i) Autonomous: workers use their own home or a space of their choice to carry out their work; ii) Mobile: they do not have an established place of work and their primary tool is their mobile phones or lap tops; iii) Supplementary: workers work some days from home and others from the office.
The supply of work tools and connectivity does not have an established legal rate, so it is agreed upon between employer and employee, being the former responsible for ensuring their sufficiency and quality.
- Work at home, law 2088 of 2021.
Corresponds to work modality in urgent and temporary situations. It is established that there is no physical presence of the worker in the facilities.
Since this is a mandatory modality, the worker cannot decide to return to the on-site mode unilaterally. This does not modify the nature of the contract or employment relationship.
Workers may use their own work tools and a connectivity allowance is established for workers earning up to two legal monthly minimum wages.
• Remote work, law 2121 of 2021.
This modality establishes 100% remote work voluntarily and eliminates the option of requiring a return to face-to-face work. Likewise, it is not conditioned to urgent and temporary situations.
The employer is responsible for providing the work tools and connectivity and the idea of offering an optimal workspace that meets specific requirements is maintained.
Some of the key points that this type of contract must contain are physical conditions of the job, functions to be performed by the worker, work elements to be delivered, computer security measures and particular circumstances in which the worker may be required in person, as stated in Article 16 of Law 2121 of 2021.
A new way of working post-pandemic.
The labor market ended up adjusting to the changes brought about by the pandemic and although many people were forced to change their way of life, today, that is the “new reality.” Due to teleworking, many companies opted to eliminate physical facilities, decreasing costs, and obtaining equal or even higher productivity. This is how remote work made its way, and once again, we were faced with the need to regulate this form of employment.
This need materialized with Law 2121 of 2021, which refers to remote work as a modality of work in which the employee does not have to attend the company’s physical facilities even in the pre-contractual stage, as it can be done through an electronic signature. Finally, the Ministry of Labor regulated this law through Decree 555 of April 9, 2022, which defines the characteristics of this new modality, illustrates its operation, and explains that the employer and employee do not interact physically, except for three specific events: (i) Verification of the standards that the tools and work equipment must meet, (ii)When it is required to manually install or update some software, program, application or platform on the work equipment, and (iii) To advance the sanctioning or disciplinary process. With all the efforts of the national government, businesspeople, and workers, it was possible to face the challenges of the pandemic. Although many sectors were affected, the economic recovery has yielded results, and new ways of facing reality have emerged as a tool for progress.