Health jurisdiction: what does it consist of and what is its scope?

As we have discussed in other publications, the so-called reinforced job stability reinforced labor stability is a figure that limits the employer's power to terminate employment contracts without just cause and with the recognition of a compensation set by law. Thus, and perhaps the protection that has generated the most debate in labor law, as to its definition and scope, is the health protection, which is why we will address it in more detail in this article.

¿Qué es el fuero de salud en Colombia?

Article 13 of the Political Constitution establishes the obligation of the State to provide special protection to those persons who are in a state of manifest weakness due to their economic, physical or mental condition. For its part, Article 47 establishes the duty of the State to "promote policies for the welfare, rehabilitation and rehabilitation of persons with disabilities.to advance policies for the welfare, rehabilitation and social integration of the physically, sensorial and mentally handicapped.". Finally, article 54 specifies that the State must guarantee to the "physically, sensorial and mentally handicapped".handicapped persons"the right to work in accordance with their health conditions.

In development of these postulates, Law 361 of 1997 was enacted. Law 361 of 1997 which regulated the so-called health protection, mainly in its article 26, understanding this as a guarantee of legal origin, which generates for the benefit of persons with physical, sensory or mental limitations, the rights to:

1. Keeping a job.
2. Not to be dismissed because of a health condition.
3. Remain in a job until an objective cause for termination is established.
4. That the labor inspector authorizes the dismissal based on the prior verification of such cause. 

So... How is this figure applied?

In principle, the scope of application of this figure was limited to persons qualified as disabled, according to the degree of severity of their limitation in the terms of Article 5 of Law 361 of 1997 and Article 7 of Regulatory Decree 2463 of 2001, that is, the classification of limitations into moderate, severe or profound, depending on the degree of disability and starting with persons with a loss of working capacity of 15%. 

Estos criterios fueron adoptados por la Corte Suprema de Justicia hasta el año 2023, Corporación que señalaba que para que un trabajador fuera sujeto de la estabilidad laboral reforzada en Colombia debía encontrarse bajo una de las calificaciones señaladas en la mencionada Ley. 

However, the Labor Cassation Chamber of the Supreme Court of Justice modified its position regarding the requirements to be a holder of this special protection, establishing in judgment SL1152-2023, M.P. Marjorie Zúñiga Romero, that the health protection will be presented when: (i) There is a physical, mental, intellectual or sensory impairment in the medium or long term. medium or long term; (ii) There is an attitudinal, social, cultural or economic barrier for the worker, among others, that, when interacting with the work environment prevents him/her from effectively performing his/her work under conditions of equality; and (iii) That these elements are known by the employer at the time of dismissal.

In fact, this position is similar to the one that has long been adopted by the Constitutional Court, which has extended this protection to all those persons who have a disability in the exercise of their functions, i.e., whose diagnosis limits or hinders them in the provision of the service. 

En Sentencia de Unificación 049 de 2017, el Alto Tribunal señaló que la protección cobija “a todas aquellas personas que se encuentren en circunstancia de debilidad manifiesta”, es decir, “las personas respecto de las cuales esté probado que su situación de salud les impide o dificulta sustancialmente el desempeño de sus labores en las condiciones regulares, sin necesidad de que exista una calificación previa que acredite su condición de Discapacitados.

¿Qué es estabilidad laboral reforzada en Colombia?

La estabilidad laboral reforzada en Colombia es una protección especial que impide al empleador terminar un contrato de trabajo de manera unilateral, incluso durante el período de prueba, cuando el trabajador se encuentra en una situación de vulnerabilidad reconocida por la ley.

Para los empleadores, entender esta figura es clave para evitar demandas laborales y sanciones por despido injustificado. Estas son algunas situaciones en las que puede aplicarse:

• Fuero de salud: cuando el trabajador tiene una afectación de salud que limita sus capacidades laborales, el empleador debe demostrar que cualquier decisión de despido no está relacionada con su condición. De lo contrario, se requiere autorización previa del Ministerio del Trabajo.

• Fuero sindical: protege a los trabajadores que son parte de una junta directiva sindical, están en etapa preconstitutiva de un sindicato o han sido candidatos a cargos sindicales.

• Mujeres embarazadas o en licencia de maternidad: cuentan con estabilidad reforzada desde el inicio del embarazo hasta varios meses después del parto, incluso si el empleador no tenía conocimiento de su estado.

• Próximos a pensionarse o en proceso de calificación por invalidez: los trabajadores en trámite de pensión o con pérdida de capacidad laboral también tienen protección especial.

En todos estos casos, no basta con pagar una indemnización por despido: si no se cuenta con la debida autorización o no se demuestra una justa causa, el empleador puede estar obligado a reintegrar al trabajador y pagar salarios dejados de percibir.

Conocer las reglas de la estabilidad laboral reforzada permite tomar decisiones de personal con mayor seguridad jurídica y diseñar estrategias de manejo del talento humano que estén alineadas con la ley laboral colombiana.

Scope of the health jurisdiction: Supreme Court of Justice vs. Constitutional Court 

In order to determine the scope of the health jurisdiction, it is pertinent to take into account the positions of the Supreme Court of Justice and the Constitutional Court. These are described below.

What is the position of the Labor Chamber of the Supreme Court of Justice?

The Supreme Court of Justice, Labor Cassation Chamber, since the judgment SL1057 of 2021 began to specify that if a person has a certain health diagnosis, he/she will only be disabled if he/she enters into negative interaction with an attitudinal, communicative or physical barrier, as provided by the United Nations Convention on the Rights of Persons with Disabilities. Therefore, only having a health impairment is not enough to consider a person disabled and, therefore, protected under the protection of Article 26 of Law 361 of 1997.

In effect, this Corporation indicated: 

"Therefore, what is truly transcendent is not that a person has some type of deficiency or diminished health, which -it is reiterated- is absolutely natural and ordinary, but how this, in the interaction with the environment, habitat and society in which he/she develops, can negatively affect his/her social inclusion and the full effectiveness of his/her rights.

In this way, and on the occasion of the paradigm implemented by the Convention on the Rights of Persons with Disabilities, this concept migrates from the exclusively individual condition related to a physical, mental or sensory limitation of a person, to be implanted in society as a functional collective organization. Thus, disability is not predicated on the person him/herself but on the social environments that can potentially be disabling, depending on the barriers faced by those who have a biological impairment. [...]

The Convention is characterized primarily by abandoning an eminently scientific view of the issue of disability, known as the medical-rehabilitative model, whereby it was considered that any limitation a person had should receive medical treatment from a scientific point of view and, after that, overcome, mitigate or reduce the degree of health impairment, with the aim of actively participating in society. [...]

Thus, discrimination against a person with a disability will be mediated by the "distinction, exclusion or restriction" that is aimed at or results in the hindrance or denial of "[...] the recognition, enjoyment or exercise, on an equal footing, of all human rights and fundamental freedoms". Disability is, therefore, a concept that becomes dynamic and is not exclusively associated with a person's biological impairment.

This being so, it is important to analyze which are the barriers that a person with some type of limitation could face and that lead to the denial or hindrance of the full exercise of human rights and fundamental freedoms, under conditions of equality. [...]

In this sense, in order for a person to be considered as "disabled" or "in a situation of disability", it is required to demonstrate that he/she has an impairment, understood as a decrease or a biological affectation of any type in the physical, mental or sensory sphere, but it is also required to demonstrate that this impairment in relation to a barrier such as those described, prevented him/her from the effective and full enjoyment of his/her rights in conditions of equality.

 Thus, it is not enough to prove a simple impairment, no matter how profound or disabling it may be or appear to be. It must be associated with a barrier in a specific context that has the undesired effect of limiting the effective participation of the person with a disability in society or in a specific environment, such as the work environment.

All of the above means that the concept of impairment and disability can no longer be considered comparable, as was previously imposed by a legal framework prior to the entry into force of the United Nations Convention on the Rights of Persons with Disabilities. Now, it is necessary to demonstrate, as stated, the respective impairment but in relation to the barriers faced by the person. Only there can be evaluated the disability condition of a worker and, therefore, if he/she is deserving of the special protection of the state enshrined in Article 13 of the Political Constitution and developed, among many other norms, in Article 26 of Law 361 of 1997". 

Based on the foregoing, the Labor Cassation Chamber established its position in ruling SL1152-2023 with the report of Judge Marjorie Zúñiga Romero, in which it stated that for the applicability of the reinforced labor stability referred to in Article 26 of Law 361 of 1997, the following objective parameters must be present:

1. a) The existence of a physical, mental, intellectual or sensory impairment in the medium and long term.. Impairment, according to the ICF, is defined as "problems in bodily functions or structures such as a significant deviation or loss";
2. b) The existence of an attitudinal, social, cultural or economic barrier for the worker, among others, which, when interacting with the work environment, prevent him from effectively performing his work on an equal footing with others.;
3. c) That these elements are known to the employer at the time of dismissal, unless they are notorious for the case. 

Regarding these elements, the Court defined the first as biological losses or limitations and the second as those restrictions experienced due to social barriers that prevent the person from fully participating in work activities.

In fact, and prior to the previous jurisprudential change, in CSJ rulings SL1057-2021, SL2660-2018 the Court had insisted that the health leave does not apply to persons suffering from any type of disability, let alone for those who are simply in "incapacity" "or with any diagnosis for health conditions" and, "therefore, being an exceptional guarantee of stability, the judge cannot extend it automatically".  

Now, with regard to the causal link between the health condition and the discriminatory dismissal -a prerequisite for the health leave to operate-, this Corporation has specified that, in any case, "the prohibition of Article 26 of Law 361 of 1997 weighs on the dismissals motivated by discriminatory reasons, which means that the termination of the employment relationship supported by a just legal cause is legitimate.the prohibition of Article 26 of Law 361 of 1997 applies to dismissals motivated by discriminatory reasons, which means that the termination of the employment relationship based on a just legal cause is legitimate."In other words, in order for the reinstatement to proceed, it is necessary to prove that the decision was motivated by the health condition as a causal nexus.

This necessary accreditation, although the employer must disprove it insofar as it is presumed that the dismissal was discriminatory when the worker is disabled, allows to infer that it is not a mechanical operation in which without further analysis the judge must order the reinstatement whenever the worker is a subject of special protection and his contract has ended without authorization from the Ministry of Labor, but rather, and it is repeated, a common thread must be found between the decision to terminate the relationship and the disability (Ruling SL546 of 2022).

What are the criteria for the health jurisdiction? 

The following are the criteria of the Labor Chamber of the Supreme Court of Justice in cases in which reinstatement is sought due to health leave: 

- The employee must prove that he/she is disabled in accordance with the terms of Ruling SL1152 of 2023.

- The prohibition of Article 26 of Law 361 of 1997 is presented against dismissals motivated by discriminatory reasons, which means that the termination of the employment relationship supported by a just legal cause is legitimate (SL1360 of 2018, SL74407 of 2019, SL546 of 2022).

- Whenever the employee's disability is proven, the dismissal is presumed to be discriminatory and the employer must state that the cause of dismissal is not related to the disability (SL546 of 2022).

- The authorization of the Ministry of Labor does not operate automatically, since it is used when the employment contract loses its raison d'être due to the impossibility of rendering the service. 

- Authorization is not required when the reason for termination of the contract is due to a reason other than the physiological or psychological condition of the employee, such as a just cause (SL546 of 2022 and SL670 of 20222). 

Find out here: How does employment stability operate in the jurisdiction of mothers and fathers who are heads of household?

In this regard, what is the position of the Constitutional Court and what does it mean by the term "manifest weakness"?

For the High Constitutional Court, a person in a situation of manifest weakness due to health issues is that person: 

1. Who can be categorized as a person with a disability;
2. With a relevant degree of physical, psychological or sensory impairment; and 
3. That, in general, he/she has a serious health condition that prevents or substantially hinders the performance of his/her work under regular conditions (Decision T-277 of 2020).

Thus, the Constitutional Court has been structuring the concept of "Reinforced labor stability due to a state of manifest weakness"applicable to those persons whose health situation prevents or substantially hinders the performance of their work under regular conditions. or substantially hinders the performance of their work under regular conditions. "without the need for a previous qualification that accredits their condition of being disabled."(SU-049 of 2021).

On the other hand, for this corporation, it is indispensable that authorization be requested from the labor inspector for the dismissal of any worker "in a state of manifest weakness".in a state of manifest weakness"regardless of the existence of just cause.

In Ruling T-664 of 2017, the Court specified: 

The Constitutional Court, in reiterated and unified jurisprudence, has stated that having a deteriorated health condition cannot generate any type of discrimination in employment. For this reason, a worker cannot be dismissed because of his health condition and, therefore, before proceeding to terminate the employment contract, the employer must obtain the authorization of the Ministry of Labor. Now, when the employer omits to go to the Ministry of Labor and proceeds to terminate the employment contract, in addition to violating a legal norm, it incurs in a conduct suspected of alleged discriminatory treatment, which enables the knowledge of the constitutional judge and, as the case may be, the protection of the guarantee of labor stability reinforced by the worker's health status and, consequently, it is valid to order his reinstatement.

¿Conoces los derechos que protegen a ciertos trabajadores de ser despedidos? ➤ Explora las diferencias entre el fuero sindical y el circunstancial.

Does the employer need to know the worker's condition?

One of the strictly necessary requirements for this special protection to apply is that the employer knows of the state of health to which the worker refers. In this regard, the Labor Chamber of the Supreme Court of Justice, in Ruling CSJ SL1770-2020, stated the following:

The ineffectiveness of the dismissal provided for in the norm requires the presence of several assumptions, such as (i) that the employee suffers from a moderate, severe or profound disability, regardless of its origin; (ii) that the employer has knowledge of such disability; (iii) that the employer has knowledge of such disability; (iv) that the employer has knowledge of such disability(iii) that the employer dismissed the employee unilaterally and without just cause; and (iv) that the employer did not request the corresponding authorization from the Ministry of Labor.

Likewise, the Constitutional Court has been emphatic in determining the importance of the employer having knowledge of the alleged health condition of the worker, otherwise, there is no right to special protection. Thus, in Ruling T-148 of 2012, the High Court provided: 

It is imperative that the employer must know the worker's disability as an instrument of protection of legal certainty. This avoids the fact that later in the jurisdiction it is untimely assumed that the worker is disabled and various obligations are imposed on the employer that he did not foresee, due to his ignorance of the disability.

In the same sense, in Judgment T-664 of 2017, this corporation stated: "The element of the knowledge of the worker's health condition, on the part of the employer, has been considered, repeatedly, as a fundamental element in the fundamental element to grant the protection of the guarantee of reinforced labor stability.a".

Learn more here: What is the employer's role in job stability for contractors and apprentices?

Conclusions

1. Article 26 of Law 361 of 1997 establishes that in no case may a person's disability be a reason for hindering an employment relationship, unless such disability is clearly demonstrated as incompatible and insurmountable in the position to be performed. 
2. No person with a disability may be dismissed or have his or her contract terminated because of his or her disability, unless authorized by the Labor Office.
3. In general terms, health leave occurs when an employee suffers from a medium or long-term physical, mental, intellectual or sensory impairment that generates an attitudinal, social, cultural or economic barrier that, when interacting with the work environment, limits, prevents or hinders him/her from effectively exercising the position performed normally, situations that must be known by the employer.

¿Necesitas asesoría legal en derecho laboral?

Si tienes dudas sobre cómo manejar casos relacionados con el fuero de salud o deseas actuar conforme a la ley, un abogado en derecho laboral puede orientarte. Nuestro equipo de abogados laborales está listo para ayudarte a tomar decisiones seguras para tu empresa.