Paid and unpaid leave: Distinctions and employer's obligations

In the business environment, the correct management of paid and unpaid leave is essential for regulatory compliance and the optimization of human talent. For employers, knowing the differences, regulations and obligations associated with these leaves not only ensures legal compliance, but also allows maintaining the company's operational stability and promoting an efficient work environment. This article details the characteristics of both types of leave and how they can be managed strategically.

What is paid leave?

Paid leaves of absence are leaves of absence that the company grants to its employees without affecting their salary, in compliance with current labor regulations. These leaves seek to balance the employee's needs with the continuity of business operations, ensuring that the employee's absence does not have a negative impact on productivity.

Types of paid leave and their impact on the company

⦁ Bereavement leave: The company must grant five working days in the event of death of the spouse, permanent partner or a relative of the employee up to the second degree of consanguinity, first degree of affinity and second civil. This leave shall also be granted to the daughter, foster father or foster mother.

⦁ Domestic calamity leave: The Constitutional Court defined this leave as leave granted for. "any family event whose seriousness affects the normal development of the worker's activities, in which fundamental rights of significant importance in the personal or family life of the world may be threatened, such as a serious affectation of the health or physical integrity of a close relative- son, daughter, father, mother, brother, spouse or partner-, the kidnapping or disappearance of the same, a serious affectation to the worker's home or that of his family by fortuitous event or force majeure, such as fire, flood, or earthquake.". This paid leave must be granted "during a reasonable period of time", taking into account not only that the employee can overcome the situation, but also the operation of the company, previous leaves granted, among other aspects. It is advisable to have internal policies that regulate the justification and duration of these absences.

⦁ Maternity and paternity leaveIn Colombia, companies must currently guarantee 18 weeks of maternity leave and 2 weeks of paternity leave. With compliance with legal requirements, these leaves can be recovered from the EPS. Implementing replacement strategies and redistribution of tasks is key to reduce any eventual impact.

⦁ ISAAC Law Leave: This paid leave shall be recognized for the period of ten (10) working days, which may be recognized continuously or discontinuously, according to agreement between the employer and the worker. Employers have the obligation to allow a paid leave once a year, by mutual agreement with the worker, to the father, mother or whoever has the custody and personal care of a minor who suffers from a terminal disease or condition or severe clinical picture derived from a serious accident and requires permanent care or palliative care for the control of pain and other symptoms. Now, for the recognition of the leave of absence, the worker must submit the procedure to the employer with the requirements established by law and the company is in charge of making the payment and subsequent recovery to the corresponding EPS.

Paid leave

Finally, although they are not called leaves of absence, it is important to take into account the paid leaves regulated by law: 

What is unpaid leave?

Unpaid leaves of absence are part of one of the grounds for suspension of the employment contract, that is, in numeral 4 of Article 51 of the Substantive Labor Code:

ARTICLE 51. SUSPENSION. The employment contract is suspended:

(...) 4. For leave of absence or temporary permission granted by the employer to the employee (...)

Therefore, unpaid leaves of absence have been defined as those that the employer may voluntarily grant to its employees to be temporarily absent from work. Within the framework of these leaves, the employment contract is suspended and, therefore, there is no salary payment and the consequences set forth in Article 53 of the CST will apply, namely: 

ARTICLE 53. EFFECTS OF THE SUSPENSION. During the period of the suspensions contemplated in article 51. article 51 the obligation of the worker to render the promised service is interrupted, and for the {employer} the obligation to pay the salaries of those periods is interrupted, but during the suspension the {employer}, in addition to the obligations already arisen previously, shall be responsible for those corresponding to it due to death or illness of the workers. These periods of suspension may be discounted by the employer when liquidating vacations, severance payments and retirements.

However, it is important to point out that there is no exhaustive list for these leaves, but they are commonly limited, for example, to periods of study that the employee wishes to take, attention to personal matters that do not correspond to mandatory paid leave, among other situations. 

In the following legal article published in NOTINET and written by one of our lawyers you can find more detailed information about unpaid leave, click here.

Employer obligations and strategies for efficient management

For employers, it is essential to ensure compliance with labor regulations without compromising business efficiency. Some key strategies include:

⦁ Comply with current legislation: The company must ensure that it grants licenses in accordance with the law to avoid legal claims and/or administrative sanctions.

⦁ Define clear internal procedures: Including an internal procedure for licensing could be a strategy to optimize management and avoid misunderstandings.

⦁ Train the human resources team.: The personnel in charge should be aware of the regulations and procedures to properly handle license applications.

⦁ Use technology for absence management: Digital tools allow better planning of workload and avoid impact on productivity.

⦁ Promote transparent communication: Explaining leave request conditions and processes to employees minimizes conflicts and optimizes decision making.

Key differences between paid and unpaid leave

Recommendations for optimizing license management in companies

To minimize impacts on business operations, companies can adopt the following strategies:

⦁ Implement an absence planning system: A management software makes it possible to anticipate employee absence and ensure operational continuity.

⦁ Encourage agreements with employees: Negotiating leave times according to business needs can generate greater flexibility and efficiency.

⦁ Create substitution plans: Having trained backup staff ensures that essential functions continue to be performed during absences.

⦁ Evaluate cases individually: While policies should be general, analyzing each request based on business needs allows for informed decisions.

The importance of a correct application of licenses

Efficient leave management benefits both the company and the employees. A clear and well-implemented regulatory framework protects workers' rights without compromising business productivity. Employers who strategically manage leave can reduce turnover, improve job satisfaction and avoid legal disputes.

By understanding the differences between paid and unpaid leave and implementing policies aligned with operational needs, companies can optimize their internal processes, comply with regulations and strengthen their relationship with their employees.