Decree 1227 of 2022 by means of which teleworking is modified.
Teleworking was created by Law 1221 of 2008 as a form of labor organization that consists of the performance of remunerated activities using information and communication technologies (ICT) as support for the contact between the worker and the company, without requiring the physical presence of the worker at a specific work site.
Subsequently, it was regulated by Decree 884 of 2012. However, the Ministry of Labor published Decree 1227 of 2022 to modify some aspects of this contractual modality.
Learn about the modifications initially proposed by this portfolio:
Decree by which articles 2.2.1.1.5.3, 2.2.1.1.5.5, 2.2.1.1.5.8 and 2.2.1.1.5.9 are amended and articles 2.2.1.1.5.15 to 2.2.1.1.5.25 are added to Decree 1072 of 2015, related to Teleworking.
By means of the draft decree, the Ministry made the following modifications:
As a first step, the employment contract must contain: (i) The conditions necessary for the execution of the assigned functions, the technological means and environment required, as well as the description of the proper use of equipment and software, along with the restrictions and responsibilities for non-compliance; (ii) The modality of telework to be executed and the applicable weekly working day; (iii) The responsibilities regarding the custody of the work elements and the procedure of restitution at the end of the telework; (iv) The digital security measures that the teleworker must know and comply with; (v) The description of the minimum requirements of the job position for the development of the contracted work, in ergonomic and technological aspects.
Additionally, the obligation to add to the Internal Work Regulations a section regulating teleworking was eliminated, stating textually the Decree that "The implementation of teleworking will not require addition to the Internal Work Regulations, nor modification to the Manual of Labor Duties and Competencies".
He pointed out as obligations of the employer:
- Fill out the form adopted for the development of teleworking provided by the ARL.
- To inform to the ARL the modality of telework chosen. In case of supplementary and autonomous telework, inform the place chosen for the execution of the functions, as well as any modification. In the case of mobile telework, inform the conditions under which the contracted work will be executed. In all cases, indicate the weekly working day, risk class of the work and risk class of the company, entity or work center.
- Include telework in its methodology for the identification, evaluation, assessment and control of hazards and risks of the company or entity, adopting the necessary actions according to its annual work plan of the SGSST.
- To make known to teleworkers the mechanisms of communication to report any developments arising from the performance of telework and instruct on the reporting of accidents or occupational diseases.
- Provide the teleworker with work equipment and tools appropriate to the task to be performed and ensure that he/she receives training on the risks arising from such equipment.
- Promote the protection and respect for human dignity, in terms of access to information and the right to privacy and intimacy.
- Guarantee the right to labor disconnection (Law 2191 of 2022).
- Order the performance of medical-occupational evaluations.
- Train the teleworker beforehand in occupational risk prevention and promotion activities, especially in mental health, ergonomic factors, ICT and digital safety.
- To inform the teleworker about the restrictions of use of hardware and software, the current legislation on data protection, intellectual property, information security and sanctions.
- To advance the actions in the matter of well-being and training to the teleworker in the frame of the plan of training and well-being of the company or entity.
The obligation of the employer to inform the Ministry of Labor the number of teleworkers is maintained, for which it will fill out the digital form provided for this purpose. Now, this portfolio together with the MINTIC will advance the steps required for the design and implementation of an information system of telework in which companies will record the linkage and other developments of teleworkers.
On the other hand, the teleworker will have the following obligations:
- Participate in prevention and promotion activities organized by the company or COPASST and in the employer's or ARL's virtual activities.
- Comply with OSHMS rules, regulations and instructions.
- To seek comprehensive health care and provide the employer with clear, truthful and complete information about any changes in their health status.
- Participate in the prevention of occupational hazards, report accidents and incidents at work and occupational diseases.
- Follow instructions regarding the use and appropriation of ICT.
- Provide truthful information about the workplace and any changes.
- Return the equipment and tools delivered by the employer for the performance of their work, in the condition in which they were received, except for deterioration due to normal use.
- Efficiently comply with the established activities and goals.
- Fulfill the same activities, goals and results that are performed face-to-face.
- Participate in the training required for the correct performance of their work.
- Participate in wellness, training and incentive sessions and activities developed by the company.
On the other hand, it is noted that no instrument may condition the implementation of telework, "based on requirements that involve barriers such as prior visits to the workplace by the employer, requirement of information systems to track telework activities, among others".
In this regard, and regarding the work place, it was specified that the visit may be carried out virtually or in person with the advice of the ARL and prior coordination with the worker.
Regarding the reversibility, the Decree provides that "the parties retain the right to the reversibility of telework, that is, the power to request at any time, the definitive return to the execution of work in the company, entity or workplace". The reversibility for private workers will be effective in the term established by the parties. Nevertheless, in case of hiring for the first time a teleworker, this one will not be able to demand subsequently to realize his work in the employer's facilities, unless the parts of mutual agreement modify the agreed thing.
Additionally, it was determined that employers must adopt and publish virtually an internal policy regulating the terms, characteristics, conditions of teleworking according to the needs of the service, indicating the minimum aspects that must be contained (Article 2.2.2.1.5.18 of the Decree).
As for the equipment and tools of work, the rule specified that it is up to the employer to provide the tools of work for the realization of teleworking such as computer equipment, software and virtual repositories and programs required for the development of the contracted work. However, the parties may agree that the worker makes available to the employer their own equipment and tools, in which case the teleworker is obliged to maintain in good working order. The parts will be able, of mutual agreement, to agree the monthly value of compensation for the use of tools of work of property of the worker.
With respect to the "compensatoryallowancefor public services costs", the Decree states that the parties may, by mutual agreement, fix the cost of the monthly allowance that will compensate the costs of internet, telephone and energy. For the effective implementation, and prior agreement between the parties, the employee may assume in full the cost of internet and energy services.
Finally, and regarding supplementary teleworking, the regulation determines that by mutual agreement, the parties may determine that this modality is developed through hybrid models of work, that is to say, that they work alternately, two or three days a week at home and the rest at the work center, indicating the days of presence and teleworking, which may be fixed or variable.
Law 2225 of 2022 whereby Laws 1636 of 2013 and 789 of 2002 are amended.
Through the issuance of Law 2225 of June 30, 2022, Laws 1636 of 2013 and 789 of 2002 are reformed, establishing new support for the unemployed, caregivers and mothers or fathers head of household in the framework of the social benefit of the Family Allowance and strengthening the National Employment System. Learn about the amendments made to these regulations.
Law 2225 of 2022 whereby the generation of employment is promoted and other provisions are enacted.
Through the issuance of Law 2225 of June 30, 2022, Laws 1636 of 2013 and 789 of 2002 were amended, establishing new support for the unemployed, caregivers and mothers or fathers who are heads of household within the framework of the social benefit of the Family Allowance and strengthening the National Employment System.
In the first measure, Article 3 of Law 1636 of 2013 is amended, determining that all public and private sector workers, dependent or independent, who make contributions to the Family Compensation Funds, for at least one continuous or discontinuous year in the last three (3) years if they are dependent or two continuous or discontinuous years in the last three (3) years if they are independent, will have access to the Mechanism for the Protection of the Unemployed, regardless of the form of linkage.
The economic benefits to which all workers who contributed to the Family Compensation Funds will be entitled will be: (i) Payment of the contribution to the Social Security Health and Pension System over one (1) SMLMV; and (ii) An economic transfer for a value of 1.5 SMLMV for those contributors in category a and b of the Family Subsidy System.
Regarding the recognition of the benefits, the regulation specified that the Funds must verify, within 15 working days following the request of the unemployed person, whether or not he/she meets the conditions for access to the benefits of the FOSFEC. Thus, the unemployed person who meets the requirements will be included by the Cajas in the registry to be beneficiary of the payment of the contribution to the health and pension subsystems and of the economic transfer for a period of 4 months, sending him/her to the management and job placement agencies of the Cajas de Compensación Familiar, to start the employability route.
Likewise, Article 12 of Law 1636 was amended to determine that dependent or independent workers who comply with the requirement of contributions to Family Compensation Funds will receive a benefit, charged to the FOSFEC, which will consist of contributions to the Social Security System in Health and Pensions, calculated on one (1) SMLMV. This benefit will be paid for a maximum of 6 months.
They may not receive benefits charged to the FOSFEC:
- Unemployed workers who, after terminating an employment relationship, maintain others in force or have received benefits from the Fund for 6 continuous or discontinuous months during the last 3 years;
- Those who obtain through simulation or deceit any type of benefit from the Fund;
- The laid-off workers to whom these benefits have been assigned and paid from the Fund and who have not received the economic transfer within 4 months.
Likewise, the following dependents of the beneficiary workers -in addition to those established in paragraph 1 of Article 3 of Law 789 of 2022- were included among those entitled to the family allowance in cash: the spouse or permanent partner of the affiliated worker who does not have any employment or income and who performs care activities with respect to any person in charge of the worker. The monetary contribution will be granted to those affiliated workers whose fixed or variable monthly remuneration or that of the household does not exceed 2 SMLMV.
On the other hand, it was specified that workers who have accredited 25 or more years of affiliation to the Family Subsidy System through a Family Compensation Fund will be automatically affiliated to the Family Subsidy System as pensioners by loyalty immediately to the last fund to which they were affiliated, once the pension is recognized, and will be entitled to training, recreation and social welfare programs at the lowest rates.
Regarding employment management and placement services, it was specified that these are the responsibility of the public employment service providers and are understood as: (i) all activities that facilitate the encounter between labor supply and demand and (ii) all those activities that lead to the improvement of employability conditions and mitigation of barriers to access and permanence in employment.
It was established that the Ministry of Labor will establish the rules for the provision of employment management and placement services. Likewise, the Family Compensation Funds must provide management and placement services with prior authorization from the competent authority.
With respect to the mandatory nature of the registration of vacancies in the Public Employment Service, it was indicated that all employers are obliged to report their vacancies in the PES in accordance with the regulations issued by the Government for such purposes. Subsequent to the referral of the job vacancies or job seekers made by the provider, employers are obliged to report to the provider the job vacancies placed or, failing that, the reasons for non-placement. This process must be carried out within 6 months following the referral made by the provider. Finally, it was determined that the Government will regulate the sanctions for employers who do not report their vacancies to the SPE.
Regarding certifications to apply for public and private jobs, the Law stated that those duly issued by Higher Education Institutions, Education Institutions for Work and Human Development, Higher Normal Schools or SENA, where it is stated that the administrative process of issuing the student's degree or certificates is being carried out because the student already meets the requirements to obtain it, will be valid to apply for jobs in the public and private sector.
However, it is clarified that the practice of regulated professions shall continue to be governed by the provisions in force on the matter and the certifications referred to in this article shall not entitle the holder thereof to practice the respective profession.
If you have any further questions or doubts about the scope and implementation of these measures, we invite you to contact us through our usual channels.