On March 8, 2021, the Ministry of Labor issued Circular Letter No. 022 providing instructions and guidelines on the request of COVID-19 testing in the workplace.  

Through this Circular Letter, the Ministry of Labor highlights the following: 

1.    The employer has the duty to protect the intimacy and privacy rights of its employees in relation to health; 

2.    The information request on certain diseases or disabilities is illegal and violates, among others, the non-discrimination and intimacy rights; 

3.    Not having provided information to the employer about diseases or disabilities does not constitute a just cause of termination;
 
4.    Insofar as the recognition of a disability pension implies the existence of a disability, the job applicant is not obliged to inform the employer about this condition; 

5.    The burden of determining whether employment is incompatible with the disease or disability cannot be on the employee; 

6.    In a job interview, the questions aimed at obtaining relevant information must be focused on the needs of the job. Therefore, questions that are not related to the position will be interpreted as possible signs of labor discrimination and, in any case, do not oblige the job applicant to provide an answer; and

7.    If the employer knows of the illness and/or disability during the employment relationship and deems that it is incompatible with the position held by the employee, it must carry out the corresponding procedure before the Ministry of Labor. 

From these rules, the Ministry of Labor concludes that: 
•    The criteria for selecting employees must be related to the specific job to be developed and consequently, any information requested to this respect must be directly related to it.

•    According to Resolution 666 of 2020 and the recommendations made by international organizations regarding the need to protect employees and their families from the contagion of COVID-19, it is possible for an employer to send an employee to be tested of COVID-19. The foregoing, since the employer or contracting company has the obligation of identifying the health conditions of its employees and to implement measures that ensure the continuity of activities and the integral protection of employees. 

•    If an employee or job applicant has symptoms, it is possible to send him / her to be tested, covering all expenses. In this case, the employer must inform the job applicant or employee of said circumstance, which must be duly justified. This matter cannot hinder the hiring process or continuity in employment. 

•    The result of the COVID-19 test cannot negatively affect the employment relationship, but instead must encourage the employer to implement protective and supportive measures to avoid any type of discrimination.

•    It is not feasible to require an employee or job applicant to provide a COVID-19 test as a requirement of access or continuity in employment. Likewise, COVID-19 testing cannot be used as a form of discrimination or violation of fundamental rights. 

Based on these provisions, the Ministry of Labor provides the following instructions: 

•    For the beginning of an employment relationship, the employer cannot require the job applicant a COVID-19 test; 

•    A medical examination or test cannot be considered as a requirement to be hired or remain in employment; 

•    When the community and individual´s protection, as well as the health and safety conditions at work require so, the employer can send the employee to be tested of COVID-19, under the company´s responsibility and cost. The result of the test cannot be used as a ground of termination of the employment agreement; and 
•    The employer must implement measures, mechanisms and protocols for protecting its employees ‘lives and health. For this purpose, it must adjust all hygiene and safety at work measures to guarantee the development of labor activities in the workplace under safe conditions.