On April 27th Decree 649 of 2022 (the "Decree") was issued, which regulates and establishes the general guidelines for implementing work from home in Colombia.
The following are the main changes of Decree 649 of 2022, regarding work from home:
What are exceptional, occasional, or special circumstances that give rise to work from home? They are extraordinary and unusual situations, which are estimated to be overcome in time, and are caused by external, non-work-related events or by events proper to the employee or the employer. They allow the employee to perform his/her duties in a place other than the usual workplace.
To whom does it apply? To employers and employees of the private sector, to the Administrators of Labor Risks (ARL), both in the national territory and abroad (exceptionally).
Request for work from home. If there are occasional, exceptional or special circumstances, work from home may be requested by the employee to his/her employer (in writing, on physical or digital media). In no case shall the employee's request for authorization to work from home give rise to an automatic entitlement to work from home. Likewise, in such circumstances, the employer shall be entitled to opt for the authorization to work from home with respect to one or more of its employees.
Proceeding for implementing work from home
a. If the request is submitted by the employee, written communication must be sent to the employer, clearly stating the reason for the request, with proof thereof.
b. Within a term of 5 days, the employer must review the request and the applicability of the reason invoked by the employee. The employer must give a positive or negative answer to the employee in writing.
c. In addition to the existence of exceptional, special or occasional circumstances, the following criteria must be considered (i) the employee's duties can be performed outside the usual place of work; (ii) the tools required for the enabling of work from home are available; and (iii) allowing work from home does not generate a lower productivity of the employee.
What are the aspects that must be included in the written authorization to work from home? The employer's authorization for an employee to perform his/her duties under the work from home modality must be include the following:
a. The description of the occasional, exceptional or special situation that justifies the implementation of work from home.
b. The term of the authorization to work from home, which must comply with the provisions of Law 2088 of 2021 (3 months, extendable only once, for an equal term).
c. The functions of the employee during work from home.
d. The means of communication to be implemented between employer and employee, as well as the channels for filing complaints for violation of the right to disconnection from work and/or labor harassment.
e. The address from which the services will be provided.
f. If the employee uses his/her own working tools to perform his/her duties, there must be a statement of the mutual agreement to do so.
g. If the working tools are provided by the employer, it must be indicated which tools are to be used, as well as the responsibilities for their safekeeping and return.
h. The IT security measures to be implemented.
Special obligations. The Decree also established the obligations of the employer, the employee, and the Labor Risks Administrator (ARL).
Other changes to be considered
a. Compensation for the use of tools owned by the employee. The employer and the employee may, by mutual agreement, agree on a monthly compensation amount for the use of working tools owned by the employee, when it is not the employer who supplies them.
b. Alternation. The employer may determine that the work from home shall be carried out under a hybrid or alternation model when deemed necessary.
c. Termination of the work from home. Upon expiration of the term of the work from home authorization, the employer shall inform the employee of its termination and return to the usual place of work.
d. Work abroad. Work from home modality may be carried out from abroad. To do so, the employee must have the express authorization of the employer. The address and city abroad from which the services will be rendered must be informed by the employer to the ARL, as well as any modification thereto.