The Ministry of Work responds a request for information on the suspension of employment agreements due to force majeure or fortuitous event due to Covid-19.
In first place, the Ministry clarifies that its concepts are issued in a general and abstract way, since its members do not have the power to declare individual rights or define controversies.
According to Colombian labor law, employers may suspend the employment agreements due to force major or fortuitous events (numeral 1 of Art. 51 of the Labor Code). As a consequence of the suspension, the employee is exempted from rendering services and the employer is exempted from paying wages. The remaining obligations continue to be in force, such as the payment of the contributions to the Social Security System in Health and Pension under the terms of the law. Although according to the Ministry of Work, during this period, the employer shall make all the contributions in Health (12%) and Pension (16%), this position is against current laws (article 126.96.36.199. Of Decree 780 2016). According to current regulations, in the event of suspension of employment contracts, the employer should only make contributions to the Health System in the percentage corresponding to the employer (8.5%), and not in percentage corresponding to the employee. Regarding the contributions to the Pension System, the Ministry confirms that after the employment agreement has resumed, it is possible to deduct from the employees’ salary or final liquidation, the percentage that normally corresponds to the employee (4%) but that the employer paid on his/her behalf. In this case, deductions shall be conducted in a reasonable, moderate and gradual way.
Non-compliance with the payment of the contributions to the Social Security System will result in administrative penalties due to avoidance or evasion. Likewise, the employer will be liable for the illness or death contingencies that may occur during the suspension of the employment agreement.
Likewise, the Ministry of Work highlights the difference between common origin contingencies (not related to work) such as the general illness, from the force major and fortuitous event. For this purpose, the Ministry quotes case law, concluding that the event invoked as force majeure corresponds to an unpredictable and irresistible event, implying that despite the measures adopted, it is impossible to prevent the event from occurring. In this sense, this entity clarifies that the classification of an event as force majeure cannot be done by the Ministry, since its concepts are issued in a general and abstract manner and, especially, because it does not have the faculty to declare rights.
Notwithstanding the above, the Ministry indicates that employers have a corporate social responsibility, in addition to the freedom they have to self-regulate, concluding that the health contingencies currently attended by the Social Security System in Health and Pensions are different from situations of force majeure or fortuitous event as grounds for the suspension of the employment agreement.
Thus, the Ministry of Work concludes that for applying force majeure or fortuitous event for suspending the employment agreements, there must be a legitimate legal basis, and that the administrative provision for the closure of the company or suspension of preventive activities is not a legitimate one.
The Ministry of Work indicates that even though public health is responsibility of the State, it is everyone's duty to prevent during the pandemic, considering the freedom of enterprise, but also the corporate social responsibility. From this responsibility arises the employer's obligation to pay the contributions to the Social Security System and the obligations on the employees´ health contingencies, a situation that differs from an event of force majeure or fortuitous event as grounds to suspend the employment agreement. Lastly, the Ministry of Work sets that this distinction will be considered when evaluating employers' requests for suspending employment agreements, verifying whether it is an irresistible and unpredictable event.