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New guideline from the Ministry of Labor to authorize the termination of the employment contract for employees in evident vulnerability

The Ministry of Labor issued the Internal Circular 0049 of August 1, 2019 that sets forth the new guideline to grant the authorization to terminate the employment contracts of those employees who have reinforced employment stability for being in evident vulnerability conditions caused by their health conditions.

 

 

Who is eligible for reinforced employment stability caused by health conditions


The reinforced employment stability protects every employee who:

  1. Could be categorized as a person with disability.
  2. Has a physical, psychical or sensory reduction in a relevant degree.
  3. In general, all those who:
    1. Have a serious health affectation;
    2. That circumstance substantially prevents or interfere with the performance of his/her duties in regular conditions; and
    3. It is feared that, in those particular circumstances, people can be discriminated.
       
Aspects that will be taken into account by the Labor Officers to accept the different submissions

1. Request to terminate the employment agreement when the employer alleges a just cause.

The Labor Officers must refrain from qualifying the conducts alleged in the request of the authorization. The Officer’s role will only limit to verify or confirm the grounds of the just cause and that it fits the scenarios set forth in the Colombian Labor Code. When the employer has undertaken the relevant disciplinary proceeding, the Labor Officer shall not deny the termination request.

2. Request to terminate the employment agreement when the employer informs the existence of an objective ground.

When the employer invokes the expiration of the term or the termination of the contracted job as a ground of termination of the employment contract of an employee who has acquired the disability during the effectiveness of the labor relationship or the employee is under evident vulnerability, the Labor Officers may only grant the authorization when the employer demonstrates that rehabilitation process has been carried out. For this purpose, the relevant Health Maintenance Organization (EPS for its meaning in Spanish) or Labor Risk Administrator (ARL for its meaning in Spanish) must issue a certificate.

3. Request to terminate the employment agreement when the health issues are incompatible and insuperable with the position the employee.

In order for the Ministry of Labor to authorize the termination of the employment contract, the employer must demonstrate that has reasonably and diligently made the administrative and organizational adjustments for the rehabilitation and reincorporation process. In this sense, the employer must sufficiently support the reasons why the labor relationship with an employee under vulnerability, exceeds the company’s possibilities and is incompatible with the company’s administrative and organizational structure. In this sense, the employer must demonstrate that it has diligently fulfilled all the phases of labor rehabilitation, reinstatement, readjustment and/or relocation.

4. Request to terminate the employment agreement when the employer does not alleges just cause or contract’s expiration or does not prove that has undertaken the reincorporation process.

The Ministry of Labor expressly stablished that in these cases the labor inspector must deny the authorization to terminate the employment contract.

Term to answer the request

The Ministry of Labor established that the Labor Officer will have 15 business days to issue the authorization or deny the request in cases 1 and 2 mentioned above.

For the request of termination when the health issue is incompatible and insuperable with the position performed, the Labor Officer will have 30 business days to issue a decision.

In the administrative proceeding the Labor Officer shall not decide, qualify or judge the alleged just cause or the objective ground for the employment contract’s termination. This question is jurisdiction of the ordinary labor judge.
 

 

Disabled pensioners could be hired under any type of labor contract

The Ministry of Labor issued the Concept 25178 of June 28, 2019. In this Concept the Ministry stablished that any person under a disability situation or disabled pensioner could be hired under any type of labor contract.

For the Ministry of Labor it is obvious that a person under a disability situation may receive the pension that he/she is entitled to and, at the same time, may earn a salary as a result of his employment contract.

Employers who hire an employee under a disability situation have the right to obtain benefits in public and private contracts, loans, tariff rates in importation and exportation of machinery and equipment specially developed for the people in disability situation, and in tax matters by way of deduction of the income tax.

In case the disability pension is originated in a non-work-related sickness or accident, the benefit will be paid by the pension fund to which the person is enrolled, while, if the pension is originated in a work-related sickness or accident, the labor risk administrator will pay the benefit.

The Ministry of Labor concludes that any person under a disability situation or who has a disability pension may be hired by any type of labor contract.

 

The Labor Chamber of the Supreme Court of Justice decided an extraordinary remedy filed the plaintiff, against the judicial ruling issued by the Labor Court from Medellín on April 8, 2010.

The Ministry of Labor issued Resolution 312 of February 13, 2019 whereby the entity stablishes the minimum standards for the Health and Safety at Work Management System (HSWMS).  This new Resolution expressly repeals the Resolution 1111 of 2017.

On December 28, 2018 Colombian Congress sanctioned Law 1943 of 2018 “Whereby the Congress issues the financial rules for the re-establishment of the General National Budget's equilibrium and sets forth other provisions”.

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