Distant working from Overseas: suggestions, formalization points and protection of the social safety system

One of the key legal discussions sparked by the global Covid-19 pandemic in labor law was about the practical implications of remote working. The above is strange when we analyze that since Law 1221 of 2008 the numbers of teleworking in its various forms and working at home were already anchored, but only until that point when we were forced to use them Concerns, questions and loopholes expressed about the implementation conditions, the occasional or permanent nature of these measures, the establishment of preventive mechanisms for occupational risks and coverage by the general social security system, to name but a few.

Furthermore, the situation the world is in makes it clear that the ability to conduct work activities using information and communication technologies (ICT), along with the particular circumstances of some employees who do not need to remain in a single geographic location, is one become a great advantage.

Indeed, it should not be ignored that, given the restrictions imposed by governments on the free movement of people and the fact that they work from home or from a family location, there is a need for greater reconciliation between personal and professional aspects to achieve a balance. For this reason, many employees have even preferred to continue executing their employment contracts from abroad.

Notwithstanding the foregoing, it is clear that the implementation of remote work raised doubts among employers, particularly in relation to the formalization of the execution of work activities abroad, the timing of the action, the exercise of the power of subordination and the coverage of the general health system and the occupational risk system if an event takes place abroad.

In this regard, although many practical aspects relating to this matter are not expressly set out by labor law and there are no unanimous positions on the matter, the following legal recommendations for properly dealing with these circumstances of remote working from abroad are:

1. First of all, it must be clarified that the change in the place of performance of the work activity constitutes a change in working conditions, which, in accordance with Article 50 of the Colombian Labor Code, must be formalized by an additional formalization clause on the employment contract, signed by both parties to the employment relationship, as a sign of knowledge and acceptance .
2. Second, it should be noted that the performance of remote work from abroad, regardless of whether it is carried out at the express and voluntary request of the employee or on a determination by the employer for the purpose of service provision, in no way restricts the exercise of the employer’s power of subordination. Therefore, the employer reserves the right to give orders and instructions in relation to the assigned work and, at the time he deems appropriate, to provide that the work activities must be carried out again within the national territory. At this point, however, it should be noted that the employee who applies for permission to carry out his work from another country can do so only with the consent of the employer and taking into account the provisions of Article 57 of the Colombian Labor Code, the company is not obliged to cover the travel expenses of the person or their family members, as this is not an employer’s imposition that involves a change of residence.
3. Regarding the coverage of the General Health System in the event of contingent liabilities of common origin, the recognition of support benefits is an obvious territorial restriction, although the employer still has to pay contributions to the system due to the existence of the employment relationship in relation to the services of the EPS in Colombia. Therefore, in the case of events of common origin, it is advisable that the employee declares that he is solely responsible for assuming the costs of any event that may occur and that in the event of frequent accidents or illnesses he should try to take out international health insurance during his stay abroad. It should be made clear that it may also be a decision of the employer to require the employee to take out international health insurance in order to guarantee and relieve health care in a real and effective way in the event of a situation of common origin occurring abroad and release of the employer from any liability arising from the territorial contractual obligations.
4. On the other hand, with regard to the system of labor risks, it should be noted that case law has accepted the relative application of the principle of territoriality of labor law. Even if the work is carried out abroad and the authority to subordinate continues to be exercised from Colombia, the ARL must provide cover for the accidents at work and occupational diseases that occur abroad. However, it is necessary and required by law that the employer timely notifies the change of the place of work of the work to the ARL and indicates the estimated length of the employee’s period in another country, in order to avoid controversy and the need to provide additional entitlement to recognition of benefits , mainly economic benefits.
5. Finally, in accordance with the provisions of Decree 1072 of 2015 and the related recommendations of the Colombian Ministry of Labor for the Prevention of Occupational Risks, the employer must include all workers, regardless of their geographical location, in the performance of all activities related to health and safety at work. In addition, the employee is obliged to take care of his or her health and to observe all prescribed preventive measures, for example by taking part in planned training courses and immediately reporting the occurrence of Covid-19 symptoms or infected people in the immediate vicinity.

The new world of limitless remote work will bring us new challenges. The search and application of suitable legal systems that are adapted to these new realities represent the constant challenges that we as experts in this field have to face on a daily basis.