New guidelines from the Ministry of Health regarding Covid-19

In turn, on January 13, the same ministerial portfolio issued Joint Circular No. 004, which detailed various aspects regarding isolation periods for symptomatic and asymptomatic persons and, especially, regarding the issuance of incapacities by the Health Promoting Entities (EPS).

Below, we present the most important changes on such issues and their implications in labor matters.

1. New guidelines:

On January 7, the Minister of Health indicated that the new guidelines would be as follows:

• Preventive isolation: It will be for 7 continuous days after the first symptom, regardless of the person's vaccination status.
• Sampling: It will not be necessary for persons between 3 and 59 years of age, since the symptomatology is already "conclusive evidence" of an infection by the new Omicron variant. In the case of persons over 60 years of age, under 3 years of age or with risk factors, the PCR or antigen test should be taken immediately after presenting any symptoms.

 2. What changed with the Joint Circular?

Particular guidelines were established depending on whether the person is symptomatic or asymptomatic, as well as the status of his or her vaccination schedule. In summary, the changes were as follows:

• Symptomatic persons: At the first symptom, they should be isolated for 7 continuous days, regardless of their vaccination status. This isolation does not require diagnostic test with the exception of people over 60 years of age, under 3 years of age or with risk factors.

Regarding the issuance of the certificate of isolation or the certificate of incapacity, this shall be issued by the physician, without requiring the existence of a diagnostic test (antigens or PCR), who shall inquire about the work activity performed by the patient and the possibility of teleworking, remote work or work at home.

• Asymptomatic persons: In this case, two situations may arise:

(i) the person has had close contact with a confirmed case of Covid-19 and has an incomplete vaccination schedule or has not been vaccinated at all. In this case, the person must be isolated for 7 days from the first day of exposure.

Regarding the issuance of the isolation certificate or the certificate of incapacity upon confirmation of an epidemiological link, this shall be issued by the physician who shall inquire about the work activity of the patient and the possibility of teleworking, remote work, or work at home. If the patient cannot work under any of these modalities, it is suggested to order the test for Covid-19. If the result is negative, isolation will be suspended, and the patient will be able to return to work in person.

(ii) the person has had close contact with a confirmed case of Covid-19 and has a complete vaccination schedule. In this case, isolation or diagnostic test will not be necessary, but it is recommended that the person avoids participating in crowds, events, or visiting people over 60 years of age, children under 3 years of age or with any risk factor for 7 days from the beginning of exposure and maintain the strict use of a face mask.

3. Covid-19 as a disease of common or occupational origin.

It should be recalled that to date the National Government has recognized this coronavirus as a direct occupational disease only for the health sector, including administrative, cleaning, surveillance and support personnel who provide services in the different activities of prevention, diagnosis and care of this disease[1] allowing that from the moment its diagnosis is confirmed, the Labor Risk Administrators (ARL) must recognize all the assistance and economic benefits derived from the incapacity of occupational origin.

Consequently, for all other professions or trades, Covid-19 will be considered a disease of common origin, without prejudice to the fact that the causality between the disease and the development of the worker's work activities is demonstrated by means of the qualification of origin.

4. Preventive isolation constitutes medical incapacity?

Pursuant to the regulations in force, the EPS are only obliged to pay the applicable benefits when the respective disability is duly issued, and the employer must cover the salary of the worker during the period of preventive isolation, without prejudice that during this period the worker may continue to work under the modality of teleworking, remote work, or work at home.

In the same sense, the Ministry of Labor has pronounced, who in its ABC of the exceptional, occasional and temporary measures on the occasion of Covid-19[2], stated that the preventive isolation for 14 days, applicable for such date, "is not considered incapacity, therefore, it does not incur in payments of additional benefits, the workers who are under this measure should, as far as possible, be under the guidelines of the methods of telework or remote work (at home), previously agreed with the employer.”.

5. What about the new guidelines of the Ministry of Health?

With the new guidelines of the Ministry of Health, the persists, i.e., the 7-day preventive isolation is not considered a medical incapacity and therefore this period will not be compensated by the EPS, but must be covered by the employer, unless the respective doctor issues the corresponding certificate of incapacity.

6. What alternatives are available to employers?

Although the period of preventive isolation must be covered by the employer, this does not prevent the employer from applying some of the employment protection measures provided by the Ministry of Labor in its Circulars No. 0021 and 0033 of 2020, such as:

• Compensable paid leave: Employer and employee may agree on the granting of paid leave, by virtue of which the employer must continue to pay the agreed salary, even if the employee is not rendering services. However, both parties may agree on a "compensation system" whereby the employee undertakes to make up for the hours not worked once the current situation has been overcome.
• - Work at home: Understanding that preventive isolation is an occasional and temporary event, the worker may be temporarily authorized to perform his work outside the workplace. For this purpose, the employer must notify the worker in writing about the authorization to work at home and the period he/she will be working in this way and comply with the other provisions of Law 2088 of 2021.
• - Teleworking: Another alternative available to the employer is to agree with the worker the provision of the service with the support of Information and Communication Technologies (ICT), allowing the worker to fulfill his workload without the need to go to the workplace in person.

The application of this modality requires compliance with certain requirements set forth in Decree 1072 of 2015, among which it is worth mentioning its stipulation in writing, equal treatment, and prior verification by the employer of the job position.

• Annual, early and collective vacations: Taking into account that every employee who has rendered services for 1 year is entitled to 15 consecutive working days of paid vacation, it may be agreed that part of the vacation be taken during preventive isolation.

Likewise, the employer may grant early vacations to its employees, that is, before causing the right or setting collective vacations, even if they have not completed the year of service. In both cases, it must be considered that: (i) Vacations must be paid to the employee with the salary earned at the time of the vacation; and (ii) The employee may not demand that he/she be assigned a new vacation period after completing the year of work.

• Paid leave - salary without rendering of service: In this regard, Circular No. 0021 of 2020 states that in cases of serious domestic calamity, duly proven, it is the employer's responsibility to grant the respective permits to the employee.

Thus, and in accordance with the provisions of article 140 of the CST, the employer may voluntarily determine the payment of the salary to the worker without the need for the employee to provide the service.

With these alternatives, it will be guaranteed that the worker complies with the preventive isolation while overcoming the symptoms of the omicron variant of Covid-19, and that subsequently he can return to work without affecting the company's productivity.

[1] Article 1 of Decree 676 of 2020.

[2] Ministry of Labor, Abecé de las medidas excepcionales, ocasionales y temporales con motivo del Covid-19 para sector público y privado, March 12, 2020.