The Colombian government has issued a circular aimed at clarifying the circumstances in which employers may be authorized to discharge employees with medical conditions.
Special protection for employees with medical or health conditions has been a concern for employers for at least the last 10 years. Lack of clarity on the regulations and judicial misinterpretation created legal uncertainty over whether employees with minor health issues were protected.
Unilateral termination of employees with medical conditions requires authorization from the ministry of labor or a labor judge. The internal procedure and criteria to request authorization to terminate are now provided by Circular 049, 2019. This circular establishes a shorter and more specific procedure for authorization to terminate employment agreements before the ministry of labor in three different scenarios:
- termination with cause (i.e., misconduct);
- termination due to a legal cause (such as a reduction in force); and
- termination due to the incompatibility of the employee’s health condition with his or her job duties.
The new circular demonstrates the government’s intention to increase legal certainty and its recognition that there had been an issue with excessive protection, which employers felt employees who did not have health conditions often claimed.
Although circulars are regulation instruments intended for public officers, this development is seen as a significant step that will make a difference to employers dealing with these situations.
Written by Carolina Camacho, Hermes García, and Jairo Jaller of Posse Herrera Ruiz and Roger James of Ogletree Deakins
© 2020 Posse Herrera Ruiz and Ogletree, Deakins, Nash, Smoak & Stewart, P.C.