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Possible Penalties for Employers in Times of Covid-19 Pandemic

The Ministry of Labor in the framework of the Economic, social and ecological emergency, due to the Covid-19 pandemic, has issued some circulars where they have been very emphatic with employers in the country for the protection and preservation of work in their companies, thus raising different forms of employment, the Ministry in turn reiterates its functions of inspection, surveillance and control in these times more than ever, thus generating a constant monitoring of the decisions taken by employers regarding their workers in times of Covid-19.
For this reason, the main purpose of this article is to expose some of the reasons why employers may incur penalties:

Failure to comply with preventive measures in workplaces: these preventive measures were established in Circular 380 of 2020 of the Ministry of Health, the non-observance of these can lead to consequences ranging from financial penalties, the same that could reach an amount of up to 10,000 legal minimum daily wages in force (Decree 780/2016) as well as criminal penalties such as violation of sanitary measures (Art 368 Criminal Code).

Failure to comply with biosafety measures: failure to comply with these rules could result in fines by the Ministry of Labor ranging from 1 to 5,000 times the current minimum monthly salary, as provided for in Article 486 of our Labor Code, taking into account that one of the employer’s obligations is to maintain a workplace free of hazards for its employees and must provide them with everything necessary for protection in the performance of their duties.

2.2. For not complying with the safety requirements at work as established in art 8 of law 1610 of 2013, companies could equally suffer temporary closure from 3 to 10 days, if the non-compliance is reiterative it would be a closure of 10 to 30 calendar days and as a final penalty, being the most drastic the authorities upon seeing the constant disobedience can decree the total closure of the company.
It should be noted that for the days that the company is closed, the employer is still obliged to pay the salary and social benefits.

3. Coercing workers to take unpaid leave: the Ministry of Labor by Circular 027 of 2020 prohibited employers from coercing their employees to take unpaid leave as a result of Covid-19, so that it is only valid and legal when the proposal derives voluntarily from the worker. Forcing unpaid leave may result in an inspection, control and surveillance process carried out by the Ministry of Labor, which will determine whether it is deserving of fines according to the seriousness of the infraction or any other penalty established in the current regulations.

4. Collective dismissals without authorization from the Ministry of Labor: dismissals carried out collectively without the respective authorization will not produce effects, therefore, the employer’s obligation to pay the salaries lost by the employees, their corresponding social benefits and also the payment of indemnities for a dismissal without just cause will persist.

After noticing some circumstances where sanctions could be generated for employers, it is suggested to have the advice of experts so that, as employers are not deserving of the corrective measures described above since at this time the companies have a burden in terms of preserving jobs so as not to affect their workers, in addition to the obligations they have as a company and that in these times of pandemic does not disappear but it is difficult to cope with them.
Author: Luisa María Zapata Herrera.
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