The Colombian Congress recently issued Act 2191 of 2022 regulating the right to disconnect. The right to disconnect is defined in the Proposal Bill as the right for all employees to avoid any work-related contact outside their working hours, vacations or any other statutory/contractual leaves. However, there are certain employees or situations exempt from this right: i) employees who occupy trust or management positions; ii) employees who, by the nature of their role, must be permanently available; iii) force majeure or unforeseeable circumstances that make it necessary for the employee to provide their services in order to avoid severe damages to the employer, as long as there is no other viable alternative.
All employers are mandated to establish an internal written policy on the right to disconnect, with the following minimum requirements:
- how the right is going to be guaranteed and the form in which employees will exercise their right, including guidelines regarding the use of technology and remote communication;
- a procedure that determines the mechanisms and means for employees to issue complaints (even anonymously) regarding possible breaches of the right to disconnect; and
- a procedure for complaints that guarantees due process and includes conflict resolution mechanisms, in order to verify compliance with agreements and cessation of any conduct that may cause a breach of the right to disconnect.
Non-compliance of this right can lead to possible sanctions from the Ministry of Labour; similar to conduct that may be considered as harassment in the workplace; as long as the conduct is persistent and verifiable.
Key Action Points for Human Resources and In-house Counsel
- The right to disconnect does not imply a limitation for employers to request and/or enforce their employees to work overtime or on Sundays.
- The new law obligates employers to publish an internal policy regarding the right to disconnect and establishes the minimum requirements of such policy.