Measures to moderate the loss of workers’ incomes

The Ministry of Labor adopted measures to mitigate the economic impact of the sanitary emergency on workers’ income, authorizing the partial withdrawal of severance payments and reinforcing the mechanism for the protection of the unemployed.

It also establishes provisions related to the granting of vacations.

In view of the state of emergency currently faced by the country, some workers will see their income affected or, in the worst case scenario, may enter into a period of unemployment.

Therefore, the Ministry of Labor issued Decree 488 of 2020, by means of which it established that workers may proceed to the partial withdrawal of their severance payments in private funds while the contract is in force. In addition, it established guidelines for the granting of vacations and added a benefit to the mechanism for the protection of the unemployed.

We will now proceed with the study of these provisions.

Partial withdrawal of severance payments

Severance payments are a social benefit that as a general rule is granted to the worker during periods of unemployment, i.e., once the employment contract is terminated with or without just cause. However, they may be withdrawn in advance, i.e., while the contract is still in force, in certain cases.

In view of the above, on the occasion of the health emergency decreed by the national government due to the coronavirus (COVID-19), temporarily and as a way to mitigate the impact that this situation may have on the income of workers, the Ministry of Labor through Decree 488 of 2020 authorized private severance funds to pay to affiliated workers who present a decrease in their monthly salary the amount that allows them to compensate such decrease; this, with the purpose that they may maintain their monthly income constant.

Example

Let us assume a worker who earns a legal minimum monthly salary in force -smmlv- which for 2020 is equivalent to $877,803. He works 8 hours a day from Monday to Saturday.

Due to the COVID-19 contingency, the employer decided to reduce the working day temporarily to four (4) hours a day, causing the worker to receive half a smmlv equivalent to $438,902.

Thus, according to the provisions of the aforementioned decree, this worker will be able to withdraw $438,902 monthly from his severance pay account; that is to say, the part of the salary that was reduced.

Note: for the above, before proceeding with the request for this benefit, the worker must verify the balance in his severance pay account, since this request may be denied if he does not have sufficient savings to cover the amount of salary required.

Procedure for the partial withdrawal of severance payments

The Financial Superintendence of Colombia, through External Circular 013 of 2020, determined the procedure to be followed for the partial withdrawal of severance payments, in accordance with the provisions of the second paragraph of article 3 of Decree 488 of 2020, which establishes that the procedure must be carried out through virtual means.

For the purposes of the above and according to the provisions of the aforementioned circular, the worker must take into account the following guidelines:

– He/shemustsubmit through the virtual means indicated by the severance fund a certificate, by which the employer gives evidence of the reduction of his/her monthly income. This certification must contain:

oThe name or company name of the employer and NIT number.

oFull name and surname of the worker and his/her ID card number.

oEmployer’s contact information.

oAmount of the employee’s salary accrued as of March 1st of this year.

oThe amount of the worker’s salary decrease.

<h5 “The partial withdrawal of severance payments will be limited to the balance available in the worker’s account, that is to say, he/she must have enough money to cover the amount requested”.

This certification will be used for all the monthly payments that may be required. It can be updated in case the worker’s circumstances change.

–You shouldconsult the web page of the severance fund in which you are affiliated to know the mechanisms provided by the fund for the partial withdrawal of severance payments on the occasion of the COVID-19.

–Theamount requested will be drawn monthly through the non-presential means defined by the severance fund for such purpose.

–Thepartial withdrawal of severance payments will be limited to the balance available in the worker’s account, i.e., he/she must have sufficient funds to cover the amount requested.

What can a worker who does not have internet access do to withdraw his severance payments?

Through the aforementioned circular, the Superfinanciera empowers private severance funds to implement exceptional mechanisms for those workers who cannot proceed with the request and partial withdrawal of severance payments through virtual means.

For the above, the funds may establish shifts and schedules for personal attention without this giving rise to crowds or establish the payment of the amounts requested through non-banking means (Gane, Baloto, supermarkets, among others).

Vacations

Number 2 of article 187 of the Substantive Labor Code -CST- determines that the employer must notify its workers, at least fifteen (15) days in advance, the date from which the vacation period will begin.

However, due to the immediacy with which action must be taken due to the contingency that the country is facing due to COVID-19, the Ministry of Labor determined through Decree 488 of 2020 that employers may notify the beginning of vacations to workers at least one (1) day in advance.

The above, applies in the same sense for workers, i.e., they may request the employer to grant them the paid rest with one (1) day in advance.

Mechanism for the protection of the unemployed

The mechanism for the protection of the unemployed is regulated through Law 1636 of 2013. The purpose of this mechanism is to provide a period of protection to workers who enter a stage of unemployment.

As established in Article 3 of the aforementioned law, in order to access this benefit a worker must comply with the following requirements:

–Ifdependent: have made contributions to a family compensation fund -CCF- for at least one (1) continuous or discontinuous year in the last three (3) years.

–Ifindependent: to have made contributions to a CCF for at least two (2) continuous or discontinuous years in the last three (3) years.

The benefits obtained through the unemployment protection mechanism, as indicated in Article 12 of Law 1626 of 2013, will be granted for a term of six (6) months, and consist of:

–Paymentof contributions to the health and pension social security system over one (1) smmlv.

–Paymentof the monetary quota of the family subsidy (consult the value of the family subsidy according to the department through Resolution 0026 of 2020).

–Registrationto the employment services network through which you will receive training, occupational guidance and advice for job search.

Regarding the state of emergency, Decree 488 of 2020 temporarily modified the requirements to access this mechanism and establishes that dependent or independent workers contributing in category A and B who become unemployed due to this situation (state of emergency) must have contributed for one (1) continuous or discontinuous year in the last five (5) years.

Note: the categories of contributor A and B include the following characteristics:

oContributor category A: workers whose basic salary does not exceed two (2) smmlv ($1,755,606).

oContributor category B: workers whose basic salary is between two (2) and four (4) smmlv ($3,511,212).

In view of the above, workers who can access these benefits are those who earn up to $3,511,212 smmlv.

Unemployed workers will receive a financial assistance of 2 minimum wages.

“workers will receive through the mechanism for the protection of the unemployed a financial assistance equivalent to two (2) smmlv ($1,755,606), divided into three monthly payments;”

In addition to the aforementioned benefits, the referred decree establishes that workers will receive through the unemployment protection mechanism an economic allowance equivalent to two (2) smmlv ($1,755,606), divided into three monthly payments; that is, they would receive $585,202 monthly until the state of emergency ceases or in any case for up to a maximum of three (3) months.

Source: Actualícese