Colombia Update: Enhanced Employment Stability: Legal Protections for Workers with Health Conditions in Recent Jurisprudence

The Enhanced Employment Stability Forum is a pillar in the protection of workers in vulnerable situations, especially those affected by health conditions that impact their ability to work. The jurisprudence on this topic has experienced important advances and challenges, redefining the scope of this protection in recent years.

One of the most discussed points is the protection of workers without a formal report of loss of work capacity. In this context, the Constitutional Court has pointed out that enhanced job stability does not depend exclusively on a formal qualification of severe disability. What really matters is that there is a health condition that significantly hinders work performance. In judgment SU-087 of 2022, the Court specified that the employer must be aware of the worker’s medical condition and, in the event of dismissal, must demonstrate that the dismissal is not related to this health situation. Otherwise, the dismissal will be considered discriminatory.

The Constitutional Court has expanded this protection, recognizing that not only serious illnesses, but also those that, although not severe, affect work performance, can trigger the immunity. Thus, coverage is extended to a greater number of workers, including those with less obvious but equally limiting health conditions.

For its part, the Supreme Court of Justice, in judgment SL-1152 of 2023, has maintained a more restrictive position, requiring that for the enhanced job stability protection to operate, there must be a physical, mental, intellectual, or sensory deficiency in the medium or long term, which implies a more precise and structured diagnosis. This difference with the Constitutional Court may generate an eventual conflict of interpretation regarding the application of this protection, since the Supreme Court has insisted that the protection does not apply in situations where the deficiency is not serious enough, while the Constitutional Court has emphasized that any health condition that significantly affects job performance can activate this protection, without the need for a formal qualification.

According to the Constitutional Court’s precedent, if an employee in a state of manifest weakness is dismissed, it is presumed that said dismissal is discriminatory unless the employer proves otherwise. This principle establishes that the dismissal can only be validated if there is authorization from the Ministry of Labor, or if a reasonable and sufficient objective cause for the termination is proven. The burden of proving the justification falls on the employer, which seeks to prevent the worker in a state of manifest weakness from being arbitrarily dismissed.

The recent Law 2360 of 2024, which grants special protection to people with suspected cancer, has generated a new legal landscape. This law recognizes people with suspected cancer as “subjects of special constitutional protection,” which implies that, as long as there is a reasonable suspicion of this disease, the worker acquires protection similar to health protection. However, the law does not clarify when this protection ceases, which generates uncertainty about its duration and the effects on the employment relationship. The uncertainty about the moment in which a “suspicion” becomes a definitive diagnosis remains one of the main challenges in the application of the regulations.

In conclusion, recent jurisprudence reflects a growing trend towards the protection of workers in situations of manifest weakness in cases of health. The Constitutional Court has managed to expand the application of health protection, recognizing that the mere existence of an impairment that limits the worker in the development of their functions, even without a formal diagnosis of severe disability, can justify this protection. However, practical challenges persist in its application, especially with regard to the situation of workers with suspected cancer.

It is essential that employers take into account the case law precedents, as well as the criteria to avoid their actions being considered discriminatory. In fact, despite not having a ruling that proves a moderate, severe, or profound decrease in work capacity, if a worker has a health condition that prevents or significantly hinders the normal and adequate performance of their activities, the presumption of discriminatory dismissal is activated, especially when the condition of manifest weakness is known by the employer at a time prior to the dismissal. In such an event, there would be no valid or sufficient justification for the dismissal.

By LLOREDA CAMACHO & CO, Colombia, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact colombia@transatlanticlaw.com 

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