A new legal approach opens the possibility that Companies terminate contracts with workers who have been incapacitated due to illness for more than 180 days, as long as they have authorization from the Ministry of Labor and provide 15 days’ notice. This route, indicated in paragraph 15 of article 62 of the Substantive Labor Code, could modify labor guarantees in cases of chronic illnesses or prolonged injuries.
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Numeral 15 of article 62 specifies that “the contagious or chronic illness of the worker, which is not of a professional nature, as well as any other illness or injury that incapacitates him for work, the cure of which has not been possible for one hundred eighty (180) days”, constitutes a legitimate cause for the unilateral termination of the employment contract.
However, the standard clarifies that “dismissal for this reason cannot be carried out until the expiration of said period” and that said cause “does not exempt the employer from legal and conventional benefits and compensation derived from the illness.” In addition, there must be prior notice to the worker of no less than 15 days before the termination of the contract for this reason.
This section is included in the list of fifteen causes that allow dismissal with just cause in the Substantive Labor Code, along with other cases such as the use of false certificates, acts of violence, mistreatment or serious labor indiscipline.
Although many employees assume that the illness protects them against termination of the contract, the legal provision allows the company to terminate the employment relationship in certain scenarios of long-term disability.
The content of the Code is not recent: it was promulgated by decree 2663 of 1950, although over time its rules have been interpreted and applied in different labor contexts.
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Conditions and requirements for the dismissal to operate
In order for a company to apply this cause for dismissal without incurring illegalities, it must meet certain clearly established requirements:
-Minimum duration of 180 days of disability: Only if the cure has not been achieved within that period can the cause be invoked.
-Non-occupational illness or injury: Does not apply when the condition is directly related to work activity (that is, in work-related accidents or occupational diseases).
-Prior notice of 15 days: The employer must notify the worker at least fifteen days in advance of his intention to terminate the contract under this cause.
-Authorization from the Ministry of Labor: Before proceeding with the dismissal, the company must obtain approval from the Ministry, which will evaluate that the termination does not constitute discrimination due to disability.
-Non-exoneration of legal obligations: Even if the cause is applied, the employer is still obliged to provide the benefits and compensation that correspond by law or agreement.
-Application even in fixed-term contracts: The prior authorization guarantee applies even in contracts that are close to expiration.
-The Ministry of Labor has the power to review case by case to verify that the application of this cause is not a measure of discrimination against the worker with illness.
Implications and points of attention for workers and employers
-The possibility that a worker may be dismissed after 180 days of disability implies new responsibilities for employers, who must document the process diligently and seek endorsement from the Ministry of Labor. In parallel, workers with chronic or prolonged illnesses must be attentive to compliance with their rights and follow-up of the procedure.
-For the employer, the risk is that a dismissal carried out without prior authorization or without due justification could be challenged as discriminatory, especially if it is considered that the person has a disability. In that scenario, the employee could sue for unjustified or discriminatory dismissal.
In the Colombian labor world, this cause is not commonly used or widely known. Furthermore, the preventive nature of the Ministry’s authorization introduces a technical barrier that seeks to stop abuses, but at the same time adds complexity to the process. For workers affected by a prolonged illness or disability, controlling deadlines, medical requests and documentary records becomes a crucial element to defend their job stability. You must have medical records and certificates that prove your situation and its evolution, as well as verify that any business decision respects the rights acquired in terms of benefits and compensation.
PAULA GALEANO BALAGUERA
Portfolio Journalist
