A reinterpreted article in Colombia’s Labor Code was recently approved by the country’s Constitutional Court, thus allowing people to show up for work drunk or under the influence of narcotics as long as their productivity is not affected.
As in most countries around the world, going to work under the influence of alcohol or narcotics was prohibited in Colombia, but the modified article now protects workers from contract termination or disciplinary action, as long as these substances don’t affect their performance on the job. The recent ruling on the Constitutional Court puts alcohol consumption and narcotic addiction at the same level as occupational illness and argues that “these substances don’t always hinder how one performs at work”.
It all started last year, when two students at the University of Uniciencia in Bucaramanga challenged the country’s labor law at the Constitutional Court, arguing that it was in violation of two articles of the constitution: one which states that “all people are equal before the law and asserts that the state has an obligation to provide special protections for people who, owing to their economic circumstances or physical or mental condition, find themselves in a manifestly weak position,” and another that guarantees “equality of opportunity for all workers”.
In the brief sent to the Constitutional Court, the two students argued that employers should not be allowed to fire or discipline their employees for having consumed alcohol or narcotics unless they could prove that this had affected their performance on the job. The Court agreed and ruled that the unconstitutional article of the Labor Code be modified.
However, to prevent disastrous situations, the Court set some exceptions to the new rule, specifically “activities that involve high risk for the worker, his co-workers, or third parties”. Aviation personal were offered as an obvious example, but I imagine drivers, law enforcement personnel, etc. are also covered considered exceptions.
In the case of lower risk activities, “disciplinary measures may not be taken if the employer cannot prove the negative impact of the use of psychoactive substances on the fulfillment of the obligations of the workers,” the modified Labor Code states.
The controversial ruling was criticized by many in Colombia, especially drug abuse prevention organizations. Augusto Pérez, therapist and head of Nuevos Rumbos (New Paths), a non-profit organization dedicated to the research and prevention of drug use, said that the decision of the Constitutional Court will have “negative consequences on Colombian society”. He added that the new law is dangerous for the workers themselves, sets a dangerous precedent and allows people to do whatever they like without fearing consequences.
Juan Manuel Charry, an expert on Constitutional law has a different opinion. He told Spanish newspaper El Pais that “if there is no misconduct, then the simple fact that someone has had something to drink or taken drugs shouldn’t be punishable.” He offered the classic example of someone having two glasses of wine at lunch and going back to work. “One cannot be punished for what he is, or how he is, but by what he does,” Charry argued.
One thing’s for sure, Don Draper would approve!
