Labour Law

Estabilidad laboral reforzada for employers: how to handle the dismissal of employees in a special situation

When a worker is pregnant, has a recognized disability, is covered by fuero sindical or is on prolonged medical leave, dismissing them without following the correct procedure can cost the company far more than ordinary compensation: the dismissal may be left without legal effect, the worker may be reinstated with payment of all back pay, and the company may face additional financial penalties.

Estabilidad laboral reforzada does not prevent every termination. It requires the company to raise its standard of care: identify the protected condition, document the objective cause, exhaust the legal steps and, where the rule requires it, obtain prior authorization from the labor inspector before communicating any decision. This article explains the four categories of protection, the concrete steps for terminating a contract with just cause where a real cause exists, and the mistakes that turn a necessary exit into unnecessary litigation.

It is worth being precise about how that authorization works, because it is where companies go wrong most often. Omitting it does not automatically void the termination: it triggers a presumption of discriminatory dismissal and shifts the burden of proving the objective cause onto the employer. In Sentencia SU-213 de 2024 the Corte Constitucional put on record that on this point it agrees with the Sala de Casación Laboral of the Corte Suprema —the dismissal «is presumed to be discriminatory where the corresponding authorization is not requested from the labor inspector» and «the existence of an assessment of loss of working capacity is not mandatory» (para. 120)—. The difference that remains alive is a different one: the Sala Laboral requires an impairment extending over the medium or long term, whereas the Corte Constitucional protects anyone suffering from a health condition that prevents or substantially hinders the performance of their duties, without requiring it to be permanent (para. 121). Two recent developments raise the standard: in Sentencia SU-111 de 2025 the Corte held that rights arising from estabilidad laboral reforzada on health grounds cannot be settled by conciliation, because that would disregard the administrative procedure required to terminate the contract —so a conciliation does not shield the company—; and the Ministerio del Trabajo, in compliance with that ruling, issued Circular 0049 of May 22, 2026, which unified the criteria the inspectors must follow. With a regulated procedure available, dispensing with it is increasingly hard to justify.

The starting point

What estabilidad laboral reforzada is and why it differs from the ordinary contract

In an ordinary employment contract, the employer can unilaterally terminate the relationship by invoking duly documented just cause (CST art. 62) or, if there is no just cause, by paying the compensation established by article 64 of the Código Sustantivo del Trabajo. The termination takes effect from the moment it is communicated, unless prior notice has been agreed.

Estabilidad laboral reforzada changes this logic. When a worker is in one of the situations the law specially protects, the termination of the contract —even with a real just cause— may be left without effect if the company did not follow the procedure laid down for that category. In some cases the consequence is reinstatement with back pay; in others, the payment of special compensation on top of the ordinary compensation; in all of them, the burden of proof falls on the employer.

The central difference from the ordinary contract is this: under the ordinary regime, the termination takes effect and the worker files a lawsuit if they consider it unfair. Under estabilidad reforzada, the termination may produce no legal effect even though the employer had real reasons, if the prior authorization was missing or the procedure was incorrect. That is why, before communicating any exit decision in these cases, the company must identify the protected condition, review which process applies and follow it in that order.

Map of the regime

The four categories of employees with estabilidad laboral reforzada

Colombian law recognizes four broad groups of workers with reinforced protection. Each one has its own legal basis, its own procedure and its own consequences for non-compliance. Correctly identifying the worker's category is the first step before taking any decision.

The most frequent category

Workers who are pregnant or breastfeeding: prohibition, nullity of the dismissal and how to document a valid termination

Article 239 of the Código Sustantivo del Trabajo sets out the central rule: no worker may be dismissed by reason of pregnancy or breastfeeding without prior authorization from the Ministerio del Trabajo endorsing a just cause. The rule includes a presumption: if the dismissal occurred during the pregnancy or within the eighteen (18) weeks following childbirth, the reason is presumed to have been the pregnancy or the breastfeeding. It is the employer who must rebut that presumption.

The consequences of not following the process are twofold. From the standpoint of effectiveness, article 241 of the CST provides that a dismissal communicated to the worker during the paid rest period or during maternity leave has no effect whatsoever. From the economic standpoint, article 239 num. 3 provides that a worker dismissed without authorization is entitled to the additional payment of compensation equivalent to sixty (60) days of work, in addition to the compensation and benefits due according to the type of contract. If the EPS has not recognized the maternity leave, the employer must also cover the unpaid medical leave period.

These rules do not mean that the company can never terminate the contract of a pregnant worker. They mean that, if there is a real and documented just cause, the company must first apply for authorization from the labor inspector, establish the cause with solid evidence and wait for the authority's decision before communicating the termination.

How to document a termination correctly when a real just cause exists:

• Verify that the cause invoked corresponds to one of the grounds set out in article 62 of the CST (serious misconduct, systematic non-compliance, verified unfitness, among others) and that it is supported by documents predating knowledge of the pregnancy: performance reviews, written warnings, follow-up minutes.
• Establish that the cause is independent of the pregnancy or the breastfeeding. If the disciplinary proceeding began after the company learned of the pregnancy, the coincidence will be read against the employer.
• File with the Labor Inspectorate a formal request for authorization to dismiss, attaching the complete file: the contract, the performance reviews, the communications, the disciplinary minutes and the letter that is to be sent.
• Wait for the inspector's decision. Only once the authorization has been obtained, communicate the termination in writing with the exact ground.
• If the authorization was denied, terminating without it produces the consequences of article 239: reinstatement plus back pay plus the additional compensation of sixty days.

A point that companies frequently overlook: in fixed-term contracts, non-renewal at the expiry of the term can also be challenged if the worker is pregnant and the position continues. The expiry of the term does not automatically erase the protection; article 239 num. 4 provides that in that case the worker is entitled to payment for the weeks of paid rest she was unable to take.

Mandatory prior authorization

Employees with a disability: the process before the Ministerio del Trabajo and the penalty for omitting it

Article 26 of Ley 361 de 1997 is direct: no person with a disability or impairment may be dismissed or have their contract terminated by reason of their impairment, unless there is authorization from the labor office. Anyone dismissed without meeting that requirement is entitled to compensation equivalent to one hundred eighty (180) days of salary, without prejudice to any other benefits and compensation that may be due.

In business practice, this article gives rise to three frequent mistakes:

• Being unaware of the worker's condition. If the worker reported their diagnosis, submitted repeated medical leaves or was assessed by the ARL (the occupational-risk insurer) or the EPS (the health insurer), the employer cannot claim not to have known. Knowledge of the condition —even partial— triggers the obligation to apply for authorization.
• Terminating first and applying for authorization afterwards. The authorization must be obtained before the termination is communicated. A later authorization does not cure the defect.
• Confusing disability with medical leave. Medical leave (incapacidad) is a temporary situation of being unable to work because of illness or accident. Disability is a condition that significantly affects the worker's capacity. They can coexist, but they are not the same, and their protection regimes are different.

The process before the labor inspector:

One aspect that companies frequently underestimate: if the worker files a lawsuit and the judge finds that the dismissal took place without authorization, the compensation of 180 days' salary is not an alternative to reinstatement. The judge may order both: reinstatement and payment of the penalty, plus the wages not received during the court proceedings. If that ruling is upheld on appeal, assess when labor cassation is worth pursuing.

A different regime

Worker covered by fuero sindical: union protection and how it differs from estabilidad for disability or pregnancy

Fuero sindical (the statutory protection of union officers against dismissal) is a protection of a different nature from estabilidad reforzada (reinforced protection against dismissal) for disability or pregnancy. It is not triggered by a personal condition of the worker, but by their role within a union organization. Articles 405 and following of the Código Sustantivo del Trabajo govern who enjoys fuero, for how long, and what the procedure is for ending the relationship.

While estabilidad for disability or pregnancy requires authorization from the labor inspector (an administrative authority), fuero sindical requires the company to obtain a court authorization in advance from the circuit labor judge, in a proceeding known as levantamiento del fuero or judicial authorization to dismiss a worker covered by fuero. Without that prior judgment, the termination of the contract, the transfer or the worsening of the conditions of a worker covered by fuero is void.

A frequent mistake: believing that the union must formally exist for the fuero to operate. The protection arises from the moment the worker notifies the company of their intention to found the union, or from the moment they are elected to a protected position, even if the union registration has not been completed. Companies that dismiss within that founding window without applying for court authorization take on the risk that the dismissal will be void.

The most ambiguous case

Employee on medical leave: the risk of termination and when it is possible with just cause

Temporary medical leave does not, in itself, give rise to an express statutory prohibition on dismissal under Colombian law. However, terminating during an active medical leave carries high risks in judicial practice, because the judge will assess whether the company was able to show that the cause of the dismissal was completely independent of the health condition.

The Código Sustantivo del Trabajo does provide a ground for termination with just cause related to the worker's health: numeral 15 of article 62 allows the contract to be terminated where there is a contagious or chronic illness of the worker that is not occupational in nature, or any illness or injury that renders them unfit for work and whose cure has not been possible over one hundred eighty (180) days. This ground requires that the 180-day period of medical leave be completed and that the company have exhausted the reasonable options of reassignment or accommodation.

Four situations that increase the risk when the worker is on medical leave:

• Dismissing during the first 180 days of medical leave on grounds of poor performance: if the deficient performance coincides with the period of illness, the cause may look pretextual.
• Terminating without asking the treating physician or the ARL whether reassignment or adaptation of the position is possible: the failure to assess alternatives weakens the company's defense.
• Failing to distinguish between medical leave and disability: if the worker's condition qualifies as a disability under the standards of Ley 361 de 1997, the applicable regime is that of that statute, with prior authorization from the inspector.
• Sending the termination letter while the medical leave is in force without evidence of an objective cause: article 241 of the CST, which makes a dismissal communicated during paid rest periods void, may be extended by analogy to medical leaves.

The correct path in these cases: before taking any decision, ask the ARL and the EPS for an opinion on the possibilities of return to work, reassignment or adaptation of the position. If the health condition exceeds 180 days and there is no possibility of return, document that process and, if the condition qualifies as a disability, apply for the inspector's authorization before terminating.

Comparative summary

Table: type of estabilidad, legal basis, requirement and consequences

This table sets out the standard regime. A specific case may present nuances: fixed-term contracts, the probationary period, apprenticeship contracts, or situations where two protected conditions coincide at the same time. In those scenarios, reviewing the employment file before acting is more important, not less.

The correct procedure

How to terminate an employee with estabilidad reforzada for just cause: five documented steps

When the company has a real and objective cause to terminate the contract of a worker with estabilidad reforzada, the process does not begin at the moment of dismissal. It begins much earlier, in building the file that will show that the decision had no connection with the worker's protected condition.

What you must have before acting

Checklist: ten documents you must have before the dismissal

Use this list as a preliminary check. Every item you cannot tick is a gap that the worker or their lawyer will find at a hearing.

• The employment contract and its amendments: including otrosíes (contract addenda), changes of position, salary, workplace or duties.
• Performance reviews and targets: signed documents, dated before the protected condition where possible.
• Written warnings and disciplinary minutes: signed by the worker or with a record of their refusal to sign.
• Record of medical leaves and known health condition: the date on which the company learned of the diagnosis, the name of the manager who knew of it, and the document from which that knowledge arises.
• Opinion of the ARL or the EPS on the possibility of reassignment: in cases of disability or prolonged medical leave.
• Minutes of the follow-up meetings or of the disciplinary proceeding: with the worker's descargos and the company's response.
• Evidence that the cause is independent of the protected condition: this may be a timeline, emails, reports or decisions taken before the condition became known.
• Authorization from the competent authority: the labor inspector's decision or the judgment lifting the fuero sindical, as applicable.
• A draft termination letter reviewed by a lawyer: with the exact ground from article 62 of the CST and the reference to the authorization obtained.
• An itemized final settlement covering every item: prepared before the termination is communicated, to be handed over at the time of separation.

To verify it yourself

Sources and legislation cited

• Código Sustantivo del Trabajo, article 62 — Termination of the contract for just cause: fifteen grounds for the employer and eight for the worker; the ground must be stated at the time of termination.
• Código Sustantivo del Trabajo, article 64 — Compensation for unilateral termination without just cause: a table by brackets of length of service and salary level (below, or equal to or above, ten SMMLV, the monthly statutory minimum wage).
• Código Sustantivo del Trabajo, article 239 — Prohibition on dismissing a worker who is pregnant or breastfeeding without prior authorization; presumption of discriminatory dismissal during the eighteen weeks following childbirth; additional compensation of sixty days' salary.
• Código Sustantivo del Trabajo, article 241 — Nullity of a dismissal communicated during a paid rest period or maternity leave; obligation to keep the position open.
• Ley 361 de 1997, article 26 — Prohibition on dismissing a person with a disability or impairment without prior authorization from the labor inspector; compensation of one hundred eighty days' salary if the requirement is omitted.
• Código Sustantivo del Trabajo, arts. 405 et seq. — Fuero sindical: definition, who holds it, duration and the process for lifting it before the labor judge.

Content prepared by Cafore Abogados for general guidance in Colombia. It does not replace the analysis of the specific case: the contract, the health history, the objective cause, the disciplinary file and the worker's specific condition determine the applicable procedure.