Because of the restrictive measures implemented by the authorities to contain the spread of the new coronavirus, many companies have had to remove employees from their activities, keeping them in the same position.ndo the payment of wages, especially in cases of suspected contamination.
The levy of social security contributions on the payroll is based on the Federal Constitution and, infra-constitutionally, on the Law that instituted the Social Security Funding Plan (Law no. 8212/91), which in turn contains the provision that the social security contribution will be levied on sums intended to remunerate work and other habitual earnings resultings of the service rendered or time at disposal of the employer. The contribution to be borne by the company intended à Previdence Social Security is 20% (twenty percent).
As determined by the social security legislation, the jurisprudence of the TCourts Superiors has been consolidating the understanding that the remuneration paid to employees who do not haveem as a service retribution effectively provided, must not integrate the tax base from social security contribution due to its indemnifying nature. There is already consolidated jurisprudence in relation to some amounts, such as indemnified notice and indemnified vacation. NHowever, for other funds, despite following the the same logicthere are still divergences, as is the case of absences justified by medical certificates.
Thus, there is a solid legal basis for to exclude from the calculation basis of the social security contribution, the remuneration paid to the employee during the period in which was removed for suspected contamination by new Coronavirusfor example. After all, there would be no talk in salary during this period, but rather of indemnity. Di in the absence of effective provision of services or even time at the employer’s disposal, absences would receive the treatment of justified absences, analogous to the first fifteen days of leave by common disease, this reasoning is supported by art. 3 of Law 13.979/2020 itself, which deals with the measures for dealing with the Pandemic.
The argument is reinforced by the exceptional scenario faced by the companies, in addition to the recommendation of the government authorities for the distancing, as a of redução dcontagion. HoweverThe option is not without risk. In the administrative sphere, the lack of collection may be subject to assessment and collection by the Brazilian IRS. However, if the discussion is taken to the judicial sphere, despite the existence of divergence, there will be good precedents and solid arguments in favor of non-incidence.
We clarify that the above text is not exhaustive and does not represent or replace a specific recommendation from an analysis of the case. The labor team of the DDSA – De Luca, Derenusson, Schuttoff Advogados will be available to guide its clients regarding the main legal measures to face the pandemic.