In view of the constant changes and measures, as well as pre-pandemic labor instruments, the DDSA Labor Law team – De Luca, Derenusson and Schuttoff Advogados prepared a complete compilation of labor alternatives.

RECENT MEASURES 

a) Law No. 13.979/2020 – MEASURES TO CONFRONT THE PUBLIC HEALTH EMERGENCY

 

The first rule enacted on COVID-19 was Law No. 13.979 of February 6, 2020, regulated by Ministry of Health (MS) Ordinance No. 356 of March 12, 2020, which provides on the measures to confront the public health emergency, including with respect to labor matters. 

From the labor law perspective, the new law provides on the adoption of mandatory isolation and quarantine measures, in addition to compulsory medical examinations and laboratory tests.

With respect to isolation and quarantine matters (determined by the health professionals and authorities), the law sets forth that any absence of employees from work will be considered a justified absence, and the employer shall remain required to pay their salary for the first 15 days.

Provided they meet the other requirements set forth by law, employees who remain absent from work for more than 15 days shall be entitled to the social-security benefit of common sick pay as from the 16th day of absence from work.

b) Remote work, early vacation, suspension of the Unemployment Compensation Fund (FGTS) and other recent labor alternatives  (Provisional Measures No. 927 and 928/2020)

Remote work

• Possibility of changing the working system without individual or collective agreements;
• Communication of the change to the employees 48 hours in advance;
• Employees not subject to the control of hours of work or payment of overtime; 
• Provisions on the required infrastructure shall be contemplated in a written contract; 
• If the employees do not have the equipment and infrastructure for remote work: (i) the employer shall provide the equipment under a loan for use and pay for infrastructure services; and (ii) if it is not possible to provide the equipment, the period of the hours of work shall count as time available to the employer;
• The adoption of remote work for trainees and apprentices is permitted.

Individual and Collective Vacation

• The term to communicate (individual and collective) vacation shall now be 48 hours;
• The vacation may be granted even if the employees still do not have a vested vacation right;
• The additional amount of one third of the vacation pay may be paid by December 20;
• The vacation may be paid by the fifth business day of the month following the month in which the vacation commenced;
• The sale of one third of the employees’ vacation time shall be conditional upon the employer’s consent;
• The maximum limit of annual periods and the minimum limit of consecutive days set forth in the Consolidated Labor Laws (CLT) for collective vacation shall not apply. Prior communications to the local body of the Ministry of Economy and Unions are waived. 

Holidays

• The enjoyment of non-religious holidays may be advanced. The use of religious holidays is conditional upon the employees’ consent;
• The advance shall be communicated 48 hours in advance;
• They may be used to offset the compensatory time balance. 

Compensatory Time

• Possibility of execution by individual or collective agreement;
• Compensated within 18 months as from the date of cessation of the state of emergency.

Suspension of Administrative Occupational Safety and Health Requirements  

• Suspension of the mandatory occupational medical examinations and of the trainings contemplated in the Regulations;
• Mandatory physical examination on discharge, but it may be waived in case the last medical examination was carried out less than 180 days before; 
• The Accident Prevention Commission Programs (CIPAs) may continue until termination of the state of emergency and the electoral process in progress may be suspended.

Suspension of the term for payment of FGTS

• The enforceability of the payment of FGTS relating to March, April and May 2020 is suspended. This is valid to all employers;
• The payment may be made within up to 6 monthly installments, as from July 2020;
• The employer is required to declare the information by June 20, 2020, it being understood that the information provided shall be deemed an admission of debt and the amounts not declared shall be deemed overdue;
• In the event of contractual termination, the employer shall pay the corresponding amounts and to make the severance payments.

Other provisions

• Employees in health establishments: Possibility of extension of the hours of work  upon written agreement and possibility of adopting overtime shifts between the 13th and the 24th hour of the break between the hours of work. These hours may be compensated by means of compensation time (compensation within 18 months) or paid as overtime;
• Suspension of the procedural terms of administrative proceedings for 180 days;
• The cases of contamination by the coronavirus (COVID-19) shall not be deemed occupational disease, except upon proof of the causation;
• The collective-bargaining agreements and collective labor agreements, whether overdue or coming due, may be extended for 90 days;
• During 180 days as from the date on which the Provisional Measure comes into force, the Labor Tax Auditors shall only provide instructions, except with respect to the following nonconformities: (i) lack of registration of employee; (ii) situations of serious and imminent risk; (iii) occurrence of fatal occupational accident ; and (iv) forced or child labor.
   

 

EXISTING (PRE-PANDEMIC) MECHANISMS TO DEAL WITH LABOR MATTERS

In addition to the measures already informed, there were already some options in the applicable law for application in crisis situations that, albeit not specific for the current pandemic situation, are valid solutions that may already be implemented by the employers. 

Some of these options, especially those relating to reduction in the salary and hours of work, are conditional upon collective negotiation, but others may be agreed directly with the employees. Please find below a summary of each of them:

a) Lay Off

The suspension of employment contracts and salary reduction to respond to the crisis generated by the coronavirus pandemic was specifically addressed in Provisional Measure 936 of April 1st, 2020.

However, the Brazilian Law already provided on possibilities of salary suspension and reduction, which may still be used if the company’s planning does not adjust to the exact terms of Provisional Measure 936. 

In addition to the recent Provisional Measure, the Brazilian Law already provided on the following:

• Temporary reduction in the hours of work and salary of the employees (Article 7 of the Federal Constitution (CF) and 611-A of the CLT); and 
• Suspension of the employment contracts for professional requalification (article 476-A of the CLT). 

The first event relates to the salary and hours of work reduction for adjustment to temporary retraction scenarios. 

The option set forth in article 476-A of the CLT, in turn, provides on the suspension of the contracts for a period from two to five months, requiring, in consideration, the payment of a professional qualification course or program. 

Both cases require a collective negotiation with the Union, because they don’t count on payments by the Government. 

Since the contract will be suspended and no salary will be paid, the subject matter of the negotiation with the Union shall include a monthly compensatory assistance (such as scholarship) and maintenance of benefits such as health insurance. 

b) Paid leave

In paid leave, the employees cease from providing services for a given period of time, without prejudice to their salary. In this case, the term of the leave is calculated as time of service, because it is an interruption in the employment contract with normal receipt of the salaries.

Even if the leave is paid, we recommend that it be made in writing, so as to define a date for the employees to return to work, with the possibility of extension or suspension at any time, in view of the exceptional situation in which said license is granted.

Finally, we explain that the text above is not exhaustive and neither represents nor substitutes a specific recommendation based on analysis of the case.

The labor team of DDSA – De Luca, Derenusson, Schuttoff Advogados will be available to advise its clients.