26/03/2020
(information and measures available until 19pm on this date, subject to daily changes as new measures are announced by the authorities)
With the World Health Organization (WHO) declaring the new type of Coronavirus (Covid-19) a pandemic and guidelines restricting movement and movement in the country, with effectively restrictive measures and the suspension of activities of several commercial establishments in some states, companies have faced difficult decisions about how to deal with the survival of their businesses and the preservation of jobs.
On 06/02/2020, Law No. 13.979 was published, which establishes policies to combat Covid-19, but does not determine specific measures to protect workers and jobs, limiting itself to considering as justified absence the employee's absence from work for the purposes of investigation, care and treatment of the disease.
The Federal Government announced credit measures for companies and measures aimed at protecting jobs through Provisional Measures ("MP"). In the labor field, two MPs have been issued and published to date (MP 927 of March 22, 03, and MP 2020 of March 928, 23), but there are rumors that new MPs will be issued, particularly one addressing the possibility of salary reductions.
Therefore, we present below the options currently existing in the legislation for saving companies and preserving jobs, already considering the innovations brought by MPs 927 and 928/2020, highlighting that they are clear in determining that their provisions only apply during the state of public calamity recognized by Legislative Decree No. 6, of March 20, 2020.
In addition to the options listed below, it is important to check that:
MP 927/2020 recognizes that the state of public calamity declared by the Federal Government constitutes a case of force majeure, under the terms of art. 501 of the CLT;
MP 927/2020 is clear in providing that cases of contamination by Covid-19 will not be considered occupational, except upon proof of a causal link;
Measures adopted by employers that do not contradict the provisions of MP 927/2020, taken in the 30 days prior to its publication, are validated;
There are specific measures for healthcare facilities – we are available for further details.
We remind you that, regardless of the measures chosen by the company, while employees remain in the workplace, it is the employer's responsibility and obligation to adopt the necessary and possible precautions to protect their employees and prevent the spread of the disease, such as informing employees about the topic and hygiene precautions, providing a washbasin with soap and water, providing sanitizers (70% alcohol gel or other suitable), implementing measures to change the work routine to make working hours more flexible and avoid crowds, spacing workstations, etc.
Options currently existing in the legislation, as supplemented by MPs 927 and 928 of 2020, which aim to preserve jobs:
Home office:
Written notice from the employer to the employee must be given 48 hours in advance;
Not applicable to telemarketing employees;
Journey control waived;
The written agreement is waived, but the provisions regarding responsibility for the acquisition, maintenance or supply of technological equipment and necessary infrastructure must be the subject of a written contract signed within 30 days of the date of the change in the work regime;
If the employee does not have the technological equipment and infrastructure necessary and appropriate for the job, the employer may (i) provide the equipment on a loan basis and pay for infrastructure services or (ii) consider the employee's normal hours as being at his disposal, even if he is not performing any activity;
Application for apprentices and interns is permitted.
Advancement of individual holidays:
Written notice from the employer to the employee must be given 48 hours in advance;
Minimum duration of 5 days;
They may be granted unilaterally by the employer, even if the employee has not completed the acquisition period;
Possibility of individual negotiation of advance payment of future vacation periods by written agreement;
Priority in granting to employees in the Covid-19 risk group;
Possibility of deferring vacation payment until the 5th business day of the following month and the additional 1/3 until the date on which the 13th salary is due;
Conversion of up to 1/3 of vacation into cash compensation will depend on the employer's agreement;
In the event of the employee's dismissal, the amounts not yet paid in relation to vacation must be paid together with the severance pay.
Collective holidays:
Written notice from the employer to the employee must be given 48 hours in advance;
Mandatory prior communications to the local labor authority (Ministry of Economy) and unions representing employees are waived;
Although the text is not clear in this regard, it is possible to interpret extensively the possibility of deferring the payment of vacations and the additional 1/3 also in the granting of collective vacations.
Anticipation and use of holidays:
Written notice from the employer to the employee must be given 48 hours in advance;
Valid by unilateral decision of employers, except for religious holidays, which depend on written consent of the employee;
Holidays may be used to offset the balance in the time bank.
Annual leave:
The establishment of a special working hours compensation scheme is authorized, through a time bank, established through a formal collective or individual agreement, for compensation within a period of up to 18 months, counting from the date of the end of the state of public calamity.
Suspension of Administrative Requirements in Occupational Health and Safety:
Suspension of the mandatory requirement to carry out occupational, clinical and complementary medical examinations, except for dismissal examinations (this may also be waived if the most recent occupational medical examination was carried out less than 180 days ago) – note that we do not recommend waiving the admission medical examination, to avoid exposure to the risk of a potential new hire with an unidentified pre-existing condition;
Examinations must be carried out within 60 days of the end of the state of public calamity;
Suspension of periodic and occasional training for current employees, as provided for in occupational health and safety regulations, which must be carried out within 90 days of the end of the state of public calamity;
Maintenance of current CIPAs until the end of the state of public calamity and suspension of ongoing electoral processes.
Deferral of FGTS collection:
Suspension of the requirement for the collection of FGTS by employers, referring to the periods of March, April and May 2020, due in April, May and June 2020, respectively;
Payment of obligations related to the above competencies will be settled in up to six monthly installments, due on the seventh day of each month, starting in July 2020, upon declaration of this information by 20/06/2020;
In the event of the employee's dismissal, payment must be made immediately, without interest or fines.
Paid leave, which exceeds 30 days, prevents the employee from taking vacations during that acquisition period.
Application of the provisions relating to force majeure, provided for in articles 501-504 of the CLT, in particular the possibility of a general reduction in wages of up to 25%, respecting the minimum wage in the region and collective bargaining and the execution of a Collective Labor Agreement (“ACT”), with provision for the guarantee of job stability.
Suspension of the employment contract, for a period of 2 to 5 months, for the employee's participation in a professional qualification course or program (necessarily online, in the current situation) offered by the employer, through collective bargaining, execution of an ACT and agreement of the employee, maintaining the concession of benefits voluntarily granted by the employer.
