NEW PROVISIONAL MEASURES IN THE LABOR SCOPE – COVID-19

Drielle Amate Matta

Felipe Camargo de Araújo

NEW PROVISIONAL MEASURES IN THE LABOR SCOPE – COVID-19

The Brazilian government reissued the measures taken in 2020 aimed at maintaining employment and income, as well as relaxing some labor rules related to health and safety at work in order to enable remote work (teleworking).

With the measures of the state of public calamity declared in 2020 remaining in force and, amid the second wave of COVID-19 incidence, companies continue to face difficult decisions about how to deal with the survival of their businesses and the maintenance of jobs, in view of the end of the measures provided for by Provisional Measure (MP) No. 927/2020 (not converted into law) and MP No. 936/2020, converted into Law No. 14.020/2020, whose period of validity has already ended.

Last week, new MPs nº 1.045 and 1.046/2021 were published, published on 28/04/2021, which reissued, respectively, the Emergency Program for Maintaining Employment and Income and the flexibility of labor standards regarding vacations, teleworking, health and safety at work, among others.

Therefore, we present below the options currently existing in the legislation for saving companies and preserving jobs, already considering the innovations brought by MPs No. 1.045 and 1.046/2021, highlighting that they are clear in determining that their provisions only apply for 120 (one hundred and twenty) days from the date of their publication in the Official Gazette of the Union (that is, in principle, they lose their validity at the end of August 2021 if they are not converted into law).

We remind you that, regardless of the measures chosen by the company, while employees remain in the workplace, it is the responsibility and obligation of employers to adopt the necessary and possible precautions to protect their employees and prevent the spread of the Coronavirus, such as: informing and instructing employees on the subject and hygiene care, providing a washbasin with soap and water, providing sanitizers (70% alcohol gel or other suitable), carrying out temperature checks, implementing measures to change the work routine to make working hours more flexible and avoid crowding, spacing workstations or installing partitions, etc.

1 – Provisional Measure No. 1.045/2021

It was established the New Emergency Employment and Income Maintenance Program, for a period of 120 (one hundred and twenty) days, the objective of which is to preserve employment and income, with the continuity of work and business activities, in order to reduce the social impact caused by COVID-19.

The following measures were established:

• Proportional reduction in working hours and wages

It may occur on a sectoral, departmental, partial or total basis across jobs, for up to 120 days, through an individual agreement or collective bargaining agreement (“ACT”), and the following must be observed:

1. preservation of the value of the hourly wage;
2. agreement by individual written agreement between employer and employee, which will be sent to the employee at least two calendar days in advance;
3. reduction of working hours and salary, exclusively, in percentages of 25%, 50% or 70%:

The federal government will be responsible for supplementing the income of employees benefiting from the New Emergency Employment and Income Maintenance Program, with the amount paid by the Union being called the “Emergency Benefit for Maintaining Employment and Income”.

The benefit amount will be calculated based on the monthly unemployment insurance amount to which the employee would be entitled and will correspond to the reduction percentage.

In the case of collective bargaining, it is possible to establish percentages for reducing working hours and wages that differ from those previously defined in the MP, and the benefit amount due will be:

1. without receiving the Emergency Benefit for the reduction of working hours and salary of less than 25%;
2. 25% of the value of unemployment insurance for reductions in working hours and salary equal to or greater than 25% and less than 50%;
3. 50% of the unemployment insurance amount for a reduction in working hours and salary equal to or greater than 50% and less than 70%; and
4. 70% of the value of unemployment insurance for a reduction in working hours and salary of more than 70%.

The working hours and salary previously paid will be reinstated within 2 calendar days, counting from:

1. the date established in the individual agreement as the end date of the agreed reduction period; or
2. the date of communication from the employer informing the employee of his/her decision to bring forward the end of the agreed reduction period, this decision being the employer's exclusive decision.

• Temporary Suspension of Employment Contract

It may occur on a sectoral, departmental, partial or total basis across all jobs, for up to one hundred and twenty days.

Modality: individual written agreement (sent to the employee two days in advance) or ACT, with communication from the respective labor union within ten calendar days from the date of its execution.

The employee, during the period of temporary suspension of the employment contract:

I – will be entitled to all benefits granted by the employer to its employees; It is

II – you will be authorized to collect for the General Social Security Regime as an optional insured person.

The benefit amount will be:

1. a) equivalent to 100% of the value of unemployment insurance to which the employee would be entitled, or
2. b) equivalent to 70% of the unemployment insurance amount to which the employee would be entitled, in the case of companies with revenue exceeding R$4.800.000,00. Companies whose gross revenue in 2019 exceeded R$4.800.000,00 must pay compensatory aid of at least 30% of the employee's salary.

The working hours and salary previously paid will be reinstated within 2 calendar days, counting from:

• the date established in the individual agreement as the end date of the agreed suspension period; or
• the date of communication from the employer informing the employee of his/her decision to bring forward the end of the agreed suspension period, this decision being the employer's exclusive decision.

If, during the period of temporary suspension of the employment contract, the employee maintains work activities, even partially, through teleworking, remote work or distance work, the temporary suspension of the employment contract will be invalidated, and the employer will be subject to:

I – the immediate payment of remuneration and social charges for the entire period;

II – the penalties provided for in the legislation; It is

III – sanctions provided for in a convention or in an ACT.

• General rules

Payment of the Emergency Employment and Income Maintenance Benefit is independent of:

I – fulfillment of any acquisition period;

II – length of employment relationship; and

III – number of salaries received.

The measures will be implemented through individual agreement or collective bargaining with employees:

3. with a salary equal to or less than R$ 3.300,00 (three thousand and three hundred reais); or
4. defined as hypersufficient by the CLT (holders of a higher education diploma and who receive a monthly salary equal to or greater than twice the maximum benefit limit of the General Social Security Regime).

For other employees, the measures may only be established by collective agreement or ACT, except for the reduction of working hours and salary of 25% and the proportional reduction of working hours and salary or temporary suspension of the employment contract when the agreement does not result in a reduction in the total amount received monthly by the employee, which may be agreed upon by individual agreement.

The MP also establishes a provisional guarantee of employment (except for just cause or resignation), in the following cases:

1. during the agreed period of reduced working hours and salary or temporary suspension of the employment contract; and
2. after the reestablishment of working hours and wages or the end of the temporary suspension of the employment contract, for a period equivalent to that agreed for the reduction or suspension.
3. in the case of a pregnant employee, for a period equivalent to that agreed for the reduction of working hours and salary or for the temporary suspension of the employment contract, starting from the date of the end of the pregnant woman's employment guarantee period (from confirmation of pregnancy until five months after birth).

Dismissal without just cause during the aforementioned stability period gives rise to the payment of special compensation.

If, after the individual agreement has been agreed upon, a collective agreement or collective bargaining agreement is signed with clauses that conflict with those of the individual agreement, transitional rules must be observed.

The rules of the MP also apply to apprenticeship and part-time employment contracts.

• Main differences

Among the main differences between the measures adopted in 2020 and the present ones, we can list:

• The provisions of this MP do not apply to intermittent employees;
• Employees with job security due to receiving the Emergency Benefit granted in 2020 will have the guarantee period suspended while receiving the new Emergency Benefit, and the count will restart after the end of the job guarantee resulting from the new agreement;
• Lack of job security in the event of termination of the employment contract by mutual agreement (article 484-A of the CLT);
• The employer and employee may, by mutual agreement, opt to cancel the current notice period and adopt the provisions of this MP;
• Inapplicability of article 486 of the CLT – “Fato do Príncipe” – the government cannot be held liable for compensation arising from restrictive measures that impact the economy.

2 – Provisional Measure No. 1.046/2021

Telecommuting:

• Written notice from the employer to the employee must be given 48 hours in advance;
• Not applicable to call center and telemarketing employees;
• Valid for interns and apprentices;
• 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;
• The prior 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;

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.
• Advance vacations taken for which the period has not been acquired will be discounted from the severance pay due to the employee in the event of a resignation.

collective vacations:

• Written notice from the employer to the employee must be given 48 hours in advance;
• Minimum duration of 5 days;
• They may be granted even if the employee has not completed the acquisition period;
• 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;
• Advance vacations taken for which the period has not been acquired will be discounted from the severance pay due to the employee in the event of a resignation.

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, including for religious holidays;
• Holidays may be used to offset the balance in the time bank.

Annual leave:

• Authorized the establishment of a special working hours compensation regime, through a time bank, established through an ACT or formal individual agreement (written), for compensation within a period of up to 18 months, counting from the 120th day of validity of the MP;
• Compensation for time to recover the interrupted period may be made by extending the working day by up to 2 hours, which may not exceed 10 hours per day, and may be carried out on weekends;
• Compensation for the balance of hours may be determined by the employer regardless of a collective agreement or individual or collective agreement.

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 only 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 mitigate exposure to the risk of a potential new hire with an unidentified pre-existing condition;
• Pending exams must be carried out within 120 days of the end of the MP's validity period;
• Suspension of periodic and occasional training for current employees, as provided for in occupational health and safety regulations, which must be carried out within 180 days of the end of the MP's validity period;
• Maintenance of CIPA meetings, including electoral processes, exclusively remotely.

Deferral of FGTS collection:

• Suspension of the requirement for the collection of FGTS by employers, referring to the periods of April, May, June and July 2021, due in May, June, July and August 2021, respectively;
• Payment of obligations related to the above competencies will be settled in up to four monthly installments, due on the seventh day of each month, starting in September 2021, upon declaration of this information by 20/08/2021;
• In the event of the employee's dismissal, payment must be made immediately, without interest or fines.

Suspension of the employment contract, for a period of 1 to 3 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.