Due to the novel coronavirus pandemic, the economic crisis in Brazil has already affected businesses and jobs. According to the IBGE, the unemployment rate in Brazil reached 11.9% in the first quarter of 2020.<\/p>\n
Attorney Joseane Fernandes, from Employer's Preventive Legal Department, answers questions about labor rights following the provisional measures established to mitigate losses for both employer and employee, aiming to maintain employment.<\/p>\n
Provisional Measure (MP) 936 legally allows companies to enter into individual agreements directly with their employees, without the consent or direct interference of the union, with the aim of reducing working hours and, consequently, salary, or suspending the employment contract for a specified period.<\/p>\n
Provisional Measure 927\/2020 established new measures to address the state of calamity and maintain jobs. The measure allows for teleworking, regardless of the existence of other individual or collective agreements; the anticipation of individual vacations, the granting of collective vacations, the utilization and anticipation of non-religious holidays, and a time bank, which may be negotiated through a collective agreement or formal individual agreement, with a compensation period of 18 months starting from the end of the state of public calamity, which is scheduled for 12\/31\/2020 (Legislative Decree 06\/2020). The measures provided for in MP 927\/2020 also apply to temporary, rural, and domestic employment contracts.<\/p>\n
1. What are the main advantages for employees when making an agreement with companies?<\/strong><\/p>\n Employees who enter into individual agreements, as provided for in Provisional Measure 936, are guaranteed provisional job stability, pursuant to Article 10 (\u201cProvisional job security is hereby recognized for the employee who receives the Emergency Benefit for the Preservation of Employment and Income...\u201d), and the maintenance of benefits already paid by the employer.<\/p>\n On the other hand, the employer can make use of these options with the intention of preserving jobs, considering they can get some breathing room in their cash flow during the pandemic, while respecting and complying with the deadlines imposed by the legislation.<\/p>\n 2. What is the role of the unions in these agreements?<\/strong><\/p>\n If the company's interest is to formalize an agreement with other measures or at different percentages than those permitted by MPV 936\/2020, it must seek the assistance of the union to formalize the agreement.<\/p>\n Examples of such formal agreements with the industry union include: a reduction in working hours and wages by 45%, since the MPV allows individual agreements only for 25%, 50%, and 70%; it is also necessary to take into account the employee\u2019s salary bracket, as mentioned in the MPV.<\/p>\n 3. Should professionals working from home receive an allowance?<\/strong><\/p>\n It depends on what was agreed upon with the company.<\/p>\n Before starting remote work, the company and the employee must analyze the employee's needs to perform their work from home, whether they need any extra resource or equipment. The negotiation is up to the parties, who may establish a cost allowance for the employee if necessary. Such cost allowance must be set forth in a specific document indicating its purpose, such as paying for internet or an increase in the electricity bill due to the use of high-energy-consumption equipment.<\/p>\n 4. Does the time bank apply to those working remotely? How does this issue stand?<\/strong><\/p>\n The bank of hours is an issue to be analyzed when formalizing the work-from-home arrangement. Initially, during this work period, time tracking is not mandatory, considering that the time worked by the employee is their contractual working hours. If the company uses remote time-tracking methods, such as certain login and password systems, or even apps that can monitor working hours, the parties may track working hours during this work-from-home period.<\/p>\n 5. Can someone with a suspended contract apply for emergency aid?<\/strong><\/p>\n No. If the contract is suspended, it is the company itself that will make this request for the employee. Respecting the deadline of up to 10 (ten) days to inform the Ministry of Economy about the agreement made. With this information, the Government will automatically start the necessary procedures for the payment of the emergency benefit.<\/p>\n 6. Is the worker required to work from home?<\/strong><\/p>\n The home office, referred to as telework in our legislation, is determined at the employer's discretion. The employer will analyze the situation in their city, the recommendations of the Department of Health, the specific legislation, and will determine whether or not to implement the home office. It is possible that certain sectors will continue with on-site work due to the nature of the activity performed, except as determined by Municipal or State legislation. MPV 927\/2020 does not provide that all sectors must follow the same work standard.<\/p>\n If the employee does not agree, the employer, at its discretion, may adopt other measures such as the advancement of vacation, holidays, etc.<\/p>\n Once again, we must think that the MPV came to preserve jobs, where everyone must do their part to achieve this goal.<\/p>\n 7. In a work-from-home arrangement, how do days off and overtime work?<\/strong><\/p>\n The time off normally granted to employees is maintained, and the work performed in a home office format follows the same working days as the in-person format.<\/p>\n Regarding overtime, initially, in the work-from-home format, it is considered that the employee works the same hours as they did in person at the company. However, if the company uses remote time-tracking methods, such as certain login and password systems, or the use of applications that can control the workday, the parties may track working hours during this work-from-home period. In this case, any overtime must be paid or compensated, according to the standard adopted by the company.<\/p>\n 8. Can a worker refuse to travel to a region considered endemic? What implication will they face if they do not go?<\/strong><\/p>\n It depends on the situation of the region where the trip will take place. If there is no recommendation from local authorities to close establishments and restrict the movement of people, there is no reason for the employee not to travel.<\/p>\n The company has the responsibility of providing a safe work environment for the employee, which applies even in cases of travel. Therefore, it is necessary to check the recommendations for the travel destination and follow them strictly, providing the necessary protective equipment to the employee.<\/p>\n If the company is complying with all requirements set forth in the legislation of the destination region, as well as the care recommendations of the Department of Health and the Ministry of Health, but the employee still refuses, the company may determine which measures to adopt according to its needs.<\/p>\n 9. Must the reduction of working hours proportional to the salary reduction be registered in the contract?<\/strong><\/p>\n Yes. Both for the proportional reduction of working hours and salary and for the suspension of the employment contract, a written individual agreement or, if applicable, a collective agreement with the union of the respective category must be formalized.<\/p>\n This agreement shall form an integral part of the employment contract.<\/p>\n 10. How will the compensation of hours be handled for those who are not working, but continue to receive a salary?<\/strong><\/p>\n It depends on what was agreed upon with the employer. If the worker has a formalized time bank, these hours may be added to their time bank and compensated in the future. If there is no formalization, the period will be counted as working time.<\/p>\n 11. Outside of the CLT regime, can an independent service provider who stops providing services due to illness or quarantine stop getting paid for it?<\/strong><\/p>\n For service providers, it is necessary to check whether there is a contractual provision regarding how payments will be handled in cases of leave, illness, or fortuitous events.<\/p>\n 12. What are the new rules for taking vacation according to Provisional Measure 927?<\/strong><\/p>\n The employer may grant paid time off with a 48-hour prior notice, by written notice or by electronic means, which must state the period to be enjoyed by the employee. Paid time off may not be taken in periods of less than 5 (five) days and the employer may bring forward paid time off. Workers belonging to the at-risk group shall have preference for taking paid time off.<\/p>\n During the state of public calamity, which is scheduled until 12\/31\/2020 pursuant to Legislative Decree No. 6\/2020, employees who work in the healthcare field or perform essential functions may have their vacations suspended, provided they are notified 48 hours in advance.<\/p>\n During the period of public calamity, the employer may choose to pay the one-third vacation bonus after the vacation is granted, up to the date on which the thirteenth-salary is due. The payment of vacation remuneration may be made by the fifth business day of the month following the beginning of the vacation. If the employee is terminated, the amounts due must be paid with the severance pay.<\/p>\n 13. Can the employer force the employee to take vacation?<\/strong><\/p>\n Vacations are granted at the employer's discretion. This is already the legal provision (CLT), however, if only for the sake of coexistence, vacations end up being defined by mutual agreement.<\/p>\n During this pandemic period, if the employer understands that it is best to grant vacations to employees\u2014whether regular accrued vacations, anticipated vacations, or collective vacations\u2014the employer may determine the period in which they are taken. It is the employer who has knowledge of the company's needs and in which period the vacations best serve the interests of the business.<\/p>\n 14. How many vacation acquisition periods can be advanced at this time?<\/strong><\/p>\n MPV 927\/2020 does not limit how many vacation periods can be advanced to the worker. However, it is important for the employer to analyze how many periods actually need to be advanced or whether they can make use of other measures provided for coping with the pandemic.<\/p>\n If the employer advances many vacation periods to employees, in the event of termination of the employment contract, it may result in a negative balance. It is important for the employer to analyze all the possibilities provided for in Provisional Presidential Decrees (MPVs) 927 and 936 and decide on what best suits their business.<\/p>\n 15. Can non-essential service companies be punished if they force employees to come to work?<\/strong><\/p>\n To make this statement, it is necessary to analyze municipal and state legislation, as each municipality is handling pandemic control in its own way, according to the situation and needs of the municipality. It is very important to pay attention to the legislation to know which situations may be penalized for keeping the establishment operating.<\/p>\n 16. With the reopening of businesses, for example, are employees who are in the risk group required to return?<\/strong><\/p>\n The recommendation is that employees belonging to the risk group be granted leave, or that preference be given to taking vacation, anticipated vacation, and holidays. It is necessary to check Municipal, State, and specific union category legislation to see if there are any mandatory leave requirements.<\/p>\n A safe work environment is the company's responsibility. Therefore, if it is not possible to keep such employees away, the company must consider measures that minimize the employee's exposure to risks of contagion, such as, for example, working from home.<\/p>\n 17. After the two months permitted by Provisional Measure 936 for contract suspension, is a new suspension allowed?<\/strong><\/p>\n No. MPV 936\/2020 provides for a maximum duration of 60 days for the suspension of the employment contract. The company may adopt both measures, suspension and reduction of working hours and salary, however, the duration limit in this case is 90 days, and the suspension may only be done for 60 days.<\/p>\n 18. With the suspension of the employment contract or reduction of working hours, how are benefits paid?<\/strong><\/p>\n Provisional Measure MPV 936\/2020 provides that employee benefits must be maintained in both situations, that is, in cases of reduction of working hours and wages and in cases of suspension (Article 8, paragraph 2, item I).<\/p>\n Except for the provision of the Transportation Voucher, since if there is no employee displacement to work, its payment is not due.<\/p>\n 19. How do recent government actions impact the FGTS?<\/strong><\/p>\n Provisional Measure No. 927\/2020 suspended the enforceability of FGTS contributions by employers for the payroll months of March, April, and May 2020, due in April, May, and June 2020, respectively. However, in the event of contract termination, the payment of contributions for this period becomes mandatory in the termination payment document.<\/p>\n Moreover, as there is a decrease in salary payments, both in the suspension and in the reduction, the amount of contributions also decreases, since the tax base is smaller.<\/p>\n