Government alters labor rules aiming to guarantee employment during the Coronavirus pandemic
The global pandemic calls our attention due to the number of infected and fatal victims. Public authorities, in all spheres, initiated a series of protective measures, aiming to reduce the spread of the virus. Many of such measures result in the restriction of free movement of people, in addition of determining the closure of commercial establishments, keeping only the essential ones open.
However, a significant number of companies and activities depend on the circulation of people and goods for survival. Thus, an unprecedented crisis is foreseen in view of the necessary restrictions, which leads to the fear of massive increase of unemployment and, therefore, a huge impact on the country’s economy.
Considering this scenario, the Federal Government issued Provisional Measure No. 927/2020, dated March 22nd, 2020, specifically focusing on labor relations. It is worth highlighting the main points affecting employers, which include (i) Home office; (ii) Anticipation of Individual Vacations; (iii) Collective Vacations; (iv) Anticipation of Holidays; (v) Bank of Hours; and (vi) Flexibility in the Collection of the FGTS:
Home office
– The employer decides: At the employer’s discretion, the work regime of employees, interns and apprentices may be changed from presential to home office, regardless of individual or collective agreements and without the need for registration, but with prior communication of 48 hours, in written or electronic means.
– Absence of shift control: During this period, employees working at home are not subject to shift control. Unless agreed collectively or individually, the use of communication applications and programs outside the employee’s normal workhours will not be considered as time at disposal, readiness or alert.
– Cost of infrastructure: The cost of infrastructure for the home office, as well as any expenses borne by the employee will be provided for in a written contract, which can be signed in advance or within 30 days from the date of the initiation of the home office. In the event the employee does not have the necessary equipment, the employee may borrow it free of charge.
Anticipation of individual vacations
– The employer decides: At the employer’s discretion, employees’ individual vacations may be anticipated upon a 48 hours prior communication (written or electronic).
– Requirements + Possibility of anticipation: Even if the employee does not have the full vesting period, holidays may be granted, and the period of enjoyment cannot be less than 5 days. In addition, upon individual written agreement, future acquisition periods may be anticipated.
Collective vacations
– The employer decides: At the employer’s discretion and upon notification (there is no specification as to the form, therefore, it is presumed in writing), collective leave to employees may be granted with a notice of a minimum of 48 hours in advance.
– Flexibility of the employment rules: Holidays may be taken in more than 2 annual periods, and may be less than 10 days. In addition, there is no need to inform the Union and the Ministry of Economy.
Anticipation of holidays
– The employer decides (on non-religious holidays): At the employer’s discretion, it is possible to anticipate the enjoyment of federal, state, district and municipal non-religious holidays, by means of notification (written or electronic) to employees with 48 hours in advance.
– Employee’s consent on religious holidays: For religious holidays, the employee’s written consent is required by means of an individual agreement.
Bank of hours
– Interruption of activities + Increase in the compensation period: By collective or individual written agreement, a special working hours compensation scheme by means of a bank of hours may be created in favor of the employer or employee, for compensation within up to 18 months (counting from the end of the state of public calamity).
– Limit of daily compensation: A 2-hours extension per working day is allowed, respecting the limit of 10 hours per day.
Flexibility in the FGTS payment
– Grace period for payment + Installment payment: For all employers, the FGTS payment is suspended for the March, April and May 2020 competencies, which can be paid in up to six monthly installments, without monetary adjustment, fines and charges, from July 2020. To enjoy this benefit, it is necessary to comply with the requirements listed in the MP.
– Advance payment in the event of termination: If the employee is dismissed during the FGTS installment plan, these installments will be anticipated for this employee, with the need for discharge within the legal deadlines.
It is worth mentioning that the Provisional Measure also provided for the suspension of employment contracts with the suspension of remuneration (art. 18), however this possibility was revoked this Monday, March 23rd.
We also highlight that any labor measures adopted by employers that do not contradict the Provisional Measure were validated, provided that they were implemented within 30 days before the MP came into force (March 22nd). It is a “blind validation” of actions, that must, however, be analyzed on a case-by-case basis and with extreme caution, to verify their legal viability.
Clearly, the MP aims to safeguard the health of the employee with social isolation, as well as the existing work places and the continuity of economic activity, giving the employer, in most cases without the employee’s agreement, the power to choose a more viable alternative.
All these temporary measures brought by the Provisional Measure will be in force during the state of calamity, in addition to other formal and bureaucratic requirements to be followed.
It is easy to imagine that there will be a reaction from the Unions and, in a near future, a flood of actions discussing the validity of the measures. However, perhaps we are, for the first time, experiencing the effects of a “force majeure” event, a situation that is legally foreseen and gives legal justification for transitory measures that have social welfare as priority (protection of employment).