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March 24, 2020

COVID-19 | Labor - New developments of coronavirus in labor relations

Labor - updated on Mar 20 at 06:00 pm

NEW DEVELOPMENTS OF CORONAVIRUS IN LABOR RELATIONS

As widely reported by media, the Brazilian Federal Government has already announced a series of measures that may alter the information below. However, to date, such measures have not been edited. This material will be updated as soon as any measure is officially published.

As soon as coronavirus cases in Brazil were identified, we issued our first considerations on its impacts on the work environment and recommended the initial measures that could be taken by employers.

However, the continuous grow of coronavirus and the recognition of a pandemic generate daily new effects on the employment relationships that must be faced by employers taking into account the rules of the World Health Organization, the provisions of the Federal Constitution, the terms of the Brazilian Labor Code (CLT), the content of the Occupational Health and Safety Regulatory Norms and the trend of interpretation of our Labor Courts and of the Ministry of Labor Prosecutor. Since last Wednesday (March 18), the Government has announced that it would publish measures to make the current rules more flexible, but so far, no new regulation was enacted.

Therefore, below, we present new guidelines and recommendations, organized into two groups: (i) health and safety at work; (ii) contractual issues and work routines.

  1. Health and safety at work
  • Promote a specific coronavirus prevention program, with support from SESMT (Specialized Service in Safety Engineering and Occupational Medicine) and CIPA (Internal Commission for Accidents Prevention), with distribution of posters and booklets on care and hygiene.
  • As far as possible, establish policies for aerating workplaces, opening access and availability of alcohol gel in entries/exits and other strategic locations in the circulation areas.
  • Establish permanent visits to the sectors to verify the effectiveness of the prevention measures and their compliance by employees.
  • Inform and permanently guide employees about the consequences of the disease and about routine changes in the workplace.
  • Identify minimally suspicious cases (either employees with flu-like symptoms or the ones that had or have contact with potential infected people) and arrange for their immediate removal from the workplace.
  • Inform employees, in the event of a suspicion or confirmed case, without disclosure of the worker's name, in order to balance the right to privacy and the right to information of the co-workers.
  • Provide the necessary referral for medical care for employees with flu-like symptoms.
  • Take the necessary measures to refer the sick employee to the Social Security Agency, after the 15th day of consecutive sick leave, in accordance with the social security legislation.
  • Allow paid leave for employees that need to take medical tests to identify the disease.
  • Establish minimum distances between employees during the execution of activities and in use of common areas, such as cafeterias, changing rooms, resting areas, etc.
  • Allow remote work according to the need, possibility and nature of the activity of the company.
  • Establish a rotation scheme to have part of the employees working from home and part of them at the company’s facility.
  • In those cases where employees that use public transportation prove to be subjected to agglomerations, if possible, temporarily offer free alternatives or more individualized means to commute.
  1. Contractual issues and work routines

Leave for medical examinations. These absences must be paid by the employer provided the employee presents the medical report.

Temporary leave determined by the employer. This is a temporary stoppage of the professional activity (or employment contract) called interruption, because, at the employer's will and discretion, the employee is removed from work as a preventive measure. In this case, it should be a paid leave.

• Remote work (home office system)

Depending on the nature of the activity of the employee, remote work is the most productive and safe alternative to face this period. In several cases, the removal of the employee from the workplace is inevitable or even a typical preventive measure.

CLT, in its articles 75-A to 75-E, establishes the rules for remote work.

Considering the recommendations of public health authorities, we suggest the adoption of remote work when possible.

In a recent publication, the Brazilian Superior Labor Court admitted that in this type of emergency scenario of crisis where it is necessary to take effective emergency and exceptional measures to protect the population, remote work could be performed without observing all legal formalities.

Nevertheless, daily the media disseminates concrete information that shows that the period of crisis will last a few months. Therefore, the “emergency and exceptional” scenario will become a “rule”.

Thus, in our opinion, depending on the nature of the activity performed, employees may be immediately allocated to work from home, however, in parallel, the company should already prepare the amendments to their employment agreements to address the remote work rules in line with articles 75-A and the following from the CLT:

+ specify the functions that will be performed from home.

+ specify the working hours to be observed or whether the employee will be an exempt employee pursuant to article 62, III, of the CLT.

+ establish express and specific instructions on occupational health and safety rules, especially regarding ergonomics and the need to comply with rules for the prevention of accidents and occupational diseases.

+ specify if and what will be the reimbursable expenses by the employer, such as internet costs and equipment purchases.

+ expressly establish which equipment/utilities will be provided by the employer due to the work performed from home.

Our tips for adapting remote work rules to the specific case:

+ provide at least the minimum work conditions for the employee (computer, accessories, internet, etc.).

+ in case the employee is not released from working hours control, advise him/her to fill out a spreadsheet with the actual working hours performed, with subsequent delivery to the manager or the HR department.

+ issue, in writing, instructions to the employee regarding the observance of ergonomics, conservation of the equipment provided by the company, organization, concentration and fulfillment of tasks.

+ if necessary, apply a warning or suspension via Skype and confirm the application of the disciplinary measure in writing, by email.

+ in case termination is performed during this period (despite not recommendable, as explained below), the company should observe the mandatory termination procedures such as sign the termination form, deliver it to the employee and schedule the termination medical examination.

  • Transportation voucher. During the period the employee is away from the workplace (either on leave or performing work from home), there is no commuting and this benefit is not due.
  • Food voucher and meal ticket. These are benefits granted due to the employer’s policy or established in CBAs. They are due for the days the employee works. Hence, for employees working from home during this period, we recommend continuing to provide these benefits.
  • Collective vacation. It is possible to grant collective vacations to all employees or to a group of employees. However, CLT requires that the Special Labor Secretariat is notified with at least 15 days in advance. We recommend executing a collective bargaining agreement with the employees’ union so that the legal formalities foreseen are put into perspective, including the waiver or significant reduction of this advance period.
  • Recovery of “lost” time. In the event of force majeure or accidental causes (fortuitous case), when the situation returns to normality, CLT provides the possibility for the employer to recover the lost time, allowing the employee, within a maximum period of 45 days, to work overtime, up to a limit of two extra hours per day, offsetting the period the employee stayed at home without working. No overtime payment will be necessary during the offset period. However, per law, prior authorization from the Special Labor Secretariat is required to enable this recovery. We understand that it is possible, from now on, to remove the worker from the workplace to later recover (offset) the “lost” hours. However, we recommend contacting the employees’ union to negotiate an agreement, even if this agreement is established after the measure is adopted by the company, to substitute the prior approval required by law to implement this measure.
  • System to offset overtime/absences (Bank of Hours). Although it is possible to offset absence hours with the performance of overtime using a Bank of Hours agreement that may be already in place at the company, we do not recommend this measure for the current situation, especially for employees that currently do not have overtime already performed and included in the Bank of Hours to be offset. In other words, we do not recommend to first including absence hours (negative hours) in the Bank of Hours to later offset them with overtime (positive hours), which would be the case in the current scenario. The reason for that is because if later questioned in Court, the Labor Court may use the exact terms of § 2 of article 59 of the CLT that states “the overtime hours performed in one day is offset by the corresponding reduction of working hours in another day”, which means that first the employee needs to work overtime (“has credit at the Bank of Hours”) and then offset it with absence/time off (“debit the Bank of Hours”).
  • Lay off. CLT provides that from two to five months employment contracts may be suspended so that employees may take a professional qualification course fully paid by the employer, without the payment of salaries in that period. In this case, it is necessary to have a collective bargaining agreement. The benefits and discretionary allowances granted throughout the employment contract must continue to be paid during the suspension period. During this period, the employer may also pay a monthly compensatory allowance that will not have salary nature.
  • Consider justified absence the absences due to crowded public transportation. The mere allegation of agglomerations in public transportation does not support a justified absence. As mentioned before, a recommended health measure is to offer another type of transportation to employees, if possible to the employer and considering the nature of the activity.
  • Individual or collective terminations. We do not recommend performing individual or collective terminations during this period, because considering the need to protect and preserve the health of workers in the face of the pandemic, in the event of a labor dispute, the trend of our Labor Courts is to determine the employment reinstatement of the dismissed employee(s) justifying that the moment entails the suspension of employment contracts and not their termination considering the constitutional principles and the terms the CLT.
  • Government Act (“Fato do Príncipe” in Portuguese). CLT provides that in the event of partial or temporary interruption of the business activity, or the closure of a company due to a determination of a public authority, the employer may consider the employment contracts to be extinguished and claim “fact or order of the Government” (Government Act – “Fato do Príncipe”). As a consequence, the compensation due to employees related to this period would be due by the respective public authority. We recommend a lot of caution when considering this option, because in Court it will be very difficult to obtain a favorable decision recognizing this condition.
  • Communication to employees of coronavirus case(s) in the company. It is the right of employees to be aware that there was/were a case(s) of coronavirus in the company, but we recommend that the name of the employee(s) with a positive test(s) for the virus is not disclosed, as this would violate privacy rights. The company is responsible for communicating the fact to other employees and informing that the necessary protection measures have been taken and reassured.
  • Reduction of salaries due to force majeure. According to the terms of CLT, it is possible to reduce salaries up to 25% in case of force majeure. In the current scenario, in our opinion, the reduction may be performed even in a higher percentage, provided that, formally, the requirement established by the Federal Constitution is observed: negotiate the salary reduction with the employees’ union and execute a collective bargaining agreement.

In addition, we recommend that the temporary salary reduction is informed to employees and only performed if there is, in the city where the work occurs, a public calamity decree or the closing of public establishments.

  • Working hours control per exception. It is possible to adopt a system to control the working hours per exception (e.g., standard working hours are assumed to be performed and the employees will only register overtime/absences that are considered “exceptions” to the regular working hours) to avoid direct contact with the time recording devices, by means of a written agreement with each employee or through collective bargaining agreement.
  • Interns. Although they have no employment relationship, the Internship Law determines the application of all health and safety rules to interns. Thus, if employees are on leave, in our opinion, interns should also be removed from their activities, having as an alternative the concession of recess (paid rest period) which, by law, should preferably coincide with school holidays. However, even if the classes of the respective course are not suspended, the force majeure resulting from the coronavirus allows the concession of the recess. We recommend the granting of 15 days of recess initially, given the uncertainty of the duration of the critical period of the pandemic.
  • Requirement of medical tests to identify coronavirus. The employer may request that an employee carry out the examination to detect the contagion or not by the coronavirus, if there is, in writing, the employee's express consent, committing the employer to the confidentiality of the request and the result of the test.
  • Collective bargaining agreement. If possible, the ideal would be to execute  collective bargaining agreements to address all matters mentioned above and others that may arise because article 611-A of the CLT provides greater legal protection by privileging collective negotiations, which may be between company and employees’ unions or between the employees’ union and a determined company.

We remain attentive to the constant consequences of the effects of coronavirus on employment relations, developing solutions to harmonize work activities and attempting to avoid potential labor liabilities during this period of legal and social uncertainties.

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