Faced with the covid-19 pandemic, companies have discussed possible actions to help stop the spread of the virus. We highlight below the main options for corporate environments and some precautions that should be taken from a legal point of view.

 

Home office

This is the option to work from a distance, usually at the worker's home. It must be instituted in an internal policy and does not require formalization in an employment contract.

 

Implementing it is an alternative in the current scenario, and it is advisable to make it clear to employees that the measure is temporary and exceptional.

 

It is also advisable to provide guidance on health and safety standards for exercising activities at home and to adjust the means of controlling work hours for employees who usually have their work hours recorded.

 

Teleworking or Remote Work

This is also an option for distance working (provided for in articles 75-A and 75-E of the Consolidated Labor Laws) which has as its main characteristic the performance of activities by the worker predominantly outside the premises of the company.

 

Even if teleworking or remote work is only stipulated temporarily due to the covid-19 outbreak, there is no prohibition on having it agreed upon between the company and employee for a certain period of time, as long as, in the meantime, the activities are provided predominantly outside the corporate environment.

 

Unlike with the home office option, the choice to telework or work remotely must be formalized individually with the employee, in a document that contains the specifications of the activities to be performed and an agreement on who will be responsible for costs related to equipment and infrastructure needed in this regard.

 

In addition, as provided for in article 75-E of the Consolidated Labor Laws, the company must guide its employees on preventing occupational diseases and accidents.

 

Unlike with the case of a home office, teleworking or remote work dispenses with control of work hours.

 

Individual and collective vacation

As a rule, individual vacation must be granted to employees who are enjoying the period granted, upon 30 days advance notice.

 

To grant collective or company-wide vacation, the employer must notify the Ministry of Labor (currently, the Department of Labor) and the trade union 15 days in advance. Collective or company-wide vacation must cover all employees or all employees in (a) certain sector(s).

 

For both vacation arrangements, failure to comply with the legal requirements may result in a fine against the company of R$ 170.25 per employee.[1]

 

Considering the exceptionality of the covid-19 pandemic situation, however, there are good arguments to justify relaxation of these deadlines and non-application of fines.

 

Any change in the work regime unilaterally undertaken by the employer during this period must be done with caution and reasonableness. The change may be justified as a measure caused by force majeure,[2] since employers are responsible for ensuring good health and safety conditions for their employees, under penalty of being held liable for any acts of negligence that are shown to expose them to risk.

 

In this context, an employee who refuses to follow the guidelines or changes proposed by the employer during this period may be penalized with a warning, suspension, or even termination for cause.

 

In accordance with the rules enacted[3] by the government to contain and prevent the advance of the disease, workers who undergo clinical and laboratory investigation of the disease must remain in isolation, preferably at home, for a period of 14 days.

 

If isolation is recommended by a doctor or epidemiological surveillance agent, the employee may not come to work, without affecting salary, and may work under one of the arrangements for distance working (home office or teleworking).

 

If the suspicion of the illness is confirmed, employees may be put on leave if they present a medical affidavit, in which case the general rules for medical leave must be applied; it is not possible to treat this period as vacation or even require that the employee work in a home office or teleworking arrangement.

 

 

1 Executive Order No. 905/19 appreciably altered the fines for labor infractions, in rules that will take effect after an act of the Executive Branch. If this occurs, fines calculated per employee affected (as occurs with violations related to vacation) may vary between R$ 1,000 and R$ 10,000 per employee.

[2]Article 501 of the CLT: "Force majeure is understood to be any inevitable event, in relation to the will of the employer, and for the occurrence of which it did not contribute, directly or indirectly."

[3] Law No. 13,979/20, published on February 7, 2020, provides specifically for measures to deal with the public health emergency caused by covid-19. The law was regulated by the Ministry of Health through Ordinance No. 356, published in the Official Gazette on March 12, 2020.