With the beginning of the containment of the impacts of the coronavirus and the disclosure of plans to reopen the states in recent weeks, the protocols for resumption of in-person activities have been the focus of discussions and consideration at companies.

In São Paulo, for example, State Decree No. 64,994/20, which instituted the São Paulo Plan, regulates the economic reopening based on a system of classification of the regions of the state according to their health status. In the city of São Paulo, currently in phase 3 of the plan, the reopening of bars and restaurants was authorized on July 6, 2020. With this measure, discussions on the return to in-person work at companies have gained momentum, and actual return should occur in the near future.

As this matter is subject to concurrent jurisdiction, companies must observe not only the protocols implemented at the federal level, but also those created at the state and municipal levels, which establish health guidelines, social isolation, and even order of preference in returning to in-person activities, among others.

It is essential, therefore, that companies carefully analyze not only federal decrees, but also state and municipal decrees, ordinances, and other guidelines issued by the competent authorities, such as the Special Bureau of Welfare and Labor and the Ministry of Health, which establish protocols and measures that must be observed according to their location, particularities, and economic activity.

An important issue for the return to in-person activities, considering the restrictions imposed by the authorities, is defining which groups of employees will return to activities at the first moment and what the order of return will be.

Joint Ordinance No. 20, of June 18, 2020, of the Ministry of Health and the Special Bureau of Welfare and Labor, for example, establishes that (i) workers who are 60 years old or older or who present clinical conditions of risk for the development of covid-19 complications[1] must receive special attention, prioritizing having them stay at their residence via telework or remote work or, further, in an activity or place that reduces contact with other workers and the public, when possible; and (ii) for the workers in the risk group, when unable to stay at their residence or work remotely, work in a work space that is ventilated and sanitized at the end of each work shift must be prioritized.

Joint Ordinance No. 20/2020 encourages companies, therefore, to keep employees in the risk group in remote work for the moment. Based on this rule, we believe this group should be the last to return to in-person activities.

Also, although there is no specific provision in Ordinance No. 20/2020, some health protocols establish that, in addition to employees in the risk group, those who have dependents and, in order to carry out their duties, use the services of day care centers, schools, and the like that have not yet resumed their regular activities should not return to in-person work.

This is the case, for example, of Ordinance No. 605/20 of the São Paulo City Government, which authorizes the attendance to the public at vehicle dealers and resellers and offices rendering services. It provides for the sanitary protocol of these sectors and establishes that companies must allow telework for employees who do not have someone to take care of their minor dependents during the period when day-care centers, schools, or homes are closed. If teleworking is not possible, the employer must agree with the employee on an alternative way of maintaining the job, and may use the resources provided for in current laws and regulations. In São Paulo, companies should take into account that the return to classes in the state education system is expected in the coming months.

Once these major groups and other groups have been mapped based on the restrictions applicable in each location, many companies have chosen to conduct surveys among their employees to identify the level of comfort regarding return to in-person work and interest in returning to the office.

From these studies, they are able to identify how many employees should not return to in-person work at this time, how many would like to return, and how many are comfortable doing so. This allows companies to calculate whether it is necessary to establish shifts, relays, or rotations of employees for in-person work, taking into account any applicable occupation ceiling and physical space restrictions arising from the minimum social distancing rules.

[1]According to item 2.11.1 of Joint Ordinance No. 20/2020, the following are considered clinical conditions at risk for the development of covid-19 complications: severe or decompensated heart diseases (heart failure, stroke, revascularization, arrhythmia, decompensated hypertension); severe or decompensated pneumopathies (oxygen-dependence, carriers of moderate/severe asthma, chronic obstructive pulmonary disease - COPD); the immunosuppressed; chronic renal patients at an advanced stage (grades 3, 4 and 5); diabetics, according to clinical judgment, and high-risk pregnancies.