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Federal Government passed a Provisional Measure with emergency labor provisions
Federal Government passed a Provisional Measure with emergency labor provisions
On March 22, 2020, it was sanctioned by the Federal Government the Provisional Measure number 927/2020 (“PM 927”), which provides for labor alternatives for coping with the state of calamity caused by the pandemic of COVID-19, a disease caused by the new coronavirus.
In view of the scenario of uncertainty and imminent economic downturn, PM 927 implements emergency provisions for employers and employees to overcome the turbulent scenario installed by the effects of COVID-19, which are valid for 60 days and can be extended up to 120 days, regardless of whether they are included on the voting session by the National Congress.
The central idea of PM 927 is maintaining jobs, which is why it allows employers to enter into individual agreements with their employees on several points. The agreements will have a preponderance over other collective bargaining agreements, legal and business instruments, if the limits established in the Constitution are respected.
Among other measures PM 927 authorizes:
- Immediate change to face-to-face work regime for teleworking (home office);
- Anticipation of individual vacations under special conditions;
- Concession of collective vacations without the need to observe administrative deadlines;
- Use and anticipation of non-religious holidays;
- Adoption of a special hour bank regime;
- Suspension of administrative requirements for safety and health at work; and
- Deferment of payment of the Severance Pay Fund (“FGTS”).
It is important to clarify that, in its original wording, PM 927 indicated the possibility of steering workers to professional qualification, however, this no longer applicable due to its abolishment by Provisional Measure number 928, edited on March 24, 2020 (“PM 928”).
- Teleworking
For the implementation of a teleworking regime, the Provisional Measure eases the terms and conditions foreseen in the Brazilian Labor Laws (“CLT”), regardless of the existence of previously established individual or collective agreements.
The change in the work regime must be informed to the employee at least 48 hours in advance, by electronic means if needed. On the other hand, the availability of equipment, costs and eventual reimbursements, in addition to general teleworking terms and conditions, must be fixed in an individual written agreement, which may be signed in advance or within 30 days from the start of the change of work regime.
- Individual or collective vacation
In relation to individual vacations, PM 927 provides that they cannot be less than 5 calendar days, with the possibility of granting the benefit even if the acquisition period has not yet been completed. In any event the worker must be informed at least 48 hours in advance by written or electronic means. The parties are also free to negotiate the granting of future vacation periods, subject to individual written agreement.
Another important issue is the possibility of postponing the payment of vacation pay (constitutional third), which now can be made up to December 20, 2020 (i.e. deadline for the Christmas bonus) and no longer just when the vacation period starts.
With regard the collective vacations, there is a relaxation of the rules for its adoption, since PM 927 requires only communication to employees, which may be electronic, at least 48 hours in advance; and waivers the need for notification of the employee’s Union or the Ministry of Economy.
- Hour bank anticipation of holidays
PM 927 foresees that an exceptional hour bank regime can be negotiated directly with employees, allowing, when the activities return to normal, the compensation of any interruption of regular work activities by extending the workday by up to two daily working hours, for a maximum period of eighteen months, counting from the end of the state calamity, scheduled to last until December 31, 2020.
This measure will probably be used by companies that will not be able to continue their activities during the quarantine or social isolation period, so that they will be forced to keep their employees away, at home, regularly receiving wages.
The idea is that, when the activities return, the extension of the working hours related to these periods of interruption can compensate the difficulties that the companies will face to recover their losses
Moreover, it is authorized the unilateral anticipation, at the sole discretion of the company, of federal, state, district and municipal non-religious holidays. The employer must expressly indicate the holidays that will be anticipated, through electronic means if needed.
The hours related to non-religious holidays may be subject to balance compensation in bank hours, including those already established before PM 927.
Religious holidays may also be subject to anticipation, as long as authorized by written agreement, in advance, by the employees.
- Payment of the Severance Pay Fund – FGTS
PM 927 also provides for the suspension of the demandability of FGTS payable by employers with respect to the months of March, April and May 2020.
The respective payments can be made in up to six installments starting in July, without the legal charges provided for in the legislation.
However, in cases of dismissal of employees, the unpaid FGTS of such months should be paid immediately, with the legal charges provided for in the legislation, which also demonstrates the PM 927 intention of preserving jobs.
- Other measures and determinations.
Finally, it was suspended the obligation to carry out occupational, clinical and complementary medical examinations, except for dismissal examinations – unless the employee has already carried out the last occupational examination within 180 days of the dismissal date.
The cases of contamination of employees by COVID-19 will not be considered occupational diseases (or accidents at work), except if the existence of a causal link is proven, that is, if a direct connection between the activities performed and the referred contamination is proven.
During the period of 180 days, counted from the date of PM 927, the Labor Tax Auditors will act as advisors, that is, they will not impose fines on companies, except in the cases of the following irregularities:
- Lack of employee registration, based on complaints;
- Situations of serious and imminent risk, only for irregularities immediately related to the configuration of the situation;
- Occurrence of a fatal work accident, only for irregularities immediately related to the causes of the accident and
- Discovery of work in conditions similar to slave or child labor.
Collective agreements or conventions expired or close to expire, within 180 days, may be extended, at the employer’s discretion for a period of 90 days, after the end of its term.
Finally, it is worth mentioning that all labor measures adopted by employers in the thirty days prior to the entry into force of MPV 927 were validated, provided they do not contravene the provisions therein.
Please see, within our website, the section dedicated to the news of COVID-19 and its legal repercussions.
For any additional questions, please to not hesitate in contacting us.
