Put: Rafael Mello and Israel Cruz

On June 16, 2021, Provisional Measure 1046 of 2021 (“MP 1046/21”) had its effects extended for another 60 days by Congress.

On 04/28/2021, MP 1046/2 was published, which provides “on labor measures to address the public health emergency of international importance resulting from the coronavirus (covid-19).”

MP 1046/21 is similar to Provisional Measure 927 (MP 927/20), however it brings some relevant changes in relation to what was used as a support mechanism for companies in labor matters in 2020.

Let's recap the topics expressly addressed in MP 1046/21, now with effects extended until mid-August 2021:

• Telework

The possibility was stipulated for the employer to determine work under a teleworking, remote work or any type of remote work regime at its sole discretion and without the need for an individual or collective agreement, nor prior registration of such change in the employment contract.

It was also expressly provided that work under such regime constitutes external work, according to the exception in article 62 of the CLT, eliminating control of working hours and, consequently, calculation of overtime.

• Individual and collective holidays

Permission to grant vacations with a 48-hour notice period, as well as the possibility of bringing vacations forward, even if the period of vacation has not elapsed. In other words, even future vacation periods may be brought forward in full.

It was also established, when granting individual vacations during the period of public calamity, that the employer would be allowed to pay an additional one third of the vacation up to the legal deadline for payment of the 13th salary.

The deadline for holiday pay has also been changed to allow payment up to the fifth working day after the start of the holiday.

Regarding collective vacations, employees must be notified at least 48 hours in advance, with no need to notify unions or the Ministry of Economy and the respective Labor Secretariat.

The main change in relation to MP 927/20 lies in the inclusion of the sole paragraph of article 10, which provides for the possibility of discounting, upon termination of the employment contract, at the employee's request, vacations granted in advance, even if the acquisition period has not been completed.

• Anticipation of holidays

The anticipation of non-religious federal, state and municipal holidays for immediate enjoyment is permitted, which must be communicated to the employee at least 48 hours in advance, expressly indicating the holidays to be enjoyed.

Unlike the provision in the previous provisional measure, the anticipation of religious holidays will not depend on an agreement between the company and the employee.

• Time Bank and “Negative” Time Bank

Following the example of MP 927/2020, which also made such a provision, MP 1046/21 authorizes the establishment of a special time bank regime, regardless of individual or collective agreement.

The aforementioned time bank under a special regime will be valid during the period of public calamity and compensation must occur within 18 months after the 120 days foreseen for the validity of the provisional measure.

It is important to note that the rule, in addition to the traditional time bank that calculates additional hours to the workday for later compensation in future days off, mainly aims to regulate the interruption by the employer of its activities and, thus, count the hours not worked to compensate in the future – after this crisis has passed – for overtime worked. It would be, in an informal term, a kind of “negative time bank”.

Under this point, the new measure included the possibility of compensating hours on weekends, provided that the need for authorization to work on Sundays provided for in article 68 of the CLT is safeguarded.

It was clear in the new wording of MP 1046/21 that even companies whose activities are considered essential will be able to use the time bank provided for in this provisional measure regardless of the interruption of their activities.

• Suspension of administrative requirements in occupational health and safety;

During the period of validity of the measure, medical examinations (admission and periodic) for employees who work in person were no longer required. It is understood that these must be carried out within 120 days after the end of the validity of this measure.

For this new measure, the obligation to carry out occupational exams for healthcare workers and auxiliary workers who are currently working in a hospital environment will be maintained, as well as for workers who are teleworking, working remotely or working remotely.

Periodic and occasional employee training, as provided for in occupational health and safety regulations, must be resumed within 60 days after the end of this measure.

CIPA meetings and their electoral processes may be held entirely remotely.

• FGTS deferral

MP 927/2020 established the suspension of the requirement for employers to collect FGTS for the periods of April, May, June and July 2021, with due dates in May, June, July and August 2021. In other words, in the next 4 months, employers may stop collecting FGTS.

This rule applies to employers regardless of the number of employees, tax regime, legal nature, field of activity or prior membership.

Some additional obligations are relevant to enjoy this benefit. For example, companies must declare and recognize such amounts as due, assuming that MP 1046/21 brings here an obligation to declare information in e-Social.

For duly declared amounts, companies will be able to pay the deferred FGTS from September 2021, in 4 monthly installments, without adding interest, correction, charges or fines.

In the event of the employee's dismissal before the end of the installment plan, the deferred amounts will be due on the date of termination, but without the addition of interest or fines.

IMPORTANT: Companies that do not pay the FGTS and fail to correctly declare these amounts will be considered in default. They will not benefit from the installment plan mentioned above and will be subject to fines, interest, correction and charges.

• Granting of course with suspension of employment contract

The possibility is provided for the employer to provide the employee with courses lasting one to three months in a non-face-to-face format by suspending the employment contract.

However, for this situation, full compliance with article 476-A of the CLT is required, including the participation of the category's union.

• Collective Law – Collective Labor Agreements and Conventions

It was established that electronic means could be used to comply with the formal requirements for convening, deliberating, deciding, formalizing and publicizing a convention or collective labor agreement.

The deadlines for convening, deliberating, deciding, formalizing and publicizing a convention or collective labor agreement have been reduced by half.

We understand that MP 1046/21 brings exceptional measures that should always be implemented with the aim of preserving jobs. The use of these measures in a context other than this, even during a period of calamity, will certainly generate future legal developments with consequences that are still uncertain.

The use of measures in a context other than this, even during a period of calamity, will certainly generate future legal developments with consequences that are still uncertain.

Our recommendation is that the implementation of any of the measures provided for in MP 1046/21 be legally assessed before their adoption. Mazzucco & Mello Advogados is attentive to the evolution of the topic, as well as ready to support its clients in adopting measures in a balanced manner and mitigating risks arising from the current scenario.