By: Rafael Mello and Israel Cruz

On 04/28/2021, Provisional Measure 1,045 of 2021 (“MP 1045/21”) was published, which provides “Institutes the New Emergency Program for Maintaining Employment and Income and provides for complementary measures to address the consequences of the public health emergency of international importance resulting from the coronavirus (covid-19) within the scope of labor relations.”

MP 1045/21 is similar to Provisional Measure 936/2020 (MP 936/20), bringing the reissue of the granting of emergency benefits in cases of reduced working hours and wages and temporary suspension of the employment contract.

The standard also brought regulation of the proportional reduction of working hours and salary, as follows:

Art. 7º The employer, during the period provided for in art. 2º, may agree to a proportional reduction in the working hours and salary of its employees, on a sectoral, departmental, partial or total basis for all jobs, for up to one hundred and twenty days, subject to the following requirements:

I – preservation of the value of the hourly wage;

II – agreement, as provided for in art. 11 and art. 12, by collective labor agreement, collective labor agreement or individual written agreement between employer and employee; and

III – in the event of an agreement being reached by written individual agreement, the proposal for an agreement must be forwarded to the employee at least two calendar days in advance, and the reduction in working hours and salary may only be made with the following percentages:

a) twenty-five percent;

b) fifty percent; or

c) seventy percent.

Likewise, it also established the rules for the temporary suspension of the employment contract:

Art. 8º The employer, during the period provided for in art. 2º, may agree to the temporary suspension of the employment contract of its employees, on a sectoral, departmental, partial or total basis for the jobs, for up to one hundred and twenty days.

• 1. The temporary suspension of the employment contract will be agreed upon, in accordance with the provisions of art. 11 and art. 12, by collective bargaining agreement, collective labor agreement or individual written agreement between employer and employee.

• 2nd In the case of an individual written agreement between employer and employee, the proposal must be sent to the employee at least two calendar days in advance.

• 3rd The employee, during the period of temporary suspension of the employment contract:

I – shall be entitled to all benefits granted by the employer to its employees; and

II – will be authorized to collect contributions to the General Social Security Regime as an optional insured person.

• 4th The employment contract will be reestablished within two calendar days, counting from:

I – date established as the end date of the agreed suspension period; or

II – date of communication from the employer informing the employee of its decision to bring forward the end of the agreed suspension period.

• 5th If, during the period of temporary suspension of the employment contract, the employee maintains work activities, even partially, through teleworking, remote work or distance work, the temporary suspension of the employment contract will be invalidated, and the employer will be subject to:

I – immediate payment of remuneration and social charges for the entire period;

II – the penalties provided for in the legislation; and

III – sanctions provided for in a convention or collective agreement.

• 6º The company that has earned, in the calendar year of 2019, gross revenue exceeding R$4,800,000.00 (four million and eight hundred thousand reais) may only suspend the employment contract of its employees upon payment of monthly compensatory aid in the amount of thirty percent of the employee's salary, during the period of temporary suspension of the agreed employment contract, in compliance with the provisions of this article and art. 9º.

• 7º The Executive Branch, taking into account budgetary availability, may extend the term provided for in art. 2º for the New Emergency Program for the Maintenance of Employment and Income and the maximum term for the temporary suspension of the employment contract referred to in this article, in the manner provided for in regulation.
• 8º The final term of the temporary suspension agreement of the employment contract may not exceed the last day of the period established in art. 2º, except in the case of extension of the term provided for in § 7º.

MP 1045/21 brings exceptional measures that must always be practiced with the objective of maintaining jobs, and it is certain that, as of today (06/16/2021), its effects will extend for another 60 days.

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 1045/21 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.