By: Rafael Mello and Israel Cruz

Teleworking was regulated in Brazil in 2017 through the enactment of law 13,467/2017, also known as the “labor reform”. According to the regulation in question, the possibility of hiring employees to carry out their activities remotely using technological tools was expressly addressed.

For this type of regime, the legislator took care to introduce specific rules with special emphasis on the exclusion of this work regime from the scheduling of hours, as well as the possibility that the employment contract provides for responsibility for the acquisition, maintenance or supply of technological equipment and the infrastructure necessary and adequate for the provision of remote work, as well as the reimbursement of expenses borne by the employee.

It is important to highlight that this topic became more relevant when implementing measures against COVID-19 contagion.

Right at the beginning of the pandemic, the issue was the subject of actions by the Public Ministry of Labor and unions that notified several companies administratively to implement this work regime, even leading to the filing of public civil lawsuits seeking the mandatory implementation of teleworking for essential services.

The biggest discussion on the topic was about the legality of the mandatory determination to implement teleworking for employees of services categorized as essential, despite the fact that many companies have practiced this type of procedure since the beginning of the pandemic.

For example, the Labor Prosecutor's Office filed a public civil action requesting the compulsory implementation of home office for all employees in a risk group at a broadcasting company in the state of Mato Grosso. In the first instance, the request was dismissed and, on appeal, the Regional Court of the 23rd Region decided to uphold the ruling on the grounds that the company had already been complying with this guideline spontaneously and voluntarily, but indicated that there is no legal obligation to impose this type of work:

PLAINTIFF'S ORDINARY APPEAL (MPT). PUBLIC CIVIL ACTION. CORONAVIRUS PANDEMIC. ESSENTIAL SERVICES. BROADCASTING. OBLIGATION TO DO. IMPLEMENTATION OF TELEWORKING FOR ALL EMPLOYEES BELONGING TO A RISK GROUP, ESPECIALLY PEOPLE AGED 60 OR OVER. IMPOSSIBILITY. ABSENCE OF LEGAL PROVISION. COMPLIANCE WITH THE OBLIGATION SPONTANEOUSLY BY THE DEFENDANT. Law No. 13,979/2020, which provides for measures to combat the Coronavirus pandemic, prohibits the adoption of measures that could make it impossible to perform any essential service (art. 3, § 99), which is in line with Federal Decree No. 10,282/2020 (art. 3, § 3). To the extent that Re performs radio broadcasting services, an activity considered essential, in accordance with the aforementioned Federal Decree, there is no rule among those issued with the aim of containing the pandemic caused by Covid-19 that has any binding force to impose the mandatory removal of workers included in the risk group, specifically in activities considered essential. Although the Joint Ordinance of the Ministry of Economy/Special Secretariat for Social Security and Labor and the Ministry of Health No. 20, of June 18, 2020, established priority attention for workers aged 60 or over, it did not provide anything about those workers who provide services in essential activities. Furthermore, as found by the health surveillance, even before the employer was summoned, the employer had already been spontaneously complying with the recommendation to remove workers in the risk group, in accordance with art. 10 of the Municipal Decree of Cuiabá/MT No. 7,886, of April 20, 2020. Accordingly, the judgment that dismissed the request of the MPT is upheld, which sought to condemn the Defendant to the obligation to do something consisting of providing for the immediate removal, without prejudice to the wages of all employees belonging to the risk group, especially people aged 60 or over. Appeal of the Public Prosecutor's Office which is denied. (TRT-23- ROT: 00005648720205230009 MT, Rapporteur: WANDERLEY PIANO DA SILVA, Cabinet Judge Bruno Weiler. Publication Date: 02/05/2021)

In another similar action, the union representing the employees of the Post Office sought the complete closure of branches and mandatory migration to remote work, arguing that there were infected employees. This request, assessed by the Regional Labor Court of the 2nd Region of São Paulo, was also refuted on the grounds that the activity performed by the Post Office is essential and, considering the peculiarities of the work of these employees, it would not be possible to maintain remote service and would harm the public interest. Let's see:

WRIT OF MANDAMUS. CLOSURE OF A UNIT OF THE BRAZILIAN POST AND TELEGRAPH COMPANY – EBCT DUE TO THE PANDEMIC CAUSED BY COVID-19. POSTAL SERVICE IS DEFINED AS AN ESSENTIAL ACTIVITY BY DECREE No. 10,282/2020. IMPOSSIBILITY OF REMOTE WORK. In the event that some of the plaintiff's employees tested positive for COVID-19, it does not seem lawful to determine that all employees of the CDD Santo Antônio unit could work remotely to the detriment of postal activities. Items XII, XXI and XXII of § 1 of art. 3 of Decree No. 10,282/2020 treated as essential services that cannot be interrupted the production, distribution, marketing and delivery, carried out in person or through electronic commerce, of health, hygiene, cleaning, food, beverages and construction materials products; postal services; transportation, storage, delivery and logistics services of cargo in general. Articles 3 and 4 of Law No. 6,538/1978 define postal services as mandatory, continuous and universal. In this case, there is a collision of 2 fundamental principles deserving of identical protection: supremacy of the public interest art. 5, XXIV and XXV, of the Federal Constitution) which advocates the permanent operation of the postal and delivery service (art. 2 of Law no. 6,538/1978 combined with art. 2 of Decree-Law no. 509/1969) and the protection of the worker (caput and item XXII of art. 7 of the Federal Constitution) which guides the search for a safe and healthy environment (item VIII of art. 200 of the Federal Constitution). The principles as optimization commandments can be applied to a greater or lesser degree in the specific case. This means that in the event of a collision of principles, the values involved must be weighed and which ones have greater weight than others determined according to the circumstances of the specific case. This is the weighing technique provided for in § 2 of art. 489 of the CPC and already consecrated by the doctrine of Robert Alexy. The maxim of proportionality defended by Robert Alexy is adopted, which is divided into 3 dimensions or partial maxims: adequacy, necessity and proportionality in the strict sense. The decision of the defendant authority to remove all workers from the Santo Antônio CDD unit to work remotely in view of the finding that there were 2 employees infected with COVID 19 sacrificed the supremacy of the public interest too much. This is because there is no possibility that all employees assigned to the CDD will work remotely. The indiscriminate removal of all employees assigned to the Santo Antônio CDD to work remotely ended up compromising the regular operation of the plaintiff's postal and logistics service, with catastrophic consequences for the entire community. The aforementioned decision violates a clear and certain right because it violates the provisions of items XII, XXI and XXII of § 1 of art. 3 of Decree No. 10,282/2020, articles 2, 3 and 4 of Law No. 6,538/1978, Decree-Law No. 509/1969, art. 1, item II of art. 3, articles 5 and 43 and item VII of art. 170 of the CF). On the other hand, the measures adopted by the petitioner concerning the removal of sick workers and those closest to them, in addition to sanitizing the place, contemplate, as far as possible, the protection of the health of employees without compromising the regular functioning of the essential activity.
(TRT-2 10020431320205020000 SP, Rapporteur: MARCELO FREIRE GONCALVES, SDI-8 – Chair 2, Publication Date: 08/25/2020)

As is well known, the telepresence work regime widely used during the pandemic period that we are still facing has proven to be a valuable tool for protecting the health of workers, their jobs and the survival of countless companies. However, as demonstrated above, it is also not possible to indiscriminately and compulsorily impose the telepresence regime on companies and employees that perform essential activities, especially when this proves to be absolutely impractical or even contrary to the public interest.

It is always necessary to seek balance and common sense, even more so in the face of a crisis of unprecedented proportions and with repercussions on health, health security and the economy.

The haste of some of the main actors in labor relations in rushing to indiscriminately impose teleworking does not take away from the correctness of the legal, voluntary, balanced and appropriate use of this type of work.

As is well known, the experimentation with teleworking in several companies from different production sectors has had a positive impact both on protecting the health and employment of workers, as well as on improving productivity performance and reducing operating costs, which is why it will possibly be maintained for those work activities that allow its use.

This new trend, which some point out as the anticipation of a movement that would only occur in ten years, certainly requires attention from companies, because, while it is true that in 2020 everything was done improvised and in a hurry in view of the overwhelming speed of the pandemic's growth, the same cannot be said now. In other words, companies must seek to correctly formalize this type of work and pay attention to the applicable standards and their responsibilities with, for example, costing and ergonomics.

The time has come to take a further step towards consolidating teleworking as a business model and our office is always available to help our clients proceed in the most correct way possible.