Labor Team – Mazzucco & Mello Lawyers

Considering the numerous labor discussions brought about by government decisions to isolate people from social contact to prevent the spread of the New Corona Virus or COVID-19, we seek to bring a brief practical manual so that entrepreneurs can face this moment of crisis with the least possible damage to their businesses, seeking to maintain companies and jobs.

Therefore, below is a brief summary of some legal possibilities to help deal with the crisis, namely: 

• Vacation;
• Telework;
• Annual leave;
• Reduction of working hours and wages;
• Voluntary Dismissal Plan;
• Termination
• Employee on leave;
• Isolation – Law 13.979/20

 It should be noted that we are still awaiting the publication of a provisional measure aimed at facilitating these tools, as announced on 03/18/2020 by the Federal Government. 

• Vacation 

The first alternative to be instituted by several companies will be to grant vacations to their employees; these vacations may be granted individually or collectively.

To grant individual vacations, the employee must give at least 30 days' notice and be paid at least two days in advance.

Collective vacations are those considered to be the complete shutdown of the company or of a certain sector. To grant them, §2 of article 139 of the CLT establishes that the employer must notify the Ministry of Economy (formerly the Ministry of Labor) at least 15 days in advance.

Vacations should preferably be granted to the employee in a single period of 30 days, however they may be divided by agreement between the employer and the employer or collective agreement in the case of collective vacations.

• Telework

Teleworking is a measure that is established in accordance with the implementation of new technologies that enable non-face-to-face access to productive activities.

Unlike remote work, in teleworking the employee will not have control over their working hours and, therefore, will not have the right to receive overtime.

Article 75-C of the CLT established as a requirement for changing an in-person contract to teleworking the mutual consent expressed through a contractual addendum.

Therefore, even for a reduced period, if the option is to adjust the contract to a teleworking regime, it is necessary to prepare a contractual addendum.

The reversal of the teleworking regime to in-person work, however, is a unilateral decision by the employer, who must only inform the employee of the change within a minimum period of 15 (fifteen) days and make the corresponding contractual amendment.

• Annual leave 

Another possible measure is the establishment of the Annual leave, provided for in art.59, §2º of the CLT through the agreement of an individual or collective work agreement, providing for the flexibility of working hours, that is, allowing the employee to work up to two hours more than their daily working hours, through the reduction of working hours on another day, within a maximum period of 01 (one) year if carried out collectively or within 06 (six) months if carried out individually, counting from the completion of the excess hours.

To compensate for the days, the employer may use another labor measure in order to mitigate the economic impacts, as provided for in art.61 of the CLT, brought with the labor reform (Law 13,467/2017), which allows work above the legal or agreed limit, in cases of force majeure in order to meet the demand for unavoidable services or whose the execution may result in manifest damages, without the need for a provision in a collective bargaining agreement or labor agreement. It is important to emphasize that such provision limits the working day to up to twelve hours per day, provided that the law does not establish another limit, nor does it exempt the employer from the burden of paying for excess hours, which must be made in a manner equal to the normal hour or at least 25% (twenty-five percent) higher than the normal hour. Another point to highlight regarding the provision for overtime is provided for in § 3 of the aforementioned article, which ensures the possibility of extending the working day for the necessary time limited to 10 (ten) hours per day, in a period not exceeding 45 (forty-five) days per year, provided that the Public Prosecutor's Office is notified in cases of interruption of work, resulting from accidental causes, or force majeure, which determine the impossibility of carrying out the work. 

• Reduction of working hours and wages

Reducing working hours and consequently reducing wages is an important mechanism for maintaining jobs and can even be used in times of reduced production.

This type of mechanism must be negotiated with the union and, as a rule, must bring benefits to the category such as maintaining jobs for a certain period.

• Voluntary redundancy plan

The Voluntary Dismissal Plan (PDV) is a type of dismissal in which the company offers the employee the possibility of being dismissed while receiving payment of severance pay and other benefits, such as: extension of the medical plan, salary payment for a fixed period, among others.

With the implementation of the plan by collective agreement, there is the possibility of incorporating a clause providing for the full payment of contractual amounts, under the terms of article 477-B of the CLT. 

• Termination of employees 

In more drastic cases, the employer will have to resort to dismissals that may be individual or collective, also known as mass dismissal, which can be characterized as the termination of several employment contracts at once for reasons linked to economic causes.

Considering the current crisis caused by the pandemic mentioned above, it is possible to argue that the dismissal occurred due to force majeure, under the terms of article 501 of the CLT. One of the possibilities for dismissal is that of article 501 of the CLT, which deals with dismissal due to force majeure. Force majeure is any event that is unavoidable in relation to the employer's will, and the employer did not directly or indirectly contribute to the event, making it impossible to continue the employment contract.

The characterization of force majeure will result in a reduction in the amounts due under the title of severance pay, in particular, a reduction by half of the FGTS fine.

• Employee on leave

In the event of suspicion or confirmation of the disease, the employee who proves his/her medical absence will be considered to have a justified absence, with the employer having to cover the first 15 days, subsequently forwarding the benefit to Social Security for payment of the benefit due.

It is worth remembering that during the period of suspension of the employment contract, the employer must maintain the health plan regularly granted to the employee.

• Employees in isolation – Law 13,979/20 

Given the seriousness and high risk of contamination, the Federal Government has been adopting several measures to mitigate contamination in the country. Among them, Law No. 13,979/20 was sanctioned in early February, regulated by Ordinance No. 356/20, which establishes measures to control and combat the new virus. The Law defines the concepts of isolation (separation of people with confirmed disease) and quarantine (separation of people suspected of contamination) and determines in article 3, § 3, the labor consequences that will result from quarantine and/or isolation.

Isolation and quarantine are basically the restriction of activities or separation of people, luggage, containers, animals, means of transport or goods suspected of being infected from people who are not sick, in order to prevent possible contamination or the spread of the virus.

According to § 3 of article 3 of the aforementioned law, the period in which the employee is in isolation must be counted as a justified absence. Therefore, it is prohibited to deduct this period from his/her salary.