Coronavirus and work: Provisional Measure nº 927/2020 is edited to face the crisis caused by Covid-19

The publication of Provisional Measure No. 927/2020, in the Federal Official Journal in its extra edition of March 22, /2020, regulated the labor measures to face the state of public calamity recognized by Legislative Decree No. 6/2020 and the emergency of public health of international importance due to the coronavirus (covid-19).

Below, we highlight the main standards:

Change of Employment Contract

• The employee and the employer may enter into an individual written agreement, in order to guarantee the permanence of the employment relationship, which will prevail over the other normative, legal and business instruments, respecting the limits established in the Constitution.

• The following measures may be adopted by employers, among others:

I - teleworking;

II - the anticipation of individual vacations;

III - the concession of collective vacations;

IV - the use and anticipation of holidays;

V - the bank hour;

VI - the suspension of administrative requirements for safety and health at work;

VII - the deferral of payment of the Severance Pay Fund - FGTS.

Tele-Work

• The employer may, at its criteria, change the face-to-face work regime for teleworking, remote work or other distance work and determine the return to the face-to-face work regime, regardless of the existence of individual or collective agreements, prior registration of the change in the individual employment contract.

The change will be notified to the employee at least forty-eight hours in advance, in writing or electronically.

The time spent using applications and communication programs outside the employee's normal working hours does not constitute time available, a readiness or a warning system, unless there is a provision in an individual or collective agreement.

Vacation

• The employer will inform the employee about the anticipation of his vacation at least forty-eight hours in advance, in writing or electronically, with the indication of the period to be taken by the employee.

Vacations:

I - may not be taken in periods of less than five consecutive days; and

II - may be granted by an act of the employer, even if the acquisition period related to them has not passed.

Additionally, employee and employer may negotiate the anticipation of future vacation periods, by means of an individual written agreement.

Workers belonging to the coronavirus risk group (covid-19) will be prioritized for the enjoyment of holidays, individual or collective.

• The employer may suspend vacations or unpaid leave of health professionals or those who perform essential functions, by formally communicating the decision to the worker, in writing or electronically, preferably with forty-eight hours in advance.

• The employer may choose to pay the additional one-third vacation after it is granted, until the date on which the Christmas bonus is due (13rd salary). Any request by the employee to convert a third of his vacation into a cash bonus will be subject to the employer's agreement.

• Payment of the vacation allowance may be made up to the fifth business day of the month following the beginning of the vacation.

• In the event of employee's dismissal, the employer will pay, together with the payment of severance pay, the amounts not yet paid for the vacation.

• The employer may, at its criteria, grant collective vacations and must notify the set of affected employees in advance, at least, forty-eight hours, the maximum limit of annual periods and the minimum limit of calendar days provided for in the CLT are not applicable.

• Prior communication with the local Ministry of Economy and communication with unions representing the professional category, referred to in art. 139 of the CLT.

Holiday Anticipation

• Employers will be able to anticipate the enjoyment of federal, state, district and municipal non-religious holidays and must notify, in writing or electronically, the group of employees benefited at least forty-eight hours in advance, upon express indication of the holidays taken advantage of.

Holidays may be used to offset the balance in the hour bank. However, the use of religious holidays will depend on the employee's agreement, upon manifestation in an individual written agreement.

Bank of Hours

• The interruption of activities by the employer and the establishment of a special work hours compensation scheme, through the bank hour, in favor of the employer or employee, established through a collective or individual formal agreement, for compensation within the up to eighteen months, counting from the closing date of the state of public calamity.

The compensation for time to recover from the interrupted period may be made by extending the workday by up to two hours, which may not exceed ten hours a day.

The compensation of the hours balance can be determined by the employer regardless of collective agreement or individual or collective agreement.

Occupational Health and Safety

• The obligation to carry out occupational, clinical and complementary medical examinations is suspended, except for dismissal examinations.

The examinations will be carried out within sixty days, counting from the closing date of the state of public calamity.

The dismissal examination may be waived if the most recent occupational medical examination was carried out less than one hundred and eighty days ago.

• The obligation to carry out periodic and occasional training for current employees is suspended, as provided for in regulatory standards for health and safety at work.

The training will be carried out within ninety days, counting from the closing date of the state of public calamity.

FGTS

• The demand for the payment of FGTS by employers, regarding the competencies of March, April and May 2020, which is due on April, May and June 2020, respectively, is suspended.

The payment of the competences in March, April and May 2020 may be carried out in installments, without the impact of updating, fines and charges.

The payment of obligations related to the aforementioned competencies will be settled in up to six monthly installments, with maturity on the seventh day of each month, as of July 2020.

• The employer is obliged to declare the information until June 20, 2020, provided that:

I - the information provided will constitute a declaration and recognition of the credits resulting from it, characterize a debt confession and will constitute a skillful and sufficient instrument for the collection of FGTS credit; and

II - undeclared amounts, in accordance with the provisions of this paragraph, will be considered overdue, and will require full payment of the fine and charges.

Employment Termination Contract

• In the event of termination of the employment contract, the employer will be obliged:

I - the payment of the corresponding amounts of FGTS, without incurring the fine and charges, if it is made within the legal term established for its realization; and

II - the deposit of the amounts provided for in art. 18 of Law No. 8,036, of 1990.

It is suspended the counting of the statute of limitations on debts related to FGTS contributions for a period of one hundred and twenty days, counted from the date of entry into force of this Provisional Measure.

The terms of the certificates of regularity issued before the date of entry into force of this Provisional Measure will be extended for ninety days.

The ongoing FGTS debt installments that have installments due in March, April and May will not prevent the issuance of a certificate of regularity.

Healthcare  Facilities

• Healthcare facilities are allowed, by individual written agreement, even for unhealthy activities and for the twelve-hour workday for thirty-six hours of rest:

I - extend the workday; and

II - adopt overtime schedules between the thirteenth and the twenty-fourth hour of the interjected interval, without any administrative penalty, ensuring paid weekly rest.

• The computed overtime hours may be compensated, within eighteen months, counting from the closing date of the state of public calamity, through hour bank or paid as overtime.

Covid-19 - Occupational Disease

• Cases of contamination by the coronavirus (covid-19) will not be considered occupational, except upon proving the causal link.

Extension of Collective Agreement and Convention

• Collective agreements and conventions overdue or falling due, within one hundred and eighty days, counted from the date of entry into force of this Provisional Measure, may be extended, at the employer's criteria, for a period of ninety days, after the end of this period.

• During the period of one hundred and eighty days, counted from the date of entry into force of this Provisional Measure, the Labor Auditors of the Ministry of Economy will act in a guiding manner, except for the following irregularities:

I - lack of employee registration, based on complaints;

II - situations of serious and imminent risk, only for irregularities immediately related to the configuration of the situation;

III - occurrence of a fatal occupational accident determined by means of an accident analysis tax procedure, only for irregularities immediately related to the causes of the accident;

IV - work in conditions similar to slave or child labor.

Validity

 • This Provisional Measure takes effect on the date of its publication.

It is worth mentioning that, like all MPs, the initial term of validity is 60 days, automatically extended for the same period if your voting has not been completed in the two Houses of Congress.