Government reissues the measures that provide flexibility of labor rules, reduction of working hours and salaries

The Provisional Measures 1045 and 1046 aim to preserve the employment and minimize the pandemic effects

On April 28, two executive acts were published in the Official Gazette aimed at supporting entrepreneurs, preserving employment and reducing the social impact resulting from the consequences of the Covid-19 pandemic:

The Provisional Measure 1045 (MP 1045) recreates the Emergency Program for Employment Maintenance and Income (Programa Emergencial de Manutenção do Emprego e da Renda - “BEm”), enabling employers to reduce salaries and working hours and suspend employment contracts for up to 120 days, as well in the MP 936, of 2020.

In tis tuns, Provisional Measure 1046 (MP 1046) amends the labor rules, enabling the early vacation and anticipation of holidays, FGTS payment postponement, among other actions. This is a reissuance of the MP 927, of 2020, which brought similar issues. The flexibility is also valid for one hundred and twenty days (120) days.

The actions that the employers may adopt in this period are:

Reduction of working hours and salary

As in the last year, the executive act allows an agreement between employer and employee on the proportional reduction of working hours and salary.

Main rules:

The allowed percentages for reduction of salaries and hours are 25%, 50% or 70%.

Preservation of hourly salaries.

An individual written agreement must be made at least two calendar days prior the notice.

The worker who has the salary reduced should receive part of the value from the government. Thus, in the case of a 50% reduction, for example, the worker receives 50% of the salary paid by the company and 50% referring to the unemployment insurance portion.

Temporary suspension of the employment agreement

In cases of suspension of the employment relationship agreement, the government's compensatory payment is 100% of the amount to which the worker would be entitled. However, companies earning a gross revenue greater than 4.8 million must pay a monthly compensatory allowance of 30% of the amount.

The measure allows the employer to agree the temporary suspension of the employment agreement in a sectoral, departmental, partial or full job basis for up to 120 days.

Keeping the employee in partial activity or working remotely or at a distance mischaracterizes the temporary suspension of the employment agreement, exposing the employer to penalties and sanctions.

The employer is responsible for informing the eSocial about the reduction of the working day and salary or the temporary suspension of the employment agreement, within 10 days from the signature date of the agreement.

MP 1.045 is effective immediately but cannot be applied retroactively. It is also important to highlight that the workers covered by the agreements have stability for an equivalent period. Thus, when the contract is suspended for three months, the guarantee of employment is six months.

Collective agreements or collective bargaining agreements can be renegotiated to adapt to the terms within 10 calendar days from the publication date of the MP.

Telewoking

The employer may, by decision, change the face-to-face work regime to teleworking, remote work or any other type of working at a distance, in addition to determining the return to the face-to-face regime, regardless of the existence of individual or collective agreements, waiving the need for prior registration of the change in the individual employment agreements. The measure includes trainees and apprentices.

The responsibility for the acquisition, maintenance or supply of the equipment and infrastructure necessary for teleworking must be provided for in a written contract, previously signed or within 30 days from the date of change in the work system. Reimbursements concerning employee expenses must also be in the contract and do not characterize a salary nature sum.

The change in the work system must be communicated to the employee at least forty-eight hours in advance, in writing or electronically.

Individual’s early vacation

The employer may inform the employee about the early vacation at least forty-eight hours in advance, in writing or electronically.

The early vacation may:

not be taken in periods of less than five calendar days; and

be granted by an act of the employer, even if the acquisition period related to them has not elapsed, that is, even if the worker is not entitled at the time.

In addition, the employee and employer may negotiate to bring any future vacation periods forward by individual written agreement.

Priority for anticipating vacations should be given to workers who belong to the coronavirus risk group.

In the event of termination of the employment agreement, the vacation values, individual or collective, will be paid together with the severance payments due. Early vacations taken whose period has not been acquired will be deducted from the severance payable to the employee in case of resignation.

Granting of collective vacation

The employer may grant collective vacation to all employees or sectors of the company, and must notify them, in writing or electronically, at least forty-eight hours in advance.

The company is exempt from prior communication to the Ministry of Economy and the unions of the category.

Utilization and anticipation of holidays

Employers will be able to anticipate federal, state, district, and local holidays, including religious holidays, and must notify, in writing or electronically, the group of employees benefited, with at least forty-eight hours in advance.

Holidays may be used for compensation of the balance in the time bank.

Time bank

Companies are authorized to adopt a time bank system, established in a written individual or collective agreement, for compensation within up to eighteen (18) months, as of the end of the MP's application.

The compensation for the recovery time of the interrupted period can be made by means of an extension of the workday by up to two hours, which may not exceed ten (10) hours a day, and can be done on weekends, subject to the CLT provisions.

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

Suspension of administrative requirements for safety and health at work

The measure suspends the obligation for workers who are in a telework system to undergo occupational, clinical, and complementary health examinations, except for termination exams.

For workers under face-to-face system, on the other hand, must take the exams up to 180 days after the validity date of the prior ones.

The termination of employment relationship exams may be waived if the most recent occupational medical exam has less than one hundred and eighty days of being performed.

Deferral of payment of the Employee’s Severance Fund ("FGTS")

Employee’s Severance Fund (Fundo de Grantia por Tempo de Serviço - "FGTS") payment can be suspended for one hundred and twenty (120) days. The amounts referring to the April, May, June and July 2021, maturing in May, June, July and August, 2021, respectively, may be payble in installments. There will be up to four installments, payable from September, with no bearing penalties.

Labor consultancy for joining the rules

Companies can rely on Domingues e Pinho Contadores' support for the proper use of these measures. DPC's labor and social security center guides businesses to adopt the best personnel department practices, ensuring compliance with the rules and decision-making confidence.