Teleworking: Understand the new rules for remote work

MP 927 changed provisions for the teleworking regime during the public emergency situation generated by Covid-19

Leonardo Bezerra

The coronavirus pandemic has placed companies in the face of the need to suddenly deploy telecommuting or home office.

As a measure to contain the spread of Covid-19, in a few days, business had to adapt, instituting new forms of management and making technological adjustments to make the operation feasible.

In order to face this public health emergency situation, MP 927 was issued, which promoted the easing of labor standards, establishing new rules for the relations between employee and employer, including new provisions for teleworking.

Teleworking according to Labor Reform

Telecommuting is not a new practice. Article 6 of the Consolidation of Labor Laws (CLT) already contained this predictability and the Labor Reform (Law 13.467 / 17), expanded the CLT in this matter.

In effect, the Labor Reform defined that remote work or remote work is characterized as teleworking, when the provision of services takes place predominantly or totally outside the employer's premises, with the use of information and communication technologies which, in turn, nature, do not configure external work.

The home office model (species), therefore, is configured as one of the telework formats (gender), but other telework models are allowed, as is the case with shared offices outside the employer's dependency.

Teleworking is also different from external work. The latter, in turn, is configured by activities that necessarily need to be performed outside the company's headquarters, such as delivery services and external salespeople, for example.

Although the labor reform promoted a legal advance with regard to teleworking, few articles were inserted in the CLT, resulting in a timid and somewhat limited regulation.

Teleworking with the MP 927

MP 927 granted greater flexibility to transfer workers to the teleworking regime during the calamity state, relativizing some of the rules created by the 2017 labor reform, just for the transition from the face-to-face regime to teleworking, communicating the decision to the employee in writing or electronically, at least 48 hours in advance.

The rules related to the contractual amendment, which is indispensable when the transition from the face-to-face regime to teleworking occurs, were also changed, and according to the new measures, companies will have a maximum period of up to 30 days, from the date of migration, to prepare a term with employees, establishing responsibility for the costs and supply of equipment and infrastructure necessary for teleworking.

Although in a more controversial way, the aforementioned MP also established that 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 forecast in individual or collective agreement. However, requiring availability time in addition to working hours is not recommended, as in a normal situation, this point is usually a source of dispute in the relationship between employee and employer.

Teleworking: before and during Covid-19

The table below shows a comparison of the rules for teleworking, showing the previous legal provision and what is valid during the state of public calamity:

The teleworking modality was also extended to other forms of contracting, and after the publication of the MP it becomes applicable to interns and apprentices.

Topic	Before General Rule	During the situation of the public calamity state - MP 927/2020
Change to the teleworking regime	The change between face-to-face and teleworking arrangements may be made provided that there is a mutual agreement between employee and employe.	As long as the measure has as main objective to guarantee the physical integrity of the employee, it allows for unilateral change, in this context inserted within the directive power of the employer. However, communication to the employee regarding the change must occur at least 48 hours in advance.
Amendment to the employment contract	Previous contractual amendment required in relation to the change. Due to the mutual agreement, the additive must be agreed before migrating to the teleworking regime.	Previous registration in a contractual amendment is not required, however, it must be prepared within a maximum period of 30 days, counted from the date of change to the work regime.
Interns and apprentices	Teleworking for interns and apprentices is not allowed.	Allows teleworking for interns and apprentices.
Return to face-to-face regime	The teleworking regime can be changed to the face-to-face, as determined by the employer, with a minimum transition period of fifteen days, with corresponding registration in a contractual amendment. .	It may determine the immediate return to the face-to-face work regime, regardless of the existence of individual or collective agreements, without prior registration of the change in the individual employment contract.

How is the time control with teleworking?

As a rule, telecommuting employees can be excluded from the CLT's chapter on working hours, however, this rule does not apply to companies that are able to assess the individual working hours of each employee, and that in fact control the employees' working time, even though through internal controls. In these cases, the rights provided for in the CLT's chapter on working hours will be maintained, with the payment of overtime, application of the hour bank and other additions and rules applicable to the control of working hours.

Health and safety measures during the home office

During the teleworking regime, companies continue with the responsibility to instruct employees, in an express and ostensible way, regarding precautions in order to avoid illnesses and accidents at work.

When migrating to the telecommuting regime, the employee must sign a term of responsibility committing himself to follow the instructions provided by the employer.

This guidance can be prepared and provided by the same people responsible for the execution of the Environmental Risk Prevention Program - PPRA, and it will be of fundamental importance to mitigate the employer's responsibility in the event of an accident or illness related to work.

DPC Labor Advisory

While adjusting, in practice, to the new mode of work and management, companies may find it difficult to keep up with the emergency measures that have been issued by legislative authorities.

There are new rules in force also for vacations, anticipation of holidays, bank hours, health and safety at work and FGTS, among others also established by MP 927. In addition, companies must remain attentive to the fulfillment of periodic, non-periodic obligations and obligations accessory.

In this moment of change, it is essential to have a specialized advisory that does the regulatory monitoring and guides companies as to the correct implementation of labor and social security rules.