Many organisations in Brazil have kept their employees on remote work even after the expiry of the provisional government decree on the matter. This article explains the legal situation and rules that apply to both 'telework' and 'home office' regimes.
Brazil is under a state of calamity until 31 December 2020 due to the COVID-19 pandemic (legislative decree 6/2020). On 22 March 2020, the government issued a provisional measure (or presidential decree, 927/2020) setting out for emergency and transitional rules to cope with the need to quarantine the workforce. It included the use of a telework regime during the state of calamity to be introduced at the discretion of individual employers or organisations. Many companies chose to ask their employees to work from home.
The presidential decree was not voted by the Congress and therefore expired on 19 July 2020. Some argue that special telework regime by unilateral decision expired. However, companies have good grounds to keep their employees working remotely as a matter of employer's discretion during the state of calamity. A decision made under the presidential decree does not become invalid when the decree expires and the text of the decree says the working regime unilaterally chosen by an organisation is valid during the entire state of calamity.
In any event, after 31 December 2020, employers will either need the government to issue a new regulation or to ask employees to agree on a telework agreement.
'Telework' and 'home office' are subject to different legal treatment. 'Telework' is work performed predominantly away from the organisation's premises using IT and telecom resources. Occasional onsite work is permitted. 'Home office' is a situation where the employee works from home on an occasional basis, without changing the employee's primary work onsite regime.
Special conditions apply to telework.
- Employees are exempt from monitoring of their working hours and overtime, provided, however, the organisation has not opted for monitoring of working hours.
- Employment documentation must reflect the relevant information regarding the telework regime.
- Telework needs the employee's consent but the organisation retains the discretionary capacity to require the employee to revert to onsite work.
- The employer bears all operational costs and this must be reflected in a written agreement, either by funding, reimbursing costs or providing the means (e.g. IT and telecoms equipment) to telework.
- The organisation must implement a specific work-safety policy, provide the corresponding training and obtain the corresponding pledge to comply with this policy from the employee.
Home office rules
There is no official regulation governing 'home office', but the introduction of some voluntary rules is advisable, including on operational costs, privacy and confidentiality.
The Employment Branch of the Brazilian Public Attorney Office (MPT) has issued a memorandum of 17 recommendations for employers to look after employees' occupational health during the telework regime. The memorandum ('NOTA TÉCNICA 17/2020 DO GT NACIONAL COVID-19 e do GT NANOTECNOLOGIA/2020') includes recommends for employers on different aspects of remote work, including digital ethics and etiquette, issuing an internal telework regulation, ensuring ergonomics and protecting mental health, protecting privacy, educating employees about COVID-19 prevention measures and protecting the jobs of people with disabilities (PWD). Nothing in the memorandum is new: it addresses some traditional employers' obligations in the light of the extraordinary COVID-19 crisis situation. In addition, the MPT does not have the legal capacity to regulate employment or work relations. They can only audit and take legal action against companies on matters of collective or public interest.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.