THE IMPACTS OF COVID 19
The increase in the number of people infected by Covid-19 in Brazil and the recent change in the classification made by the World Health Organization (“WHO”) to the level of global pandemic have had a significant impact on the economy and on business relations. The moment requires preventive measures, which must be followed by everyone, both in the workplace and in their personal relationships.
General recommendations such as (i) reinforce cleanliness in the workplace, (ii) provide disposable tissues for nasal hygiene, alcohol gel, soap, disinfectant and disposable materials, (iii) avoid employee’s participation in lectures and workshops, (iv) encourage the use of alternative means of communication instead of face-to-face meetings (such as videoconferencing or conference calls), (v) postponing trips abroad, (vi) remote work and (vii) employees’ rotation can allow the continuity of a company’s core activities. However, it is important more awareness of everyone about the situation.
In order to deal with this situation, the Brazilian Government issued two main regulations: the Law 13979/2020, as well as the Ministerial Order 356/2020 of the Ministry of Health. Please find below the main labor aspects of such laws:
CONFIRMED AND SUSPICIOUS CASES
In the event of a confirmed or suspicious case of Covid-19, the employee must be immediately removed from the workplace. The absence period resulting from isolation or quarantine is considered justified absence, including to those with a mere suspicion of having been infected by the virus.
From a legal view, the leave from work due to Covid-19 is equivalent to any other leave due to common diseases, and the salary must be paid by the employer during the first 15 calendar days and, from the 16th day onwards, the person should be submitted to the Brazilian Social Security Authority.
MEDICAL EXAMINATION AND EMPLOYER RESPONSIBILITY
The Brazilian Labor Code and the Ministry of Economy – Labor Inspection Sector’s regulations require medical examinations to preserve and monitor employees’ health. In addition, the employer has the responsibility to ensure compliance with rules related to health and safety in the workplace.
Therefore, if a company’s occupational physician determines that an exam should be conducted on those who have signs of Covid-19 – observing the general rules of medical confidentiality and privacy – as a rule the employee cannot refuse to do so, mainly considering the risk of workforce’s contamination and under the risk of the employee’s individual interests overlap the community’s interests.
In addition, as it is proven that the company has taken all objective preventive measures, as recommended WHO, Ministry of Health and the Government, it cannot be held liable for any contagion in the workplace. The symptoms of Covid-19 do not necessarily result from the conditions of the work environment and its contagion can occur anywhere. Everyone is naturally exposed to the risk.
In order to mitigate the risks of Covid-19’s contamination, but to preserve the work and activities’ continuity, some companies have chosen to adopt alternative measures, which are described below. In any case, it is important to adopt an objective criterion for the implementation of these measures, in order to avoid allegations of discriminatory treatment.
- Remote work (“home office”) – for employees who are able to provide services (are not sick etc), it is possible to determine the home office//remote work. It is important to agree how the work will take place, the possibility of immediate reversal of the remote work (in the case of an exceptionality due to the situation now experienced), as well as who will bear the infrastructure costs (eg. electricity, internet, etc. ). Eventually, a case-by-case analysis should be conducted, especially regarding those who are unable to provide activities remotely.
- Rotation of employees – this is a positive measure for the activities in which the remote work is not possible. It avoids the displacement of people and agglomerations in the workplace.
- Paid leave – in this scenario, the employee will not work in the agreed period. The temporary suspension (with the paid leave) of activities does not exempt the employer from paying salaries and labor rights for the respective period.
- Collective or individual vacations – an option to keep employees away from their activities. However, holidays require the payment of the vacation bonus, in addition to requiring prior notification of 15 days, in the case of collective vacations, and 30 days in the case of individual vacations.
- Offsetting system known as “banco de horas” (hours bank”) – it is an option for all employees submitted to working hours control. Employees will be able to enjoy rest/time off periods if there is a positive hour balance (due to the overtime) in the “hour bank”. Any negative balance should be compensated with overtime in the future.
- Reduction in working hours with salary’s reduction – through negotiation with the employee’s Union, it is possible to negotiate a reduction in the working hours of employees, with the equivalent reduction in wages.
- Prohibition of travel to risk areas and determination of employees’ removal who arrived from abroad – employers have the right to implement restrictive policies regarding work activities, as well as determine the removal of employees who have returned from risk areas. Likewise, the employee may refuse to travel to a risk area, on the grounds that he/she is subject to manifest danger of considerable harm.
We remain available in case of any doubts and about the content of this newsletter.
Juliana Dal Moro Amarante P. Freitas
+55 (11) 3074-5720
Camilla Talaqui Cruz
+55 (11) 3074-5733
This newsletter (i) presents a summary of legislative changes in Brazil, (ii) is intended for clients and members of Souza, Mello and Torres, and (iii) is not intended to provide legal advice on the matters dealt with herein and should not be interpreted as such.