Sibele Pimenta
Lawyer at Marcos Martins Advogados
The impacts of the new coronavirus are beginning to take hold in Brazil. We are far from facing a situation like that of European and Asian countries, but here, events are already being canceled and companies are instructing employees to work from home as the number of cases increases.
In addition to the fear of contracting the virus, many workers are worried about their situation in companies. In fact, there are still many doubts: will I be punished if I miss work because I went to the doctor? Will companies cover home expenses in the case of home-offices? Am I obliged to attend company events and meetings in high-risk areas?
Well. Law 13.979/2020, passed at the beginning of February, provides for specific measures by the Federal Government to combat the coronavirus. In its article 3, paragraph 3, the law defines when an employee’s absence will be considered justified absence, whether it is a period of isolation, quarantine or even for compulsory medical examinations and laboratory tests, among others, and the worker cannot be penalized.
Cases, however, must be analyzed in isolation. For example, many schools in São Paulo are instructing students who have traveled to outbreak sites to stay at home, for the sake of their classmates and school staff. A parent who needs to stay at home to accompany their child will not be excused from work, as this is not one of the cases provided for in article 3, paragraph 3 of the aforementioned law. Therefore, if the worker is not part of the risk group and their absence is outside the hypotheses provided for in Law 13.99/20, the absence will not be justified and the employer will be able to deduct the working day and apply a penalty, but in hypotheses such as absence to stay with children, it does not prevent the employer from adopting measures to compensate for working hours, for example,
The coronavirus has also affected the routine of Brazilian courts, with the TST (Superior Labor Court) recently authorizing home office for employees who have traveled to outbreak areas, also limiting public service. And even though there is no order from the Federal Government, many companies are also recommending home-office, which will generate a series of costs that the worker probably wasn’t prepared for, such as an increase in electricity and telephone bills and for which the employer has no legal obligation to pay, as they are exceptional and temporary.
In the eyes of the law, remote work is considered outside work – that is, it is done at the company’s expense. The worker can therefore negotiate with the company to be reimbursed for their extra expenses, or the company itself can plan to meet this employee entitlement. It’s worth noting that, even if the employee is not present at the company’s premises, the working day remains the same, unchanged, and the team must meet its obligations and targets.
As a rule, employees are obliged to follow all orders issued by their employer, including business trips and meetings or company events in risk areas. However, the right to safety at work is also guaranteed by the Federal Constitution, so article 483 of the CLT allows workers to have their contract indirectly terminated if they are forced to work in areas that offer risk or imminent danger to their life and health without personal protective equipment. However, not every risk situation can be considered imminent, especially when certain measures adopted by the employer are sufficient to keep the work environment safe. To avoid this type of conflict, the advice at the moment is to postpone events unless they are really essential.
As well as setting up home-offices for employees returning from international trips, companies can call in the company doctor to carry out examinations on the teams, guaranteeing individuality and the right to privacy. As well as protecting them, this prevents the employee from being exposed to any discrimination. Companies can also set up committees within CIPA (Internal Accident Prevention Commission) with the mission of informing their employees about all aspects of the coronavirus – awareness-raising measures already help a lot.
Coronavirus is a public health issue with global impacts, and it is both the employer’s duty to preserve the workplace and its employees, and the worker’s duty to understand that it is also their role not to expose their colleagues to risks by contributing to preventive measures. Ensuring a safe and healthy working environment means respecting decent work and human dignity itself.
Sibele Pimenta is a corporate labor lawyer at Marcos Martins Advogados.
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