Bruna Cristine de Souza Bevilacqua
Lawyer at Marcos Martins Advogados
With the rapid advance of technology combined with the implementation of electronic means in professional tasks, the use of the Home Office has become a rising trend in the business world, which is an English expression meaning “office at home”, or also known as Teleworking.
This expression is used as a new form of work, which has been applied with the advent of the Labor Reform in Chapter II – A of the Consolidation of Labor Laws, from article 75 – A to article 75-E, since previously there was no regulation in this regard.
With its reformulations, the CLT contemplated teleworking as “the provision of services predominantly outside the employer’s premises, using information and communication technologies which, by their nature, do not constitute external work¹.”
In other words, teleworking or home office is remote work, most of which is carried out away from the employer’s premises, but which can occasionally be carried out within the company’s premises for specific activities². Thus, the legislator’s intention was to enable workers to provide their work in another environment, whether at home or in any other space they choose.
In this regard, it is important to clarify that the incorporation of the new contractual modality must follow certain rules, such as being duly formalized by means of a contract between employer and employee, with all the specifications. There are also other specific requirements to be observed, and it is certain that the new regulations bring some advantages and disadvantages.
In general terms, the employer certainly gains from the emblematic reductions in expenses, whether real estate or even consumption, and there is a clear increase in employee productivity, since it eliminates difficulties such as commuting, for example.
However, there are some disadvantages to teleworking, and in this case we can mention the difficulty of controlling schedules and carrying out activities. The employer must therefore take it upon itself to cultivate values such as discipline and promote planning, engaging commitment and adaptation.
And because this is the case, from the employer’s point of view the greatest difficulty will be the impossibility of control, because they will still be responsible for the employee’s working environment, under the exact terms of article 75-E of the CLT³.
In this respect, the legislator has upheld the employer’s responsibility for the worker’s activity. Thus, even if the company expressly and ostensibly instructs the best way to work, avoiding illnesses and accidents at work, it remains responsible.
In fact, this is the biggest challenge for companies, since controlling the working environment will be complex. The company will not be able to avoid supervising the work, and “the employee must sign a term of responsibility undertaking to follow the instructions provided by the employer⁴.”
Furthermore, it is important to note that an accident that occurs at home, or at the place where the worker decides to set up in order to telework, will be considered their workplace, and the Courts have ruled that it should be considered an accident at work. Diseases acquired as a result of the work carried out will be considered occupational diseases under the terms of current legislation, and may also be treated as an accident at work.
And in this regard, it should be noted that regardless of whether the worker is carrying out their job or any domestic task (an activity unrelated to work), any injury that occurs during working hours will be presumed to be an accident at work, and it will be up to the company to prove otherwise.
And it is in this logistics that the Marcos Martins law firm has honed its skills, drafting consistent and robust defense theses aimed at demonstrating that any accident has nothing to do with the work activity, with recent case law, embodied in the understandings of the Courts.
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¹ BRAZIL. Law No. 5,452, of May 1, 1943. Approves the Consolidation of Labor Laws. Available at: <http://www.planalto.gov.br/ccivil_03/Decreto-Lei/Del5452.htm>. Accessed on: 17 Dec 2018.
Art. 75-B, CLT. Teleworking is considered to be the provision of services predominantly outside the employer’s premises, using information and communication technologies which, by their nature, do not constitute external work.
² BRAZIL. Law No. 5,452, of May 1, 1943. Approves the Consolidation of Labor Laws. Available at: <http://www.planalto.gov.br/ccivil_03/Decreto-Lei/Del5452.htm>. Accessed on: 17 Dec 2018.
Art. 75-B, CLT. Sole Paragraph. Attendance at the employer’s premises to carry out specific activities that require the employee’s presence at the establishment does not de-characterize the teleworking regime.
BRASIL. Law No. 5,452, of May 1, 1943. Approves the Consolidation of Labor Laws. Available at: <http://www.planalto.gov.br/ccivil_03/Decreto-Lei/Del5452.htm>. Accessed on: 17 Dec 2018.
Art. 75-E, CLT. The employer must expressly and ostensibly instruct employees on the precautions to be taken in order to avoid illnesses and accidents at work.
⁴ BRAZIL. Law No. 5,452, of May 1, 1943. Approves the Consolidation of Labor Laws. Available at: <http://www.planalto.gov.br/ccivil_03/Decreto-Lei/Del5452.htm>. Accessed on: 17 Dec 2018.
Art. 75-E, CLT. Sole paragraph.
