Mariana Saroa de Souza
Lawyer at Marcos Martins Advogados
Provisional Measure no. 936 of 2020 was converted into Law no. 14.020 of 2020, the Law on the Emergency Program for Maintaining Employment and Income and other labor measures, created to combat the Covid-19 pandemic. Law no. 14.020 came into force on 07/07/2020, bringing important changes in the labor sphere.
Firstly, it should be noted that the law only applies during the state of public calamity, i.e. until December 31, 2020, in line with the Legislative Decree of March 6, 2020, since this occurs in situations of institutional abnormality, resulting from events beyond the control of the administration and which may imply a risk of serious harm to life, health, security, the economy or public order, as in the case of Covid-19, with the aim of preserving employment and income, ensuring the continuity of labor and business activities, as well as reducing the social impact resulting from the state of public calamity and the public health emergency.
Among the main measures listed by the Law is the payment of the Emergency Benefit for the Maintenance of Employment and Income, the proportional reduction of working hours and wages and the temporary suspension of employment contracts, in line with Article 3 of the Law.
The Emergency Employment and Income Preservation Benefit will be funded by the Federal Government and will be paid in the event of a proportional reduction in working hours and wages and in the event of temporary suspension of the employment contract.
Law 14.020 maintained the rules of Provisional Measure 936 regarding the basis for calculating the value of the Emergency Benefit and the proportional reduction in working hours and wages, i.e. during the state of public calamity referred to in art. 1 of the Law, employers may agree to a proportional reduction in their employees’ working hours and salaries, in sectors, departments, parts or all of their jobs, for up to 90 (ninety) days, which may be extended for a period determined by an act of the Executive Branch , noting that the agreement may be made by means of a collective bargaining agreement, collective bargaining agreement or individual written agreement between employer and employee.
Reductions in working hours and salaries exclusively in the following percentages:
a) 25% (twenty-five percent);
b) 50% (fifty percent);
c) 70% (seventy percent).
With regard to the temporary suspension of the employment contract, the employer may agree on a sectoral, departmental, partial or total suspension of jobs, for a maximum period of 60 (sixty) days, which may be divided into 2 (two) periods of up to 30 (thirty) days, and may be extended for a period determined by the Executive Power, according to art. 8 of the Law.
It is important to note that §4 of art. 8 of the Law stipulates that during the temporary suspension of the employment contract the employee may not maintain work activities, even partial ones, otherwise the temporary suspension of the employment contract will not be characterized.
So, in summary, it can be seen that among the changes listed by Law no. 14.020, during the state of public calamity the suspension of the employment contract may be applied to only part of the company’s employees .
There has been an important change with regard to the maximum period and extension of the proportional reduction in working hours and wages, as well as the suspension of the employment contract, since according to the new law the periods may be extended for a fixed period by act of the Executive Branch. However, to date there has been no publication in the Federal Official Gazette of an act by the Executive extending the duration of the agreements.
Another innovation brought about by Law 14.020 was the provision on the rules applicable to pregnant and adopting employees, expressly stating that they can participate in the Emergency Employment and Income Maintenance Program, given that MP 936 was previously silent on the situation.
In addition, Law 14.020 expressly prohibits the unjustified dismissal of disabled employees during a state of public calamity.
According to the new law, employers and employees can opt to cancel the notice period in force, provided they agree to do so. With the cancellation, the parties will be able to adhere to the measures of the Emergency Employment and Income Maintenance Program.
Finally, it was determined that all individual or collective agreements for proportional reduction of working hours and wages and temporary suspension of the employment contract, which were signed prior to Law no. 14.020/2020, which were based on Provisional Measure no. 936/2020 , remain drafted by the Provisional Measure , that is, it prevails over the Law.
