Monique Vieira Lessa
Luara Zanfolin Frasson de Rezende
Lawyers at Marcos Martins Advogados
Provisional Measure No. 927 was issued on March 22, 2020, with the aim of making labor relations more flexible in order to deal with the economic effects of the COVID-19 pandemic, popularly known as the “Coronavirus”, so that the jobs of thousands of citizens can be preserved.
The Measure, which came into force nationwide on the date of its publication, will be in force for as long as the state of public calamity caused by the outbreak of the virus persists, authorizing the adoption of the following measures by employers:
– teleworking;
– bringing forward individual vacations;
– granting collective vacations;
– use and anticipation of public holidays;
– bank of hours;
– suspension of administrative requirements in occupational health and safety;
– participation in a qualification course (suspension of the employment contract); and
– deferral of FGTS payment;
As for the teleworking regime, the measure allowed the employer to change the work regime adopted, regardless of individual or collective agreement, without prior registration in the individual contract, and the employee must be informed of the change of regime at least 48 hours in advance, by written or electronic means.
The rule also determined that the help offered by the employer to an employee who does not have the resources to adopt teleworking is not of a salaried nature and that this system can be adopted by trainees and apprentices.
Another important change was made to the granting of individual and collective vacations, which will now be at the employer’s discretion, and must be communicated to the employee at least 48 hours in advance in writing or electronically, and in the case of collective vacations, prior communication to the Public Prosecutor’s Office and the Trade Union is dispensed with.
Vacation may also be granted even if the employee’s accrual period has not elapsed, and the anticipation of future periods may even be negotiated by individual written agreement, with employees belonging to the risk group having priority for vacation.
With regard to payment, vacations can be paid until the 5th working day of the month following their granting and the constitutional third until the date of payment of the Christmas bonus.
In addition to making vacations more flexible, the Measure also introduced other alternatives, such as taking advantage of the early use of NON-religious holidays, provided that the employee is notified in writing 48 hours in advance, and the adoption of a special compensation scheme, so that the worker can make up for the days off work, within a period of 18 months from the end of the state of public calamity, regardless of a collective agreement.
The obligation to carry out training and occupational medical examinations has also been suspended, except for dismissal examinations in cases where the last periodic examination was carried out more than 180 days ago.
Also suspended is the requirement to pay the Guarantee Fund for March, April and May 2020, which can be paid in installments without the incidence of fines and charges, although it must be declared during the period under penalty of being considered overdue.
In this scenario, the union’s role has been somewhat suppressed, allowing the employer greater power to negotiate with the worker over other benefits provided for in collective agreements and conventions. To this end, the employer must expressly guarantee that the worker will remain on the job for as long as the crisis resulting from the pandemic persists.
Likewise, the actions of the Public Prosecutor’s Office were restricted to an advisory role, except when the irregularities concern the lack of employee registration; situations of serious and imminent risk; the occurrence of a fatal work accident and work in conditions analogous to slavery or child labor.
The Provisional Measure also guarantees that all measures taken by employers in the 30-day period prior to the entry into force of this Measure are valid as long as they are not contrary to its provisions.
Finally, with regard to article 18, which dealt with the suspension of the employment contract for up to 4 months, with the consequent suspension of remuneration, it is worth noting that it was repealed in its entirety by Provisional Measure 928/2020.
