Monique Vieira Lessa
Lawyer at Marcos Martins Advogados
The pandemic triggered by the spread of the COVID-19 virus has had a major impact on the world economy, since one of the measures to curb mass contagion of the population is social distancing.
With the quarantine in several municipalities across the country, many companies that were unable to adapt to a remote work routine had to stop their activities until the situation was normalized. This has led to a reduction in profits and income in the business sector, putting the continuity of companies in various sectors of the economy at risk.
In order to minimize the losses inherent in the pandemic, guaranteeing the continuity of work and business activities, as well as reducing the possibility of mass layoffs of thousands of workers, the Federal Government brought in Provisional Measure 936/2020 to make labor rules more flexible, giving employees and employers greater negotiating power.
The Measure also instituted the Emergency Employment and Income Maintenance Program, which is a cash benefit for workers whose income is compromised during the state of calamity.
This “risk containment plan” was met with strong criticism, especially with regard to its legal text, which is said to have left numerous gaps in the measures introduced, including the emergency benefit created.
With this in mind, twenty-two days after the Provisional Measure came into force, Ministerial Order 10.486 of the Ministry of Economy was published, with the aim of regulating the Emergency Employment and Income Benefit, also known as BEm.
In the very first articles, the Ordinance deals with those eligible to receive the Benefit. In addition to replicating the rules already established in Provisional Measure 936, the Ordinance brought an innovation by prohibiting the signing of individual agreements with employees who are not eligible for the benefit.
This means that employees who have already retired but are still working will not be able to sign agreements to suspend and/or reduce their working hours.
This is a rather reckless change and contradicts the purpose of the rule, if we consider that these employees belong to the risk group due to their age, yet they cannot have their contract changed during the pandemic, which will possibly lead to layoffs.
On the other hand, the Ordinance admits the payment of BEm due to a working hours reduction agreement with employees not subject to working hours control, a hypothesis that was controversial until then. However, it conditions the validity of the measure on a reduction in productivity or workload.
In keeping with its main purpose, the ordinance regulates the administrative process for granting the Emergency Benefit.
The process begins with the employer informing the Ministry of Economy of the agreement through the communication platforms indicated in §5 of article 9 of the ordinance. This article also lists various requirements to be met by the employer when communicating the agreement.
After the communication, the information will be evaluated by the competent body, and if there is any inconsistency in the communication, the employer will be notified to regularize the data within 5 calendar days, under penalty of the communication being archived and the BEm not being processed.
In the event that the employee’s benefit is rejected or the granting process is closed due to the failure to regularize the information, the employer will be responsible for paying the remuneration due to the worker, including the respective taxes, contributions and charges due, and may, in these cases, file an appeal within 10 calendar days to review the decision.
Lastly, it should be noted that the decree made it possible to modify the individual agreements signed, even if they are processed before the Ministry of Economy, by means of amendments, provided that they are communicated within two (2) days.
[rock-convert-pdf id=”14807″]
