Provisional Presidential Decree nº 927/2020 – amended by Provisional Presidential Decree nº 928/2020 – labor law changes due to Covid-19

Provisional Presidential Decree 927/2020 published on Sunday, March 22nd, 2020, as amended by Provisional Presidential Decree 928/2020 published on March 24th, 2020, establishes labor rules applicable to all employees during the state of public calamity resulting from the COVID-19 pandemic in order to make labor relationships more flexible.

The Provisional Presidential Decree is valid for sixty days, such term extendable for an equal period, counting from the date of its official publication, when it must be converted into law.

• Employee and employer may enter into an individual written agreement to guarantee the employment contract due to Force Majeure provided for in Article 501 of the CLT (any unavoidable event as to the employer’s will and for which the employer did not assist directly or indirectly). Although not expressly provided for in the Provisional Presidential Decree in question, but as a result of its enactment, the working hours and the respective employee wages of employees may be reduced by up to 25%, according to the region’s minimum wage, pursuant to article 503 of the CLT.

• The employer may change the work regime of the employee(s) from on-site to home office, regardless of execution of an individual or collective agreement, upon a 48-hour prior written communication or electronic communication without the need for prior registration of the change in the employment contract, as well as including trainees and apprentices in this type of work. The measure also excludes the time am employee uses communication applications and programs as being time allocated to the employer of the characterization of the employee as being on standby or on-call, unless there is a provision in an individual or collective agreement to the contrary in this respect.

• Accelerate individual vacations, which must be notified 48 hours in advance, including in cases where the right has not accrued yet (incomplete accrued vacation time); possibility of payment of one-third vacation premium with the 13th salary and payment of vacation with the monthly salary as of the start of the vacation period; the vacation bonus, popularly known as “ employee optional sale of the vacation time,” is subject to the employer’s consent. Individual vacation cannot be taken in periods of less than five calendar days.

• Collective vacations must be previously notified – 48 hours – with no limit of either annual periods or of consecutive days, with no need to communicate it to the Ministry of Economy and to the labor union , it being understood that workers belonging to the coronavirus risk group will be prioritized for vacation.

• Holidays and acceleration of holidays, upon written or electronic communication; compensation of positive balance of “comp hours” with holidays; all through individual labor agreement between employee and employer. As to the “comp hours,” the decree establishes the extension of the deadline of its use by an employee for a period of 18 months, counting from the end of the state emergency declared by the Federal Government and with offset of hours to be carried on at the discretion of employer, regardless of any provision in a collective labor agreement or individual or collective bargaining agreement.

• Suspension of Health & Safety administrative requirements during the state of emergency period, with no need for mandatory occupational, clinical and complementary medical examinations, except for physical examination on discharge, as well as suspension of periodic and occasional training of employees (although there is the possibility distance learning training). Physical examination on discharge may be waived if the most recent physical examination was performed less than one hundred and eighty days prior to such discharge. The term of the CIPA representatives (employee safety commission) will be extended and maintained until the end of the state of emergency period, and any election for replacement of its members are immediately suspended.

• Deferment of employer’s obligation to pay FGTS, referring to March, April and May 2020, maturing in April, May and June 2020, respectively. There is the possibility of splitting the payments of March, April and May 2020 in up to six installments, with no adjustment for inflation, fines and charges, as well as the 90-day extension of the Employer’s Certificate of Good Standing already issued.

• Extension of working hours at health facilities for workers in hazardous activities and in 12-onx36-off regime, through an individual labor agreement; extraordinary schedule of work between the 13th and the 24th hour of breaks during work shifts with no administrative penalty, ensuring paid weekly rest; offset of overtime due to the extension of work hours or extraordinary schedules through “comp hours” signed by an individual labor agreement valid for 18 months.

• Suspension of deadlines for filing of defense and appeal in the context of administrative proceedings originating from notice of assessment of a labor violation and FGTS assessment notifications for 180 days.

• Extension of the term of the collective labor agreement and collective bargaining agreement for 90 days after the final term of each agreement, at the employers’ discretion, such extension to apply to labor collective agreements expired or to expire within 180 days from the enactment of this Provisional Presidential Decree.

• Covid-19 is not an “occupational disease,” unless there is proof that it occurred as a result of the employment relationship.

Finally, Provisional Presidential Decree determines that the activities of the labor inspection auditors of the Ministry of Economy, during the period of 180 days counted from the Provisional Presidential Decree, will be purely for purposes of guidance, except for the cases of complaint of unregistered employee; serious situations and those of imminent risk; fatal labor accident; and slave-like or child labor. Acts and measures implemented by employers, within the 30-day period prior to the date of enactment of the Provisional Presidential Decree, are considered valid, if not contrary to applicable law.

We are available to clarify specific points of the legislation, as well as to assist you in the implementation of the appropriate measures.

O Costa Tavares Paes Advogados nasceu em 2010 e conta com escritórios em São Paulo, Rio de Janeiro e Brasília. Saiba mais sobre a banca e nossos serviços.