On March 28, 2022, the Brazilian government published a new Provisional Measure that, among other matters, modifies some of the provisions of the Labor Code relating to remote work that could have a significant impact on employers.
Provisional Measures take effect on the date they are published, so they do not leave any time for employers to adjust to new requirements. In addition, they can expire in 120 days if Congress does not ratify them into law, which we have often seen in the past few years.
The most significant change brought by the Provisional Measure is that until last week, remote work was exempt from laws governing working hours. The Provisional Measure changed the exemption, setting forth that only work that is performed based on tasks or production are exempt from laws governing working hours; all other regular jobs based on working hours are not exempt. This is a huge change in policy, as it will require companies with more than 20 employees to implement alternative electronic timekeeping systems that, as a general rule, need to be approved by the union, if they did not have one in place for non-exempt employees before.
In addition to the challenges of implementing the needed timekeeping infrastructure, companies will also need to pay overtime if such employees work more than the regular hours. The Provisional Measure clarifies that the time an employee spends outside the normal working hours using the technological equipment and necessary infrastructure, software, digital tools, or internet applications used for the remote work, such as being logged in, does not constitute time available to the employer or on standby, unless otherwise provided in individual or collective agreements. However, any actual work performed off-hours will be considered overtime and will need to be paid accordingly (or compensated with time off, as applicable). Employers may need to consider using applications that block employees' (and interns' and apprentices') access to the company's communication and other systems to prevent them from working off-hours.
On the positive side, the Provisional Measure clarified some points relating to working outside the employer's jurisdiction. The Provisional Measure establishes that laws, regulations and collective bargaining agreements that apply to remote employees are those that apply to the employer's office, unit, or establishment that employs the remote employees, as if they worked there in person.
It also determines that remote employees working outside Brazil are subject to the Brazilian employment law, except if otherwise agreed by the parties. In that regard, employers should still be careful about such arrangements, as the laws of the country from which the remote worker is working may also apply.
Also, employers are not responsible for paying or reimbursing expenses a remote employee may incur to return to in-person work, if such remote worker chose to work in a location other than the location provided in the agreement.
In terms of returning to work, the Provisional Measure did not modify the employer's right to request that employees return to work in person, nor did it change the minimum advance notice of 15 days that it is required to give. However, such employer's right may not be absolute.
The Provisional Measure provides that an employer must give priority to employees with disabilities and those with small children when allocating positions that can be performed remotely, signaling that such individuals should be spared from working in person full time (as opposed to remote or hybrid) when possible. In fact, a labor court in the state of Ceará recently ruled to suspend an employer's mandate for a female employee living with her husband and children in Ceará to return to work in the state of Espírito Santo. The court based its decision, among other things, on the new recommendation from the Brazil's National Council of Justice to create a "protocol for gender perspective judgment" to consider the national policies to promote gender equality, eliminate discrimination against women, combat violence against women, and incentivize female participation in the judicial system.