Legal aspects of the Covid-19 crisis in Brazil

The impact of COVID-19, and several measures taken by federal, state and municipal governments have significant impact on Brazilian labour relationships. In this context, we have answered some of the most common questions regarding the emergency caused by COVID-19 in Brazil. Please consider though that new rules and regulations are being enacted on a daily basis, so the currency of the following should always be checked.

No. A law has been enacted specifically establishing the obligations of all people, including employers and employees, if the Ministry of Health requires isolation or quarantine. However, the Ministry has not yet determined mandatory isolation or quarantine and has only made certain recommendations concerning social distancing. 

The only legal obligations, applicable to all people, are:

• to avoid contact with COVID-19 infectious people;
• to avoid circulation in areas considered as COVID-19 contamination regions.

Specifically concerning employers, the main recommendations from the Ministry of Health are as follows:

• Make available to all employees: (i) places to frequently wash their hand; (ii) hand sanitiser dispensers (alcohol at 70%); and (iii) paper towels;
• Increase the frequency in which floors, handrails, doorknobs and restrooms are sanitised with bleach or 70% alcohol;
• Encourage virtual meetings, cancel all non-essential travel and, whenever possible, rotate employees and allow employees to work remotely (“home office”);
• Adopt alternate working hours and shifts to minimise the number of employees at a company’s premises at any given time, to the extent possible;
•  Keep sick employees at home, and allow the employee to digitally present the doctor’s report proving the illness.

Yes. The worker must inform the company if he has been diagnosed with the virus and inform the company if he is having any symptoms, following instructions from the employer and the authorities.

The employer should require the employee to stay home and seek testing and treatment.
It is important to keep in mind that it is not recommended to go to the health services as soon as the first symptoms are felt, but only when symptoms are serious (usually shortage of breath).

In principle, the use of masks should be restricted to people with symptoms or people who care for patients. If your company has conditions that could put people’s airways at risk, the use of masks is recommended. However, it is important to educate workers on the proper use of such protective equipment, since incorrect usage can create other risks.

As far as corporate or work travel is concerned, employers should prohibit such travel, as it could expose workers to additional risk. However, health personnel required to attend emergencies will be exempt from these provisions.

On the other hand, employers are not permitted to limit personnel travel, although they may suggest that employees refrain from travel to high-risk areas, where feasible, and to remind them of the consequences, including possible prevention of return if borders are closed, mandatory quarantine, etc. Employers may also inform their employees about the consequences of failure to comply with measures aimed at mitigating the spread of an epidemic. These can result in individual criminal liability. 

The COVID-19 pandemic alone does not allow employees to cancel their vacations, except for civil servants in the health and medical areas, whose vacation periods have been cancelled for the duration of the crisis. 

But vacations of other employees may:

• be brought forward by the employer to coincide with the crisis;
• be replaced by collective vacations at the employer’s discretion; or
• be postponed upon agreement between the employer and employee.

If an employee takes vacation days during the crisis, while isolation is recommended, this recommendation remains regardless of the vacation. 

Employers may only insist upon employees participating in a work trip if it is considered essential for the business. However, it is not recommended that workers be ordered to go to areas with a high risk of contagion, since the employer could be held liable for any contagion that may occur. In the case of health-sector workers, it may be necessary to require employees to provide services in high-risk areas and they cannot refuse to comply with such a directive.

Federal laws enacted as a response to the crisis include the following measures, which can be applied at this time regarding employment contracts:

• Requirement for remote work / telework, home office;
• Bringing forward of individual vacations (without prior notice and including vacation periods not yet fully earned by the employee), with priority given to employees who are considered as higher risk;
• Payment of the vacation uplift (equivalent to one-third of the vacation payment) can be postponed until 30 November 2020 (when the first instalment of the thirteenth salary/Christmas bonus is due);
• Payment in lieu of ten vacation days, which is otherwise an employee right, is now subject to the employer’s consent;
• Payment of vacation, otherwise due two days before commencement of the vacation period, can be paid by the fifth business day of the month following commencement of the vacation period;
• Collective vacations can be required upon 48 hours’ prior notice;
• Federal holidays may be brought forward upon agreement between employer and employee;
• Activities may be interrupted with the creation (or use, if already in place) of a time bank, under which time equivalent to the period of interruption will be added to normal working hours after work resumes, at the employer’s discretion;
• Employee and employer may agree to other temporary amendments to the employment contract even in a way that could otherwise conflict with applicable law (provided that rules contained in the Brazilian Constitution are complied with);
• The Employer and the Employee may agree to a temporary reduction of working hours and salary (proportionately) of 25%, 50% or 70%, or a temporary suspension of the employment contract, for up to 90 days or until the public calamity state is declared to be over in Brazil (whichever occurs first).

Regarding (i) above, it is still uncertain how Brazilian labour courts will rule on individual agreements between employees and employers, which supress employee rights provided for by infra-constitutional laws and regulations, so caution is advised and any such agreements must be carefully analysed on a case-by-case basis.

Yes. However, Brazilian law authorises the reduction of the employee’s working hours and wages, proportionately, by up to 25% in case of force majeure, so wages may be reduced if the employer invokes this right.

In addition, after 15 days of medical leave, the employee’s sick pay will be borne by social security (INSS). 

Yes, the employer can do this in a number of different ways. It may request the provision of the service remotely from homes, schedule individual vacations, require collective vacations or take any other of the previously analysed measures, which may be applied in different cases.

All abovementioned rules and measures apply to employers regardless of the company being required to close, and no special rules apply to companies required to close. 

The government is studying relief measures for certain sectors, such as airlines, but no concrete proposals have been released yet.

The employer is obligated to pay wages for as long as the employees are not formally terminated, and that applies regardless of the employee being required to stay home, by reason of sickness (COVID-19-related or not), to take care of children, or for any other reason. There is no restriction on termination of employees in such a situation, provided that severance payments are made.

There is no rule specifically regarding this situation. However, employers are generally required to pay wages (sick pay) while employees are required to be absent from work for medical reasons. After 15 days of medical leave, the employee’s sick pay will be borne by social security (INSS).

No.

Yes, in all situations mentioned in the answers above, provided that the employer provides all the necessary equipment to allow the employee to work from home.