- Is there any legislation relating to working from home in your country?
- How can working from home be implemented in a company (e.g. through collective bargaining agreements, a unilateral decision, employment contracts)?
- Can an employer force an employee to work from home?
- Can an employee force an employer to allow them to work remotely?
- Does an employer have to provide the employee with office equipment and supplies for remote work?
- Does a company have to reimburse an employee for expenses incurred while working from home?
- Does an employer have to grant an employee a specific allowance for working from home? If so, under what conditions does an employer not have to pay such an allowance?
- For employees who work remotely, is the employer responsible for ensuring proper working conditions from a health and safety perspective?
- Are there any other specific obligations for the employer?
- Does an employee need to be insured to work from home?
- Is an employee who works from home protected by legislation for work-related accidents and illnesses?
- Is an employer permitted to charge its employees a “reimbursement for working from home” for costs saved? (Saved expenses could include the employee’s reduced costs for transportation, petrol, lunches in restaurants and dry-cleaning charges for office attire).
- Are there any other specific obligations on the employee?
- Have there been any legislative changes, or updates to immigration rules, designed to encourage short-term remote working in your country (compared to the rules normally found in other countries)?
- What is meant by remote work abroad and do national regulations exist in this regard?
- Which labour law provisions are applicable during remote work abroad?
- Do employees remain in the previous social security system during remote work abroad?
- What applies in terms of tax law to short-term remote work abroad, especially after or before a holiday?
- What needs to be considered in terms of residence law?
- Any other comments?
jurisdiction
1. Is there any legislation relating to working from home in your country?
In Brazil, the Consolidation of Labour Law (CLT) – Decree nº 5.452/1943 – regulates most employment matters, including remote work, which is called “teleworking” in this law and defined as “the provision of services outside the employer's premises, predominantly or not, with the use of information and communication technologies, which, by their nature, do not characterise external work.”
Remote work can be at home or in any other location, as long as it is outside the company premises. It can be full-time or part-time work.
2. How can working from home be implemented in a company (e.g. through collective bargaining agreements, a unilateral decision, employment contracts)?
Remote work can be implemented by unilateral company decisions, agreements between employer and employee, or collective bargaining agreements. If by unilateral decision or mutual agreement, it is recommended to confirm whether the collective bargaining agreement has any specific requirements.
By law – according to the CLT – the decision to conduct remote work must be set down in writing, such as an agreement or amendment to the employment agreement.
3. Can an employer force an employee to work from home?
Yes.
4. Can an employee force an employer to allow them to work remotely?
No.
5. Does an employer have to provide the employee with office equipment and supplies for remote work?
The CLT establishes that the employee and employer will negotiate and agree if any equipment must be provided or payment made vis-à-vis the remote work. The results of the negotiation must be inserted in the written agreement, even if there will be no payment or obligation.
Also, it is important to analyse if the collective bargaining agreement requires anything special.
Even with the considerations above, we always recommend evaluating the format of the work required and whether there is any specificity. Even without an obligation by law or agreement with a trade union, it is not advisable for the employee to require unreasonable tools and costs, and the employer must pay or provide for them.
6. Does a company have to reimburse an employee for expenses incurred while working from home?
See the comments on question nº5.
7. Does an employer have to grant an employee a specific allowance for working from home? If so, under what conditions does an employer not have to pay such an allowance?
See the comments on question nº5.
8. For employees who work remotely, is the employer responsible for ensuring proper working conditions from a health and safety perspective?
All rules related to health and safety remain in force, with the difference and challenge that the work will be performed outside the company, therefore requiring less management and the possibility of supervision. Therefore, the CLT requires the employer to guide the employee on health and safety practices and the employee must agree in writing to comply with them.
9. Are there any other specific obligations for the employer?
If the employer wants the remote working employee to return to in-person work, the employer must give at least 15 days prior notice to the employee and set down these changes in a written agreement. In addition, the work hours control must continue, unless the employee is paid according to the completion of a project or task.
10. Does an employee need to be insured to work from home?
There is no specific obligation for insurance in remote work.
11. Is an employee who works from home protected by legislation for work-related accidents and illnesses?
Yes, all health and safety rules remain in force, including legislation regarding work-related accidents and illnesses.
12. Is an employer permitted to charge its employees a “reimbursement for working from home” for costs saved? (Saved expenses could include the employee’s reduced costs for transportation, petrol, lunches in restaurants and dry-cleaning charges for office attire).
There is no provision for this in the law and due to the labour regulations in force, it would not be possible.
13. Are there any other specific obligations on the employee?
The employee must comply with all regulations regarding safety and health.
14. Have there been any legislative changes, or updates to immigration rules, designed to encourage short-term remote working in your country (compared to the rules normally found in other countries)?
Normative Resolution No. 45 of September 2021, in force since 24 January 2022, establishes guidelines for remote professional practice, known as "Digital Nomad." Under this resolution, foreigners gain greater flexibility to work for foreign companies while residing in Brazil and providing services remotely as visitors.
According to CNIG Resolution 45/2022, Digital Nomads are defined as immigrants who carry out their professional activities remotely, residing in Brazil, at the service of companies located abroad. The regulation also specifies the conditions under which a foreigner will not be considered a Digital Nomad. This conditions include if the foreigner provides services for a Brazilian company, either with or without an employment relationship, and if the individual's residence situation is covered by other CNIG resolutions.
The dispositions of CNIG Resolution 45/2022 do not apply to Brazilians who work as Digital Nomads abroad. It is recommended that Brazilians consult the legislation of each country where they wish to carry out this activity.
15. What is meant by remote work abroad and do national regulations exist in this regard?
If an employee is not transferred to work abroad but there is an agreement between the parties so that work can be carried out abroad remotely for the company in Brazil, no specific legislation covers this. The main provisions will still be the CLT and collective bargaining agreements.
The general rules are (i) the implementation of the regime through a special and written employment agreement, which must contemplate, among other things, the negotiation of equipment needed and cost reimbursements, instructions related to occupational safety and health measures, and the establishment of the employee’s professional domicile; (ii) there is no need for working hours control only if the employee is paid by production or task; and (iii) a 15-day term can be granted by the employer to the employee to transition back to the common in-person regime.
The lack of specific law makes remote work abroad a practical challenge as there is no solution provided by law for other important issues, such as benefits that would only work in Brazil (e.g. a health plan or specific food voucher card). Therefore, each case must be analysed carefully and subject to a written agreement.
16. Which labour law provisions are applicable during remote work abroad?
See the comments on question nº 15.
17. Do employees remain in the previous social security system during remote work abroad?
If the employee is formally transferred abroad, the social security system depends on whether there is a convention between Brazil and the foreign company in which the employee is working. If there is no formal transfer but only remote work for a company in Brazil, the employee will remain under the Brazilian social security system. In any case, it is recommended to check with local legislation to see if there are any additional provisions.
18. What applies in terms of tax law to short-term remote work abroad, especially after or before a holiday?
Assuming that it is an individual who is working abroad (not a legal entity), and this individual is a tax resident in Brazil (there are specific rules to consider someone a Brazilian tax resident when the individual is working in another jurisdiction, including a provision regarding the time that the individual will be abroad), the income is due at a worldwide basis. In this sense, the individual income tax will be levied at progressive rates from 0% to 27.5% on the total remuneration earned in Brazil or abroad.
Whether the jurisdiction where the individual is working has a double taxation treaty (DTT) with Brazil, and if this individual is also deemed a tax resident in that other jurisdiction, it is possible to recognise income tax credit (according to the DTT’s applicable rules).
Social security contributions are also due for individuals in Brazil who render professional services as independent service providers.
19. What needs to be considered in terms of residence law?
If the employee with Brazilian nationality chooses or is required to live abroad, it is important to verify the country’s requirements for a valid residence permit and/or work permit.
When the employee decides or is required to move permanently abroad, he/she must inform the IRS that he/she will no longer live in Brazil. By properly informing the IRS, the person is admitted as a resident of another location and is no longer taxed as a resident of Brazil. If the person does not regularly inform the IRS, he/she will continue to be taxed according to Brazilian tax laws while being taxed according to the laws of the country of residence.
20. Any other comments?
No.
