The coronavirus pandemic will impact the country’s economy and thus generate unpleasant situations for businessmen and workers, so that reasonableness, flexibility in labor rules and consideration for the analysis of each case is recommended. Considering the complexity of the situation, Professor Vólia Bomfim Cassar, who is a lawyer, retired judge of TRT 1ª Região, master and doctor in law and author, member of the Brazilian Academy of Labor Law, produced a rich material, in order to clarify important points for both sides.
IMPACTS OF THE CORONAVIRUS ON THE LABOR CONTRACT
With the Coronavirus pandemic, measures can be taken or determined by the Government and the employer can choose one of the procedures below if he decides to close or adopt preventive measures. On the other hand, employees must be aware of their rights and duties during the period. Below, in a reduced form, the measures that can be taken by entrepreneurs.
COLLECTIVE VACATION
The employer must immediately communicate the concession of collective vacations and grant them with advance payment provided for by law (art. 145 of the CLT). In case of disregard of the 30-day period between the communication and the vacation grant, violating the rule contained in article 135 of the CLT, there is a risk of future questioning about the validity of the collective vacation concession. Even so, we understand that the risk is worth it, and, as long as there is an advance payment for these vacations and the constitutional third, the concession must be considered valid, as the situation is force majeure and aims at protecting the community, and the rule of that the communication must have a minimum advance of 30 days.
Collective vacations can be granted to all employees or only to certain sectors or branches, with prior notification to the Ministry of Economy (former Ministry of Labor), in the form of article 139, p. 2nd of the CLT.
PAID LICENSE
Law 13,979 / 20 provides for removal, quarantine and circulation restriction measures. In its article 3, p. 3, the aforementioned law provides for the bonus of the employee’s absence days due to the preventive measures above, for the purposes of controlling the epidemic. This means that the employment contract for employees affected by quarantine or by the necessary leave, even if not infected, but as a preventive measure, will be interrupted. In this way, the employee receives the salary without working.
If the leave is longer than 30 consecutive days, the employee loses the proportional vacation and a new vesting period begins after the end of this leave (art. 133, III of the CLT).
The employer may agree in writing with the employee that the leave period will serve as compensation for overtime worked before or adopt the rule of Article 61 of the CLT, explained below.
As the epidemiological situation falls under the category of force majeure (art. 501 of the CLT), the rule contained in article 61, p. 3 of the CLT, that is, the employee interrupts the provision of services, receiving the salaries for the period and when he returns, the employer may require, regardless of written adjustment, up to 2 extra hours per day, for a period of up to 45 days, to compensate the period of absence.
For employees who have always worked internally, but whose service can be performed remotely through telematics or information technology, it may be possible to adjust, always bilaterally and in writing, that the service in this period must be performed remotely (art. 75-C, page 1 of the CLT). The law requires bilateralism and express adjustment, but extensive interpretation of article 61, p. 3 of the CLT to adopt the understanding that, since it is an emergency measure and due to force majeure, the boss’s unilateral determination to convert, during this period only, the face-to-face work into telepresence, is valid.
COLLECTIVE STANDARD – SUSPENSION OF CONTRACT OR WAGE REDUCTION
It is possible for the collective agreement or collective agreement to provide for the contractual suspension (art. 611-A of the CLT) or the reduction of the employee’s salary during the period of leave resulting from the measures to contain the epidemic, based on article 7, VI of the CF w / article 611-A of the CLT.
As the collective rule revokes the provisions of ordinary law, it will also be possible to provide for a collective compensation instrument for days off work, for example, 3 extra hours per day for the period that is necessary for the complete recovery of work. or communication of collective vacations up to two days in advance of their grant, changing the rule of article 135 of the CLT, etc.
SUSPENSION OF THE CONTRACT BY MUTUAL CONSENT
As a general rule, it is assumed that the hypotheses of suspension of the employment contract are strictly provided for by law and that the adjustment between the parties for suspension of the employment contract is not applicable, except when required and for the benefit of the employee. This is explained by the principle of worker protection that prohibits in pejus changes and wage protection, both enshrined in article 468 of the CLT and article 7, VI of the CF. In addition, the rule contained in article 3 of Law 13,979 / 20 is clear as to the right to a just absence from work in the isolation period, and should be interpreted as interruption of the employment contract in view of the similarity with the wording contained in article 131 of CLT.
However, in the face of extreme cases and an emergency situation, such as a force majeure event, the interpretation of labor rules must be flexible and harmonized with the principle of the company’s social function (art. 170 of the CF), to prioritize its protection and guarantee of survival, avoiding, as a consequence, hundreds of farewells and closing establishments.
CLT itself has made its rules more flexible in the event of economic hardship, demonstrating the legislator’s intention to protect companies and jobs at this critical moment, as in articles 61, 486, 501, 503 and Law 4,923 / 65.
Based on this reasoning, exceptionally adjusted suspensions between employer and employee may be accepted, but the measure is risky when not provided for in a collective rule.
Some unions are reluctant to negotiate a reduction in wages or suspension of contracts. They could, at least, chancell (kind of individual approval) the adjustments of contractual suspension, so that during the removal the boss does not pay salary to the employees. Another alternative is the submission of the “lead” to the CCP (Prior Conciliation Commission) so that it can approve the agreement between the parties of contractual suspension. Anyway, without the prior provision or authorization in the collective instrument, there will always be a risk of future questioning of the invalidity of these contractual suspensions, except for the hypersufficient employee (art. 444, p. CLT only) who dispenses with these formalities.
INFECTED WORKER
The employee infected by the virus will submit to the same rules as other patients, that is, the employer pays the first fifteen days and the social security pays the social security benefit (sickness benefit), in case of fulfilling the requirements. This removal is not to be confused with that intended for prevention, that is, quarantine or removal to avoid contact with other workers, as a measure of containment. This case is of interruption while that of sick leave (interruption for the first 15 days and suspension for the subsequent period).
An atypical work accident can be considered the case of an employee who was infected at work, as it fits as an occupational disease (articles 19 and 20 of Law 8,213 / 91), unless the hypothesis contained in paragraph d, of paragraph 1 of Article 20 of the Social Security Law.
If the infected person is a self-employed person who provides services to the company, or a trainee, removal will also be necessary and mere communication is sufficient for this purpose. If, however, you are an outsourced worker, the policyholder must immediately stop work and notify the employing service provider to take appropriate action. It is worth remembering that the outsourced is subordinated to the providing company and not to the borrower, but it is the borrower’s responsibility to care for the work environment, as provided for in Article 5-A, p. 3 of Law 6.019 / 74. For this reason, orders for compliance with safety, hygiene and use of PPE measures must come from the policyholder, not excluding the possibility of the employer also doing so.
The domestic employee is subject to the same rules as the ordinary employee, except for the social security benefit, when due, since it is paid from the first day, and the rule of payment by the boss for the first 15 days does not apply, in the form of article 72, I of Decree 3.042 / 99.
SUSPICIOUS WORKER
If the employer or the employee himself suspects that he has been contaminated, isolation is a necessary measure to be taken to avoid contagion to other employees, third parties and customers, with due medical precautions, such as a medical certificate recommending removal. If the worker is self-employed, intern or casual, the same recommendation must be taken. However, in the case of a third party, the policyholder must inform the employer (service provider company) of the measures he will take to protect the environment, and may, exceptionally, determine rules for protection of health and safety at work, as explained above.
The employer must take precautions to avoid discrimination in the workplace, referring only the really suspicious cases to the INSS or the occupational physician.
Trend companies, that is, those in which the worker needs to keep his health intact, as they work with other patients or are at risk of collective or mass contamination, can compel all their employees and outsourced workers to undergo the preventive examination of the virus , at its cost, since in this case the purpose is collective and public health.
WORK ENVIRONMENT X DISCIPLINARY POWER OF THE EMPLOYER
Companies should try to contain the coronavirus pandemic by taking actions to prevent the spread and spread of the virus. The measure is not only hygiene and occupational medicine, but also solidarity, collaboration with the community, public interest and duty of collaboration.
Therefore, measures such as isolation, quarantine, mandatory examinations in certain cases, mandatory use of gloves and masks in specific cases are in accordance with Law 13,979 / 20, always respecting the principle of reasonableness and the preponderance of the collective over the individual , collective health on profitability.
In turn, the employee must undergo the examination offered and paid by the employer to prove that he is not contaminated and can work, because the principle of protection of public health, in this case, prevails over the principle of privacy.
Likewise, an employee who refuses to use appropriate PPE, such as gloves, a mask or the use of alcohol gel, or who refuses the recommended or collectively determined isolation, may be punished with warning, suspension or just cause.
On the other hand, an employer who does not adopt preventive and containment measures may be practicing just cause, in order to give rise to the indirect termination of those who feel directly harmed. It is clear that the maximum punishment depends on the specific case and the actual probability of contagion and dissemination.
The employer cannot prevent the employee from engaging in private activities, such as attending public places or international trips, but must reschedule national or international trips to non-urgent work, as well as fairs, congresses, lectures and any and all acts that endanger their workers. It should be emphasized that the employer that obliges the employee to travel in a pandemic period has strict responsibility for possible contagion due to contact with other people as a result of this work shift (occupational disease – article 118 of Law 8,213 / 91), except in the case of article 20, p. 1, d, of the Social Security Law.
The boss’s subjective responsibility can be removed by the use of precautionary measures, such as constant hygiene in the workplace, masks, gloves, alcohol gel etc. Therefore, all of these practices must be documented to avoid future claims of employer’s liability for contagion.
It is good to remember that it is not only the work environment that puts workers’ health at risk due to the possibility of contagion, but also the use of public transport to get to and from work. Therefore, isolation is necessary even if the company has few employees. It is clear that for essential activities or those whose interruption causes irreparable damage, other measures can be taken in order to maintain continuous business activity, such as work schedules, homeoffice (even if it does not fit into telework), mandatory use of alcohol gel in entrance, in the rooms and sectors, in addition to masks and gloves, expenses that will always be borne by the boss.
TERMINATION OF WORK CONTRACT
In the event that economic activity does not withstand the serious impacts of the strike imposed by the Government or the consequences of isolation, the employer may terminate the employees’ employment contract, without just cause, payment of the respective termination fees, unless prior notice and indemnity of FGTS falls to 20%, in the form of articles 486 and 501 of the CLT.
CONCLUSION
In the face of an emergency situation and the necessary containment of the coronavirus pandemic, drastic measures can be adopted in the field of employment relations. The consequences of isolation are disastrous for entrepreneurs who suffer agony and for employees because they are frightened by the possibility of contagion, unemployment or reduced wages. At this time, caution and the adoption of temporary temporary labor measures are recommended to prioritize the social function of the company and its survival, which ultimately aims to protect jobs and the economy.
