Home office as one of the alternatives through the need of social isolation

As it has been widely publicized, health authorities, not only in Brazil, but worldwide, have been alerting to the need of strong social isolation, as a way to slow down the contamination of the population by the coronavirus.

As a result, the Brazilian Government issued, on March 22, Provisional Measure 927/2020 (PM 927/2020), which brings a list of labor measures that can be adopted to surpass the state of public calamity decreed.

Among such measures is the home office system.

It is important to note that teleworking was formally recognized, by the Labor Reform, as a valid mean of providing services, by Chapter II-A, of the Labor Code (Articles 75-A to 75-E).

Such Articles bring rules that must be observed for the provision of services under teleworking and define it as “a provision of services preferably out of the employer’s premises, by the use of information and communication technologies that, by their nature, do not constitute external work” (Article 75-B).

As a rule, this work regime is not occasional and, for this reason, it was included as one of the hypotheses of exemption from working hours control (article 62, III, of the Labor Code).

However, remote work – or home office – in times of coronavirus has the peculiarity of being eventual. That is, the employee who does not work under such scheme of service provision starts to work outside the company’s premises, just for the need of social isolation.

In this sense, PM 927/2020 brought some flexibility by altering, during the state of public calamity, the form of service provision by the employee:

• For this moment, it does not depend on the existence of individual or collective agreements, being dismissed the previous registration of the change in the individual labor contract, being also allowed for interns and apprentices;
• The employee must be notified at least 48 hours in advance, in writing or by electronic means;
• The provisions relating to the responsibility for the infrastructure necessary to carry out the work remotely must be provided for in a written contract, previously signed or within 30 days, counting from the date of the change of the work regime;
• If the employee does not have the necessary means to perform the work remotely (i) the employer may supply the equipment on a lending basis or (ii) if it is not possible to offer the lending regime, the normal working shift will be computed as time at the employer’s disposal;
• The time spent using applications and communication programs outside the employee’s normal working hours does not constitute time at the employer’s disposal, a readiness or a warning system, unless there is a provision in an individual or collective agreement.

Anyhow, it is still a companies’ obligation to guide their employees to strictly observe the rules of safety and hygiene at work, by constantly releasing informative/communicates in this regard.

Finally, it is also important to note that the fulfillment of some of the provisions contained in the Labor Code on remote work, in the specific situation of public calamity, are exempt, as is the case, for example, related to the employer’s obligation to inspect the remote workstation, due to the emergency nature of the measures adopted by PM 927/2020.

Our Labor Team remains at your disposal to clarify any doubts.