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25 March 2020
With the coronavirus (COVID-19) pandemic continuing to affect the world – and employment law – this article answers FAQs for Brazilian employers.
Can companies cancel job offers prior to the start date?
Yes, but not without risk. If an individual proves that the cancellation of their job offer caused them damage (eg, they resigned from a previous role to join the company), the company will likely have to indemnify the individual in case they file a lawsuit claiming damages due to the cancellation of the job offer.
Can companies change the start date of newly hired employees?
Yes, but not without risk. If a starting date was already scheduled and it is impossible to have the employee working at the company's premises, the new employee should start working from home to minimise the risk for the company.
Can companies determine that employees work from home as a preventive measure to reduce the risk of circulation of the virus? Must companies consult with a union before implementing such a measure?
While there is no specific rule ordering employers to do so, allowing employees to work from home is a preventive measure that is consistent with the need for cooperation with the effort to reduce social contact in order to minimise the contamination risk. Moreover, allowing employees to work from home is aligned with the general principle that employers must act to keep their work environment safe. Union consultation is not required.
Can companies ask employees who were potentially exposed to the virus to work from home? Must companies consult with a union before implementing such a measure?
Yes, companies can request employees who were potentially exposed to the virus (eg, they travelled to certain countries or had direct contact with individuals diagnosed with COVID-19) to temporarily work from home. Union consultation is not required.
Must companies pay any additional amount to employees temporarily required to work from home?
No, additional payment is not owed to employees who are working from home, unless they can evidence an increase in their regular expenses in order for them to work from home.
Can companies suspend benefits when employees are working from home?
As a rule, no. All benefits, except for transport vouchers, should be maintained.
Who pays for employees' time away from work due to COVID-19?
Employers will pay for the first 14 days of absence after an employee is diagnosed with COVID-19. Brazilian Social Security will pay for the remaining days of absence until a doctor permits the employee to return to work.
Can companies suspend the benefits of an employee who is diagnosed with COVID-19 and takes more than 14 days' medical leave?
As a rule, no. All benefits, except for transport vouchers, should be maintained. The collective bargaining agreement applicable to an employee may determine special conditions in this circumstance, such as the payment of the balance between the individual's salary and the social security benefit for a determined period.
Can companies grant paid holiday to employees in case of a reduction in work?
Yes, holiday is determined at a company's discretion and is subject to several statutory rules, including a minimum period of employment.
Companies can also grant collective holiday to all or some of their employees (entire sections or departments of the company).
The Provisory Measure recently issued in the COVID-19 context reduced the notice period for employers to grant paid holidays (individual or collective) to 48 hours.
Is there an alternative if companies cannot wait the minimum statutory periods to grant paid holiday?
Yes, companies can grant employees paid leave.
For individuals who are not exempt from control of work hours and are under an offsetting system or a bank of hours, companies can use the lack of work as an opportunity to offset the hours worked overtime and credited in the offsetting system to determine that employees must use such credited time to rest and avoid their payment as overtime.
Can companies force employees to take unpaid leave in case of a reduction in work?
No, that is not an alternative. Special conditions to reduce the fixed cost of payroll can be implemented with union participation.
Can companies terminate employees for cause due to a reduction in work?
No, causes for termination and payment of lower severance to employees are determined by law and a reduction in or lack of work is not classified as a 'cause'.
On the other hand, companies can terminate employees without cause by paying them the statutory severance.
Can companies refuse to allow employees with suspicious symptoms to stay at home?
If an absence is required by a medical condition and duly documented, companies cannot punish employees for not coming to work.
Can companies disclose the names and other personal information of employees diagnosed with COVID-19?
No, companies must not disclose the names or any personal information about employees diagnosed with COVID-19.
Can Brazilian employees expatriated to other countries require their repatriation to Brazil?
Yes, if there is a medical recommendation or a company policy advising the repatriation.
For further information on this topic please contact Patricia Barboza or Maury Lobo at CGM Advogados by telephone (+55 11 2394 8900) or email (firstname.lastname@example.org or email@example.com). The CGM Advogados website can be accessed at cgmlaw.com.br.
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