The beginning of 2021 repeats the end of 2020 regarding the uncertainties arising from the pandemic. The scenario related to social interaction and social activities has not yet stabilized, challenging companies in terms of the need to prevent the proliferation of the virus, as well as also in sustaining their businesses.
Legislative Decree No. 6 of 2020, which recognized the state of public calamity caused by the coronavirus pandemic, was in force until 12/31/2020. The end of the decree's validity caused the end of Law No. 14.020/2020, a law that had brought alternatives to employers regarding the maintenance of employment contracts due to the difficulties generated by the pandemic. With the end of the law, alternatives such as the suspension or reduction of the employment contract can no longer be adopted by companies from 2021.
On the other hand, all employees who had their employment contracts suspended or reduced during the term of Law 14.020 / 2020 are now with temporary stability guaranteed by the same Law. That is to say: the difficulties for employers continue, but unaccompanied of those solutions that the emergency law conferred.
This scenario caused employers to adopt the controversial dismissal due to force majeure, which dispenses the payment of all severance payments. This conduct, however, has been considered illegal by the Labor Court on a daily basis (see decisions in cases 0000558-80.2020.5.23.0009, 0000484-50.2020.5.11.0012 and 0010667-59.2020.5.18.0053). This practice, therefore, proves to be less of a solution, and more of a displacement of the problem into the future, which can generate a large labor liability.
The good news is that there are still alternatives for companies, to provide greater legal certainty:
Adoption of the telecommuting regime (home office)
It is possible to change the employees' work regime from face-to-face to remote, even with the end of the emergency rules issued in 2020.
The legal basis for changing the service provision regime is the CLT, which stipulates the rules for converting the service provision regime into its Chapter II-A. Some CLT requirements must be met, such as, for example: (i) the registration of the change through a contractual amendment at least 15 days in advance; and (ii) make it clear who will be responsible for the acquisition and maintenance of the technological equipment and infrastructure necessary for the provision of the service.
Negotiation with the Category Union
Agreements with the Union (s) that encompasses employees can make it possible to reduce working hours and wages. Therefore, some conditions related to deadlines, minimum limits and balance of these reductions (among the different groups of employees) must be adopted.
Even though there are no more emergency provisions for the protection of employment relationships, it is possible to find in the current laws and in union negotiations alternatives for the preservation of such jobs and, at the same time, make possible the continuity of the social activities of the companies.
Jorge Müller Camatta
Post-graduated in Law and Labor Relations from the São Bernardo do Campo Faculty of Law. Read other articles of the Labor area.