by Mariana Capozoli
Provisional Measure No. 1,109 allows the adoption of rules used in the expired Provisional Measure No. 1,046/2021 with the aim of preserving jobs. In this regard, the Provisional Measure reintroduces the following options:
- telework/remote work;
- bringing forward individual vacations;
- granting collective vacations;
- use and bringing forward of public holidays;
- hour bank; and
- suspension of the requirement to pay contributions to the Severance Pay Fund (“FGTS”).
The employee must be notified of the change to their contract on the terms above (items “1” to “6”) at least 48 hours in advance, in writing (amendment to the employment contract) or electronically (email).
If the employment contract is changed from in-person work to telework/remote work, all provision of technological equipment and reimbursement of expenses borne by the employee, such as internet, will be set out in a written contract within 30 days after the change in work arrangement.
To bring forward vacations, the employer must notify the employee in writing at least 48 hours before the start of the leave, stating the period to be taken by the employee.
The minimum vacation period will be 5 consecutive days and may be granted by the employer to employees with less than 1 year of service, and payment may be made by the 5th business day of the month following the start of the vacation.
The one-third vacation bonus and the cash allowance may be paid after the vacation is granted, up to the payment date of the 13th salary.
Collective vacations may be granted at the employer’s discretion, with employees notified at least 48 hours before the start, in writing or electronically, and periods longer than 30 days may be granted.
In this case (collective vacations), there is no need for prior notice to the Ministry of Labor and Social Security and the Union.
Other benefits that have returned are the hour bank for compensation within up to 18 months, bringing forward public holidays and the suspension of FGTS payments for up to 4 months, with subsequent payment possible in up to 6 installments without inflation adjustment, fines or charges.
The Provisional Measure also reintroduced the possibility of reducing salary/working hours and fully suspending the contract, with the previous rules maintained:
- the employer must inform the Ministry of Labor and Social Security of the change to the contract within a maximum of 10 days from the agreement;
- failure by the employer to provide this information will make it liable for paying the regular salary, including social security and labor charges, until the information is sent;
- maintenance of all employee benefits existing prior to the contract suspension period;
- companies with gross revenue in 2021 equal to or greater than BRL 4,800,000.00 (four million eight hundred thousand reais) may suspend employees’ contracts upon payment of a monthly compensatory allowance of 30% of the employee’s salary for the duration of the suspension;
- temporary job security for the employee for the same period as the suspension/reduction of the employee’s working hours/salary;
- termination without cause during the job security period will subject the employer to compensation of 50% (reduction of working hours/salary from 25 to 50%), 70% (reduction of working hours/salary from 50 to 70%) and 100% (reduction of working hours/salary of 70% or more, or in the case of contract suspension) of the salary.
The amount to be paid due to the reduction of working hours/salary will be based on the amount of the unemployment insurance installment to which the employee would be entitled (proportionally).
