by Mariana Capozoli, Diogo Pozza Parpineli and Leonardo Hiroyuki Kojima

In 2020, more specifically on 03.22.2020, Provisional Measure (“MP”) No. 927/2020 WAS PUBLISHED on the labor measures that could be adopted due to the public calamity caused by the coronavirus (Covid-19). However, as it was not converted into law by 07/19/2020, MP 927/2020 lost its effect on 07.20.2020.

That Provisional Measure addressed: (i) telework; (ii) bringing forward individual vacations; (iii) granting collective vacations; (iv) use and bringing forward of public holidays; (v) hour bank; (vi) suspension of administrative requirements for occupational health and safety; (vii) suspension of the employment contract to direct the employee to a remote professional training course or program; and (viii) suspension of FGTS contributions for March, April and May 2020, due in April, May and June 2020.

Thus, despite the faster procedures provided for in its text, the fact that it was not converted into law made it necessary to apply the provisions of the Consolidation of Labor Laws (“CLT”), which were never designed to deal with the pandemic that took hold in our country.

MP 936/2020, which established the Emergency Employment and Income Maintenance Program, whose measures were (i) payment of an emergency benefit to preserve employment and income; (ii) proportional reduction of working hours and salaries; and (iii) temporary suspension of the employment contract, was converted into Law (14,020/2020); its effect therefore lasted until the end of the state of public calamity recognized by Legislative Decree No. 6 of 2020, which was in force until 12/31/2020 — that is, Law 14,020/2020 ceased to apply from 01.01.2021.

Due to the expiry of both Provisional Measures (927/2020 and 936/2020) and the continuation of the Pandemic caused by the coronavirus, the Federal Government issued two new Provisional Measures, published on 04/28/2021.

MP 1,045 established the New Emergency Employment and Income Maintenance Program, in addition to introducing other complementary measures to deal with the consequences of the public health emergency of international concern resulting from the coronavirus (covid-19) in labor relations.

Likewise, Provisional Measure 1,046 “provides for the labor measures that may be adopted by employers, for a period of one hundred and twenty days from the date of its publication, to preserve employment, the sustainability of the labor market and to deal with the consequences of the public health emergency of international concern resulting from the coronavirus (covid-19) relating to work and employment.”

Both Provisional Measures could even be understood as reissues of MPs 927 and 936 of 2020; however, as will be shown below, there are certain differences between the 2020 measures and those issued and published in 2021.

MP 1,045 established: (i) an emergency benefit; (ii) proportional reduction of working hours and employment; and (iii) temporary suspension of the employment contract, as follows:

MP 1,046 established: (i) telework; (ii) bringing forward individual vacations; (iii) granting collective vacations; (iv) use and bringing forward of public holidays; (v) hour bank; (vi) suspension of administrative requirements for occupational health and safety; and (vii) deferral of Severance Pay Fund (FGTS) contributions.

In short, all the Provisional Measures issued so far (repealed and issued on 04/28/2021) aim to preserve employment and income and to ensure the continuity of work activities.

However, the Provisional Measures issued this year (2021) introduced new provisions, such as:

• MP 1045/2021

1. A term of one hundred and twenty days (extendable for an equal period by act of the Federal Executive Branch), whereas the previous ones (927 and 936/2020) were in force for the duration of the state of public calamity;
2. The permitted period for reducing working hours or suspending work may be up to one hundred and twenty days (the possibility of extension together with the term of this provisional measure must be observed), whereas under the previous measure the maximum period was up to ninety days (art. 7);
3. Possibility of combining pregnancy job security with the job security resulting from the reduction of working hours and suspension of the employment contract;
4. Exclusion of employees hired under the intermittent work modality from receiving the Benefit.

• MP 1046/2021

1. Possibility for the employer to direct the employee to professional training courses or programs, under art. 476-A of the CLT, with a duration of at least 1 month and at most 3 months, provided they are delivered remotely;
2. Express provision for offsetting vacations taken in advance, for which the accrual period has not been completed, when paying the severance amounts owed to the employee in the event of dismissal (art. 10, sole paragraph);
3. Possibility of granting vacations for a period longer than thirty days (art. 11);
4. Possibility of bringing forward religious holidays;
5. Companies performing essential activities may, during the term of the Provisional Measure, adopt a working-hours compensation regime through an hour bank, regardless of the interruption of their activities;

After analyzing the Provisional Measures issued in 2020 and 2021, the 2021 measures are found to be more detailed and to offer more options than those of 2020, despite the similarities between them on some topics (reduction of working hours, suspension of salary, job security due to changes to the contract, among others).

It is important to remember that the use of some benefits again present in the new Provisional Measures (1045 and 1046) requires attention, especially regarding job security for an equal period when the employment contract is changed (reduction of working hours or suspension of the employment contract).

If it is not possible to keep the employee during the job security period, compensation for that period will be required; that is, new expenses will be incurred when the employment contract is terminated.