1. INITIAL CONSIDERATIONS – CONCEPTS AND DIFFERENCES.
With the social and economic impacts of the novel coronavirus, many companies have had to adapt to the potential health risks for all employees, adopting teleworking and home office as alternatives.
Teleworking and home office are not the same thing, each with its own characteristics and attributes. Let's analyze both, highlighting their concepts, peculiarities, and key differences.
Law No. 13,467/2017 (Labor Reform) introduced specific regulations regarding teleworking for the first time in articles 75-A to 75-E of the CLT. Previously, the CLT did not distinguish between work performed at the worker's premises or remotely.
In this sense, according to the CLT, the teleworking consists of:
“(…) provision of services predominantly outside the employer’s premises, using information and communication technologies that, by their nature, do not constitute external work. (Included by Law No. 13,467, of 2017)” (CLT Art. 75-B)
The provision of teleworking services can take place anywhere, predominantly outside the employer's premises, and may be provided from the employee's residence.
With teleworking, there is no control over the employee's working hours, and this type of work does not allow for the right to overtime pay, intra-shift breaks, inter-shift breaks, etc., since the employee, as a rule, controls his or her own working hours. An exception exists if the company effectively controls the working hours.
Teleworking must be expressly stated in an individual employment contract or addendum, and there must be mutual agreement between the parties. It is essential that the employer and employee formalize how the cost and supply of materials and equipment necessary for the performance of the activity will be borne, such as computers, tablets, electricity, internet, printers, and software. Therefore, it is important to include the provisions of Article 75-D of the CLT:
“The provisions relating to the responsibility for the acquisition, maintenance or provision of technological equipment and infrastructure necessary and appropriate for the provision of remote work, as well as the reimbursement of expenses borne by the employee, will be provided for in a written contract” (article 75-D).
In this regard, it is worth highlighting that the employee's attendance at the employer's premises to carry out specific activities does not characterize the teleworking regime.
Another relevant aspect is that the CLT, in its art. 75-C § 2, guarantees that the minimum transition period from the teleworking regime to the in-person regime is 15 (fifteen) days, with corresponding registration in a contractual addendum.
In turn, the home office is characterized when the work is carried out remotely on an occasional basis at the employee's residence, may or may not configure the hypothesis of teleworking, being especially beneficial in emergencies such as pandemics, floods, and strikes. Not all home office activities utilize technology, which is a preponderant condition for teleworking.
In a home office, there may be flexibility in the in-person work regime, allowing employees to provide services remotely from their homes for a few days. This does not need to be included in an individual employment contract or contractual addendum, but should be regulated by internal company policy.
In this sense, home office can be characterized as teleworking, when using information and communication technologies, it is not occasional and does not constitute any hypothesis of external work.
When the home office regime does not qualify as teleworking, the employee will continue to receive, as a rule, the same labor rights of employees in the modality in which the service is provided in person. Therefore, it is important that the employer adjusts the way in which working hours are monitored.
2. Provisional Measure No. 927/2020
Having conceptualized and differentiated the institutes of telework and home office, it is important to bring relevant aspects of Provisional Measure No. 927 of March 22, 2020, which provided some measures within the scope of labor law to deal with the context of COVID-19 and the consequent state of public health emergency faced by the entire world.
The Provisional Measure did not change the articles of the Consolidation of Labor Laws (CLT), merely applying its provisions temporarily while the effects of COVID-19 persist. It provides measures that employers can take to minimize the economic impacts of the coronavirus, aiming to preserve jobs and income.
Initially, the MP already defines that during the state of public calamity, the employer may, at your discretion, without the need for mutual agreement, change the in-person work regime to teleworking, remote work or other types of distance work and determine the return to the in-person work regime, regardless of the existence of individual and collective agreements, dispensing with the prior registration of the change in the individual employment contract. The provisional measure also allows the adoption of teleworking, remote work, or distance work for interns and apprentices.
In cases where the employee does not have the necessary and adequate technological equipment and infrastructure to perform teleworking, remote work or distance work, the employer may provide the equipment on a loan basis and pay for infrastructure services, which will not constitute salary; or if it is not possible to offer the loan basis, the period of the normal working day will be computed as working time at the employer's disposal.
The minimum transition period from teleworking to in-person work or vice versa was set at forty-eight hours, since, due to the impossibility of crowding, many companies had already adopted this solution before the Provisional Measure was issued.
Finally, Article 36 provides that labor measures adopted by employers are considered validated. that do not contradict the provisions of this Provisional Measure, taken in the period of thirty days prior to the date of entry into force of this Provisional Measure.
3. FINAL CONSIDERATIONS
In the context of a global pandemic, remote work arrangements, due to the impossibility of crowding, are excellent alternatives to circumvent the economic and social effects.
Given all of the above, it is of fundamental importance to understand the institutes and alternatives of remote work, both for the employee and the employer, in order to minimize future risks and losses in this environment of uncertainty.
From the employer's point of view, it is essential to observe the legal provisions to avoid excesses, creating a possible risk of changing the nature of the teleworking regime in the future.
Finally, from the employee's point of view, it is important that they understand how the work regime works and the rights inherent to it, so that they can have a sustainable work routine and minimize the risks of violations of their rights.
REFERENCES
BRAZIL. Consolidation of Labor Laws. Decree-Law No. 5,442, of May 1, 1943. Available at: http://www.planalto.gov.br/ccivil_03/decreto-lei/del5452.htm. Accessed on: April 16, 2020.
BRAZIL. PROVISIONAL MEASURE No. 927. Brasília, March 22, 2020. Available at: http://www.planalto.gov.br/ccivil_03/_ato2019-2022/2020/Mpv/mpv927.htm. Accessed on: April 15, 2020