New law introduces fundamental provisions relating to teleworking and food allowances

Introduction
Teleworking
Food allowances

Introduction

On 5 September 2022, Provisional Measure No. 1,108/2022 was converted into Law No. 14,442, and the changes to the Brazilian Labour Code (CLT) and the Employee's Food Programme Law (PAT) regarding teleworking and food allowance matters are now in definitive effect.

The concept of "teleworking" has been changed to include remote working and working from a home office. This was confirmed by a provision in the CLT which states that teleworking is work that is performed outside the company's premises, primarily or not. Further, employers are only exempted from controlling the number of hours worked by employees who are teleworking (ie, working remotely) and who are contracted to provide services on a production basis or by performing tasks. This significantly reduces the applicability of this exception in the companies' operational practice.

Teleworking

Law No. 14,442 also introduces the following provisions relating to teleworking and remote work:

• The application of the law and collective bargaining agreement of the place where the employee on a teleworking arrangement was registered by the employer.
• The employer is exempt from the responsibility to pay the costs for the return of the teleworking employee to work in person if they choose to reside outside the locality provided in the employment agreement.
• The employee's use of technological equipment, software and digital tools before or after the regular working hours does not constitute time available to the employer or time on-call, unless there is a provision in this sense in individual or collective agreements applied to the employee.
• Interns and apprentices can work on a teleworking or remote work regime.
• Working hours and means of communication between the employer and the employee may be adjusted by individual agreement, provided that legal rests are ensured.
• The teleworking regime must be provided in the employment agreement.
• Employees with disabilities and with children, or with children under judicial custody up to four years of age, will have priority in filling vacancies for activities can be performed through teleworking or remote work.

Food allowances

Law No. 14,442 also introduces provisions regarding the payment of food allowances, and there were no significant changes in relation to Decree No. 10,854/2021. In summary, the Law provides that:

• Amounts paid by the employer as food allowance shall be used exclusively for the payment of meals in restaurants and similar establishments, or for the purchase of food in commercial establishments.
• In the hiring of the food allowance benefit supplier, the company may not require or receive a discount, transfer deadlines or payments that mischaracterise the prepaid nature of the amounts to be made available to employees or receive direct or indirect amounts or benefits of any nature not directly linked to the promotion of health and food safety of the employees.
• In the case of non-compliance with Law No. 14,442, a penalty of between 5,000 and 50,000 reais (between approximately £840 and £8,400) may be charged, or double that amount in cases of reoffending or where there has been an attempt to prevent inspections from public authorities, in addition to the application of other penalties applicable by the competent public offices.

For further information on this topic please contact Patricia Barboza or Alinne Gordilho at CGM Advogados by telephone (+55 11 2394 8900) or email ([email protected] or [email protected]). The CGM Advogados website can be accessed at cgmlaw.com.br.