Onsite Work by Pregnant Employees, Amidst COVID-19 Pandemic
New Legislation Enacted
Law # 14,311/2022, published on March 10, 2022, establishes that during the COVID-19 public health emergency, only pregnant employees who have not yet been fully immunized must remain away from onsite activities, without prejudice to their remuneration, but must remain available to perform the job through telework or remove work if possible. Under this law, the employer can modify the pregnant employee’s activities until the employee returns to onsite work. Unless the employer decides to keep her in telework, the pregnant employee must return to onsite work: (1) after the end of the COVID-19 health emergency; (ii) after completing the COVID-19 vaccination series; or (iii) through the exercise of a legitimate individual option for nonvaccination against COVID-19.
A pregnant employee who refuses vaccination must sign a term of responsibility and free consent to work onsite, agreeing to comply with all preventive measures adopted by the employer. Finally, the law provides that no restrictions of rights can be imposed on pregnant employees, who choose not to get vaccinated. It is possible that the constitutionality of this new law will be challenged on various grounds, including the employee’s right to self-determination.
New Executive Order on Telework
New Order or Decree
Executive Order # 1,108/2022, which was published on March 28, 2022, among other things, regulates telework. Article 62 of the Brazilian Labor Code used to provide that employees on telework were exempted from working hours’ control. However, under the new EO, such exception applies only to “employees on telework, who render services by production or task.” The exception, therefore, does not apply to employees on telework who render services under the “working period” modality. In the latter case, companies will need to control the employees’ working hours, even on telework, and the alternative, electronic control of working hours requires collective bargaining.
This order, which became effective immediately, will remain in force for 60 days, and may be extended for an equal period if not voted on within the first 60 days. At the end of the 120 days, if not converted into law, the order will expire.
New Executive Order to Safeguard Jobs
New Order or Decree
Executive Order # 1,109/2022, which was published on March 28, 2022, reestablishes alternative measures to safeguard employment, which include the implementation of telework, anticipation of individual vacations, authorization of collective (blanket) vacations, use and anticipation of holidays, bank of hours, and suspension of the FGTS (the unemployment guarantee fund) payments. This order also includes the possibility of reinstating the Emergency Employment and Income Maintenance Program, which the federal executive branch had implemented in the beginning of the pandemic. That program authorized the temporary suspension of labor contracts, as well as proportional reduction of working hours and wages.
The measures set out in EO # 1,109/2022 are not yet effective, pending final regulations from the Ministry of Labor and Welfare.
Brazilian Ministry of Justice Regulates Visa for “Digital Nomads”
New Regulation or Official Guidance
The National Immigration Council published Resolution # 45/2021 on January 24, 2022, authorizing temporary visas and residence permits to immigrants who are “digital nomads,” i.e., with no employment relationship in Brazil, but whose professional activity can be carried out remotely on behalf of a foreign employer. A “digital nomad” visa holder can receive a one-year residency permit, which can be renewed for an equal period, provided all necessary documents are presented. For the time being, the Brazilian Federal Revenue has not issued any guidance on whether the foreign employer is exempted from withholding taxes and Social Security, in Brazil.