Littler Global Guide – Brazil – Q1 2022

On-site work of pregnant employees, amid the COVID-19 pandemic

New legislation enacted

Law No. 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 should stay away from activities on site, without prejudice to their remuneration, but must remain available to carry out the work by telework or remove the work if possible. Under this law, the employer can modify the activities of the pregnant employee until the employee returns to work on the site. Unless the employer decides to keep her teleworking, the pregnant employee must return to work on site: (1) after the end of the COVID-19 health emergency; (ii) after completing the series of vaccinations against COVID-19; or (iii) by exercising a legitimate individual option not to be vaccinated against COVID-19.

A pregnant employee who refuses vaccination must sign a clause of responsibility and free consent to work on site, committing to respecting all the preventive measures adopted by the employer. Finally, the law provides that no restriction of rights can be imposed on pregnant employees who choose not to be 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 decree on teleworking

New order or decree

Executive Decree No. 1 108/2022, published on March 28, 2022, regulates, among other things, teleworking. Article 62 of the Brazilian Labor Code provided that employees in telework were exempt from the control of working hours. However, under the new EO, this exception only applies to “telecommuting employees, who render services by production or task”. The exception therefore does not apply to employees working from home who provide services under the “working period” modality. In the latter case, companies will have to control the working hours of employees, even in telework, and the alternative, the electronic control of working hours requires collective bargaining.

This order, which took effect immediately, will remain in effect for 60 days and may be extended for an equal period if not passed within the first 60 days. At the end of the 120 days, if not converted into law, the ordinance will expire.

New executive decree to save jobs

New order or decree

Executive Decree No. 1 109/2022, published on March 28, 2022, restores alternative employment safeguard measures, which include the implementation of teleworking, the anticipation of individual leaves, the authorization of collective leaves ( coverage), the use and anticipation of leave, the bank of hours and suspension of payments to the FGTS (unemployment guarantee fund). This order also includes the possibility of restoring the emergency program for employment and maintenance of income, which the federal executive had put in place at the start of the pandemic. This program authorized the temporary suspension of employment contracts, as well as the 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 Social Affairs.

Brazil’s Justice Ministry regulates visas for ‘digital nomads’

New regulations or official guidelines

The National Immigration Council issued Resolution No. 45/2021 on January 24, 2022, authorizing temporary visas and residence permits for immigrants who are “digital nomads”. that is to say., without an 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 residence permit, renewable for an equal period, provided they present all the necessary documents. For the moment, the Brazilian federal tax office has not issued any indication on the exemption of the foreign employer from withholding taxes and social security in Brazil.

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