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Home office: the legal security of employees and the main challenges for employers
Despite vaccination against Covid-19 progressing in Brazil over recent months - with 66 percent of the Brazilian population fully vaccinated as of December 2021 - certain changes in the labor market implemented during the pandemic may be here to stay.
Among the corporate measures implemented for companies to remain operational, the transition to a home office environment was the most profound change for both companies and employees. Once the initial difficulties of putting remote working in place were overcome, this new model of working revealed itself, overall, as positive for a large portion of employees, encouraging several businesses to consider implementing remote working permanently.
However, certain changes resulting from this new way of working have led to concerns, from both employees and employers, seeing as remote working is not yet regulated under Brazilian labor law. As a relatively new concept, even decisions issued by the Labor Courts remain insufficient to solve all the disputes arising from this new model of labor.
“It is indisputable that home office, driven by Covid-19, is already a fully-functional reality and, after the pandemic, it will be the future for companies, especially as a hybrid modality. Therefore, in the absence of standardization provided for in the CLT (Consolidation of Labor Laws), it is essential that companies adjust, via regulations and/or contractual amendments, the rights and obligations towards their employees. Without this necessary regulation, remote working will create legal uncertainty and generate labor lawsuits” stated Ricardo Calcini, professor of Labor Law at Faculdades Metropolitanas Unidas (FMP) and Labor Coordinator at Editora Mizuno.
In this sense, there are many aspects to be considered, both for employees and employers. When it comes to benefits, for example, considering the lack of commuting from an employee's home to the office, companies may eliminate transportation vouchers, however, meal-related benefits must be maintained by employers.
Regarding expenses related to setting up a home office, employers must provide the necessary tools for the employee to carry out their activities at home which includes reimbursing expenses. It is even recommended that companies adopt objective measures to mitigate health and ergonomics risks for employees with the home office regime – thus, it is essential that organizations review and adjust documents outlining health safety measures.
Regarding vacations, it is up to the employer to decide on the most opportune moment for employees to take their paid leave. Companies may even choose to grant collective vacations in light of the pandemic or or to overcome a particularly challenging period.
A sensitive issue regarding remote working regime is the adoption of productivity control mechanisms. In general, employees cannot be monitored outside of their working hours and must receive overtime pay if this takes place. However, specific monitoring periods may be mutually agreed by the parties, always ensuring that the duration of work does not exceed 8 hours a day or the working hours provided for by collective bargaining instruments.
"Since the onset of the home office system, many workers have adapted to more flexible working hours, and a return to a system of rigid hours within the company may raise questions regarding consolidated situations. Workers who will permanently remain working from home need to renegotiate their contracts, as online work can represent an increase in effective working hours without the corresponding remuneration, on the false pretext that the employee is not being controlled during their working hours. The challenge for the employer in this situation is to maintain control over employee productivity without using privacy-invasive techniques or that involve making the employee work in their hours of rest and leisure" stated Cássio Casagrande, attorney, columnist and university professor of Constitutional Law at Universidade Federal Fluminense - UFF.
While there are no objective legal elements to guide labor practices related to the home office system, it is essential that companies take care to document the measures adopted, preparing contracts and contractual amendments with express and detailed provisions, especially regarding working hours, infrastructure, reimbursements and inspections, also taking into account that the practices adopted during this period may be used as a basis for future labor conventions.
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