With the advance of the vaccination campaign against the new coronavirus after more than a year after the beginning of the covid-19 pandemic, finally the time has come to discuss and evaluate the concrete possibility of returing to in-person activities at the companies.

According to the latest survey by the National Sample Survey of Households (PNAD), about 7.9 million people have been working remotely since the beginning of the pandemic.

According to the labor legislation, part of these people may be in a telework or home office arrangement. Regardless of the arrangement adopted, the determination on when to return to work is a right of the employer as the party responsible for the economic activity. However, it is important for the employer to keep in mind the legal limits of its power and be aware of the recommendations so that the return to work occurs in a positive and safe manner.

Firstly, it is necessary to look at the arrangement to which the worker is subject in order to identify the minimum time limit for requesting a return:

  • Home office: there is no minimum period required by law, nor is it necessary to formalize it in writing. The rules set out in the internal policy of the company that instituted the arrangement must be observed.
  • Telework: a minimum transition period of 15 days must be guaranteed, with corresponding registration in a contractual amendment.[1]

After identifying the model, it is important to check the locally instituted standards for return plans and consider the general recommendations from the federal government regarding precautions {care} with the return.

In commercial establishments and service providers and non-essential activities located in the State of São Paulo, according to State Decree 65,897, of July 30, 2021, it is hereby established that, in the return to on-site activities, the limitation of space of occupation up to 80% of the respective capacity must be observed, as well as the limitation of attendance to the public between 6 a.m. and midnight.

The decree imposed restrictions on occupation at companies providing services and non-essential activities, limiting the number of employees who may work in-person on office premises. The rule differs from prior decrees, in which capacity restrictions applied only to locations where there was service to the public. Companies and offices that intend to return to in-person work should therefore pay attention to the new rules. The decree also makes direct mention of the prohibition on crowding, observation of sanitary protocols, and mandatory use of face masks.

The other covid-19 containment measures remain in force (Ordinance No. 1,565/20 of the Ministry of Health, Joint Ordinance No. 20/20 of the Ministry of Economy and Special Bureau of Welfare and Labor, as well as state and municipal laws), especially the health protocols.

In the State of São Paulo, it is mandatory to wear a face mask, keep a distance of at least 1.5 m between employees, and follow sanitary protocols of hygiene and cleaning, air conditioning maintenance, and disinfection of workstations.

It is extremely important that the company have an internal protocol for managing cases of suspected contamination, allowing the worker the social isolation necessary to avoid spreading the virus among employees.

Compliance with the standards and recommendations of public authorities is essential, since, under Brazilian law, the employer is responsible for ensuring a safe and risk-free work environment for all its employees, under penalty of civil and criminal liability for any damages it may cause.

Besides the general precautions, companies must observe that the pregnant women cannot be obliged to return to in-person work, because as provided for in Law No. 14,151/21, the pregnant workers must remain away from in-person work activities, without prejudice to their her remuneration.[2]

With respect to employees who fit into a risk group, it is possible to request a return to work in person, taking the precaution of redoubling care. It is recommended that these employees be kept on a remote working basis.

The restriction measures are expected to be fully relaxed by August 17, 2021, by which time the São Paulo state government aims to have all adults over the age of 18 vaccinated.

Even with the progress of vaccination, it is extremely important that all health measures recommended by the competent authorities continue to be followed and that everyone, employees and employers, take responsibility, taking the precautions necessary for it to be possible to overcome the pandemic and resume the economic strength of the country.

 

[1] Article Article 75-C of the Consolidated Labor Laws.  The provision of services in the form of telework must be expressly stated in the individual employment contract, which will specify the activities that will be performed by the employee.

Paragraph 1. The change between in-person work and teleworking may be made provided that there is mutual agreement between the parties, registered in a contractual amendment.

Paragraph 2. The change from telework to in-person work may be made by determination of the employer, guaranteeing a minimum transition period of fifteen days, with a corresponding record in a contractual amendment.

[2] Article Paragraph 1. During the public health emergency of national importance resulting from the new coronavirus, pregnant employees shall remain away from on-site work activities, without prejudice to their remuneration.

Sole paragraph. The employee who is absent pursuant to the head paragraph of this article will be available to perform activities at home, through telework, remote work, or another form of distance work.