Provisional Measure No. 1,108/2022 was published, providing for rules regarding meal allowance and the telework regime

Provisional Measure No. 1,108 of March 25, 2022 was published in the Brazilian Official Gazette on March 28, 2022, which granted act of law on some provisions brought by Decree No. 10,854/2021 and important changes in relation to the regime of telework provided for in articles 75-A et. seq. of the Brazilian Labor Code (“CLT”).

Regarding teleworking, the Provisional Measure introduced some important changes, although part of the provisions only makes express some conditions that were already a natural result of the interpretation of CLT general rules:

  • Change in the concept of telework: The “preponderance” of the remote system is no longer an essential element to constitute telework. Thus, “hybrid” or “flexible” regimes are also covered by the provisions of articles 75-A et. seq. of the CLT.
  • Work by production or task: Express authorization that employees in the telework regime can be hired by production or task.
  • Exemption from working hours control only for employees on a telework basis hired by production or task: Art. 62, III of the CLT was amended so that only employees hired by production or task are excluded from the working hours control system when on telework.
  • Not considered telemarketing/teleservice: express provision that telework is not considered telemarketing or teleservice.
  • Use of telematic resources: Time spent using technological equipment and the necessary infrastructure, software, digital tools, or internet applications used for the work, beyond the employee’s normal working hours, does not constitute service time, readiness regime, or on-call regime, unless provided otherwise in an individual agreement or in a collective bargaining convention or agreement.
  • Telework for interns and apprenticeship programs: Express authorization to adopt the telework regime for interns and apprentices.
  • Union classification by the place where establishment is located: The provisions set out in local legislation and in collective bargaining agreements relating to the territorial base of the employee’s establishment apply to employees on a telework basis.
  • Telework abroad: The Brazilian legislation applies to the employment agreement of the employee admitted in Brazil who chooses to carry out telework outside the national territory, except for the provisions contained in Law No. 7.064/82, unless otherwise agreed between the parties.
  • Schedules and means of communication: An individual agreement may provide for the schedules and means of communication between employee and employer, provided that legal rest periods are ensured.
  • Expenses for returning to face-to-face work: The employer will not be responsible for expenses resulting from the return to on-site work, in the event that the employee chooses to carry out telework or remote work outside the location provided for in the agreement, unless otherwise stipulated between the parties.
  • Priority for employees with disabilities and parents/ legal guardian of children up to four years old: Employers must give priority to employees with disabilities and employees with children up to four years old when allocating vacancies for activities that can be carried out through telework regime.

 

Although the Provisional Measure clarifies some issues that raised doubts and concerns for companies and workers, such Measure should be questioned from the point of view of legality and feasibility as regards compliance. In addition, when dealing with telework abroad, the Provisional Measure does not – and cannot – resolve issues arising from the application of immigration, labor and tax legislation in the country where the services will be provided.

As for the meal allowance, the Provisional Measure did not bring significant changes, but it did grant legal coverage to some provisions introduced in Decree No. 10,854/2021,  which were being questioned on their legality. In addition, the Provisional Measure extended some of these provisions beyond the Worker’s Food Program (“PAT”), in particular:

  • The meal allowance provided for in art. 457, §2 of the CLT must be used exclusively for the payment of meals in restaurants and similar establishments or for the purchase of foodstuffs in commercial establishments;
  • Provision of an administrative fine between BRL 5,000.00 (five thousand reais) and BRL 50,000.00 (fifty thousand reais), applied in double in case of recidivism or obstruction to oversight, in the case of violation of the rules regarding the meal allowance;
  • Prohibition from including in the services agreement, regarding the provision of meal allowance as provided for in art. 457, §2 of the CLT, any clause providing for: (i) discount on the contracted amount; (ii) transfer or payment terms that mischaracterize the prepaid nature of the amounts to be granted; and (iii) other direct or indirect payments or benefits of any nature not directly connected to the promotion of the employees’ health and food safety. Such prohibition does not apply to contracts for the supply of meal allowance currently in force, whether until their termination or until a period of fourteen months has elapsed, counting from the date of publication of this Provisional Measure, whichever occurs first. Extension of contracts not in compliance with such rules is forbidden;
  • The same rules above were also established in Law No. 6,321/76, regarding PAT, which also had its article 1 amended to expressly delegate to the regulatory Decree the limits of tax deduction arising from the PAT.

 

It is important to highlight that the Provisional Measure will still be analyzed by the Brazilian Congress and may undergo significant changes when it is converted into law, or even the possibility of not being converted into law at all.

Demarest’s Labor and Employment team remains available to provide any further clarifications or assist with carrying out necessary measures.