New Ways of Working

Explore and keep track of key legal and compliance considerations for multinational employers as new ways of working become increasingly embedded as the pandemic begins to recede. Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

01. Has the government introduced any laws and/or issued guidelines around remote-working arrangements? If so, what categories of worker do the laws and/or guidelines apply to – do they extend to “gig” workers and other independent contractors?

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Brazil

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Remote-working has been formally incorporated into the Brazilian Consolidated Labour Statutes (CLT) after the enactment of the Labour Overhaul (in November 2017) – until then, the law was silent on the rules on and impacts of such an arrangement, and it was up to employers to set their own policies. In a nutshell, the law sets forth that (i) the employment contract (or amendment thereof) should govern the acquisition, provision and maintenance of technological equipment and infrastructure, and payment of any allowance or reimbursement of expenses; and (ii) employers must give express guidelines on ergonomics for employees to observe at home – and employees must sign a term acknowledging that they are aware of such guidelines. Because Brazilian labour legislation is silent on so many points regarding remote working, the Labour Public Prosecutor has set certain additional guidelines to help companies during the pandemic, as many of them have shifted to a remote model (eg, reinforcing digital ethics and highlighting that employees should receive proper technical support). All such laws and guidelines apply to employees only, meaning that independent contractors or other non-employment models are excluded.

Last updated on 21/09/2021

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France

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The first French law on teleworking was adopted on 22 March 2012. It was subsequently modified by an ordinance dated 22 September 2017. Today, three articles of the labour code cover the implementation and the functioning of teleworking (articles L. 1222-9 to L. 1222-11). In addition, two national collective agreements were concluded between employers' representatives and trade unions in 2005[1] and 2020.[2]

The definitions of teleworking given by article L. 1222-9 and by the agreement of 19 July 2005 provide that the rules on teleworking only apply to employees with an employment contract. These rules do not apply to self-employed workers.


[1] National collective agreement on Teleworking – July 19, 2005

[2] National collective agreement for a successful implementation of teleworking – November 26, 2020

Last updated on 21/09/2021

02. Outline the key data protection risks associated with remote working in your jurisdiction.

02. Outline the key data protection risks associated with remote working in your jurisdiction.

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Brazil

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In a remote-working environment, employees are more likely to use their personal devices and Wi-Fi and might share their workspace with family members or roommates. In addition, employees are more prone to mix personal and work-related data. These may lead not only to potential issues involving one’s privacy but also cyber threats and data leakage. Therefore, employers are strongly advised to implement strict policies on remote working, use of personal devices and data storage, as well as to provide the appropriate training.  

Last updated on 21/09/2021

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France

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Employers must ensure the protection of their company’s data but also of employees’ data.

According to article L. 1222-10 of the French labour code, the employer must inform the teleworking employee of the company's rules regarding data protection and any restrictions on the use of computer equipment or tools. Once informed, the employee must respect these rules.

The collective national agreement of 26 November 2020, provides more details in article 3.1.4. It is the employer's responsibility to take necessary measures to protect the personal data of a teleworking employee and the data of anyone else the employee processes during their activity, in compliance with the GDPR of 27 April 2016 and the rulings of the National Commission for Technology and Civil Liberties (the CNIL).

The CNIL said in its 12 November 2020 Q&A on teleworking that employers are responsible for the security of their company's personal data, including when they are stored on terminals over which they do not have physical or legal control (eg, employee's personal computer) but whose use they have authorised to access the company's IT resources.

The National Agreement of 26 November 2020 recommends three practices:

  • the establishment of minimum instructions to be respected in teleworking, and the communication of this document to all employees;
  • providing employees with a list of communication and collaborative work tools appropriate for teleworking, which guarantee the confidentiality of discussions and shared data; and
  • the possibility of setting up protocols that guarantee confidentiality and authentication of the recipient server for all communications.
Last updated on 21/09/2021

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

03. What are the limits on employer monitoring of worker activity in the context of a remote-working arrangement and what other factors should employers bear in mind when monitoring worker activity remotely?

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Brazil

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Rules on employers’ ability to monitor employees’ activity tend not to vary from a regular to a remote-working arrangement – but rather depend on “who owns the device”. As a general rule, whenever companies grant electronic devices to employees for work purposes, the content and all data stored in such equipment belong to the company, as they are considered “work tools”. This means that there is no expectation of privacy – provided that employees are informed on such monitoring in advance. In the case of personal devices, it may ultimately lead to certain ambiguity as to employers’ right to have access or monitor activity because of the existence of both professional and personal information. If that is the case, monitoring should be limited to work-related information, apps and files, ensuring, as much as possible, that personal data is preserved and there is no violation of privacy.

Last updated on 21/09/2021

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France

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The rules for monitoring employees do not differ between teleworkers and office workers. Thus, like any employee, teleworkers must be informed in advance of the methods and techniques used to monitor his or her activity (article L. 1222-3 of the labour code).

The implementation of a device allowing the control of the employee's working time must be justified by the nature of the task to be performed and proportionate to the purpose (National Agreement of 26 November 2020).

The CNIL said in a Q/A on 12 November 2020 that the devices used to monitor employees’ activity must not be aimed at trapping employees and cannot lead to permanent surveillance of employees. Thus, audio or video devices, permanent screen-sharing or keyloggers must not be implemented.

If the employer exercises excessive surveillance on his employee, it may receive a financial penalty.

Finally, the CNIL advises employers to prioritise monitoring the completion of missions by setting objectives rather than monitoring the working time or the daily activity of employees.

Last updated on 21/09/2021

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

04. Are employers required to provide work equipment (for example, computers and other digital devices) or to pay for or reimburse employees for costs associated with remote working (for example, internet and electricity costs)?

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Brazil

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Employers are not required to provide work equipment in a remote-working arrangement. The CLT simply establishes that the contract governing that arrangement should be specific as to the provision of any equipment or reimbursement of expenses – if any. Notwithstanding the scant case law addressing this, precedents are inclined to understanding that companies should provide the minimum work tools needed for the rendering of services, eg, a computer and reimburse costs for the internet and power. If the company demands excessive accommodations or adaptations at employees’ homes, notably when those imply costs, employees may challenge the company’s policies and demand reimbursement – and labour courts would likely hold the employer liable for supporting the costs with excessive requests.

Last updated on 21/09/2021

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France

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French law has no provision for this.

It is, therefore, necessary to refer to the two national agreements of 2005 and 2020. These agreements stipulate that the costs incurred by the employee in the performance of his or her employment contract are borne by the employer. This obligation also applies to teleworkers. However, the national agreement of 2020 sets a few conditions for this coverage: the prior validation of the employer, the expense must be incurred for the needs of the professional activity of the employee and in the interests of the company.

The organisation responsible for collecting social security contributions (URSSAF) has issued a list of expenses that must be covered by the employer. These costs include ink cartridges, paper, telephone and internet subscriptions, electricity, heating, a proportion of rent in certain cases (see below) and home insurance.

The terms and conditions for covering business expenses (maximum amount, the procedure to follow, etc.) may be defined unilaterally by the employer, by mutual agreement between the employee and the employer, or by a collective agreement between the employer and the company's unions. Article 3.1.5 of the national agreement of 2020 and the Ministry of Labour recommend doing everything possible to reach an agreement between the employer and the unions.

If teleworking becomes permanent and the employee no longer has an office on the company's premises, the employer must pay a home occupation allowance.[3]

As for the use of the employee's personal equipment, the principle is that the employer must provide the employee with a computer for teleworking. However, if the employee agrees, they can use their personal equipment (article 7 of the national agreement of 19 July 2005).


[3] Cass. Soc, 14 septembre 2016, n°14-21.893

Last updated on 21/09/2021

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

05. What potential issues and risks arise for employers in the context of cross-border remote-working arrangements?

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Brazil

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Although cross-border remote-working arrangements have become increasingly popular – especially during the pandemic –, up to now there is no specific rule in the Brazilian migratory or labour legislation governing that scenario. From a labour perspective, there is no clarity as to whether employees transferred to work abroad on a remote-working model would still be covered by Brazilian legislation and thus entitled to Brazilian rights and benefits, or by that of the country where they have been transferred to. From a tax and social security perspectives, it is necessary to identify if the workers are deemed as tax residents in Brazil in order to determine the correct taxation on compensation amounts paid in Brazil / by a Brazilian source or paid abroad. There are also potential mechanisms to avoid double taxation on income in International Treaties. Furthermore, there are international agreements specifically for social security purposes, which, under certain situations, prevent Brazilian companies from having to collect social security charges.

Last updated on 21/09/2021

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France

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Cross-border remote working can accentuate some of the problems caused by teleworking or create new ones.

Among the existing problems, the loss of social ties is accentuated if the teleworker decides to work from another country. Indeed, the employee abroad will never physically see his colleagues, which will create a distance between the employee working from abroad and other employees.

Similarly, employers must ensure the protection of the health and safety of workers (article L. 4121-1 labour code). This is a difficult obligation to meet in teleworking, especially because employers do not have access to remote employees’ workplaces. It is even more difficult if the employee works from another country because the sanitary, electrical and other standards are different and potentially less protective than French rules.

As for social security law, in principle, the employee depends on the social security system of the country where they work. The employee can only continue to benefit from the French social security system if they are in a secondment situation. Moreover, this is only a temporary solution because the secondment implies a temporary mission. The employer will therefore have to register the employee with the social security system of the country where they are working, which will cause problems in terms of social contributions.

Another question that may arise is whether an employer should accept a work stoppage prescribed by a foreign doctor.

Finally, another problem that may arise is the employee's right to disconnect. Indeed, the employer and the employee must agree on a time slot during which the employee can not be contacted to respect his private life as much as possible.[4] It can be difficult to establish a time slot that suits both the employee and the employer in case of major time zone discrepancies.


[4] National agreement of November 26, 2020

Last updated on 21/09/2021

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

06. Do employers have any scope to reduce the salaries and/or benefits of employees who work remotely?

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Brazil

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Employers cannot reduce the salaries or benefits of employees solely because they work remotely. Note that the federal government has introduced certain measures to help companies survive through the pandemic and avoid layoffs (eg, reducing employees’ working hours and salaries, suspending employment contracts temporarily, remote working (with fewer requirements than those set forth by the CLT), and delaying the collection of certain labour charges). These alternatives apply to all employees regardless of their work arrangement (ie, remote workers or not). Therefore, it may be the case that employees were shifted to a remote model and have had their working hours and salaries reduced. Other than that, salary reductions would depend on prior negotiation with the applicable union.

Last updated on 21/09/2021

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France

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Teleworkers have the same rights as employees who work from a company's premises (article L. 1222-9 III of the Labor Code).

Employers cannot modify employees’ remuneration without obtaining agreement.[5] This rule also applies to teleworkers.

In some countries such as the United States, employers can adjust the remuneration of teleworking employees to the cost of living in the employee's place of residence. This practice is not prohibited in France but the employer must be careful in doing so as it could constitute discrimination based on the place of residence, which is prohibited by the labour code[6]if it is not justified by objective elements. 

However, employers can withdraw a few benefits from teleworking employees. Indeed, even if the Ministry of Labor says in a Q&A that the telecommuting employee must receive lunch vouchers like other employees, some jurisdictions believe that the employer can stop paying these vouchers to teleworkers because they are not in a comparable situation to employees who work from a company's premises.[7]

As for transportation costs, the employer must cover half of the cost of the transportation pass used to travel to the office and to return home from the office (article L. 3261-2 of the labour code). If the employee does not have to travel to work during the month, the employer does not have to pay transportation costs.


[5] Cass. Soc, 18 oct. 2006, n°05-41.644

[6] Article L. 1132-1 Labour code

[7]TJ Nanterre, 10 mars 2021, n° 20/09616

 

Last updated on 21/09/2021

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

08. Can employers require or mandate that their workers receive a covid-19 vaccination? If so, what options does an employer have in the event an employee refuses to receive a covid-19 vaccination?

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Brazil

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This is still a very controversial matter in Brazil. Recent decisions issued by the Supreme Federal Court have recognised the constitutionality of mandatory vaccination on a federal, state and municipal level in the public system (through the adoption of indirect measures). That being said, it may be possible to apply the same rationale to private work relations. This is mainly because, under Brazilian Law, employers must ensure a safe and healthy work environment that encompasses, for instance, the adoption of preventive measures to tackle covid-19 – including, in a broad interpretation, the vaccine. If on one hand employers must ensure a healthy and safe workplace, then on the other employees must comply with company rules in that regard and cooperate with the company in the implementation of such measures. Thus, considering the Supreme Court’s recent decisions regarding compulsory vaccination and laws on health and safety in the workplace, we understand that there may be some arguments to defend disciplinary measures, even termination of employment with cause, if employees refuse to get vaccinated without a medical justification. This possibility has also been considered enforceable by the Labour Public Prosecutor when publishing certain technical guidelines in January 2021. However, the president of the Superior Labour Court has informally indicated that termination with cause should not be applied in the event of refusal – whereas other justices of the Superior Labour Court have agreed with such a measure. Therefore, there is still no consensus as no decision on this matter has been issued so far by the labour courts. In any case, the following recommendations would apply: the adoption of preventive measures such as educational campaigns about the importance of vaccination and the legal implications of an unjustified refusal; and to evaluate the possibility of terminating an employee with cause on a case-by-case basis. In such an instance, the following will be considered: the reasons for the employee’s refusal; if the employee is under any type of job protection; if the applicable collective bargaining agreement provides for something specific in that regard; if the employee can be moved to a work-from-home arrangement; and if there is any court decision regarding the matter when such termination is planned to occur.

Last updated on 21/09/2021

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France

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Employers can require that their employees are vaccinated only if the vaccination is made mandatory by the French Public Health Code.

In France, vaccination against covid-19 has not been made mandatory (except for health professionals). Therefore, French employers cannot force their employees to be vaccinated. However, they can recommend it to their employees without forcing them (please note that due to the Law of 5 August 2021, employees are entitled to leave to attend covid-19 vaccination appointments).

Please note that a law was passed by Parliament on 5 August 2021 and states:

  1. To make access to certain places, establishments or events conditional upon the presentation of either a negative PCR test, or proof of vaccination status concerning covid-19, or a certificate of recovery following covid-19 infection.

This would only cover the following activities:

  • recreational activities;
  • bars and restaurants (except company restaurants), including terraces;
  • department stores and shopping centres by decision of the Prefect of the district in the event of risks of contamination under conditions guaranteeing access to essential shops and transport;
  • seminars and trade fairs;
  • public transport (trains, buses, planes) for long journeys; and
  • hospitals, homes for the elderly and retirement homes for companions, visitors and patients receiving care (except in medical emergencies).

In those specific cases, from 30 August 2021, an employer undertaking the above activities may ask their employees to present one of these documents, including proof of vaccination status. If an employee is unable to present such documents and chose, in agreement with their employer, to not use paid holidays, the employer can suspend the employee’s contract, on the same day. This suspension, which can lead to an interruption of salary, ends as soon as the employee produces the required proof.

If the suspension goes beyond three working days, the employer shall invite the employee to a meeting to attempt to rectify the situation, including the possibility of temporarily reassigning the employee to another position within the company not subject to this obligation.

  1. Mandatory vaccination for health professionals, including those working in an occupational health service according to article L.4622-1 of the labour code.

The health professionals listed in article 12 of the law of 5 August 2021 (doctors, nurses, doctors working in occupational health services, osteopaths etc) must be vaccinated as of 9 August 2021, unless there is a medical contraindication or a certificate of recovery can be presented.

Please note that the law provides for a transition period as follows:

  • up to and including 14 September, the staff concerned may present a negative test  that is less than 72 hours old (RT-PCR screening test, antigen test or self-test carried out under the supervision of a health professional) if they are not vaccinated;
  • between 15 September and 15 October inclusive, when an employee has received the first dose of vaccine, he or she may continue to work provided that he or she can present a negative test result; and
  • from 16 October 2021, they must present proof of the complete vaccination schedule.

This obligation does not apply to people who perform occasional tasks. The Ministry of Labour defines “occasional tasks” as a very brief and non-recurring intervention that is not linked to the normal and permanent activity of the company. Workers who carry out these tasks are not integrated into the workgroup and their activity is not public-facing.

This may include, for example, the intervention of a delivery company or an urgent repair.

On the other hand, the following are not occasional tasks: carrying out heavy work in a company (eg, renovation of a building) or cleaning services, because of their recurrent nature.

When carrying out an occasional task, the workers concerned must ensure that they comply with social distancing rules.

Employees who have not presented one of these documents can no longer work. Thus, when an employer finds that an employee can no longer carry out their work, the employee must be informed without delay of the consequences of this prohibition, as well as the means to rectify the situation. A dialogue between the employee and employer to discuss ways of rectifying this situation is encouraged.  An employee who is prohibited from working may, with the employer's agreement, use days of rest or paid leave. Otherwise, their employment contract will be suspended.

The suspension of the contract, which leads to the interruption of salary, ends as soon as the employee fulfils the conditions necessary to continue working.

When the employer or the regional health agency finds that a health professional has not been able to carry out their role for more than 30 days, it informs the national council of the order to which they belong.

Please note that, according to the law of 5 August 2021, the employer must inform the new works council (CSE) of measures taken to implement any obligations to verify the vaccination of health professionals or the health passes of employees who come under the aforementioned sectors.

Last updated on 21/09/2021

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

09. What are the risks to an employer making entry to the workplace conditional on an individual worker having received a covid-19 vaccination?

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Brazil

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Considering by analogy the Supreme Federal Court’s decision on the possibility of federal, state and municipal authorities imposing restrictive measures for citizens who refuse vaccination and health and safety rules in the workplace, we understand that there may be grounds to defend a policy allowing only employees who have been vaccinated to access the office, as long as those who are not vaccinated can still work from home without major consequences (such as termination). That being said, the main risk would be having those employees who have not received a covid-19 vaccination argue that they have been discriminated against and claim for an award of damages for pain and suffering – especially if they are subject to discipline (including termination).

Last updated on 21/09/2021

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France

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For employees for whom vaccination is not mandatory, employers cannot make entry to the workplace conditional on vaccination, nor can they threaten to dismiss the employee if they have not had the vaccine.

If an employer makes the return to the company premises conditional on vaccination, they are violating the employees’ privacy and medical confidentiality, and employees may freely refuse it. In case of dismissal, it could be judged null and void since it may violate the employee's privacy and medical secrecy.

On the other hand, for employees working in the above-mentioned establishments (bars, restaurants, department stores, shopping centres etc.), the employer may make the return of the employee to work conditional on the presentation of a health pass (either a negative PCR test, or proof of vaccination status concerning covid-19, or a certificate of recovery following a covid-19 contamination).

Finally, for health professionals, there will be no risk for the employer. The employer will be able to condition the return to the premises on proof of vaccination status.

Last updated on 21/09/2021

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

10. Are there some workplaces or specific industries or sectors in which the government has required that employers make access to the workplace conditional on individuals having received a Covid-19 vaccination?

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Brazil

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On a state level, some specific sectors considered “essential” (meaning that they continued to operate normally – or were hardly affected – especially at the beginning of the pandemic) had their vaccination schedules prioritised, by the state government, over the rest of the population (eg, health professionals, public transportation drivers and teachers). In spite of that, proof of actual vaccination was not a requirement for individuals in these sectors to keep working during the pandemic.

Last updated on 21/09/2021

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France

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Please see above (questions 8 and 9) regarding the workplaces and specific industries concerned by making the access to the workplace conditional on individuals having received a Covid-19 vaccination.

Last updated on 21/09/2021

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

11. What are the key privacy considerations employers face in relation to ascertaining and processing employee medical and vaccination information?

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Brazil

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There are two main concerns when dealing with the processing of employees’ medical and vaccination information. The first one relates to the processing itself: under the Brazilian General Data Protection Law, the legal basis for processing that information would be either “protection of life” (eg, a safe and healthy workplace) or “compliance with the law or regulatory rules” to the extent that employers have the legal duty to promote a safe and healthy workplace. Moreover, companies are advised to keep access to information concerning one’s health as limited as possible and for as long as that information is useful (ie, for a determined period). Companies should also collect that sort of information in an anonymous form to mitigate risks in connection with violation of privacy (eg, an unauthorised person who has access to that information). The second one concerns employers’ ability to enquire on an employee’s vaccination status: there is still no consensus as to the legality of such a practice; however, taking into account employers’ general obligation to ensure a safe and healthy workplace and that labour courts and the Labour Public Prosecutor have considered termination of employees who refused to get vaccinated valid, we understand that there would be grounds to support the legality of ascertaining employees’ medical and vaccination information.

Last updated on 21/09/2021

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France

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Moreover, regarding the processing of data relating to an employee’s vaccination, the CNIL has not yet issued a directive on the specific subject of the processing of employee vaccination data by employers. Because of their sensitive nature, data relating to employee health are subject to special legal protection: they are in principle prohibited from being processed. Employers, therefore, may not keep a list of vaccinated employees, or disclose the names of those who do not wish to be vaccinated.

In fact, according to the CNIL, "because of their sensitive nature, data relating to a person's health are subject to special legal protection: they are in principle prohibited from being processed. In order to be processed, its use must necessarily fall within one of the exceptions provided for by the GDPR, thus guaranteeing a balance between the desire to ensure the security of individuals and respect for their rights and fundamental freedoms. Moreover, their sensitivity justifies that they be processed under very strong conditions of security and confidentiality and only by those who are authorized to do so.

The exceptions that can be used in the context of work are limited and can generally be based on either :

  • the need for the employer to process this data to meet its obligations in terms of labour law, social security and social protection: this is the case for the processing of reports by employees,
  • the need for a health professional to process such data for the purposes of preventive or occupational medicine, (health) assessment of the worker's capacity to work, medical diagnoses etc.

For these reasons, employers who would like to initiate any steps aimed at ascertaining the state of health of their employees must rely on the occupational health services.

The CNIL points out that only competent health personnel (in particular occupational medicine) may collect, implement and access any medical forms or questionnaires from employees/agents containing data relating to their health or information relating in particular to their family situation, their living conditions or their possible movements"

However, we find these exceptions difficult to apply in the context of covid-19.

For employees subject to mandatory vaccination, the law allows the employer, or regional health agency if applicable, to store the result of the check on the proof of vaccination status.

Please note that the employer may not keep the proof of vaccination. In other words, the employer may not keep the QR code, only the “Yes/No” result of the test. Keeping the result is limited in time (currently until 15 November 2021).

The information thus collected is personal data subject to the General Data Protection Regulation (GDPR).

Last updated on 21/09/2021

12. What are the key health and safety considerations for employers in respect of remote workers?

12. What are the key health and safety considerations for employers in respect of remote workers?

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Brazil

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Employers are still responsible, to a certain extent, for ensuring a healthy and safe workplace even in a remote setting. The CLT establishes that employers must give express guidelines on ergonomics for employees to observe at home, which employees must acknowledge. Furthermore, the Labour Public Prosecutor issued Technical Note No. 17/2020 to guide companies through the pandemic, when many companies have shifted to a remote model. Among such guidelines, employers have been advised to provide training on health and safety.

Last updated on 21/09/2021

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France

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The health and safety considerations for employers in respect of remote workers are the following:

  • Modes of work time control or workload regulation;
  • Determination of the time slots during which the employer can usually contact the remote worker to respect the right to disconnect and the right to privacy;
  • Organise an annual meeting to discuss working conditions and workload; and
  • Evaluate professional risks, in particular those linked to the employee's distance from the colleagues and regulating the use of digital tools.
Last updated on 21/09/2021

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

13. How has the pandemic impacted employers’ obligations vis-à-vis worker health and safety beyond the physical workplace?

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Brazil

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The pandemic ignited a discussion as to the classification of covid-19 as an occupational or general disease. That classification influences the type of social security pension employees are entitled to and most importantly if employees will have job protection after their medical release – as this is limited to occupational diseases or accidents only. Although the law is not clear on such classification – as the understanding has changed throughout the pandemic by the issuance and cancellation of certain regulations – the current stand is that it will depend on proof of the existence of a causal link between work and covid-19 and employers’ actions towards preventing covid-19 from spreading in the workplace.

Last updated on 21/09/2021

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France

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The pandemic does not strictly speaking have an impact on employers' obligations towards workers' health and safety beyond the physical workplace. But the National Interprofessional Agreement on remote status was renegotiated on 26 November 2020 and strongly raised awareness among employers on those issues to:

  • Communicate within the work community;
  • Adapt the managerial practices: trust and definition of clear objectives;
  • Train managers and employees;
  • Maintain social ties and prevent employees from isolation: it is useful to plan group time, to set up remote communication means to facilitate exchanges, to assist in case of difficulties with computer tools, etc; and
  • Make available to all employees, including those working from home, relevant contacts so that employees in vulnerable situations can use them.
Last updated on 21/09/2021

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

14. Do employer health and safety obligations differ between mobile workers and workers based primarily at home?

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Brazil

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Employers’ obligations regarding health and safety are generally the same either in a proximate or remote-working environment. The main change is employers’ control of and management over employees’ remote-working setting and their actual ability to prevent work-related diseases and accidents from happening. As opposed to a physical workplace, where employers are directly liable for ensuring a safe environment, in a remote-working arrangement employers are limited to providing general guidelines and training on health and safety and implementing policies and procedures to avoid occupational diseases and accidents. Normally, employers would require employees’ confirmation that their workspace complies with all statutory requirements – photos and videos of their workspace may be required.

Last updated on 21/09/2021

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France

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No, the legal and conventional provisions on health and safety at work apply to both mobile workers and workers based primarily at home. It must be taken into account that the employer cannot have complete control over the place where teleworking is carried out and the environment, which is part of the private sphere. This implies an occupational risk assessment adapted to the case of mobile workers and the case of workers based primarily at home.

Last updated on 21/09/2021

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

15. To what extent are employers responsible for the mental health and wellbeing of workers who are working remotely?

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

Irrespective of the workplace arrangement, employers are legally responsible for promoting a safe and healthy working environment, not only to avoid occupational diseases or accidents, but also to enable employees to work to the best of their abilities and thrive in their careers. In a broader interpretation, that would include caring for employees’ mental health and wellbeing, as this can be negatively affected by a harmful working environment – to the point of triggering work-related mental disorders such as depression and anxiety, which leads to high absenteeism rates. For those working remotely, companies must promote certain integration actions, such as periodic meetings and constant feedback, as these are likely to go unnoticed when employees are not working at the company’s premises.

Last updated on 21/09/2021

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France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

Employers are liable within the limits of their obligations (see question 12). As long as employers respect these obligations, in case of litigation, it will be up to the employee to demonstrate that the deterioration of their health is related to the employer's failure to respect its obligations.

Last updated on 21/09/2021

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

17. To what extent have employers been able to make changes to their organisations during the pandemic, including by making redundancies and/or reducing wages and employee benefits?

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

Employers have adopted different approaches to tackle Covid-19, including by terminating employees, shifting to a remote-working model or adopting one (or more) of the measures implemented by the Federal Government to help companies survive through the pandemic and avoid, to the most extent possible, layoffs. Examples of such measures would include: reducing employees’ working hours and salaries, suspending employment contracts temporarily, shifting to a remote model (with less requirements than those outlined in the CLT) and delaying the collection of certain labour charges. The union’s involvement in the implementation of these measures would depend on the measure itself (as some of them would not require the union’s ratification or participation). 

Last updated on 21/09/2021

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France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

During the pandemic, employers were able to carry out reorganisations involving collective redundancies for economic reasons (subject to justifying a real and serious economic reason as defined by article L.1233-3 of the labour code).

They were also able to negotiate collective performance agreements to meet the needs linked to the operation of the company or to preserve or develop employment by adjusting the working hours of employees, remuneration, and determining the conditions of professional or geographical mobility within the company.

Employers may also have to negotiate or renegotiate agreements or charters on remote status or review their organisation by developing a co-working space, different from the company’s premises, on a regular or occasional basis or in case of exceptional circumstances or force majeure.

Last updated on 21/09/2021

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

18. What actions, if any, have unions or other worker associations taken to protect the entitlements and rights of remote workers?

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

There have been no major or reported involvements of unions in challenging the remote-working models adopted by companies. As a general rule, unions in Brazil tend to get involved whenever companies change (or implement) conditions that affect employees’ compensation (eg, removal of healthcare benefits or salary reduction), schedules (eg, longer shifts or working weekends), non-compliance with collective bargaining agreements or any other aspect that could ultimately negatively affect employees. The remote-working model was incorporated into the CLT as a form to adjust the law to current needs and the market, ensuring that those working remotely were given the same working conditions, with a few exceptions (eg, time-tracking exemption), as those working at the company’s premises.

Last updated on 21/09/2021

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France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

In general, employees and new works council members have a right to alert and withdraw from any situation which they have reasonable grounds to believe presents a serious and imminent danger to their life or health (article L.4131-1 and L.4121-2 of the labour code).

Apart from these actions, the new works council or the unions will always have the ability to report to the employer any malfunction affecting the entitlements and rights of remote workers.

In any case, please note that employees who wish to terminate their status as a remote worker will have priority to assume resume a non-teleworking position that corresponds to their professional qualifications and skills and to inform the employer of the availability of any such position (article L.1222-10 of the labour code).

Last updated on 21/09/2021

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

19. Are employers required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement? If so, how much influence does the union and/or works council have to alter the working arrangement (for example, to ensure workers’ health and safety is protected during any period of remote work)?

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Brazil

  • at Pinheiro Neto
  • at Pinheiro Neto Advogados

Employers are not required to consult with, or otherwise involve, the relevant union when introducing a remote-working arrangement. The CLT establishes, in brief, that: the remote-working arrangement must be part of an employment contract or amendment thereof; the change to a remote model must be made by mutual agreement between the parties; and employers can shift back to the regular model by informing employees with at least 15 days’ notice. Considering that the remote model is quite recent in Brazil (as an actual model provided under the law) and that the overall employment rules apply to remote workers regardless, with a few exceptions (eg, exemption for time tracking), unions have neither had any influence nor been active in challenging changes in working arrangements. During the pandemic, some unions have been more focused on ensuring that companies were observing the health and safety measures recommended by the Ministry of Health and the WHO, rather than on the working arrangement itself.

Last updated on 21/09/2021

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France

  • at Proskauer Rose
  • at Proskauer Rose
  • at Proskauer Rose

Remote-working is implemented within a collective agreement negotiated with the unions or, failing that, within a charter drawn up by the employer after the opinion of the new works council if it exists (article L.1222-9 of the labour code).

The collective agreement or, failing that, the charter drawn up by the employer specifies:

  • The conditions for switching to remote status, in particular in case of a pollution episode, and the conditions for returning to performance of the employment contract without remote working;
  • The terms of acceptance by the employee of the conditions of implementation of remote status;
  • The modes of control of the working time or regulation of the workload;
  • The determination of the time slots during which the employer can usually contact the remote worker; and
  • The modes of access to a telework organisation for disabled workers.

The way of negotiation seems to be prioritised by the legislature. Apart from those mandatory clauses, the social partners have every interest in being a force of proposals, which will be accepted or refused by the employer. If the unions refuse to sign the agreement, the employer may provide for these measures in the framework of a charter, which it may implement after the opinion of the new works council (non-binding opinion).

Finally, in the absence of a collective agreement or charter, when the employee and the employer agree to telework, they may formalise their agreement by any means.

Last updated on 21/09/2021