The Brazilian labour code, the so-called CLT, defines “telework” as the provision of services preponderantly outside the employer’s premises, with the use of information and communication technology that, by its nature, does not constitute external work.
Article 75 of the CLT says: “…the attendance at the premises of the employer to carry out specific activities that require the presence of the employee at the establishment does not affect the existence of the telework regime.”
This means that even in situations where the employee needs to carry out some duties at the employer’s premises it will not invalidate the nature of teleworking as a whole.
A federal law, the CLT also sets out that the terms and conditions of teleworking must be formalised in writing and it must specify the activities that shall be performed by the employee during the remote work.
In the same way, in a situation where the parties want to change the regimes to require personal attendance rather than teleworking, it must be made through a written mutual agreement 15 days before the change is implemented.
Additionally, the CLT sets forth that the employee and employer must agree as to the acquisition, maintenance, or supply of technological equipment and infrastructure to enable teleworking in the written agreement.
Finally, but by no means less important, the employer is required to instruct expressly and ostensibly the employees about the precautions they should take to avoid work-related diseases and accidents. The employee is required to sign an undertaking to effect that he will comply with the instructions.
Telework versus home office
It is essential to note that there is a difference between “telework” and “home office”. Telework is the work performed predominantly away from the organisation’s premises using telecom resources while home office is a situation where the employee works from home on an occasional basis without changing the employee’s primary work onsite regime.
This means that even though they might look like identical creatures, telework and home office are subject to different legal treatment. Currently, there is no official regulation governing home office.
Part of the doctrine defends that most of the teleworking provisions might be applicable to regulate the home office, such as the ones mentioned above, including the one that provides that teleworking employees are not subjected to the working hours’ control and, therefore, they are not entitled to overtime pay.
Even though the home office is not a recent concept it is undeniable that this concept became more evident after the covid-19. Therefore, the labour courts have not yet issued relevant decisions about this divergence.
Practical and legal challenges
The biggest challenges the employers are facing during the home office/teleworking are related to the monitoring of working hours in the situations where the parties have agreed to that. It is also difficult to provide for specific work-safety training and to be sure that all employees are complying with the safety policies.
The pandemic is not yet under control in Brazil. At the time of writing, the number of lives lost to the covid-19 has surpassed 300,000 in the country.
Several states across Brazil have started reintroducing restrictions to curb the spread of the virus, as the number of deaths increase, and vaccinations continue at a slower-than-expected pace. Based on this, it is likely that the remote work will continue for at least several months in the country.
Best practice advice
It is extremely important to have a well-written agreement and documents reflecting the relevant information regarding the telework regime, such as the option of monitoring or not the working hours, the discretionary capacity to require the employee to revert to onsite work, the information on who will bear the home office costs (if any), among others.
Finally, it is also relevant to have a specific work-safety policy, provide for the corresponding training and obtain the employee’s undertaking that he will comply will the company’s safety policies.