Brazil: Provisional Measure No. 1,108 Which Changes Remote Work And Meal Allowance Regulations Is Approved By The Federal Senate And Is Pending Presidential Sanction For Conversion In Law

On August 3rd, 2022, the Federal Senate approved the conversion of the Provisional Measure no. 1.018 into law. The measure was published on March 28, 2022, modifying remote work and meal allowance.

With the approval of the main text of the Provisional Measure, it will be up to the president, Jair Bolsonaro, to sanction it as law or veto it. In the event of a veto, the National Congress will deliberate on the issue and conclude the proceeding of the measure.

a) Remote work

The Provisional Measure no. 1.018 amended articles 62, 75-B, 75-C and 75-F, of the Brazilian Labor Code ("CLT" in Portuguese) . Based on these changes, the adoption of a hybrid regime was regulated in the context of remote working, in which there are activities carried out by the employee in-office and remotely.

The fact took place due to the change in the text of the CLT, in which remote work was considered the provision of services predominantly outside of an employer's premises. With the changes brought by the provisional measure, remote work may, or may not, result from the provision of services outside the employer's premises in a preponderant way.

Thus, in-office attendance, even if regular at an employer's locations, does not mischaracterize remote work.

Another innovation is that the rules provided for in the CLT, regarding working hours and the monitoring of shifts, are not applied to remote work only in the case of employees who provide service by production or task. Before the change, remote work on its own, was not covered by the rules of working hours and the monitoring of working hours, except in the case of feasibility control by telematics resources.

In case of remote work being carried out by working hours, the employer must monitor the time spent working, enabling the payment of overtime to the employee.

The provisional measure also provided that the use of technological and digital equipment, infrastructure and tools, used for remote working outside the normal working day, does not constitute time at disposal for the employer, readiness or on-call regime, unless there is a provision to that in an individual or collective bargaining agreement.

Furthermore, the aforementioned provisional measure provided that the employee in a remote working regime, that carry out their activities in a location other than the agreed one, the Brazilian labor legislation continues to be applied, unless if the parties stipulate otherwise.

The adoption of telework or remote work regime for interns and apprentices has become a legally foreseen possibility. Law No. 11,788/08, or the internship law, does not provide for this possibility, and therefore, the topic was subject of discussion. However, since March 2020, this option has become more acceptable, since the Labor Prosecution Office issued a technical note recommending the remote working regime to interns and apprentices, due to the Covid-19 pandemic.

The provisional measure also provided that the employer will not be liable for the expenses of the employee returning to the office, when the employee chooses to carry out remote work outside the location provided for in the contract.

Finally, the Provisional Measure also established a rule that the employer must prioritize the allocation of employees with disabilities and employees with children under judicial custody up to four years old, for services that can be carried out remotely.

b) Meal allowance

The Provisional Measure No. 1,108 also provides for meal allowance. In accordance with the measure, the amounts paid by the employer as meal allowance shall be used exclusively for the payment of meals in restaurants and similar establishments or for the purchase of foodstuffs in commercial establishments.

Prohibitions were established for the employer who hires Company to provide meal allowance in order to demand or receive discounts on the contracted amount, beside deadlines for transfer or payments that mischaracterize the prepaid nature of the amounts or other benefits not linked to the promotion of employee health and safety.

The inadequate execution, deviation or distortion of the purposes of the meal allowance by employers or companies that provide food allowance payment instruments, may result in the imposition of a fine from BRL 5,000.00 to BRL 50,000.00, among other penalties provided for capable institution.

c) Union dues

Finally, Provisional Measure no. 1.108 established that the residual balance of the collections of union dues, which are not transferred to the central unions, due to the lack of regulation, may be refunded in proportion to representativeness requirements.