Holidays in São Paulo brought forward: is remote work possible?
Yesterday (03/18/2021) the city of São Paulo announced Decree No. 60,131 (Decree), which brings forward 5 holidays (2 of 2021 and 3 of 2022) for the period of 03/26/2021 and 04/04/2021. The measure results in 10 consecutive days without business days in the city, aiming to mitigate the effects caused by the pandemic of COVID-19, mainly in the health system. The measure does not apply to health, urban security, social assistance and funeral services, in addition to other activities that cannot be discontinued.
However, there may be questions from employers in different sectors, since bringing the holidays forward is primarily aimed at social isolation, when many companies have adopted remote work indefinitely, one year after the state of public emergency in Brazil was decreed.
The Decree’s intention is to avoid the circulation of people, but as there are no reservations, it should be applied to any form of work, including remote. For the sake of greater social isolation and reduction of inspection risks, the recommendation is that, if the following measures are observed by companies, they be carried out within the scope of home office or telework.
Understand the details.
What does the general rule say about working on holidays? Which sectors are authorized to operate?
Law No. 605/49, which concerns paid weekly rest and payment of wages on civil and religious holidays, expressly provides in articles 8 and 9 that work on holidays is prohibited. Double remuneration in cases where the performance of services is imposed by technical requirements of the companies is guaranteed.
Thus, as a rule, work on holidays is prohibited, except for some services depending on the business sector, especially those considered essential. The following services have permanent authorization to work on holidays, among others: hospitals, clinics, health centers and outpatient clinics, in addition to trades that involve food industry, such as fish, meat, fruit and vegetable retailers.
Can companies without permanent authorization impose work on holidays due to remote work? Is collective bargaining possible?
There is no special rule on the subject, even because it is a recent discussion, which came about because of the pandemic.
Collective bargaining on switching holiday days is possible (Article 611-A, item XI, of the CLT), but if there is no collective agreement or convention on the subject, the possibility of the matter being negotiated with the union by 03/26/2021 is remote.
Can the hour bank be used?
Employers who intend to maintain activities between 03/26/2021 and 04/04/2021 can use the hour bank, upon execution of individual written agreement and provided that the compensation occurs within 6 months at the most (Article 59, § 5, of the CLT).
Individual or collective hour bank agreements must observe the deadlines established by CLT for compensation to take place in 6 months or 1 year, respectively, respecting the maximum increase of 2 hours per day.
If it chooses to use the hour bank, the company must revisit its hour bank and, if necessary, recalculate the terms and periods of hour compensation, as well as prepare an amendment, providing such changes.
Is there a more conservative stance to avoid questions in the Labor Court?
Yes, to avoid possible claims in the Labor Court about the validity of the hour bank and the payment of overtime, if the company cannot authorize work on early holidays, it can prepare a shift schedule, allowing the granting paid day off in the same week or pay double for work during the holiday (or higher percentage provided for in the applicable collective rule).
Regulation No. 19.809 / 2020, which provides for business sectors and areas with permanent authorization for work on holidays.