Interim Measure #1.108 to Amend Remote Work and Meal Allowance Rules Approved by Federal Senate and Pending Presidential Approval for Conversion into Act – Employee Benefits and Compensation

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

With the main text of the interim measure approved, it is up to President Jair Bolsonaro to sanction it as law or veto it. In the event of a veto, the National Congress will consider it and finalize the procedure of the measure.

a) remote work

Interim Measure No. 1.018 amended Articles 62, 75-B, 75-C and 75-F of the Brazilian Labor Code (“CLT” in Portuguese). On the basis of these changes, the introduction of a hybrid regime within the framework of remote work was regulated, in which activities are carried out by the employee in the office and remotely.

The act came as a result of the amendment to the CLT text, which saw remote work as the provision of services predominantly away from an employer’s premises. With the changes brought about by the interim measure, telework may or may not result predominantly from the provision of services away from the employer’s premises.

Therefore, in-office attendance, even if it occurs regularly at an employer’s locations, is not incorrectly labeled as remote work.

Another innovation is that the regulations on working time and shift monitoring provided for in the CLT will not be applied to remote work only for workers providing production or job-related services. Before the changeover, telework alone was not covered by the working time regulation and the monitoring of working time, except for the feasibility check by telematic means.

In the case of after-hours remote work, the employer must monitor the hours worked to allow the employee to be paid for overtime.

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

In addition, the aforementioned interim measure provides that, unless the parties agree otherwise, Brazilian labor law will continue to apply to workers in a telework system who carry out their activities at a location other than that agreed.

The introduction of telework, or distance work, for interns and trainees has become a statutory option. Law no. 11.788/08 or the law on traineeships does not provide for this possibility, which is why the issue was discussed. However, since March 2020, this option has become more acceptable as the Labor Prosecutor’s Office has issued a technical notice recommending the telework system to interns and trainees due to the Covid-19 pandemic.

The interim measure also provided that if the employee elects to work remotely away from the contracted location, the employer would not be liable for the cost of returning the worker to the office.

Finally, the interim measure also established a rule requiring the employer to prioritize the allocation of workers with disabilities and workers with court-placed children up to the age of four for services that can be performed remotely.

b) meal allowance

Provisional Measure No. 1.108 also provides for a meal allowance. The amounts paid by the employer as a lump sum for meals are to be used exclusively to pay for meals in restaurants and similar establishments or to buy groceries in commercial establishments.

In addition to deadlines for transfers or payments that misrepresent the prepaid nature of the amounts or other benefits not related to the promotion of employee health, the employer hiring the company has been prohibited from providing meal allowances in order to obtain discounts on to demand or receive the contracted amount and security.

Inadequate execution, deviation or falsification of the purpose of the meal allowance by employers or companies providing payment instruments for meal allowances may result in the imposition of a fine of between BRL 5,000.00 and BRL 50,000.00, in addition to other penalties provided for a capable entity .

c) union dues

Finally, Interim Measure No. 1.108 stipulated that the remainder of the union dues revenue that, in the absence of regulation, is not paid to the umbrella organizations may be reimbursed in proportion to representativeness requirements.