New measures within the State of Emergency and amendments to the support granted to companies in Portugal

1. Changes to the extraordinary supports and "new simplified lay-off"

Under the terms of Decree-Law n.º 6-C/2021, January 15^th, changes were made to the regime of extraordinary support for the progressive resumption of activity, already provided for and disciplined in Decree-Law n.º 46-A/2020, July 30^th.

In a nutshell, this (new) Decree Law no. 46-A/2020, of July 30^th, provides following:

• article 3.º - it is considered a “business crisis situation” the fall in turnover of 25% or more in the full calendar month immediately preceding the calendar month to which the initial request for support or extension refers, compared to the same month of the previous year or the year 2019, or compared to the monthly average of the six months preceding that period. For companies with activity for less than 24 months, the fall in turnover is measured by the average monthly turnover between the beginning of the activity and the penultimate full month prior to the calendar month to which the request for support or extension refers.

• article 5.º - the limits for the temporary reduction of the normal work period (PNT) per employee have also been changed, which in the case of fall of revenue equal to or greater than 75%, may reach up to 100% per employee in the months of January, February, March and April, or up to 75% in the months of May and June 2021;

• article 6.º - a single monthly compensation formula is now provided, in relation to hours not worked, corresponding to 4/5 of the gross normal remuneration, having as a maximum ceiling three times the minimum monthly guaranteed remuneration (RMMG). In case that the sum of the employee’s remuneration and retributive compensation corresponds to a monthly amount inferior to the the employee's gross normal salary, the amount of the compensation shall be increased to the extent strictly necessary to ensure such remuneration and up to a maximum of three times the RMMG, which is paid by the Social Security;

• article 9.º - the possibility of total exemption of payment of social security contributions was eliminated, maintaining the partial exemption from payment of 50% of these contributions for the employees covered, but only for micro, small or medium-sized companies

• article 14.º-A - foresees a financial incentive to maintain jobs for microenterprises, amounting to twice the RMMG for each employee in the company covered by the support for maintaining employment agreements or extraordinary support for the gradual resumption of activity, paid in a phased manner over six months.

The extraordinary support for the progressive resumption of activity is extended until June 30^th, 2021.

Also under Decree-Law n.º 6-C/2021, an amendment to Decree-Law n.º 10-G/2020, March 26^th (a.k.a. simplified lay off) was surgically carried out. Thus, the payment of 100% of the employee’s remuneration, up to three times the RMMG to employees, covered by the extraordinary support measure for the maintenance of employment contract, is now guaranteed (“simplified lay off”).

It was published the Decree-Law n.º 6-E/2021, January 15^th, which also introduces some amendments to the "simplified lay off" (foreseen in Decree-Law n.º 10-G/2020, March 26^th) and determines that only the suspension of activities and closure of facilities and establishments by legislative or administrative determination of a governmental source gives the employer (i) the right to request, by the number of days of suspension or closure, access to the simplified lay off, as well as (ii) give up the remaining support measure for progressive resumption of activity and, subsequently, request the simplified lay off measure, by the number of days of suspension or closure.

This support has an initial duration of up to one month, and can be extended in a monthly basis, as long as the duty of closure is in place.

Article 4.º of this Decree provides that it is not possible to overlap the simplified lay off with the support for the progressive resumption of activity.

Both Decree-laws enter into force the day after its respective publication in the official Gazette.

2. Aggravation of the administrative offence regarding the mandatory teleworking regime during the State of Emergency

It was published, in the Official Gazette (“Diário da República”), the Decree-Law No. 6-A/2021, of January 14^th, which article 4, besides reinforcing that the adoption of the teleworking regime during the State of Emergency is mandatory and does not require the agreement of both parties, whenever the functions in question allow it and there are conditions for its adoption, now also expressly provides that the failure to comply with the obligation to adopt the teleworking regime constitutes the practice of a very serious infraction, punishable by a fine, under the terms of Articles 548 to 566 of the Portuguese Labor Code.

This Decree-Law entered into force on 15 January 2021 (the day after its publication in the Official Gazette).

3. Amendments to the regulation of the State of Emergency on employmet matters

It was published, in the Official Gazette (“Diário da República”), the Decree no. 3-B/2021, of January 19^th, which amends the regulation of the State of Emergency previously put in place through the Decree No. 3-A/2021, of January 14^th, therefore clarifying the restrictive measures already applied and adopting additional measures aiming to reverse the accelerated growth of the pandemic.

Under the new wording of paragraph c), number 2, of article 4 of Decree no. 3-A/2021, it is now clarified that displacements (i) for the performance of professional or similar activities, whenever the teleworking regime under the terms of this Decree is not applicable, provided that said situation is confirmed by a statement issued by the employer or similar entity, or (ii) for the search for employment or response to a job offer, are admitted.

In addition, the Decree no. 3-B/2021, now provides, in its article 5, that companies in the services sector that have more than 250 employees, regardless of the employment relationship, modality or nature of the legal relationship, must send to the Labor Authorities (“ACT- Autoridade para as Condições do Trabalho”), within the 48 hours following the entry into force of this Decree, the nominal list of employees who do not meet the requirements set forth in number 1, of article 5, i.e., of employees whose performance of functions in telework regime is not possible under the conditions foreseen thereof.

This Decree enters into force on January 20^th, 2021 (the day following its publication in the Official Gazette).