New special measures aiming to mitigate the spread of COVID-19 in the portuguese labor context

I. Work organization

The Portuguese Official Gazette (Diário da República) has published the Resolution of the Council of Ministers no. 92-A/2020, which declares the calamity situation throughout the Portuguese territory

Taking into account the epidemiological situation in Portugal, this Resolution adopts a set of special measures, which comprise not only the extension to other municipalities of the specific measures previously established for the municipalities of Felgueiras, Lousada and Paços de Ferreira, but also some additional ones.

In the context of employment relations, we highlight the following measures:

1.     As a rule, the remote work regime continues to depend on agreements between the employer and employee, as established in the Labor Code. However, there are exceptions to this obligation and, in some case, the remote work regime can be imposed by the employer or employee. When requested by the employee, and to the extent the duties they perform thus allow, remote work regime is mandatory in the following situations:

• Employee who, through a medical certificate, are covered by the exceptional protection regime for the immuno-compromised and those suffering chronic conditions (as defined under Article 25.º-A of Decree-Law no. 10-A/2020);

• Employee with disabilities, to an extent equal to or greater than 60%;

• Employee with a child or other dependent under 12 years of age, or, regardless of age, with a disability or chronic illness, who, according to the guidelines of the health authority, is considered to be a risk patient and is unable to attend presential school activities in a group or classroom context, in accordance with Order no. 8553 -A/2020, of 4 September 2020.

In addition, remote work regime is also mandatory, if the duties of the employee thus allow, when the physical space and organization of the work of the company do not meet the guidelines of the General Health Directorate (DGS - Direção-Geral de Saúde) and the Working Conditions Authority (ACT - Autoridade para as Condições do Trabalho) on this matter.

2.     In those situations in which a remote work regime is not adopted in the terms established in the Portuguese Labor Code, within the maximum limits of the normal work period and respecting the right to daily and weekly rest established by law or in the applicable collective bargaining agreement (IRCT - instrumento de regulamentação coletiva de trabalho), the following measures for the prevention and mitigation of risks arising from COVID-19 pandemic may be implemented, in particular: 

• The adoption of daily or weekly rotation systems for employees between remote work and attending the usual place of work;

• Different start and end timetables;

• Different break and meal timetables. 

The adoption of this measures may be mandatory in certain workplaces, under the terms foreseen in Decree-Law 79-A/2020.

3.     Notwithstanding, the Resolution of the Council of Ministers no. 92-A/2020 provides for a set of special measures specifically applicable to the municipalities referred to in Annex II contained therein (Article 28.º), taking into account the epidemiological situation in those geographical areas. Among the measures implemented, the obligation to adopt the remote work regime, in accordance with the law, as an exception to the general rule set out above, shall be highlighted.

As a consequence, the Decree-Law no. 94-A/2020 of 3 November was published yesterday in the Official Gazette, introducing  some amendments to the exceptional and temporary measures relating to the COVID-19 pandemic. Among these amendments, the addition of the new Article 5-A to the Decree-Law no. 79-A/2020 of 1 October shall be highlighted. This new provision regulates the way in which the remote work regime set out in the Resolution of the Council of Ministers no. 92-A/2020 shall be implemented in the municipalities listed in the referred Annex II.

With regard to this remote work regime, the following aspects should be noted:

i. Remote work regime is mandatory, regardless of the employment relationship, whenever the functions of the employee thus allow and the latter has the conditions to perform them under this regime, without the need for a written agreement between the employer and the employee;

ii. Exceptionally, whenever the employer considers that the conditions for this purpose are not met, the latter shall notify the employee in writing of his decision and stating the respective reasons. In this context, the employer must be able to demonstrate that the functions performed by the employee are not compatible with its provision under a remote work regime or the lack of appropriate technical conditions for its implementation. The failure to comply with this obligation corresponds to a serious labor infraction;

iii. The employee may, within the following 3 working days, request the Working Conditions Authority (ACT) to verify the requirements referred to in i) and the facts invoked by the employer in the decision communicated to the employee;

iv. The Working Conditions Authority (ACT)  shall assess the matter subject to verification and shall issue a decision in 5 working days, taking into account, in particular, the activity for which the employee was hired and its prior performance under a remote work regime or other similar regimes. The failure by the employer to comply with the final decision to be issued by Working Conditions Authority (ACT)  constitutes the practice of a serious labor infraction;

v.  The employer must provide the necessary work and communication equipment for the provision of work under this regime. Nevertheless, if this is not possible and upon the employee’s consent, the latter may use his own equipment for this purpose (being the employer responsible for the necessary programming and adequacy of this equipment to the provision of remote work);

vi. If the employee does not have the conditions to perform his function under a remote work regime, he must inform the employer in writing of the reasons underlying his impediment;

vii. The employee who performs his function under remote work regime has the same rights and duties as other employees, and without any reduction in his remuneration, under the terms provided for in the Portuguese Labor Code or in a CBA, namely with regard to the limits of normal working periods and other working conditions, safety and health at work and compensation for damage arising from a work accident or an occupational disease. In addition, the employee also retains the right to receive the meal allowance that was already being granted to him (thus resolving, as we believe, previous doubts on the obligation for employers to pay this allowance during the performance of functions on a remote work regime).

4.     In addition, the territorial scope of the exceptional regime of work reorganization and minimization of risks of transmission of COVID-19 disease infection as provided for in the Decree-Law no. 79-A/2020, of 1 October is extended to the municipalities referred to in Annex II Resolution of the Council of Ministers no. 92-A/2020 (until now, this regime was only applicable to the metropolitan areas of Lisbon and Oporto). Accordingly, the Decree-Law no. 94-A/2020 of 3 October amends the Article 2 of Decree-Law no. 79-A/2020 of 1 October, as a consequence of which the measures contained therein (in particular, the need to organize the working schedules in a delayed manner as provided for in Article 3 of said Decree-Law) shall be applied to all companies (with workplaces with 50 or more employees) located in the municipalities listed in Annex II of Resolution of the Council of Ministers no. 92-A/2020. As a result from this amendment to Article 2 of Decree-Law no. 79-A/2020, of 1 October, the remote work regime foreseen in the new Article 5-A is applicable to all companies located in the municipalities listed in the said Annex II, regardless of the number of employees.

5.     In a nutshell, under the terms of these legal acts, and for the purposes of work organization, the establishment of the hours of entry and exit from the workplaces in a delayed manner, as well as the adoption of the remote work regime, whenever the functions thus allow, becomes mandatory in the municipalities listed in Annex II.

II. Prophylactic isolation

Within the amendments introduced by Decree-Law 94-A/2020, of 3 November, the new Article 19-A is added to Decree-Law 10-A/2020, of 13 March. Under the terms and for the purposes of Article 19-A of said Decree-Law, the provisional declaration of prophylactic isolation is disciplined, which is issued to employees, as well as to independent workers of the general social security system, whenever, following a contact with the SNS24, there is a risk situation that may determine the process of assessment and declaration of prophylactic isolation.

This declaration is valid for a maximum period of 14 days (or until the contact operated by the entities that exercise the power as a health authority), and shall include its beginning and ending dates, which will be deducted from the period of 14 days of prophylactic isolation. This situation does apply, however, in cases in which it is possible to resort to alternative mechanisms of activity provision (e.g. teleworking). In case it is not possible to resort to these alternative mechanisms of activity provision, this circumstance shall be confirmed by means of a declaration of the employer.

III. Effects

The Decree-Law No 94-A/2020, of 3 November enters into force today, November 4, 2020.