Littler Global Guide - Brazil - Q2 2022

Browse through brief employment and labor law updates from around the globe. Contact a Littler attorney for more information or view our global locations.

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End of the COVID-19 Public Health Emergency

New Order or Decree

Authors: Marília Minicucci, Partner – Chiode Minicucci | Littler, and Renata Neeser, Shareholder – Littler

On April 22, 2022, Ordinance GM/MS # 913/2022 (issued by the Ministry of Health) was published, declaring the end of the Public Health Emergency of National Importance resulting from COVID-19, which had been established by Ordinance GM/MS # 188, of February 3, 2020.

The Ordinance became effective 30 days after its publication, affecting labor regulations whose effectiveness was linked to the duration of the (national) public health emergency state, e.g.: Law # 14,151/2021 and Law # 14,311/2022, which provided for the onsite work of pregnant employees, Joint Ordinance # 20/2020 and Interministerial Ordinance MTP/MS # 17/2022, both providing for measures to be adopted by employers in the workplace.

Executive Order Creates the Employ + Women and Youth Program

New Order or Decree

Authors: Marília Minicucci, Partner – Chiode Minicucci | Littler, and Renata Neeser, Shareholder – Littler

On May 5, 2022, Executive Order # 1116/2022 was published, creating the "Employ + Women and Youth Program." The Program includes provisions to support early childhood parenting, to make the daily working hours more flexible to support parenthood, to qualify women in strategic areas for professional rise in career, to support women's return to work after the end of maternity leave and to encourage the hiring of young people through apprenticeship programs. Among the benefits provided, companies are authorized to grant a daycare reimbursement, to be established by an individual agreement or by a CBA, devoid of salary nature and without tax and social security incidence. The adoption of this reimbursement exempts the employer from maintaining an appropriate place for the custody and assistance of employees’ children during the breastfeeding period.

The EO has also established measures to make the daily working hours more flexible; companies may adopt one or more alternatives, such as part-time work, bank of hours, 12x36 schedule, anticipation of individual annual leave and flexible entry and exit hours. The measures are valid for the first year since the child's birth, adoption, or judicial custody. The EO also allows the suspension of the employment contract (article 476-A, of the Brazilian Labor Code) for (i) qualification of women in strategic areas or (ii) an employee whose wife or partner's maternity leave is over. The Executive Order came into force on May 5 and was, initially, in force for 60 days. In June, it was extended for an equal period and, if it is not converted into law, by the end of this new 60-day period (meaning, by September 14, 2022), it will cease to produce effects.

New Rules on Professional Apprenticeship Programs in Brazil

New Order or Decree

Authors: Marília Minicucci, Partner – Chiode Minicucci | Littler, and Renata Neeser, Shareholder – Littler

On May 5, 2022, two new norms were enacted, regulating professional apprenticeship in Brazil: Decree # 11,061/2022 and Executive Order # 1,116/2022. Among the several changes and additions brought by the above mentioned norms, some (detailed further below) are directly related to the calculation of the legal apprenticeship quota, which is a permanent concern for Brazilian employers of all sizes and industries.

While the quota’s percentages have remained unaltered (5% to 15% of the workers in each of the company’s establishments, whose roles require professional training), they will no longer be calculated on the total absolute number of employees in such roles, but, rather, on its arithmetic average. The Ministry of Labor and Welfare has not defined the period to be considered for the calculation of the arithmetic average of workers, to date – which they must do, according to the norm itself. The decree also included different types of employees that are not to be considered for purposes of calculating the apprenticeship quota, such as employees hired on an intermittent basis and employees on Social Security leave.

Brazilian Supreme Court Creates Precedent on Mass Dismissals

Precedential Decision by Judiciary or Regulatory Agency

Authors: Marília Minicucci, Partner – Chiode Minicucci | Littler, and Renata Neeser, Shareholder – Littler

On June 8, 2022, the Brazilian Supreme Court ruled a notable case, from 2009, establishing that mass dismissals must always be preceded by a negotiation with the employees’ trade union. Though the Court made it clear that a need for negotiation does not equal a need for authorization by the union, the simple need to involve the trade union has created some discomfort among companies, because, since our Labor Reform in 2017, collective dismissals had been equated with individual employment terminations, which also meant that no prior contact with trade unions was needed.

For now, we are awaiting the publication of the decision, by the Brazilian Supreme Court. So far, they have not even made the full decision available, so one of the things no one knows yet is the Court’s definition for “mass dismissals.”

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.