The Federal Senate approved, on August 3rd, Executive Order 1,108/22, which substantially changed the rules regarding meal allowances and remote work, provided for in the Consolidated Labor Laws (CLT). The approved text awaits presidential signature, at which point the executive order will be converted into law. The expectation is that the President fully sanctions the text approved by the Brazilian National Congress.

The following are among the main changes introduced for remote work:

  • Equating home office to telecommuting

Remote work performed not preponderantly outside the employer's premises (home office) was equated to telework: from now on, the provision of services outside the employer's premises, preponderantly or not, using information and communication technologies, which, by its nature, does not constitute external work, characterizes a telework or remote work arrangement. In this way, telework and remote work become synonymous for all intents and purposes.

  • Tracking of work hours

Only remote employees who provide services on a piecework or task basis are exempt from work time tracking. In other words, employers with more than 20 employees must track the working hours of all employees, including those who work remotely and do not work by piecework or task.

  • Contractual adjustment

The provision of services in the remote work modality must be expressly stated in the individual employment contract: due to the equation of a home office to telecommuting, the home office must now also be regulated by individual agreement or internal policy with individual adherence of the employees.

  • Interns and apprentices

Adoption of a remote work arrangement for interns and apprentices is now expressly allowed: the rule has achieved what already happens in practice.

  • Union classification

The provisions set forth in the local legislation and in the collective labor agreements related to the territorial base of the establishment where the employee is based apply to employees who work remotely. With this, the legislation now expressly states that when the place where the services are rendered is not relevant to the work, the labor union affiliation follows the location of the employer's headquarters, in line with the understanding of the case law.

  • Work abroad

Brazilian legislation applies to employment agreements of employees hired in Brazil who choose to perform remote work outside Brazilian territory, except for the provisions of Law 7,064/82, unless otherwise agreed: with this, the legislation has removed the risk of finding temporary transfer abroad, preventing potential disputes involving the topic.

The legislation also brought in some clarifications about remote work:

  • the attendance, even if habitually, at the employer's facilities for the performance of specific activities, which require presence at the establishment, does not undo the remote work arrangement.
  • employees submitted to remote work arrangements may render services by the day or by piecework or task.
  • an individual agreement may determine the hours and means of communication between employee and employer, as long as the legal rest periods are assured.
  • employers must give priority to employees with disabilities and employees with children or a child under legal guardianship up to 4 years of age when allocating to remote work or remote work vacancies.
  • employers will not be responsible for expenses resulting from the return to live work if the employee has chosen to perform remote work outside the location provided for in the contract, unless otherwise agreed upon.
  • the time of use of technological equipment and necessary infrastructure, and software, digital tools, or internet applications used for remote work, outside the employee's normal working hours, does not constitute time on standby, available, or on call, unless there is a provision in an individual agreement or in a collective bargaining agreement, that is, for activities in a remote work arrangement that require employees to be on standby or on call, it would be possible to adjust payment of amounts without undoing the remote work and the system for tracking only exceptions to normal hours to the tracking of the working hours of employees who work by piecemeal or task.
  • the remote work arrangement is not to be confused with, nor equated to, the occupation of telemarketing or call center operator.

With the conversion of the executive order into law, the changes introduced by it will produce effects for an indefinite period of time.

Due to the substantial changes introduced, companies that have already implemented telecommuting, home office, or remote work policies (including anywhere office policies) must reevaluate and adjust their practices to bring them into line with the new rules, if they have not already done so.

In addition to the changes to remote work, the legal text also introduced changes regarding the granting of food and meal vouchers. We addressed this topic in other article, also published in the Legal Intelligence Center. Click here and check it out!

Machado Meyer Advogados will continue to monitor the evolution of the matter and its potential developments. Keep up with our publications by subscribing to our newsletter.