Finocchio & Ustra Sociedade de Advogados | View firm profile
It was already notorious that the feasibility of implementing remote working had been discussed for a long time. While many companies already saw this condition as an advantage, others were still quite resistant to the idea.
Surprisingly, only with the need for social distancing in the pandemic scenario that this model became necessary, mandatory and urgent. Companies struggled to maintain their activities and businesses by adopting teleworking and remote work without, however, understanding that these are totally different institutes.
In summary, teleworking was introduced in Brazil by the labor reform in 2017, and its main feature is the provision of services predominantly outside the employer’s facilities. In this case, the company must provide technological equipment and regulate the situation in the employment contract, with the control of working hours being unnecessary.
On the other hand, the remote work is not regulated in Brazil and it is a hypothesis in which the employee can eventually work from their home or any other location, through regular control of their working hours and without the need to change the employment contract. The practice gained emphasis during the COVID-19 pandemic, precisely because it allows workers to carry out their professional activities from their home, promoting social isolation.
At this point, it is worth mentioning that “Provisional Measure” 927/20 provided for the change from face-to-face work to remote work (including apprentices and interns), by unilateral act of the employer – dispensing the prior registration of the alteration in the individual employment contract (effectiveness closed on 07/19/2020).
As of 07/20/2020, it became necessary to amend the employment contract to regulate working from home in case of preponderance of remote work to face-to-face work, except in the period from 04/28/21 to 08/25/21, in reason of PM (Provisional Measure) 1.046/21.
On the other hand, after nearly two years of the pandemic, many companies are returning to face-to-face work, but several have opted for remote or hybrid work, serving this modality even as an important tool for attracting and retaining talent.
The hybrid modality is a fusion between the provision of services performed from a distance (remotely) with the work performed on the company’s premises. In this scenario, the frequency of providing services remotely or face-to-face is what will define whether it is teleworking or not.
As aforementioned, we must only analyze the preponderance of the place of service provision to determine whether it is a hybrid or teleworking modality. If there is a preponderance of services provided from a distance using technological and telematic resources, we will be faced with the teleworking modality, provided for in articles 75-B of the CLT (Labor Law Code). Example: 3 to 4 days of remote service and 1 to 2 days of face-to-face work at the company’s premises.
For its adoption, it is mandatory to prepare an amendment to the employment contract, regulating all the conditions for its implementation, including, but not limited to: concession of technological and telematic equipment, reimbursement of expenses or allowance, control of journey, in addition to posture and ergonomics rules.
On the other hand, if there is a preponderance of face-to-face work in the employer’s facility and only greater flexibility for the employee, eventually or on some days of the week and/or periods, to carry out their activities remotely, we will be faced with the hybrid work regime, which does not have specific legal regulations, thus keeping the conditions of the employment contract intact.
However, despite the absence of legislation to regulate the hybrid modality, there are some measures that can be adopted in order to ensure greater legal certainty for its implementation, especially the elaboration of an Internal Policy to regulate all the conditions for the adoption of this flexible working regime.
Among the existing benefits of adopting the hybrid work regime, we can list: greater employee satisfaction with the possibility of having a flexible work model; possibility of improving the quality of life, including by not needing to displace from home/work – work/home; increased comfort in choosing the location where the remote service will be provided; possibility of increased productivity due to the employees’ own motivation in view of the greater flexibility conferred, in addition to the reduction of operating costs, depending on the format adopted.
In this theme, it is important to highlight: the law changes as society changes.
And the COVID-19 pandemic certainly changed society as a whole and especially the way of relating, mainly in the work environment, which certainly includes the implementation of the hybrid work regime which, as mentioned, constitutes an important tool for managing people and attracting and retaining talent, and that is why companies cannot avoid discussing this current and relevant topic.