South America: Getting Back to Business in the COVID-19 Era

May 22, 2020

Businesses in South America should prepare back-to-work plans while also listening to guidance from health and government authorities as the COVID-19 coronavirus pandemic continues.

Here's what you should know about reopening in certain areas.

Brazil

Content provided by Pinheiro Neto Advogados

Contact:
Fernando J. Prado Ferreira
Partner
+55 11 3247-8583
fpradoferreira@pn.com.br

Current national guidance or requirements regarding returning to work

Until the present moment, the Brazilian Ministry of Health (“MoH”) has not issued a national guidance regarding returning to the work.  There are some guidance in few States and cities. In Brazil, States and cities have autonomy to locally regulate public health issues, which means that states and cities may regulate the quarantine measures and the returning of services and commercial activities.

Logistical limits regarding social distancing and size of meetings

Until the present moment, Brazilian health authorities had only issued sparse recommendations regarding social distancing. No official or specific guidance for workplaces or size of meetings had been issued. The MoH only recommended, as general prevention recommendations: (i) that individuals keep a minimum distance of 2 meters from anyone coughing or sneezing, (ii) avoidance of physical contact, including hugs, kisses and handshakes, (iii) use of nonprofessional facial masks, and (iii) that environments are kept clean and well ventilated.

Testing requirements (e.g. taking people’s temperatures) or recommendations including employee monitoring

Until the present moment, Brazilian health authorities had only issued sparse recommendations regarding testing requirements or monitoring for public in general. No official or specific guidance for workplaces and employees had been issued. According to the MoH and the Brazilian National Health Surveillance Agency (“ANVISA”), testing requirements should not include random temperature measurement, as this action is currently considered ineffective and increases the risk of agglomerations. Monitoring should include the attention to the presence of any symptoms, which should lead to isolation. Other recommendations include voluntary home isolation for 7 days in case of international travel..

Cleaning recommendations or requirements

Until the present moment, Brazilian health authorities had not issued any cleaning recommendation or guidance for workplaces. General recommendations for the general public include: (i) constant self-hygiene, with water and soap or 70% alcoholic preparation, (ii) individual usage of personal items, (iii) constant disinfection of objects and surfaces with sanitizers (as ordinary disinfectants, diluted bleach or bleach solution) or regular soap.

Compensation or remuneration issues

Until the present moment, Brazilian Government has not yet issued specific labour and employment measures related to guidance or requirements regarding returning to work. However, in view of the COVID situation, Brazilian Government issued measures that could be adopted by companies and that will certainly impact the return to work.  These measures authorize suspension of employment agreements and salary/workday reduction (for up to 90 or 60 days, respectively) and protection against termination for the same time length these measures last counting from expiration thereof. Before getting back to business, companies are advised to bear in mind the following aspects:

  • Employees right to job protection in the abovementioned terms;
  • Anticipated individual or collective vacations taken during quarantine;
  • Special agreements regarding working hours and compensation taken during quarantine;
  • Variable compensation based on financial criteria, company’s profits or revenue;
  • Company’s performance or promotion criteria might have to be adjusted to the post-quarantine scenario; and
  • When negotiating a new profit sharing plan or collective bargaining agreement with the union, discussions may take into consideration different standards than those customarily used.  
In addition to the above, the employer shall ensure employees to work in a safe environment, which include making personal protective equipment (PPE) available, rotating teams to allow social distancing, reengineering cubicles in open office space, and else.
 
Data collection and privacy
 
Until the present moment, the Brazilian Government has not issued regulations or adopted official protocols at any level dealing with data protection in connection with returning to work. However, Brazilian authorities are adopting an unprecedented range of surveillance tools in order to monitor social isolation and to identify and track anyone who may be infected.
 
Federal Law No. 13,979/2020 defined as mandatory sharing of data considered essential to the identification of persons suspected of being infected or infected with COVID-19 among the federal, state and municipal public administration bodies, with the sole purpose of preventing its spread. The same obligation applies to private companies, which must share personal identification data when requested by a health authority.
 
In this scenario, the Executive Branch issued Provisional Measure 954, which imposes data sharing by telecommunications companies with the Brazilian Institute of Geography and Statistics (IBGE) to obtain statistical information of the isolation during the health crisis. The Brazilian Bar Association and political parties filed challenges with the Brazilian Supreme Court claiming that the Provisional Measure is a threat to constitutionally protected privacy rights of individuals subscribers of phone services. The Supreme Court accepted the arguments and granted an injunction to suspend its effectiveness.
 
Other important issues
 
From a corporate perspective, Brazilian authorities, including the Brazilian Securities Commission and the Department of Corporate Registration and Integration have regulated both the digital remote and semi-presential general meetings for limited liability, joint-stock (private or publicly held), and cooperative companies. These measures may mitigate risks of questioning regarding the validity of such general meeting, and may be a tool for the companies to get back to normal business. As a general rule, the company intending to carry out a digital general meeting is responsible to (i) provide a technological system that grant the participation of all shareholders, partners or associates; (ii) assure a safety communication the participants; and (iii) record the meeting.