On 11 March 2020, the World Health Organization classified the spread of the disease caused by the new coronavirus as a pandemic. Less than a month later, the Brazilian Ministry of Health recognized the existence of a public health emergency of national importance, as provided for under the Decree N. 7,616, of 17 November 2011.
In addition to the serious problems caused by the disease, which, according to data released by the Brazilian authorities, had already caused almost 40,000 deaths as of 10 June 2020, extraordinary labour measures adopted due to the pandemic deserve to be treated carefully.
About two months ago, Brazilian government issued the Provisional Measures N. 927 and N. 936, which both deal with actions to be carried out during this period, as well as with important labour matters, such as the adoption of telework, the anticipation of vacations, the proportional reduction of working hours and the temporary suspension of employment contracts.
All these measures are aimed at preventing businesses from shutting down and preserving the jobs generated by them, but one must observe the legal requirements as to not incur any criminal liability.
If carried out through violence or fraud, the frustration of rights ensured by labour legislation is punished with up to two years of imprisonment and a fine under the Brazilian law. Thus, an employer may be held responsible for a criminal offense if he manipulates the employee’s time records during the pandemic to circumvent the hour bank calculation or register the vacation grant without actually granting it.
Compelling the employee to work for a certain period by means of violence or under serious threat is also subject to criminal liability according to the Brazilian law. The employer has the right to dismiss the employee from work, but in times of pandemic and severe unemployment, with thousands of people being forced into poverty, the threat of dismissal can be understood as sufficient to characterize a crime if, for example, the employer does not offer conditions for the safe development of activities and the dismissal is motivated by the employee’s refusal to submit to this situation.
An employer who requires the employee to attend the workspace in person, while ignoring the guidelines established by the government, may also incur the crime of exposing someone’s life or health to direct and imminent danger, punishable with up to one year of imprisonment. Such penalty may be increased if this exposure results from the transportation of people for the provision of services in any establishment, if in disagreement with legislation.
All these situations bring to memory some often forgotten provisions from the Brazilian Penal Code, which shall be taken into consideration by employers when planning their activities during the pandemic, by adequately formalizing any changes in the employment relationship and adopting the appropriate measures to resume safely activities that involve contact with the public.