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    Managing HR through COVID-19

    A Practical Guide For Multinational Employers

    Prepared by Mayer Brown

    As at April 15, 2020

     

    Overview

    This guide will help employers manage HR legal and practical issues arising from COVID-19. It covers:

    This publication has been written by Mayer Brown and forms part of a wider Mayer Brown Guide for Multinational Employers, which is available here.

    CONTACT:  Aline Fidelisafidelis@mayerbrown.com |  mayerbrown.com  | +55 11 2504 4666 

     

     

    Good Practice

    There are a number of key good practice points that employers across all jurisdictions will want to consider in connection with COVID-19:

    1.  Keep up-to-date with accurate information

    It is difficult for an employer to make proper decisions based on rumors, assumptions and “fake news”. Therefore, it is important for an employer to stay up-to-date with accurate information and make decisions based on facts. Employers should monitor official sources, including government advisories and the World Health Organization (“WHO”) website, and check that the information they receive is factually correct.

    2.  Know where your employees are and where they have been

    An employer cannot keep its employees out of harm’s way if it does not know where they are and where they have been. As outbreaks of COVID-19 occur in various parts of the world, keep track of which of your employees could be at risk.

    3.  Communicate with your employees

    Employers should communicate openly and often with their employees so that they have the information they need to help keep themselves educated and updated about the coronavirus. It should not assume that all employees will educate themselves or have access to the same sources of reliable information. Putting everyone on the same page will help the employer and its employees move together in a timely manner as a business. Open and timely communication will help build trust and reduce the spread of rumors that may cause anxiety in the workplace.

    4.  Provide a safe platform for employees to raise concerns

    Employers should give employees a safe platform where they can raise concerns on all aspects related to work, from mental health to the risk of having contracted COVID-19. This is not just good employee relations, but early detection and doing something about it can help to reduce the spread of the virus. It is one thing to have an employee assistance plan and ask employees to report issues, but if those who report are stigmatized or treated with contempt, employees may be deterred from reporting.

    There may be nervousness and anxiety in the workplace, and possibly even conflicts, given concerns about the virus. Employees should be given avenues to communicate such anxiety to their employer, so that concerns are addressed earlier and do not balloon into bigger issues.

    5.  If you can be flexible, then be flexible

    Employers should understand that this is a time of stress for all parties, including employees. Recognize that employees will have different needs depending on their circumstances (e.g., those with school-age children may need more time off as school classes are suspended).

    This time of uncertainty will pass but employees will remember how their employer treated them long after the threat of the virus has disappeared. A disgruntled employee may try to make it known to the world how badly their employer treated them. This may affect the employer’s brand and ability to attract and retain talent. The employer may then have to wait for another crisis or challenging time to get the opportunity to prove itself as a good employer.

    6.  One size may not fit all

    While consistency in treatment is generally to be favored, be conscious that one size may not fit all. For example, “work from home” or remote working may not work for everyone. The implementation of general directives should be checked against legal obligations under the contract of employment and local law

     

     

    Action Point Checklist

    In general terms, the steps an employer needs to be taking now relate to four categories: Review, Communicate, Update and Travel. No list of action points will be comprehensive for all employers, but the following will form a good starting point.

    1.  Review

    • Review business continuity plans and how these would be maintained if employees are suffering from coronavirus absences.
    • Review existing sickness policies and procedures. Are they adequately disseminated to staff? Do they need amending?
    • Review contracts of employment. It may be relevant to establish whether or not individuals can be asked to undertake different work or at different locations or at different times from the norm.
    • Review the employer’s emergency procedures, e.g., if there is an infection and the workplace is closed on a temporary basis. If appropriate, carry out a test run of an emergency communication to see how robust the process is.
    • Ensure contact details for all staff are up-to-date.
    • Undertake a risk analysis of high-risk groups of employees, and what steps can be taken to try and reduce risks for those groups. These groups may include:
      • those who travel frequently to countries where there is currently or may well in future be a risk of infection.
      • those with health issues, such as asthma, diabetes, cancer, or those who are pregnant, who are more likely to suffer adversely if they become infected with the virus.
    • Review procedures in the office for preventing the spread of the virus, e.g. increased cleaning, availability of hand sanitizers and tissues etc.
    • Review planning for the possibility of large scale absenteeism. For example:
      • Identify the essential positions within the business, what needs to carry on during an emergency, and what is the minimum number of employees required.
      • Identify employees with transferable skills so that these essential positions can always be temporarily filled.
      • Consider flexible work patterns, such as employees working from home.
      • Identify those employees who have the necessary IT infrastructure to work from home (e.g., remote access to the office computer systems).

    2.  Communicate

    • Identify an appropriate person as spokesperson/communicator of updates on policies etc., with appropriate credibility.
    • What, if anything, is said about absence from work for reasons other than ill-health, e.g., where an office is closed?
    • Assuming the employer has a health and safety committee, have there been any discussions with that committee about COVID-19 and its potential impact? If there is no such committee, the employer may want to consider setting one up.
    • Communicate as a matter of urgency with the high-risk groups identified in any risk review to ensure they are aware of their high-risk status and the measures that are being taken to assist.
    • Ensure managers are aware of the relevant workplace policies.
    • Consider issuing guidance to employees on how to recognize when a person is infected with the coronavirus. What are the symptoms, and what should one do if one is taken ill at home or at work? It is also important to emphasize that individuals may not recognize that they have the virus and so may not be exhibiting symptoms. Employees should be informed of the reporting procedure within their employer if they have a potential infection as well as any official reporting process.
    • Provide advice to encourage individuals to take a degree of responsibility for their own health and safety and to slow the spread of the virus. For example, advice on handwashing and use of sanitizer gels, coupled with a willingness to self-identify where it is possible that individuals have come into contact with individuals with the virus, have become infected themselves or have returned from private travel abroad to an area which turns out to be affected by the virus.
    • Make clear that where staff are ill, they must not come to work regardless, i.e. “struggle through”.

    3.  Update

    • Initiate a system to keep up-to-date, especially given the speed at which infection is spreading.
    • Consider establishing a committee on the employer’s side to coordinate responses and engage with any staff consultative forum, and with particular responsibility for staying up-to-date with public health updates.
    • How will employers communicate to employees regular updates on the coronavirus and its spread? As news develops, it is extremely important for an employer to be issuing fact based updates, to avoid the possibility of fear being used by worried employees to make decisions about whether or not to come to work, whether to travel abroad, etc.
    • Who will have the authority to determine changes to policy and issue any new communications to staff?

    4.  Travel

    • Log employee travel before it is booked and check against the latest travel protocols.
    • Ensure staff know that this applies to personal travel as well as business travel.
    • Encourage staff to tell you if close family members with whom they share a house are travelling to infected areas.
    • Replace face-to-face meetings (especially those involving travel) with video conferences, telephone conferences, etc.
    • Consult/communicate about whether to encourage varied work patterns to avoid travelling on public transport at rush hour.

     

     

    Country Overview

    As at April 15, 2020

    1.  What are an employer’s main legal obligations?

    The main areas of an employer’s legal liability associated with coronavirus in the workplace include:

    • Ensuring a healthy workplace;
    • Even if it is not possible to oblige employees to go through medical examinations other than the periodic examinations envisaged by the Normative Rules (“NR“), it should be recommended that employees who have symptoms related to COVID-19 go through complementary examinations in order to detect if they are infected by the virus; and

    The Law No. 13,979/2020, complemented by the Act No. 356 of the Ministry of Health, established a series of measures to fight the current pandemic. These measures include the isolation of infected individuals; the establishment of quarantines; restrictions on the entry/exit of people to/from Brazil; performance of mandatory medical examinations; immediate communication of potential contact with infectious agents; and restrictions on travel to/from infected regions. However, the employer does not have the autonomy to apply such measures by itself; only the government can apply these measures. In that sense, the employer can and should recommend that employees with symptoms related to COVID-19, or even healthy employees, work from home in order to prevent the risk of infection.

    2.  Do I need to prepare for and have in place a workplace plan to deal with COVID-19?

    There is no express legal obligation in Brazil on an employer to specifically have a preventive COVID-19 response plan to the workplace. However, the Federal Government recommends employers to have a contingency plan in case any COVID-19 infection is confirmed amongst employees. Such plan must involve the quarantining of infected employees, reinforcement of hygiene protocols, mandatory use of masks, reinforcement of employee health monitoring by the company’s physician, etc.

    3.  What should a workplace COVID-19 response plan cover?

    The Brazilian Ministry of Health has issued guidelines on preventive measures that may be taken in order to prevent COVID-19: https://www.saude.gov.br/noticias/agencia-saude/46540-saude-anuncia-orientacoes-para-evitar-a-disseminacao-do-coronavirus.

    For general guidance on the contents of a workplace COVID-19 response plan, please see the Appendix, in conjunction with the Action Point Checklist.

    4.  Can I direct my employees to go home or stay at home if there is an outbreak?

    Yes, Brazilian sanitary and health authorities recommend that employers do not require employees to remain in the company’s facilities if they present flu-like symptoms, since retaining sick employees in a closed workplace would increase the likelihood of further spread of the disease to other employees. However, depending on the form of remote work developed by the employee, the employer may have to establish such alteration (from on-site to teleworking, for example) through a written mutual agreement. Other forms of remote work may be adopted through a company’s internal policy that must have the employee’s consent. Furthermore, the agreement or the company’s policy must clearly state who will be responsible for the acquisition and maintenance of the work equipment and infrastructure (suitable for rendering services remotely), as well as which party will bear the costs.

    5.  Can I direct an employee to see a doctor?

    Yes, if any employee presents symptoms that are similar to COVID-19 symptoms, the employer should direct the employee to the workplace doctor, who will examine the employee and recommend that the employee undergo examinations in order to confirm whether the employee has the virus. The workplace doctor will only inform the employer (and employee) whether the employee should be removed from the workplace, as this is sensitive information regarding the employee’s health.

    6.  Do I have to continue to pay wages and provide other employment-related entitlements during a COVID-19 outbreak?

    Not necessarily. The Brazilian Federal Government implemented several law changes that enable employers to suspend employment agreements temporarily, as well as to reduce employees’ workload and wages, amongst other measures that help companies across the country to reduce employment-related costs. Among these law changes, the Provisional Measure No. 927 (“MP 927”) allows the employer to defer the payment of the unemployment guarantee fund (FGTS) on the months of March, April and May of 2020, which would normally expire on April, May and June of 2020, respectively. In addition, the Provisional Measure No. 936 (“MP 936”)  institutes the Emergency Program for Jobs and Income Preservation (“Emergency Program“), which allows the employer to reduce the employee’s workload and wage proportionally (by 25%, 50% and 70%), and to suspend employment agreements, given that employers enter into individual or collective agreements with employees or their representative union and meet certain requirements. The Federal Government will supplement employees’ income through the payment of an emergency benefit.

    7.  Can I quarantine certain staff to certain parts of an office or send them to a different office?

    The employer may quarantine staff in certain parts of an office, as long as this applies to all employees, in order to avoid any kind of discriminatory treatment. Therefore, if it is in the company’s interest to distribute staff in different spaces in the office, aiming to avoid crowding people in a single environment, such a measure is permitted, provided that it is applied to all employees indiscriminately.

    Staff can also be transferred/sent to another office. If the other office is located in the same municipality as the office in which the staff were hired to work, the transfer can be made without consent, provided that the employer meets the cost of any potential increase in the employee’s transport expenses. If the office to which the employer intends to transfer staff is in another municipality, the transfer will only be allowed if there is permission for the transfer in each employee’s employment contract, or if there is a mutual agreement between the company and each employee in which the employee consents to the transfer. For employees in a position of trust, a mutual agreement will not be necessary. The expenses resulting from the transfer will be borne by the employer, and the employer may also have to make an additional payment of at least 25% of the salary received by the employee in the location to which they were transferred for the duration of the transfer, but only if the employee has been transferred to a different municipality from the one in which the employee was hired.

    8.  Can I direct my employees to report suspected cases of COVID-19?

    Under Brazilian legislation, there is no specific provision regarding the obligation of employers to report suspected cases of COVID-19. However, if any employee presents symptoms that are characteristic of COVID-19, we highly recommend that the employer does not require the employee’s presence in the company’s facilities and requests that they see a doctor instead. In the current situation, it is very likely that employees will follow the employer’s request to see a doctor voluntarily (workplace doctor or outside doctor), not only in their own interest, but also due to potential social pressure from others in the workplace.

    9.  Can an employee lawfully refuse to attend work if there is a COVID-19 outbreak?

    Yes. Article 483 of the Brazilian Consolidation of Labor Laws establishes that employees are not required to work in areas that subject them to imminent risk or danger. If the company insists on putting employees at risk, they may even request termination of the employment contract in case of manifest danger or considerable harm.

    10.  Can I screen employees and customers before allowing them to enter the workplace?

    No, employers are not entitled to submit employees and customers to medical examinations before granting them access to offices. Data related to an individual’s health is considered sensitive data, which is already protected by Brazilian legislation and court precedents rendered by Brazilian labor courts. Furthermore, on August 16, 2020, the Brazilian General Law of Data Protection (“LGPD”) will come into force, and information about an individual’s health will be included among the data demanding maximum protection.

    CONTACT:  Mayer Brown  |  Aline Fidelis |  Partner  | afidelis@mayerbrown.com |  mayerbrown.com

     

     

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    Appendix:  Workplace COVID-19 Response Plan

    A plan should deal with the following:

    BEFORE AN OUTBREAK

    • Preventive measures.
    • Disinfecting the workplace regularly.
    • Maintaining good indoor ventilation.
    • Making sure that employees, suppliers and customers are aware of the employer’s plans in the event of an outbreak.
    • Ensuring sufficient supplies of appropriate masks, alcohol wipes, gloves, paper towels, thermometers, disinfectants, etc.
    • If employees are required to travel to areas known to have the virus, whether such travel is necessary.

    DURING AN OUTBREAK

    • The steps the employer will take to ensure the safety of employees while at work during a COVID-19 outbreak include how an employer will identify risks of employees becoming infected and how to minimize such risks. The employer may also wish to seek advice from government/official sources as to what steps need to be taken, e.g., quarantine requirements.
    • Communication strategies such as how and what information will be communicated to employees, suppliers and customers.
    • Where employees will work, e.g., home, in the office or in alternative temporary offices.
    • How to deal with infection and/or deaths of colleagues, e.g., counselling.
    • A mechanism for determining whether employees, suppliers and customers will be allowed access to the workplace, especially if they show symptoms of being infected by COVID-19.
    • What to do with high-risk/exposure staff (e.g., employees who travel).

    AFTER AN OUTBREAK

    • Ways to ensure that employees and customers have fully recovered before they are allowed back into the workplace.
    • Rehabilitation for sick employees returning to the workplace.

    Communication with employees and flexibility on enforcing requirements imposed on employees under their contract of employment will be important in maintaining employee relations and reducing anxiety and panic during an outbreak. Therefore, depending on the circumstances, employers may wish to:

    • Discuss with staff the possibility of a workplace closure prior to closing.
    • Allow employees to take annual leave or unpaid leave once sick leave has been exhausted.
    • Allow employees to work from home.
    • Explore salary reduction or unpaid leave as an alternative to termination of employment where business has slowed down.

    Employers should make visitors to its offices aware of any health and safety hazards associated with entering the workplace before any intended visit, where reasonably practicable.

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    For more information relevant to Coronavirus COVID-19, please visit our website.

     

    This publication by Mayer Brown provides information and comments on legal issues and developments that may be of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek legal advice before taking any action with respect to the matters discussed herein.