OFFICIAL DIARY OF THE UNION

Published on: 01/04/2020 | Edition: 63-D | Section: 1 - Extra | Page: 1

Body: Acts of the Executive Branch

PROVISIONAL MEASURE NO. 936, OF APRIL 1, 2020

Establishes the Emergency Employment and Income Maintenance Program and provides for complementary labor measures to deal with the state of public calamity recognized by Legislative Decree No. 6, of March 20, 2020, and the public health emergency of international importance resulting from the coronavirus ( covid-19 ), referred to in Law No. 13,979, of February 6, 2020, and other measures.

THE PRESIDENT OF THE REPUBLIC , using the powers conferred on him by art. 62 of the Constitution, adopts the following Provisional Measure, with force of law:

CHAPTER I

PRELIMINARY PROVISIONS

Article 1 This Provisional Measure establishes the Emergency Employment and Income Maintenance Program and provides for complementary labor measures to deal with the state of public calamity recognized by Legislative Decree No. 6, of March 20, 2020, and the emergency of public health of international importance due to the coronavirus ( covid-19 ) dealt with in Law No. 13,979, of February 6, 2020.

CHAPTER II

EMERGENCY EMPLOYMENT AND INCOME MAINTENANCE PROGRAM

Section I

The institution, objectives and measures of the Emergency Employment and Income Maintenance Program

Art. 2 The Emergency Program for the Maintenance of Employment and Income is established, with application during the state of public calamity referred to in art. 1 and with the following objectives:

I - preserve employment and income;

II - guarantee the continuity of work and business activities; and

III - to reduce the social impact resulting from the consequences of the state of public calamity and public health emergency.

Art. 3 The measures of the Emergency Program for Maintenance of Employment and Income are:

I - the payment of an Emergency Job and Income Preservation Benefit;

II - the proportional reduction of working hours and wages; and

III - temporary suspension of the employment contract.

Single paragraph. The provisions of the caput do not apply, within the scope of the Union, the States, the Federal District and the Municipalities, to the bodies of the direct and indirect public administration, to public companies and mixed economy companies, including its subsidiaries, and to international organizations .

Art. 4 It is incumbent upon the Ministry of Economy to coordinate, execute, monitor and evaluate the Emergency Program for the Maintenance of Employment and Income and to edit complementary rules necessary for its execution.

Section II

The Emergency Benefit of Preservation of Employment and Income

Art. 5 The Emergency Benefit for the Preservation of Employment and Income is created, to be paid in the following cases:

I - proportional reduction of working hours and wages; and

II - temporary suspension of the employment contract.

§ 1 The Emergency Benefit for the Preservation of Employment and Income will be paid for with Federal resources.

§ 2 The Emergency Benefit of Employment and Income Preservation will be provided on a monthly basis and due from the date of the beginning of the reduction in the working day and salary or the temporary suspension of the employment contract, subject to the following provisions:

I - the employer shall inform the Ministry of Economy of the reduction of the working day and salary or the temporary suspension of the employment contract, within ten days, counted from the date of the conclusion of the agreement;

II - the first installment will be paid within thirty days, counted from the date of the signing of the agreement, provided that the signing of the agreement is informed within the period referred to in item I; and

III - the Emergency Benefit will be paid exclusively for the duration of the proportional reduction in the working day and salary or the temporary suspension of the employment contract.

§ 3 If the employer does not provide the information within the period provided for in item I of § 2:

I - will be responsible for the payment of the remuneration in the amount prior to the reduction of the working day and salary or of the temporary suspension of the employee's employment contract, including the respective social charges, until the information is provided;

II - the starting date of the Emergency Employment and Income Preservation Benefit will be fixed on the date on which the information was effectively provided and the benefit will be due for the remainder of the agreed period; and

III - the first installment, subject to the provisions of item II, will be paid within thirty days, counting from the date on which the information was actually provided.

§ 4th Act of the Ministry of Economy will regulate the form of:

I - transmission of information and communications by the employer; and

II - grant and payment of the Emergency Employment and Income Preservation Benefit.

§ 5 The receipt of the Emergency Employment and Income Preservation Benefit does not prevent the concession and does not alter the amount of unemployment insurance to which the employee is entitled, provided that the requirements set forth in Law 7,998, of 11 January 1990, at the time of eventual dismissal.

§ 6 The Emergency Employment and Income Preservation Benefit will be operationalized and paid by the Ministry of Economy.

Paragraph 7. The credits constituted as a result of the Emergency Benefit for the Preservation of Employment and Income paid unduly or in excess will be registered in the Union's active debt, in which case the provisions of Law No. 6,830, of September 22, 1980, apply. for judicial execution.

Art. 6 The value of the Emergency Job and Income Preservation Benefit will be based on the monthly unemployment insurance amount to which the employee would be entitled, under the terms of art. 5 of Law No. 7,998, of 1990, subject to the following provisions:

I - in the event of a reduction in working hours and wages, it will be calculated by applying the reduction percentage to the calculation basis; and

II - in the event of temporary suspension of the employment contract, it will have monthly value:

a) equivalent to one hundred percent of the unemployment insurance amount to which the employee would be entitled, in the event provided for in the caput of art. 8th; or

b) equivalent to seventy percent of the unemployment insurance to which the employee would be entitled, in the event provided for in § 5 of art. 8th.

§ 1 The Emergency Employment and Income Preservation Benefit will be paid to the employee regardless of:

I - fulfillment of any acquisition period;

II - length of employment; and

III - number of wages received.

§ 2 The Emergency Job and Income Preservation Benefit will not be due to the employee who is:

I - holding a public office or job, a position on a free appointment and dismissal committee or holder of an elected mandate; or

II - in good standing:

a) the benefit of continued provision of the General Social Security Regime or the Social Security Own Regimes, except as provided in the sole paragraph of art. 124 of Law No. 8,213, of July 24, 1991;

b) unemployment insurance, in any of its forms; and

c) the professional qualification scholarship referred to in art. 2nd-A of Law No. 7,998, of 1990.

§ 3 The employee with more than one formal employment contract may cumulatively receive an Emergency Benefit of Employment and Income Preservation for each employment with proportional reduction of working hours and salary or with temporary suspension of the employment contract, observing the amount provided for in the caput of art. 18 and the condition provided for in § 3 of art. 18, if there is a bond in the form of intermittent contract, pursuant to the provisions of § 3 of art. 443 of the Consolidation of Labor Laws, approved by Decree-Law No. 5,452, of May 1, 1943.

§ 4 In cases where the calculation of the emergency benefit results in decimal values, the amount to be paid shall be rounded up to the entire unit immediately above.

Section III

Proportional reduction of working hours and wages

Art. 7 During the state of public calamity referred to in art. 1, the employer may agree to the proportional reduction in the working hours and salary of its employees, for up to ninety days, subject to the following requirements:

I - preservation of the value of hourly wages for work;

II - agreement by individual written agreement between employer and employee, which will be forwarded to the employee at least two calendar days in advance; and

III - reduction of working hours and wages, exclusively, in the following percentages:

a) twenty-five percent;

b) fifty percent; or

c) seventy percent.

Single paragraph. The working day and the salary previously paid will be reestablished within two calendar days, counting:

I - the cessation of the state of public calamity;

II - the date established in the individual agreement as the end of the period and reduction agreed upon; or

III - the date of communication from the employer informing the employee of his decision to bring forward the end of the agreed reduction period.

Section IV

Temporary suspension of the employment contract

Art. 8º During the state of public calamity referred to in art. 1, the employer may agree to temporarily suspend the employment contract of its employees, for a maximum period of sixty days, which may be divided into up to two periods of thirty days.

§ 1 The temporary suspension of the employment contract will be agreed upon by individual written agreement between employer and employee, which will be forwarded to the employee at least two calendar days in advance.

§ 2 During the period of temporary suspension of the contract, the employee:

I - will be entitled to all benefits granted by the employer to its employees; and

II - will be authorized to pay to the General Social Security System as an optional policyholder.

§ 3 The employment contract will be reestablished within two calendar days, counting:

I - the cessation of the state of public calamity;

II - the date established in the individual agreement as an end of the period and suspension agreed upon; or

III - the date of communication by the employer informing the employee of his decision to bring forward the end of the agreed suspension period.

§ 4 If, during the period of temporary suspension of the employment contract, the employee maintains work activities, even if partially, through teleworking, remote work or distance work, the temporary suspension of the employment contract will be out of character, and the employer will be subject:

I - immediate payment of remuneration and social charges for the entire period;

II - the penalties provided for in the legislation in force; and

III - the sanctions provided for in a convention or collective agreement.

Paragraph 5. The company that has earned, in the calendar year of 2019, gross revenue exceeding R $ 4,800,000.00 (four million and eight hundred thousand reais), may only suspend the employment contract of its employees by paying aid monthly compensation in the amount of thirty percent of the employee's salary, during the period of the temporary suspension of agreed work, subject to the provisions of the caput and art. 9th.

Section V

From provisions common to the measures of the Emergency Program for Maintaining Employment and Income

Art. 9 The Emergency Benefit of Preservation of Employment and Income may be accumulated with the payment, by the employer, of monthly compensatory aid, due to the reduction of working hours and wages or the temporary suspension of the employment contract that it deals with this Provisional Measure.

§ 1 The monthly compensatory aid referred to in the caput :

I - must have the value defined in the individual agreement agreed or in collective negotiation;

II - will have an indemnity nature;

III - will not be included in the calculation basis of the income tax withheld at source or of the annual adjustment statement of the income tax of the employee's individual person;

IV - will not be included in the calculation base of the social security contribution and other taxes levied on the payroll;

V - will not be included in the calculation basis of the amount due to the Guarantee Fund for Seniority - FGTS, established by Law No. 8,036, of May 11, 1990, and by Supplementary Law No. 150, of June 1, 2015; and

VI - may be excluded from net income for purposes of determining corporate income tax and Social Contribution on Net Income of corporate entities taxed by taxable income.

§ 2 In the event of a proportional reduction of hours and wages, the compensatory aid provided for in the caput will not integrate the salary due by the employer and will comply with the provisions of § 1.

Art. 10. The provisional employment guarantee is recognized for the employee who receives the Emergency Job and Income Preservation Benefit, referred to in art. 5, as a result of the reduction in working hours and wages or the temporary suspension of the employment contract referred to in this Provisional Measure, in the following terms:

I - during the agreed period of workday and salary reduction or temporary suspension of the employment contract; and

II - after the re-establishment of the working day and salary or the end of the temporary suspension of the employment contract, for a period equivalent to that agreed for the reduction or suspension.

§ 1 The unfair dismissal that occurs during the period of provisional guarantee in the employment provided for in the caput will subject the employer to payment, in addition to the severance installments provided for in the legislation in force, in the amount of:

I - fifty percent of the salary to which the employee would be entitled in the period of provisional guarantee in employment, in the event of a reduction in working hours and a salary equal to or greater than twenty-five percent and less than fifty percent;

II - seventy-five percent of the salary to which the employee would be entitled during the period of provisional guarantee in employment, in the event of a reduction in working hours and a salary equal to or greater than fifty percent and less than seventy percent; or

III - one hundred percent of the salary to which the employee would be entitled in the period of provisional guarantee in the employment, in the hypotheses of reduction of the working day and salary in a percentage superior to seventy percent or temporary suspension of the employment contract.

§ 2 The provisions of this article do not apply to the cases of dismissal at the request or for just cause of the employee.

Art. 11. Measures to reduce working hours and wages or temporarily suspend the employment contract referred to in this Provisional Measure may be entered into through collective bargaining, subject to the provisions of art. 7th, in art. 8 and § 1 of this article.

§ 1 The collective bargaining agreement or agreement may establish percentages of reduced working hours and wages different from those provided for in item III of the caput of art. 7th.

Paragraph 2 In the event referred to in Paragraph 1, the Emergency Employment and Income Preservation Benefit referred to in art. 5th and art. 6th will be due in the following terms:

I - without perception of the Emergency Benefit for the reduction of working hours and wages of less than twenty-five percent;

II - twenty-five percent on the calculation basis provided for in art. 6th for the reduction of hours and wages equal to or greater than twenty-five percent and less than fifty percent;

III - fifty percent on the calculation basis provided for in art. 6th for the reduction of hours and wages equal to or greater than fifty percent and less than seventy percent; and

IV - seventy percent on the calculation basis provided for in art. 6th for the reduction of working hours and wages over seventy percent.

§ 3 The collective bargaining agreements or agreements previously entered into may be renegotiated to adapt their terms, within ten consecutive days, counted from the date of publication of this Provisional Measure.

Paragraph 4. Individual agreements to reduce working hours and wages or temporarily suspend the employment contract, agreed under the terms of this Provisional Measure, must be communicated by employers to the respective labor union, within up to ten consecutive days, counted from the date of its celebration.

Art. 12. The measures referred to in art. 3rd will be implemented through individual agreement or collective bargaining to employees:

I - with a salary equal to or less than R $ 3,135.00 (three thousand one hundred and thirty-five reais); or

II - holders of a higher education diploma and who receive a monthly salary equal to or higher than twice the maximum limit of the benefits of the General Social Security System.

Single paragraph. For employees not covered by the caput , the measures provided for in art. 3rd can only be established by convention or collective agreement, except for the reduction of working hours and salary of twenty-five percent, provided for in item "a" of item III of the caput of art. 7, which may be agreed upon by individual agreement.

Art. 13. The proportional reduction of working hours and wages or the temporary suspension of the employment contract, when adopted, should safeguard the exercise and functioning of public services and the essential activities covered by Law No. 7,783, of 28 June 1989, and Law No. 13,979, of 2020.

Art. 14. The irregularities found by the Labor Tax Audit regarding the workload and salary reduction agreements or temporary suspension of the work contract provided for in this Provisional Measure subject the violators to the fine provided for in art. 25 of Law No. 7,998, of 1990.

Single paragraph. The process of inspection, notification, assessment and imposition of fines resulting from this Provisional Measure will observe the provisions of Title VII of the Consolidation of Labor Laws, approved by Decree-Law No. 5,452, of 1943, not applying the double visit criterion and the provisions of art. 31 of Provisional Measure No. 927, of March 22, 2020.

Art. 15. The provisions of this Provisional Measure apply to apprenticeship and part-time work contracts.

Art. 16. The maximum time of proportional reduction of working hours and wages and temporary suspension of the employment contract, even if successive, may not be longer than ninety days, respecting the maximum term referred to in art. 8th.

CHAPTER III

FINAL DISPOSITIONS

Art. 17. During the state of public calamity referred to in art. 1st:

I - the professional qualification course or program referred to in art. 476-A of the Consolidation of Labor Laws, approved by Decree-Law no. 5,452, of 1943, may be offered by the employer exclusively in the face-to-face modality, and will have a duration of not less than one month and not more than three months;

II - electronic means may be used to meet the formal requirements provided for in Title VI of the Consolidation of Labor Laws, approved by Decree-Law No. 5,452, of 1943, including for calling, deliberating, deciding, formalizing and advertising a convention or agreement collective work; and

III - the deadlines provided for in Title VI of the Consolidation of Labor Laws approved by Decree-Law No. 5,452, of 1943, are reduced by half.

Art. 18. The employee with an intermittent employment contract formalized until the date of publication of this Provisional Measure, pursuant to the provisions of § 3 of art. 443 of the Consolidation of Labor Laws, approved by Decree-Law No. 5,452, of 1943, will be entitled to the monthly emergency benefit in the amount of R $ 600.00 (six hundred reais), for a period of three months.

§ 1 The monthly emergency benefit will be due from the date of publication of this Provisional Measure and will be paid within up to thirty days.

Paragraph 2 The provisions of § 1, § 6 and 7 of art. Apply to the benefit provided for in the caput . 5 and in § 1 and § 2 of art. 6th

§ 3 The existence of more than one employment contract under the terms of § 3 of art. 443 of the Consolidation of Labor Laws, approved by Decree-Law No. 5,452, of 1943, will not generate the right to grant more than one monthly emergency benefit.

§ 4th Act of the Ministry of Economy will regulate the granting and payment of the emergency benefit referred to in this article.

§ 5 The monthly emergency benefit referred to in the caput cannot be accumulated with the payment of another emergency aid.

Art. 19. The provisions of Chapter VII of Provisional Measure No. 927, of 2020, do not authorize the employer to fail to comply with the regulatory rules on safety and health at work, and the restrictions provided therein are applied only in exceptional cases.

Art. 20. This Provisional Measure takes effect on the date of its publication.

Brasília, April 1, 2020; 199th of Independence and 132nd of the Republic.

JAIR MESSIAS BOLSONARO

Paulo Guedes