Home
Internal
published on March 2020 | reading time approx. 10,5 minutes
We are facing a new reality: the coronavirus (COVID-19), initially an epidemic and later declared a pandemic by the World Health Organization (WHO), has a huge impact on life in society as we know it, imposing a reaction from the Portuguese Government which, through Order nº 3298-B/2020, of March 16th, declared the State of Alert in Portugal.
Once the level of contamination of COVID-19 is high, the Portuguese Government has been adopting several extraordinary measures, namely, prohibition of events with 100 people, prohibition of consumption of alcoholic beverages in a public place, suspension of the operation of some commercial establishments (e.g. restaurants) and limitation of the opening hours of bars, closure of educational establishments and nightclubs, prohibition of students finalists trips, imposition of duties of collaboration of citizens with the internal security of the country and civil protection, restrictions on landing of cruise ships (Order nº 3298-C/2020, of March 13th), among others. The restrictions performed, inevitably, condition and introduce new challenges to labor interactions, seeking out a way to make the work protection and the need for productivity compatible. The Constitution of the Portuguese Republic protects the employee's right to remuneration, right to protection and health in the workplace, being the employer's responsibility to ensure and implement measures to avoid risks. Also, the employees are obliged to protect their health and avoid interfering with the health of others. The failure to comply with these duties may originate misdemeanor liability and, in the case of an employee who culpably creates a situation of danger, disciplinary and civil liability. Currently, public entities have been determining several measures to make the work compatible with the necessary measures to protect people, namely, the following for Security and Health Protection:
On February 26th of 2020, the Directorate-General of Health (DGS) published the Orientation 006/2020, addressed to Companies, in which it foresees a set of procedures to be adopted in situations of possible contamination of COVID-19. The companies should implement internal Contingency Plans that should involve health and security services at work, the company, employees and their representatives, and should contain, in order to prevent contamination, rules such as:
In cases where there is a suspicion of infection by COVID-19, one of three situations occurs:
If the DGS determines that the employee, regardless of being a dependent or self-employed worker, should be isolated. There is an equalization of the illness due to infection of COVID-19 with hospitalization, therefore, the person infected by COVID-19 will be entitled to a sickness benefit. However, this sickness benefit will not be subject to a guarantee period, rate of professionalism and waiting period, according to nº 2 of article 19º of the Decree-Law nº 10-A/2020, of March 15th. This benefit is calculated by applying a percentage to the reference remuneration. This percentage corresponds to 100% for the first 14 days when the employee cannot perform his activity due to his infection by COVID-19 (prophylactic isolation situation), in accordance with nº 4 of Article 19º of the Decree-Law nº 10-A/2020. The attribution of the benefit in question is immediate (nº 3 of article 19º and article 20º of the Decree-Law nº 10-A/2020). After this period, the percentage shall be calculated in general terms, in accordance with the provisions of nº 1 of article 16º of the Decree-Lawnº 28/2004, of February 04th, by reference to line b) of nº 1of the Order nº 2875-A/2020, of March 03rd (55% up to 30 days, 60% up to 90 days and 70% up to 365 days).
The employer, after consulting his service of health and security in the workplace (internal, external or common), may determine to subject the employee to isolation. Nothing prevents the employer from deciding to instruct the employee to stay at home, whenever there is a well-founded suspicion that he has the coronavirus, opting, if possible, for remote working.
In the case of remote working, more specifically teleworking, the employer and the employee may agree to apply this regime. However, the employee, who may perform his duties at a distance, may opt for the teleworking regime without the employer's agreement, in accordance with the provisions of article 29º of the Decree-Law nº 10-A/2020. This occurs to protect the health of the employee, however, with account, weight and measurement. In other words, employees in services considered essential cannot opt for teleworking. For example, the teachers responsible for the children of those who work in the health area, the armed forces, essential public services, security services (e.g. doctors, nurses, firemen), which are essential for the treatment and combat of COVID-19, in accordance with the provisions of nº 1 of article 10º of the Decree-Law nº 10-A/2020. The telework system implies that the dependent worker will not be entitled to financial support, more specifically to exceptional family support, which is perceptible once the employee is able to continue to perform his duties from his home and, consequently, will receive the appropriate remuneration.
A mention should also be performed concerning the working arrangements of health professionals during the suspension of teaching activities. The following results from Order nº 3301/2020, of March 15th:
Whether the healthcare professional does not provide care for his children or other dependent under the age of 12 or who has a disability/chronic illness, or confines the care to an educational establishment, the health professional will be entitled to an exceptional financial family support.
Several questions remain concerning the employee’s absences:
However, to consider an absence justified is insufficient in relation to the needs of the employee, which justified the attribution of exceptional benefits and supports. Therefore, according to the provisions of nº 2 of article 21º of the Decree-Law nº 10-A/2020, two types of benefits were granted in the event of absence from work to assist children under 12 years of age or with chronic illness/disability related to the prophylactic isolation period:
If the beneficiary of these benefits has recently started working and has no income corresponding to 6 months of work, the benefits will be calculated by reference to the total remuneration he obtained, from the beginning of the 6 months prior to prophylactic isolation until the day before that isolation, to be divided by the result of the multiplication of 30 for the number of months the employee worked.
Regarding exceptional supports, each employee will be entitled to a family support, which will correspond to 2/3 of the basic remuneration and which will be supported by the employer and the Portuguese Social Security. In this case, the employer will pay 33% and the Social Security the remaining 33% to the employee. However, the two thirds mentioned above cannot be less than € 635.00 (guaranteed minimum monthly wage), and cannot exceed € 1,905.00 (which corresponds to three minimum wages). It should be noted that the employee will receive two thirds of the basic remuneration through the employer, which shall receive the share of the Social Security. Exceptional family support is required by the employer, unless remote work can be implemented.
This exceptional family support also applies to the Self-Employed Workers, however, with different outlines. If the self-employed worker has made 3 consecutive contribution declarations in the last 12 months he/she can obtain exceptional support to assist his/her children or other dependent under the age of 12 or who has a chronic illness/disability, for as long as the period of suspension of teaching activities persists. Therefore, the self-employed worker shall be entitled to receive 1/3 of the average of what he/she earned in the last 3 months of the present year. This way, the employee should receive at least € 438.81 (Ordinance nº 27/2020, of January 31st) and at maximum € 1,097. For instance, an employee who receives an average, by reference to the last 3 months, of € 800.00, would receive a support of € 266.66, however, cannot receive this amount because he/she is entitled to receive at least € 438.81. Therefore, the self-employed will receive € 438.81 instead of receiving € 266.66. Nevertheless, the self-employed will have to fulfill his/her social security obligations. It should be noted that family support and assistance support shall not be given to both parents at the same time, regardless of whether they are self-employed or dependent workers. Self-employed workers are also entitled to extraordinary support to the reduction of their economic activity, provided that they have declared three consecutive months of contributions in the last 12 months, only if they are totally out of activity or if there has been a total shutdown of their sector, and subject to a commitment of honor from the self-employed worker or, in the case of organized accounts, from a certified accountant. This support is granted for 1 month with the possibility of extension for the same period up to a maximum of 6 months. The support for reduced activity includes another advantage, which consists in the payment of the due contributions after the months in which the support in question is received, and may be paid in monthly instalments up to 12 months.
On the employer's side, extraordinary support has also emerged. In this direction and in order to minimize the economic impact of COVID-19 on companies, the Ordinance nº 71-A/2020, of March 15th, was published, defining the circumstances of its attributions, regarding extraordinary and temporary support. In nº 2 of article 1º of this Order we find 4 measures, which are transcribed bellow:
These supports are given to private companies, including, for example, associations, self-employed workers and Private Social Solidarity Institutions (IPSS). However, they must be in one of the two situations referred to in nº 1 of article 3º of the Ordinance in question:
Companies must have their tax and social security situation duly settled in order to apply for the extraordinary supports. Moreover, there is nothing to prevent companies from obtaining other supports.
The employer has the right to a support in the amount of 2/3 of the remuneration in order to be able to pay the wages to his employees. Under the terms of nº 4 of article 305º of the Labor Code, by remission to nº 6 of article 5º of Ordinance nº 71-A/2020, the employer shall pay 30% of the basic remuneration of each employee and the remaining 70% of the basic remuneration of each employee of the employer shall be paid by the Portuguese Social Security. This support for the subsistence of the employment contract is granted for 1 month and can be extended for the same period up to a maximum of 6 months. What if the worker has training outlined by IEFP, I.P. (Portuguese employment centre)? There is an increased support to the subsistence support of the contract because it is an investment in What if the worker has training outlined by IEFP, I.P. (Portuguese employment centre)? There is an increased support to the subsistence support of the contract because it is an investment in the development of skills of the employee. In this case, the Social Security pays 30% of € 438.81 (value of 1 IAS) to the employer and the employee equally. Currently, the 30% corresponds to 131.64 euros, half of this amount shall be paid to the employer and the other half shall be paid to the employee.
Professional training support will only be granted if the employer has not obtained the extra support for maintaining the employment contract. Therefore, a training plan, prepared by IEFP, I.P., should be implemented, which will occur at distance whenever possible. This support will have a maximum duration of one month and is intended for training corresponding to half of the normal working time. It results from the provisions of nº 3 of article 6º Ordinance nº 71-A/2020 that the extraordinary support to be granted to each employee is supported by the IEFP, I. P., and is granted according to the hours of training attended, up to the limit of 50% of the gross remuneration, with the maximum limit of RMMG (€ 635.00).The training support must be communicated to the employee and requested to IEFP, I.P.
Concerning the incentive for the normal activity of the company, it will be granted to the company by the IEFP, I.P., in the amount of € 635.00 for each employee, only once.
The company's temporary exemption from the payment of social security contributions is granted officiously by the Portuguese Social Security, which does not remove the obligation to declare quarterly. If the declarations do not correspond to the reality, the companies must pay the contributions due under the exceptional regime.Finally, it should be noted that these measures, although extremely relevant, are up to date at the present time, which means that the may suffer alterations if the State of Emergency is decreed.
Guilherme Oliveira
Lawyer
Send inquiry
Rödl & Partner in Portugal
