1. Emergency Measures

Decrees, orders or guidelines in effect and pertaining to reopening facilities.

With respect to measures particularly focussed on the field of employment and social security, Order 2875-A/2020 and Order 3103-A/2020 were initially issued implementing measures to safeguard social security for beneficiaries prevented from working by order of the health authority.

Publication of Decree-Law 10-A/2020 (which has been subject to multiple update amendments) and Cabinet Decision 10-A/2020 followed, which, in setting out various exceptional and temporary measures related to the COVID-19 epidemic, included social security measures for sickness and parenthood, in particular, allowances or support rules applicable in case of employee absences due to prophylactic isolation, illness, caring for children during school and nursery temporary closure and caring for family members, and other support measures for self-employed workers. It also included the possibility of teleworking without the need for an agreement between the employer and employee, and the possibility that the teleworking scheme can be “unilaterally determined by the employer or requested by the employee […] provided that it is compatible with the tasks performed”, though this wording raised a number of questions..

These were followed by Decree-Law 10-G/2020, which contains and rules the so-called “simplified lay-off” scheme, also subject to a few update amendments and  regulated by Ordinance 94-A/2020.

With relevance to employment and social security, on that same date, Decree-Law 10-K/2020, which amended some of the previous provisions on absences, including those due to employees having to provide family support and care, and Decree-Law 10-F/2020 (also subsequently amended and updated), which established an exceptional and temporary regime for compliance with tax and social security obligations, were published.

The decrees which regulated the state of emergency and its extensions provided for the enhanced resources and powers of the ACT where this authority it considers that there are signs of unfair dismissals being pursued. During the calamity situation Law 14/2020 was published and approved also providing – in article 8-C added to Law 1-A/2020 – the same enhanced resources and powers of the Portuguese Authority for Working Conditions (the ‘ACT’) regarding dismissals. The duration of these new powers, at this time, is unknown. The ACT is also appointed as the competent authority to supervise compliance at the workplace with the COVID-19 preventive measures determined by the Portuguese Health State Department (Direção-Geral da Saúde hereinafter ‘DGS’) as per specifically determined by Dispatch 6344/2020 of June 16, issued by the competent cabinet ministries.

Optimal approach to keep track of the latest updates.

https://www.mlgts.pt/en/content/coronavirus/21350/

2. State Aid

Government subsidies and special relief resources allocated to support employers, and workers, in their efforts to maintain employment and pull through the crisis.

The extraordinary and urgent measures approved Portuguese Government in response to the COVID-19 pandemic, included, among others credit lines – totalling EUR 460,000,000 – to support companies’ cash flows; credit lines with reduced interest rates for specific industries (tourism, catering and similar, travel, events and similar) or types of company (SMEs and midcaps) – Linha de Apoio à Economia COVID-19 – for a global amount of EUR 6,200,000,000 -.

Companies access to these lines of credit are conditional, among others, of maintenance of permanent jobs until 31‑12-2020, in view of the proven number of these jobs on 01-02-2020 and not carrying out in this period collective or individual redundancy processes, unless under the  lay‑off regime.

As per public communication issued by the European Commission, “these schemes aim to limit the risks associated with issuing operating loans to those companies that are severely affected by the economic impact of the Coronavirus outbreak. The objective of the measures is to ensure that these companies have sufficient liquidity to safeguard jobs and continue their activities faced with the difficult situation caused by the Coronavirus outbreak”[1]. This financial aid is be channeled through banks and other financial institutions.

An extraordinary financial incentive to support normalisation of business activities has also been established for employers that have resorted to the crisis emergency measures of simplified emergency lay-off or extraordinary assistance for training. A one-time payment amount may be applied for to support the resumption of business activities of an amount of EUR 635 per employee.

Same employers (resorting to the simplified emergency lay-off or extraordinary assistance for training) are exemption from paying Social Security contributions that refer to the employees (and directors) covered by the measure.

Other employers may also benefit from the possibility of deferring their social security (and tax) payments[2], if they:

• engage less than 50 employees, in any case;
• engage between 50 and 249 employees and have suffered a fall of at least 20% in e-billing turnover in March, April and May 2020, compared to the same period in the preceding year (or, for those who have not been operating for 12 months, the average for their operating period);
• engage 250 or more employees, and have registered a fall of at least 20% in e-billing turnover in March, April and May 2020, compared to the same period in the preceding year (or, for those who have not been operating for 12 months, the average for their operating period) and additionally meet one of the following requirements:
  1. are a private social solidarity institution or similar entity;
  2. operate in an industry temporarily restricted or limited by Government determination (in the context of the pandemic prevention measures), or belong to the tourism or aviation sectors, and have effectively been closed; or

Unemployment benefits and all other social security system benefits which ensure a minimum standard of living, are extraordinarily renewed until 30 June 2020.

[1] See the communication, available at https://ec.europa.eu/commission/presscorner/detail/en/IP_20_506.

[2] ^– Contributions normally due in March, April and May 2020, may be paid as followings:

1. a) 1/3 of the amount to be paid in the month it is normally due;
2. b) the remaining 2/3 being payable in equal and successive, interest-free instalments, according to one of the following two alternatives:

(i) July, August and September 2020; or

(ii) July to December 2020

3. Health and Safety Measures

Requirements mandated by law or any official guidance. Measures typically implemented by employers and the associated legal risks, limitations, obligations and issues to consider.

All businesses and organisations in the private and public, cooperative and social sectors, whilst employers that are responsible for coordinating Occupational Safety and Health Services under the legal framework promoting occupational safety and health, must follow the guidance issued by the DGS and organise appropriate contingency plans relating to SARS-CoV-2 infection and procedures to be followed in case of employees presenting symptoms of COVID-19 at the workplace.

The current pandemic has increased employer’s occupational safety and health (‘OSH’) obligations.

Requirement for employers to adopt preventive measures deriving from the general duty to protect employees’ safety and health:

• Implementation of a contingency plan

All businesses and organisations in the private and public, cooperative and social sectors are required to put in place a contingency plan, in accordance with DGS Guidance 006/2020. The gradual deconfinement’s phases, implying the gradual return to face-to-face work, involve specific protection measures – along with the guidelines that have been issued for specific sectors – which should be reflected by employers in the contingency plans previously drawn up (the National Occupational Health Programme Coordination Team has issued guidelines of great practical use). Also particularly useful are the guidelines issued by the European Agency for Safety at Work, specifically the Guidelines on preventive measures for a safe and healthy return to the workplace[1].

Preparation of the contingency plan must involve OSH services and employee representatives or, if non-existent, the employees themselves and must include the contents indicated by the health authorities’ guidelines – namely, the above referred DGS Guidance 006/2020.

The contingency plan must have been communicated to all employees and affixed at the workplace, where it may be visible and accessible to all.

OSH Services shall play an active role in responding to the pandemic within companies, in particular: (i) ensuring employees are informed and trained; (ii) defining additional prevention measures which prove necessary; (iii) ensuring medical surveillance; and (iv) identifying any cases of infection.

Employees’ failure to comply with the contingency plan could constitute grounds for disciplinary action, without prejudice general liability under the law.

The DGS also issued rules applicable to employers that engage in specific activities, as is the case, for example, of:

• wholesale distributors and manufacturers of medicinal products for human use;
• hotels;
• restaurants, catering and similar establishments;
• cultural event premises;
• shops and other places with direct servicing to the public (customers);
• leisure resorts;

Other standards and guidelines are being issued at the pace of activities being resumed, according to the deconfinement plan applicable in each case. In most cases these are guidelines that are not limited to employee health protection ( ).

On April 30, through Cabinet Decision 33-C/2020, the Government approved the strategy towards gradual deconfinement plan within the scope of the pandemic combat, defining a projected timeline for this strategy comprising 2-week block periods between each deconfinement stage (for assessing the impacts). All measures must and are being accompanied by specific operating conditions which, in many cases, involve the use of PPE, rules on social distancing in addition to the general conditions for the lifting of confinement measures, such as the availability in the market of protective masks and disinfectant gel, regular hygiene of spaces, among others. In many cases these are reflected in safety measures to be implemented by the entities, whilst employers, as Occupational Safety and Health (SST) rules.

• Use of Personal Protective Equipment (PPE) by specific professionals

On 3 April 2020 the DGS issued initial guidance on the use of PPE by groups of professionals, other than health professionals, defining a group of professionals for whom the use of PPEoutside health institutions is recommended, as well as professional groups with indication for use of face masks. With the gradual deconfinement measures the mandatory use of facial mask is being extended to a number of locations (e.g. shops, public transportation).

The Portuguese data protection supervisory authority (the ‘CNPD’) issued Guidelines on the collection and processing of employee health and private life data in the context of COVID-19 pandemic.

In summary, the guidelines indicate that in the context of the adoption of measures to prevent COVID-19 staff infection employers themselves must, neither proceed to staff temperature measuring or recording, nor to collecting other data concerning employee health (e.g., requiring staff to complete questionnaires on health condition) or possible situations or staff risk behaviour (which may indicate infection risk of the new coronavirus).

In a somewhat contradictory direction, the Government passed a rule on this matter (new article 13-C of Decree-Law 10-A/2020, introduced by Decree-Law 20/2020) expressly providing that “in the current context of COVID-19 pandemic, and exclusively for reasons of protection of own and others health, employee’s body temperature may be controlled for the purposes of access and permanence in the workplace”. Recording temperatures measured is only admitted with the explicit permission of the employee in question (in a reference that seems to call for the employee’s consent to this data processing operation that has raised strong criticism in view of the unbalance that typically occurs in the employer/employee relationship that makes it difficult for real freedom of consent to be guaranteed.

If the measured temperature is higher than normal body temperature – although the legal provision does not specifically indicate what this should be – the employer is allowed to deny the employee access to the workplace. Nothing else is regulated on the matter, namely nothing on how the resulting lack of work is to be understood or treated and this has, therefore, been a legal measure that has been greatly criticised.

[1] Available at https://oshwiki.eu/wiki/COVID-19:_Back_to_the_workplace_-_Adapting_workplaces_and_protecting_workers

 

4. Teleworking

Policies and procedures for telework once the business reopens.

Amongst the measures taken by the Government is the decision to generalise the recourse to teleworking. At an initial stage – before March 19 – , employers were given the power to unilaterally determine that employees performed their work remotely, from home and employees were granted the option to provide telework, as long as compatible with the tasks performed. Once the state of emergency was declared – starting on March, 19,  And as from the confinement starting point, a general duty to remotely work from home, regardless of the employment relationship was implemented and has been in force, in all cases where such form of work is compatible with the tasks performed. Initially introduced by Decree-Law 2-A/2020, mandatory remote work in such cases remained throughout the two successive state of emergency period renewals that followed and, after that, throughout the calamity situation that followed, and was kept as mandatory until May,  31. As from June, 1, remote work is kept as an option that may be determined by the employer. Remote work (in those same circumstances) must also be adopted at the request of the employee in certain cases (e.g. employees that are included in the COVID-19 risk group, namely, immuno-suppressed and those suffering from chronic disease who, according to the guidelines of the health authority, should be considered at risk, particularly cardiovascular patients, those affected with chronic respiratory diseases, cancer patients and those suffering from renal insufficiency).

5. Managing COVID-19-Related Employee Issues

Management of quarantine, childcare and medical leave for employees affected by COVID-19.

Employees affected by COVID-19 will be subject to the rules that are generally applicable in case of sick leave.

Absences due to sickness are justified and if the absence extends for more than one month the employment contract is deemed to be suspended.

The employee is entitled to sick leave allowance (paid by the Social Security), the amount of which will vary between 55% and 75% of the reference salary amount. Sick leave allowance entitlement starts on the first day of absence (unlike the general rule that provides that the allowance is only payable after the third consecutive day of sick leave).

The employee must comply with prophylactic isolation when there is a serious risk to public health, confirmed by the health authority. This situation is deemed equivalent to sick leave but in this case the employee is granted sick leave allowance equivalent to his or her full salary (100%). Nevertheless, if remote work is possible, the employee in prophylactic isolation will keep working, remotely, in which case salary will be due as when working at the employer premises. If, during the prophylactic isolation period the employee is diagnosed to be infected with COVID-19 then the situation will be converted into a sickness leave and sickness leave allowance will be payable, instead of the full prophylactic isolation allowance.

Employees that are absent from work to provide assistance to their child – children under 12 years old or, regardless of age, with a disability or chronic illness that are subject to prophylactic isolation are justified and employees are entitled to receive an allowance – for up to 14 days – .

Absences of employees that need to stay at home to look after children under 12 years old, or regardless of age with a disability or chronic illness, as a result of on-site school and extracurricular activities at a school or social assistance facility for early childhood or disabilities having been suspended.[1] are justified, if employees cannot perform their job remotely, from home. Employer – as in other cases of absence – will not have to pay full the salary (except if employee works remotely, in which case, he/she will not be absent from work) but employees are granted an allowance equal to 2/3 of their base salary, half of which is borne by the employer. The other half is borne by the Social Security, subject to a minimum amount equal to EUR 635 and a maximum of EUR 1905. The Social Security portion is delivered to the employer who pays the full assistance amount to the employee.

Only one of the parents may be absent and receive the financial assistance, regardless of the number of children and if one of the parents can perform his or her work remotely, then the other may not benefit from this exceptional assistance.

Employees who fear infection and refuse to work.  

Where the case of offices or premises being forced to close does not apply and the employer has to meet all obligations relating to adequate SST protection in the current pandemic circumstances, and if the employee has no justifiable basis to do so (only the mere theoretical fear of infection), the employee cannot refuse to work.

In the event of refusal, the general rules on unjustified absences will apply, this also leading to disciplinary infraction.

It should be noted that nothing prevents employer and employee from agreeing on unpaid leave for a specific period or even being excused from work, without loss of salary.

Employees affected by immuno-suppression situations and those suffering from chronic disease – cardiovascular patients, those affected with chronic respiratory diseases, cancer patients and those suffering from renal – may justify their absence from work, by means of a medical declaration, as long as they cannot carry out their activity through remote work. This medical declaration must certify the worker’s health condition that justifies the employee’s special protection.

Disclosure of employees who are infected. 

 Under the data protection supervisory authority guidelines, employers themselves must strictly limit the processing of staff health data and collection and record of staff behaviour risk information (that might indicate COVID-19 infection) in scope the organizational safety and health services and the health authority (DGS) specific guidelines (particularly those on the contingency plans).

In such context OSH health professionals may:

• Evaluate employee health condition;
• Request relevant information to assess employee’s ability to render work in terms consistent with SST rules;
• Adopt adequate proceedings to safeguard staff and third parties’ health, whenever detecting symptomatic employees or in other justified cases.

The type and frequency of health evaluation measures must be determined by the OSH medical professionals according to: (i) scientific criteria adopted in their own clinical decisions; and (ii) national health authority guidelines.

Measures must be aligned with DGS and other health authority guidelines – on how employers can protect their employees and what measures they should take in the workplace to prevent further spread of the disease – and employers should not call upon themselves measures that result in the processing employee health data without being supported on specific legal provisions or on competent authority orders.

There are various aspects resulting from the steps companies must reflect in the contingency plan, which could involve procedures that require the processing of employees’ health information.

By way of example, the company is required to establish an alerting procedure in case of employees with symptoms and epidemic contacts (consistent with the definition of a suspected case of COVID-19), “i.e., how to proceed with internal communication between:

– The symptomatic employee – or an employee identifying a symptomatic fellow employee within the company – and his or her direct line manager and the employer (or employer representative);
[…]
– (Internal) process for recording contact with the Suspected Case”.

The CT, as a rule, prohibits employers from requiring employees to provide information on their private life or their health. However, the provision of information on employees’ state of health, as such and in light of the GDPR, constitutes a special category of personal data, which is covered by a general principle of prohibition of processing. Processing this information is permitted when one of the exceptions to the prohibition, as listed in Article 9 of the GDPR, occurs and which, for this reason, is tantamount to a legitimate condition for the employer to be able to collect this information.

According to Article 281 of the CT and the Legal Framework Promoting Occupational Safety and Health, particularly Article 15, on the one hand employers have a duty to protect the safety and health of their employees and to adopt the measures required for this purpose and, on the other hand, employees themselves have a duty to respect the orders and instructions from their employers in this regard. Therefore, the provision of information by the employee on his or her health condition and/or potential contact with people infected with COVID-19 falls within the scope of the exception set out in Article 9(2)(b) of the GDPR which permits the processing of health data when “required for the purposes of meeting obligations and exercising the specific rights” of the employer, as data controller, or of the employee, as data subject, in relation to labour, social security and social protection legislation.

Here, as with the implementation of the measures set out in the Contingency Plan involving the collection of information regarding employees, the employer must be limited to collecting strictly necessary data – which directly results from the regulations or guidance in question or decided by the authorities – for the specific purposes already indicated, and must not retain such data for longer than strictly necessary for same purposes, erasing them immediately afterwards. It also requires employers to provide the employees with a set of information on the processing of the collected personal data (including stating the purposes of data collection, legal basis for processing, categories of recipients, criteria used to define the data retention periods, among others) in order to comply with the information duties arising in their capacity as data controller for the processing of personal data under the regulations on personal data protection.

The measures to be implemented must always take into account what has been defined in the contingency plan which, in turn, must already exist and have been prepared in accordance with the Guidance mentioned above, specifically the procedures to be followed in the event of a suspected case (point 6 of DGS Guidance 06/2020) and the monitoring procedure for close contacts (point 8 of the same Guidance).

Other issues.

[1] Creche and kindergarten school have meanwhile reinitiated

6. Cost-Reduction Strategies

To what extent can employers implement the following cost-reduction strategies as a result of COVID, and what are the primary limitations on each? 

• Furloughs

The question has been raised as to whether an employer can require employees to take holidays as a result of the reduced company business activity.

The specific regulations issued in the context of the current pandemic have initially given no answer to this question, so the general rules in the CT will apply.

As a rule, holidays are scheduled by agreement between the employer and employee. In the absence of an agreement, the employer may unilaterally schedule holidays, but must do so in the period between 1 May and 31 October (unless an applicable Collective Bargaining Agreement or the opinion of consulted workers’ representatives permits a different period).

Regarding tourism-related activities and in the absence of an agreement, employers are required to schedule 25% of the holiday period to which employees are entitled (or a higher percentage if resulting from a Collective Bargaining Agreement) between 1 May and 31 October, which is taken consecutively.

• Lay-off (Salary reductions).

A simplified lay-off scheme was introduced allowing for employers that are facing sharp business reduction or temporary business closure resulting from the pandemic outbreak to proceed to:

1. reduction of the workforce normal working hours, or
2. suspension of employment contracts and to access public financial support.

Employers may resort to the above measures when under business crisis resulting from:

1. Full or partial business halt, resulting from a global supply chain interruption;
2. Full or partial business halt caused by suspension or cancellation of orders or bookings (where the use of the company or premises production or occupation capacity is reduced by more than 40%);
3. Abrupt and significant fall of at least 40% in the company turnover (in the previous 30 days prior).

The assistance takes the form of co-payment by social security of the compensation payable to the employee, calculated on the following basis:

In the event of the contract being suspended, the employee receives compensation equivalent to 2/3 of salary or, if higher, to the minimum guaranteed salary of EUR 635, up to the maximum limit of EUR 1905), 70% of which is paid by social security and 30% by the employer;

In the event of reduced working time, the employee is paid proportionally for the hours worked, and is only entitled to additional compensation to the extent required, together with this payment, to make up to 2/3 of the amount earned in consideration of the work performed (subject to a minimum of EUR 635 and a maximum  of EUR 1905). When it exists, the compensation is shared between social security and the employer at the respective ratio of 70% and 30%.

If the applicable measure is combined with a training plan supported by the IEFP, an IEFP-funded grant is added, of EUR 131.64 per employee, to be shared equally between the employee and the employer.

Employers may only benefit from assistance when their contributions and tax payments are up-to-date and in compliance with Social Security and the Tax and Customs Authority. For this purpose, and until 30 April 2020, debts created in March 2020 are not included.

• Redundancy.

Employers that benefit from the emergency simplified lay-off assistance cannot proceed with employee redundancy measures for the duration of the lay-off and during a 60-days period following the end of the lay-off measure.

• Facility closure.

Employers whose facilities were subject to mandatory closure due to the pandemic outbreak were allowed to resort to the emergency simplified lay-off assistance. Once the deconfinement measured determined that re-opening was allowed, employers needing to prolong lay-off assistance were required, as a pre-condition (subject to the material grounds to continue resorting to the measure, e.g. abrupt turnover fall) to effectively open within 8 days following the end of the mandatory closing measure.