Should my company have a contingency plan? What measures should the plan include? Can I/should I isolate my employees, conduct health checks or questionnaires on their private life?

Given the current situation, companies must set up a contingency plan appropriate to the workplace and according to the guidelines set up by the Health (“DGS”) and Employment (“ACT”) Authorities, among which we highlight:

(i) Any employee with symptoms associated with COVID-19 should not return to his/her workplace without first confirming that there is no risk for him/her and others, and should contact the Public Health Service (“SNS”);

(ii) The return of employees should be phased, assessing whether it is possible to work from home in cases where the employees’ presence at the premises is not required;

(iii) In activities or situations in which it is necessary to work in person, either full time or part time, companies must introduce technical and organizational measures to ensure physical distance of at least 1 meter or 2 meters in closed spaces or with the placement of partitions, as well as ensure the protection of employees, through masks and visors;

(iv) Liquid soap and paper dispensers for cleaning hands and alcoholic solutions must be provided, as well as adequate products for cleaning and disinfecting the workplace;

(v) Indoor workplaces must be ventilated, preferably by increasing natural ventilation, at least twice a day;

(vi) Workplaces should be cleaned frequently, especially work tables, handles and other surfaces on which people frequently touch;

(vii) Meetings by telephone or videoconference are recommended;

(viii) The use of common means of access (such as staircases, doors and lifts, as well as changing rooms and sanitary facilities) and common areas (e.g. eating areas) should be adapted to ensure safe distance, for example by marking the floor with visible information;

(ix) Companies shall ensure that the conditions to work from home (computer, software, communication platforms) are met.

 

Should I take special care with pregnant employees, employees with reduced working capacity, breathing difficulties or minors?

To the extent that there are employees more prone to contagion, specific measures should be considered to ensure an increased level of protection in specific cases. If feasible, such measures should be reviewed together with the workplace health and safety services and be aligned with the health authorities’ recommendations.

 

Is telework mandatory?

As of 15th January 2022, telework is no longer mandatory, being only recommended, provided that the functions in question allow it and the employee is able to perform them, without the need for a written agreement between the employer and the employee.

Without prejudice to the possibility of adopting a telework regime under the general terms foreseen in the Labour Code, telework will be mandatory in situations in which employees (i) are covered by the special protection regime for the immunosuppressed and chronically ill; as well as those who (ii) have a disability (degree of incapacity equal to or greater than 60%); and (iii) the employee has a dependent child or other dependent under the age of 12, or, regardless of age, with a disability or chronic illness, who, according to the guidelines of the health authority, is considered to be a patient at risk, and who is unable to attend face-to-face classes and training activities in a group or class context.

 

What if my Company does not implement telework when mandatory?

The violation of the obligation to implement telework constitutes a very serious offence. The fine varies between EUR 2,040.00 and EUR 61,200.00, depending on whether it is committed with intent or negligence and depending on the Company's turnover.

ACT is responsible for supervising the compliance with this obligation.

 

Do employees in telework have the same rights?

Employees teleworking have the same rights and duties as other employees, in particular regarding the limits of the normal working time and other working conditions, occupational safety and health and workmen’s compensation or occupational diseases.

The coverage of an accident at work will depend on whether the applicable conditions are met. To this end, the employer must document teleworking, including (i) keeping an internal record of employees' names, (ii) dates and (iii) authorized hours, (iv) addresses where telework will be provided and (v) prior authorization from the employer.

 

Do I have to pay meal allowance to employees in telework?

Yes, employees teleworking receive the same salary and have the right to receive the meal allowance that was already owed to them.

 

Do I have to provide the necessary working tools for telework?

Yes, the employer must provide the work and communication equipment necessary for telework.

When this is not possible and the employee gives his/her consent, telework can be carried out through the means at the employee's disposal, being the employer responsible for programming and adapting it to the needs inherent to telework.

 

Returning to office work, what measures do I have to follow?

Returning to office work, the employer must organize the entry and exit hours in a delayed manner, guaranteeing minimum gaps of 30 minutes up to the limit of 1 hour between groups of employees, in all workplaces with 50 or more employees, located in municipalities with a more serious epidemiological situation, already widely known.

The employer must also adopt measures to ensure the physical distance and protection of workers: (a) the constitution of stable teams, so that there is only the possibility of contact between employees in the same team or department; (b) alternation of breaks for rest and meals, between teams or departments; and (c) the use of appropriate individual protection equipment, when, physical distancing is manifestly impracticable, given the activity.

Additionally, the employer may change the employee’s working hours up to a maximum of 1 hour, as long as this does not cause serious harm to the employees and does not imply changing the maximum limits of the normal working period, daily and weekly, or changing the working mode from day to night or vice versa.

The alteration of the work schedule must remain stable for periods of at least one week, and the employer must communicate it with at least 5 days in advance.

These measures do not apply to pregnant employees, employees who have recently given birth or are breastfeeding, or to employees who are minors, have a reduced capacity to work, are disabled or chronically ill, or have children under 12 years of age or, regardless of age, are disabled or chronically ill.

 

Do I have any special information duty towards my employees?

The Contingency Plan must be known to all employees, and its publication must ensure that that is the case. Additionally, mechanisms must be introduced that streamline the contact between the company and the employees, respecting their privacy whilst ensuring that issues are addressed centrally.

 

If the prophylactic isolation of employees is necessary or recommended, should I wait for a decision from the health authority or can I do it on a preventive basis? Can and/or should isolated employees continue to work from home?

A temporary declaration of prophylactic isolation will be issued whenever SNS24 determines , there is a risk situation that may trigger the process of assessment and declaration of prophylactic isolation or any other circumstance that requires isolation according to the rules defined by the DGS, namely following a diagnosis of infection with SARS-CoV-2 .

This declaration is valid for a maximum of 7 days. The certificate may expire prior to such date in case a certificate of temporary incapacity for work is issued, or in case the patient is discharged or contacted by the health authorities.

If the employee is not prevented from working and his or her functions are compatible, telework must be adopted.

If the employee's functions cannot be performed in telework, the prophylactic isolation regime is applied, and the employee is granted a subsidy of 100 % of the reference remuneration. This impossibility to carry out teleworking must be confirmed by a declaration of the employer.

If there is well-founded suspicion of contagion by COVID-19, the employee’s isolation must, to the extent possible, result from a decision from the health authority. If such decision is not issued in a timely manner, isolating the employee – and having them leave the company's facilities, if applicable – will be decided by the employer, in coordination with the workplace health services, and the employee must obey said order.

If the contagion symptoms do not prevent the performance of the employee’s duties, telework mechanisms may be implemented, in which case the company must create the necessary conditions.

 

What is the impact of the isolation on the employment contract? Are employees still entitled to their regular remuneration and meal allowance? Are attendance-based payments affected?

The prophylactic isolation of up to 14 days, consecutive or interpolated, of employees and self-employed workers of the general social security system, motivated by situations of serious risk to public health decreed by the entities that exercise the power of health authority, is considered equivalent to the situation of illness.

The amount of the allowance granted corresponds to 100 % of the reference remuneration.

If the employee is in telework, he/she has the right to meal allowance.

As for other components, namely those linked to regular travel to/from the company’s facilities, such as travel allowance, a case-by-case assessment must be made to confirm that their requirements are still met in an situation of isolation.

 

Is the use of a mask mandatory? And visors?

The of masks or visors is mandatory in spaces, equipment and commercial and service facilities, regardless of their area, in public buildings or public buildings where services are provided or acts involving the public occur, in educational and teaching institutions and day care centers - except in outdoor recreation spaces - in theatres, cinematographic film exhibition halls, congress halls, venues for events of a corporate nature, improvised venues for events, particularly cultural or similar events, in venues for events of any kind and sports celebrations, particularly in stadiums, in health establishments and services and in residential or reception facilities or home support services for vulnerable people, the elderly or people with disabilities, as well as long-term care units. The obligation may be waived when, due to the nature of the activities, its use is not feasible.

The use of masks or visors is also mandatory for employees of bars, discos, restaurants and similar establishments and for employees of public passenger transport, including air transport, as well as in the transport of passengers in taxis or TVDE.

 

Can the Company control employees’ body temperature?

In the current context of COVID-19, and exclusively for reasons of protection of one's own health and of others, employee’s body temperature can be measured to access and stay at the workplace.

This control is without prejudice of the right to individual data protection. The recording of body temperature associated with the identity of the person is expressly prohibited, unless expressly authorized.

Measurements may be carried out by an employee at the service of the entity responsible for the site or establishment, no physical contact with the person concerned being admissible, always by means of equipment suitable for this purpose, which may not contain any memory or make records of the measurements made, and the employee in charge of the measurements shall be subject to professional secrecy.

If the temperatures are equal or higher than 38ºdegrees the employer may deny access to its premises.  

The employee who refuses to measure its body temperature may be prevented from accessing the workplace.

 

To what social security contributions are employees entitled?

Exceptional measures have been approved to safeguard the social protection of employees who are temporarily prevented from performing their professional activity by order of the health authority, due to the risk of contagion by COVID-19, deeming them equal to situations of greater social protection in case of illness.

From this set of measures, we highlight the one that equates to a situation of disease the situation of prophylactic isolation of up to 14 days, followed or interpolated, motivated by situations of serious risk to public health decreed by the competent entities. For this purpose, the public health authority declares the start and end date of the prophylactic isolation situation.

The sickness allowance is not subject to a waiting period and amounts to 100 % of reference pay.

In case of sickness caused by COVID-19 the entitlement of sickness allowance is not subject to a waiting period and corresponds to 100 % of net salary, paid up to a maximum limit of 28 days, from which the prophylactic isolation period is deducted, if applicable.

 

Can an isolated employee continue to work remotely? If so, what must I ensure?

Assuming that the isolation does not result from inability to work, the employee may continue to work remotely and the company must ensure that the necessary requirements are met in the specific case. Ideally, the employee should agree to work remotely and any refusals to work remotely should be managed by the company on a case-by-case basis in order to ensure the continuity of the production process and the legal guarantees of the employee.

 

And in the event that the employee needs to provide assistance to other relatives?

It is considered as a justified absence, the situation arising from the monitoring of prophylactic isolation motivated by situations of serious risk to public health, or disease caused by COVID-19, up to a limit of 14 days, in each of the situations, of children or other dependents at the employee's care.

In the event of prophylactic isolation of a child under 12 years of age or, regardless of age, with a disability or chronic illness, the entitlement to child care allowance and grandchild care allowance does not depend on the guarantee period.

Absences to care for spouse, unmarried partner, relative or related in ascending direct line, dependent on the employee and attendant of social amenities suspended by determination of the health authority, within the scope of its powers, or by the Government, provided there is no possibility to ensure support by any alternative social response mechanisms, are also deemed justified.

Such absences will entail loss of remuneration, being the employee entitled to choose to take holidays, in the terms set forth for the care for children.

Furthermore, absences motivated by the assistance of a child or other dependent under the age of 12 or, regardless of age, with disability or chronic illness, as well as a grandchild living with the employee who is the child of a teenager under the age of 16, resulting from the suspension of school activities and extracurricular activities are also considered justified, namely between the 2nd and 9th of January 2022. These absences determine the loss of retribution, being the employee entitled to choose to take holidays, through written communication, without the need of the employer’s agreement.

 

If I miss work to take the third dose of the Covid-19 vaccine, will I have an absence? Is it justified?

Yes, people with immune-suppressive conditions who require an additional dose of the Covid-19 vaccine can justify their absence from work through a medical statement, provided that they cannot work remotely or perform their activities through other means.

 

Can the Authority for Work Conditions (Autoridade para as Condições do Trabalho) suspend dismissals?

When the authority’s inspector concludes on the existence of an illegal dismissal, a report shall be drawn up and the employer notified to settle the situation. Upon such notification, the labour contract shall remain in force, including the employee’s rights and obligations before social security, until the employee’s situation is settled or up to the final court decision. 

In the current context, ACT has increased its human resources to ensure its responsiveness.


I am a shareholder and a director. Can I access any support measure?

The extraordinary support measure for the reduction of the economic activity of self-employed workers also covers directors of micro and small enterprises, whether or not they have equity interest in the company, individual entrepreneurs, as well as members of statutory bodies of foundations, associations or cooperatives with functions equivalent to those, who are exclusively covered by the general social security scheme in that capacity.

This support shall be granted on the following situations:

  • Complete shutdown of its activity or activity of the respective sector, as a result from the pandemic of COVID-19 disease, provided it is documented; or
  • Through a statement of the shareholding director, along with a certificate issued by a certified accountant, confirming the abrupt and sharp drop of at least 40% in invoicing in the 30 days preceding the request to the social security with reference to monthly average of the two months preceding such period, or to the same period of the preceding year, or for those who started the activity less than 12 months ago, to the average of this period.

The financial support shall correspond to:

  • The value of the remuneration recorded as social security contribution basis, when the value of such remuneration is lower than 1.5 IAS (EUR 658.21).
  • 2/3 of the remuneration recorded as a social security contribution basis, when the value of such remuneration equals or is higher than 1.5 IAS (EUR 658.21).
  • The minimum limit of this support corresponds to 50 % of the IAS value (EUR 219.41) and its maximum limit corresponds to three times the value of the National Minimum Wage (EUR 2115.00).

This financial support lasts for one month, extendable up to a maximum of six months.

 

If any employees have booked holidays, what can I do? Can I alter the holiday schedule? Can I close the company so that employees take their holidays?

The scheduling and change of previously booked holidays should ideally be agreed with the employees. Absent such agreement, the possibility of a company scheduling holidays is heavily restricted, both as regards the holiday period and the continued or interpolated enjoyment of the holidays.

The deadline to book holidays ended on 15 of May.

 

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This information is being updated on a regular basis.

All information contained herein and all opinions expressed are of a general nature and are not intended to substitute recourse to expert legal advice for the resolution of real cases.