COVID-19: Portugal approves extraordinary measures for employees and employers
Labor and Employment Law Alert Portugal
Following the declaration by the Ministry of Internal Affairs and Ministry of Health of the State of Alert for the whole country, the Council of Ministers, on March 13th 2020, approved a set of measures, of extraordinary and urgent nature, in response to the epidemiological situation of the new COVID-19, having, on the same date, been published in the Official Gazette, Decree-Law n.º 10-A/2020 and Resolution of the Council of Ministers n.º 10-A/2020, as well as Ordinance n.º 71-A/2020, of March 15th 2020, being these diplomas that came to operationalize the measures announced.
Prophylactic isolation for 14 days, of either subordinate employees or self-employees, motivated by situations of serious risk to public health, decreed by the entities exercising the power of health authority, is equivalent to sickness. In addition, recognition of sickness allowance is not subjected to the verification of a number of requirements (e.g., guarantee period, certification of temporary incapacity for work), nor is it subjected to a waiting period. Plus, the allowance corresponds to 100% of the reference pay or, in the case of beneficiaries who do not have a registration of 6 months of pay, the reference pay is defined by R / (30 x n), where R represents the total pay recorded from the beginning of the reference period until the day before prophylactic isolation and n the number of months to which they relate;
In case of sickness (by the aforementioned COVID-19), both for employees and the self-employees, the granting of sickness allowance is also not subjected to a waiting period;
The situation arising from prophylactic isolation for 14 days of a dependent child or other dependent of an employee subjected to the general social security regime, in the situation already listed in paragraph §1, is considered to be justified, and in the case of children under 12 years of age, or, regardless of age, with a disability or chronic illness, the granting of the child care allowance and of the allowance for the care of a grandchild does not depend on the guarantee period. Moreover, with reference to the present case, in the event that the beneficiaries do not have a six months' pay registration, the reference pay will be that already explained in paragraph §1;
Outside of school break periods, absences from work due to unavoidable care of a child or other dependent under the age of 12 or, regardless of age, with a disability or chronic illness, arising from the suspension of school and non-teaching activities in school or social support equipment, determined by a health authority or by the Government , shall be considered justified, with no loss of rights, except in relation to retribution, and the employee shall report the absence under the terms of article 253.º of the Portuguese Labor Code;
In cases provided for in paragraph §4, the employee is entitled to receive an exceptional monthly support, or proportional, corresponding to two thirds of his/her basic salary, with a minimum limit corresponding to a guaranteed minimum monthly salary and a maximum of three, paid in equal parts by the employer and the Social Security (the employer must pay in full and receive the Social Security portion). This support is granted automatically, as long as there are no other forms of alternative provision of the activity, namely teleworking, cannot be received by both parents and can only be perceived once, regardless of the number of dependent children under their care;
The Decree-Law also provides for exceptional family support for self-employees, corresponding, although subject to certain limits, to one third of the contribution base for the first quarter of 2020 and only being due in cases where there are no alternative forms of providing the activity, namely teleworking.
Under the Decree-Law, self-employees benefit from additional support measures, resulting, in particular, from the reduction of economic activity;
As to alternative forms of work, the regime of provision of activity through telework may be unilaterally determined by the employer or requested by the employee, without the need for agreement of the parties, provided that it is compatible with the functions performed;
Creation of an extraordinary professional training support, in the amount of 50% of the employee's remuneration up to the limit of the minimum monthly salary guaranteed, plus the cost of training, for the situations of employees without occupation in productive activities for considerable periods, when linked to companies whose activity has been seriously affected by COVID-19.
- Promotion of extraordinary support for the maintenance of employment contracts in companies in a situation of business crisis, which is defined, for purposes of the application of Ordinance n.º 71-A/2020, as (i) the total stoppage of the company's or establishment's activity resulting from the interruption of global supply chains, the suspension or cancellation of orders, or (ii) the abrupt and sharp drop of at least 40% in invoicing, with reference to the same period of three months ago, or, for those who started the activity less than 12 months ago, the average of that period;
- The conditions related to the business crisis provided for in the above paragraph §1 are attested by means of a declaration by the employer together with a certificate from the certified accountant of the company. Plus, companies must prove the facts on which the use of this regime is based by means of, for example, accounting balance sheets for the month of the support, as well as for the respective homologous month, Value Added Tax declaration for the month of the support, among others;
- The access to the measures depends on the employer having the tax and social security situations regularized before the Social Security and the Tax and Customs Authority;
- The extraordinary support in a situation of business crisis presupposes that the employer communicates, in writing, to the employees the decision to apply for the support measure, indicating the foreseeable duration, after hearing the union representatives and the employees' commissions when they exist, immediately referring the application to the Social Security Institute, I.P. (ISS, I. P.), accompanied by the documents already referred to in the above paragraph §2, as well as the nominative list of the employees covered, as well as their social security number;
- During the period of application of this measure, the social security system shall guarantee payment of 70 % of the remuneration of two thirds of the gross monthly remuneration up to a maximum of three guaranteed minimum monthly remunerations (EUR 1,905.00);
- This support, which will have the duration of one month, may, exceptionally, be extended monthly, up to a maximum of 6 months, only when the company's employees have taken the maximum annual vacation limit and when the employer has adopted the working hours flexibility mechanisms provided by law;
- The employer, by resorting to the measure described in the above points, may entrust the employee with the temporary exercise of functions not included in the employment agreement, provided that this does not imply a substantial change in the employee's position, and that they are oriented to the viability of the company;
- Companies which do not make use of the financial support referred above may have access to extraordinary support for part-time professional training of one month's duration, provided by the Institute for Employment and Professional Training (IEFP, I.P.), up to a limit of 50 % of gross remuneration (with reference to each employee), with a maximum limit on the minimum monthly remuneration guaranteed;
- Creation of an extraordinary financial incentive to ensure the normalization phase of the activity and which aims to support companies, in order to prevent the risk of unemployment and the maintenance of jobs;
- Promotion, within the contributory scope, of an exceptional and temporary regime of exemption from the payment of social security contributions;
- Other measures adopted.
Taking into account the extraordinary nature of the measures described above, it will be necessary to consider guidelines / opinions / instructions issued by entities such as the Authority for Working Conditions, DGERT, among others, in order to better understand them.