Littler World Guide – Portugal – Q4 2021 | Smaller

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COVID-19 updates (the past and the new future)

New legislation enacted

Authors: David Carvalho Martins, partner and head of employment, and Tiago Sequeira Mousinho – DCM | Smaller

The main concern focused on COVID-19 – which is why he claimed the top spot. It’s “safe” to say that the workplace is not immune to the virus. Therefore, certain measures have been applied, since October, to date and are still in force, in order to protect public health, including employees and other third parties (contractors) or partners. Some examples of “endless updates” can be provided in the workplace, such as (i) the mandatory use of masks in public places, (ii) the adoption of a specific COVID-19 plan ( internal preventive and repressive methods of contamination/explosions of infection, namely social distancing), and (iii) obligation to create staggered working hours and to reorganize work and minimize the risks of transmission.

From our point of view, the best prevention and repression of the virus is the almost daily monitoring of the various coercive and temporary measures that seem to be part of our daily lives.

Telecommuting and the obligation to refrain from contact

New legislation enacted

Authors: David Carvalho Martins, partner and head of employment, and Tiago Sequeira Mousinho – DCM | Smaller

The recently enacted Law No. 83/2021, which comes into force on January 1, 2022, provides for a new and broader concept of “teleworker” (e.g. remote workers). The new regime provides, among other things, for the reimbursement of costs related to teleworking by the employer, and creates a “new” obligation to refrain from all contact with employees during their rest periods. This new obligation of abstention may not have the effect of limiting or eliminating existing contractual or regulatory situations (exemption from working time, overtime, on-call duty, among others), in which employees have the obligation to remain available , outside the place of work and working hours, to be contacted in situations where it is necessary. On the other hand, the legislator does not seem to use the concept of working hours to delimit the obligation of abstention, having delimited this obligation to periods of rest, namely breaks, daily and weekly rest.

Employers should be aware of several implications of telecommuting/remote work. Mainly on the terms and conditions established in the formal teleworking agreements. This formal referred agreement could determine the most disparate interpretations.

New status for employees in the cultural field

New legislation enacted

Authors: David Carvalho Martins, partner and head of employment, and Tiago Sequeira Mousinho – DCM | Smaller

Decree-law no. 105/2021 – which was published on October 29, 2021 and entered into force on January 1, 2022 – provides a new framework for professionals inserted in the cultural field. The main implications relate to (i) the new regime of fixed-term contracts, (ii) the broader notion of working time and place of work (with an apparently restricted definition of the notion of mere travel), (iii) a preference rule to choose a model employment contract instead of a contract for the provision of services, (iv) a new registration-based social protection scheme and (v) a new professional requalification scheme.

Employers should compare the different regimes (old law vs. new law) as hiring processes have changed in this new framework based on restriction and less flexibility.

Transposition of the denunciation and labor relations

New legislation enacted

Authors: David Carvalho Martins, partner and head of employment, and Tiago Sequeira Mousinho – DCM | Smaller

Far. 93/2021 – which was published on December 20, 2021 and comes into force 180 days after its publication – provides the general framework for the protection of whistleblowers. The law in question has several employment implications, such as (i) mandatory adoption of internal reporting channels and (ii) non-retaliation rules for employee whistleblowers. The main concerns center on the short time provided by the Portuguese legislator to comply with all formal obligations. Currently less than 180 days old and still ongoing.

Employers should be aware of their obligations under whistleblowing and trade secret protection regimes to mitigate future contingencies.

New regime on justified absences and parental bereavement

Proposed bill or initiative

Authors: David Carvalho Martins, partner and head of employment, and Tiago Sequeira Mousinho – DCM | Smaller

Law 1/2022 was approved on November 26, 2021 and will be published in January 2022. The current law extends the number of days for the period of mourning the death of a descendant or first-degree relative of the direct line from five days to 20. In these situations, both parents have the right to seek psychological counselling, provided by the National Health Service, which must begin within five days of the death.

This is a long-term initiative which has taken the form of legislative proposals. It is important to provide this information to HR departments. This theme was raised regarding workers’ mental health and its impact on the workplace. A felt demand that has lagged over time.

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