THE NECESSARY PRECAUTIONS FOR RESUMPTION OF ACTIVITIES BY EMPLOYERS

25/08/2020

With the authorization to resume business activities in most Brazilian capital cities, the concern of employers now rests with the precautions necessary to reopen for face-to-face business securely, to minimize risks.

Initially, it is important to mention the en banc decision of the Federal Supreme Court that unanimously confirmed the leading opinion of Justice Marco Aurélio (the reporting judge assigned to the case)1, to attribute to the state and municipal governments the responsibility to issue rules on the matter, so that the measures adopted by the federal government2 in response to the Covid-19 pandemic do not rule out the concurrent competence of the subnational governments to issue legislative and administrative acts.

The majority of the justices also adhered to the proposal of Justice Edson Fachin3 regarding the need for Article 3 of Law 13,979/20 to be interpreted according to the Federal Constitution, making it clear that the federal government can legislate on the theme, but the exercise of this competence must always safeguard the autonomy of the subnational governments4.

In this context, the state and municipal governments issued various decrees determining restriction of activities5 and circulation of people, social isolation, etc., and more recently have moved in the opposite direction, issuing plans and rules for resumption of activities6.

The majority of large Brazilian cities have formulated and are now implementing plans for resumption of activities7. Some cities have enacted their own rules, such as Rio de Janeiro8, while others have adopted the directives of the respective state governments, such as the city of Recife9, and still others have adopted mixed systems, as is the case of the city of São Paulo, relying on state measures together with local ones11.

The state of Goiás stands out, having adopted a staggered reopening criterion, with resumption of activities for 14 days followed by closure for 14 days12. However, this measure was not materialized, since the decree that established the system was revoked in response to various contrary manifestations.

Some resumption plans were contested judicially by the local public prosecution services, as in the city of Rio de Janeiro14 and the Federal District (Brasília)15. In both cases, injunctions were issued suspending the decrees, which were subsequently overturned, thus declaring the validity of the decrees issued by the state and municipal governments of Rio de Janeiro, and the Federal District Government.

Therefore, it can be said that the processes for resumption of activities are not sailing in calm waters, and have often been revised with the spread of Covid-19, generating many doubts among the public and businesspeople. The decision to resume activities should thus be taken with caution, with observance of all the premises and rules of the locale, as well as paying close attention to the possible alterations and safety protocols issued.

Despite this complexity, a common framework for relaxation has been adopted regarding resumption of activities, based on two pillars: (I) the evolution of the disease; and (II) the existence of sufficient ICU beds, with the only divergence being the percentages to be considered.

Based on these indicators, the state and municipal governments have traced out plans for gradual resumption of activities, with the possibility of backtracking to previous phases should the health statistics worsen. This occurred, for example, in the city of Belo Horizonte16, where the government ordered return to Phase 017 in reaction to the growth of the contamination curve.

For a safe resumption, it is essential to formulate plans based on the local authorizations in relation to the form of reopening and the mandatory hygiene measures, while paying close attention to possible alterations.

In the case of the state of São Paulo, the government prepared the “Plano São Paulo”18, establishing hospital bed occupancy and evolution of the epidemic as the criteria for opening/closing of activities.

The Plan considers the specific cases of various sectors of activities, based on the existing risks, classifying them as slight, intermediate or grave, assigning colors, such as green to civil construction, yellow to commerce/office work in general, and red to bars, restaurants and fitness centers19.

In parallel, the São Paulo Municipal Government, through the Secretariats of Economic Development and Health, has signed regional and sectorial protocols with various entities for resumption of activities. For this reason, it is important to abide by any specific protocols that may be applicable, depending on the economic activity, especially regarding the applicable sanitary measures21.

The São Paulo Municipal Government has issued rules on the operating hours of establishments depending on activity22, as a way to reduce commuter traffic and crowding on public transportation.

The Rio de Janeiro Municipal Government has also issued regulations, but not as detailed23, with the general determination that establishments that render services must guarantee minimum distance of 2 meters between clients and observe the operating hours set for each activity24.

The municipal authorities also prepared so-called “golden rules”25 for the city26, which impose various sanitary measures and specific protocols for various activities27.

Finally, it is necessary to observe the national measures to mitigate risks of contamination by Covid-19.

In this respect, the Special Secretariat of Social Security of the Ministry of the Economy and the Ministry of Health issued Joint Edict 20 of June 18, 202028, establishing measures for prevention, control and mitigation of risks of transmission of Covid-19 in workplaces29.

Therefore, for secure resumption of activities, we urge strict compliance with the local protocols (municipal and state) on health and safety, employee training, supply and replacement of PPE suitable for the work activity, secure distancing between workstations/people/eating places, and supply of disinfection materials (alcohol gel, soap, disposable towels, etc.), with the objective of assuring the health and safety of employees and observance of the operating hours for each activity.

These measures add up to a true change of culture in the workplace, implying stronger measures focused on hygiene and health by the employer as well as greater awareness of workers about the need for collective efforts for the benefit of all.

In case of any suspicion of contamination, we recommend that the affected worker be immediately placed on leave and submitted to the proper testing, with maintenance of the leave as indicated by the relevant health authority in case of confirmation or an inconclusive result.

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1 Decision rendered in Direct Action for Unconstitutionality 6341.

2 According to Provisional Measure 926/20.

3 According to the position of Justice Edson Fachin, the possibility of the federal chief executive to define by decree the definition of essential public services, without observing the autonomy of subnational governments, violates the principle of separation of powers. On this point, the reporting judge and Justice Dias Toffoli dissented, arguing that the injunction was sufficient based on the terms on which it was granted.

4 In this form, the concurrent competence to legislate on matters involving public health, pursuant to Article 23, numeral II, of the Federal Constitution, provided the outlines of the question, in particular regarding companies that have activities in various places in the country and must obey the municipal and state decrees of each place regarding the possibility of functioning/resuming activities, as well as the security measures determined by the state and local authorities.

5 With respect to the state and municipal measures enacted during the period of restrictions, a common point was the determination of different rules depending on the sector of economic activity.

6 The majority of the websites of the municipal and state governments specify the decrees that regulate the suspension and resumption of activities, as well as the reopening plans or continuing restrictions on functioning, along with the sanitary measures that must be observed in each locale.

7 The determinations mentioned in this article reflect the situation on August 7, 2020.

8 According to Rio de Janeiro Municipal Decree 47,488/20. In this respect, the governor of the state of Rio de Janeiro issued State Decree 47,112/20.

9 Under the terms of Pernambuco State Decree 49,055/20.

10 Under the terms of São Paulo State Decree 64,994/20.

11 Under the terms of São Paulo Municipal Edict 969/20.

12 According to Decree 9,685/20.

13 According to Decree 1,313/20.

14 Through three Public Civil Actions (numbers 0117233-15.2020.8.19.0001, 0102074-32.2020.8.19.0001 and 0068461-21.2020.8.19.0001), being heard by the Rio de Janeiro State Court of Appeals.

15 Through Public Civil Action no. 1025277-20.2020.4.01.3400, heard by the Federal Court of Appeals for the 4th Region.

16 According to Decree 17,377/20.

17 On this point, the important reference is Belo Horizonte Municipal Decree 17,406 of August 6, 2020m authorizing the resumption of activities contemplated in Phase 1.

18 The São Paulo Plan is available at the link: Click here

19 Five phase were created for resumption of activities (Phase 1 – red, Phase 2 – orange, Phase 3 – yellow, Phase 4 – green, and Phase 5 – blue).

20 For example Edict 605 of July 4, 2020 (concessionaires, resellers and service provision firms), Edict 625 of June 9, 2020 (street commerce and real estate sector), Edict 629 of June 10, 2020 (shopping centers), and Edict 696 of July 4, 2020 (bars/restaurants and beauty services). The Municipal Government also issued 185 of July 8, 2020 to consolidate the sanitary protocols of these other edicts.

21 The measures included, for example, sanitization of spaces and maintenance of air conditioning systems, provision of PPE, testing of workers, training on the rules established in the protocol, use of masks and maintenance of distance, in the workplace or spaces such as cafeterias/canteens, provision of gel alcohol, placement on leave of workers with symptoms of the virus, and prohibition of large agglomerations (by specifying maximum densities) in each phase of the plan. Depending on the type of activity, various other rules must be obeyed, in particular those involving interaction with the public. The Edict also contains rules on treatment of workers with disabled dependents.

22 The recommendation to establish staggered shifts, both for work and meals, has the main objective to diminish the flow of people in spaces, to assure the recommended distancing.

23 The resumption plan, divided into six phases, uses as indicators the hospital bed availability and level of transmission of the disease. At this writing (August 7, 2020), the municipality of Rio de Janeiro is in Phase 5.

24 Municipal Decree 47,359/20 added Annex I to Decree 47,282/20.

25 The measures include, for example, disinfection of hands with liquid detergent of 70% gel alcohol, use of masks, distance of 2 meters between people, and maximum occupation of one person every 4 square meters, cleaning and maintenance of closed spaces and air conditioning systems, supply of PPE, restriction on access to back room areas of establishments, cleaning of spaces and disclosure of measures for prevention of COVID-19 and the “golden rules”.

26 The “golden rules” are available at the link: Click here

27 The activities that have specific protocols are available at the link: Click here

28 Article 1, § 2, of the Edict does not authorize the opening of establishments. Rather, it only establishes a set of rules that must be followed regarding the activities for functioning to be authorized.

29 The measures indicated in the Edict are divided into: general measures (orientations and protocols); rules of conduct related to suspected cases; hand hygiene and social etiquette; social distancing; ventilation, cleaning and disinfection of spaces; workers in risk groups; personal protective equipment (PPE); dressing rooms; transportation of workers provided by employers; Specialized Occupational Health and Safety Service (SESMT) and Internal Accident Prevention Committee (CIPA); and measures to resume activities.

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