New law: Pregnant women in home office without salary loss

The law ensures that pregnant women are removed from in-person work so they can work remotely without losing their pay. But what happens when the work cannot be done remotely? A lawyer discusses the issue.

Last week, President Jair Bolsonaro signed Law No. 14,151, dated May 12, 2021, which provides for the removal of pregnant employees from in-person work activities during the public health emergency of national importance arising from the new Coronavirus.

According to labor lawyer Marcio Dell’Santo from the Genelhu Advogados firm, the pregnant employee must remain removed from in-person work activities, without loss of her remuneration, for as long as the public health emergency imposed by the COVID-19 pandemic lasts. The removed employee will be available to perform activities from her home through telework, remote work, or another form of distance work. The measure aims to preserve the health of the employee and the unborn child, not only concerning the work environment itself but also during her commute.

What if the company does not comply with the law? Márcio explains that the law does not expressly provide for a penalty (fine), but companies are subject to labor lawsuits and oversight by the Special Secretariat of Labor (formerly the Ministry of Labor).

What if the pregnant woman performs a function that cannot be done remotely?

In this aspect, the law generates debates. Not all professions allow for remote work. In these cases, the burden will fall on companies to continue paying the employee, even though public health is a duty of the State. Currently, companies may take advantage of Provisional Measure No. 1,045, dated April 27, 2021, which established the "New Emergency Program for Employment and Income Maintenance and provides for complementary measures to address the consequences of the public health emergency of international importance arising from the Coronavirus (Covid-19) in the context of labor relations," meaning they may suspend the employment contract, so that, for some (smaller) companies, there will be no burden (need to pay compensatory assistance).