Decree-Law no. 94-A/2020 -Amending the exceptional and temporary measures relating to the COVID-19 pandemic

Legal Alert no. 132

Decree-Law no. 94-A/2020 of November 3, 2020 was published, amending the exceptional and temporary measures relating to the COVID-19 pandemic.

Declaration of prophylactic isolation
A provisional declaration of prophylactic isolation, in electronic form, is issued to employees, as well as to self-employed employees under the general social security scheme, whenever, following contact with the SNS24, there is a risk situation which may determine the process of assessment and declaration of prophylactic isolation.

The provisional declaration of prophylactic isolation is valid for a maximum period of 14 days or until the contact realized by the entities exercising the power of health authority.

The scheme applicable to prophylactic isolation does not apply to employees who can perform the respective activities through other mechanism, namely teleworking.

The impossibility of teleworking is confirmed by a statement of the employer.

Teleworking scheme

The teleworking scheme applies to companies established in territorial areas where the epidemiological situation justifies it, as defined by the Government, irrespective of the number of employees, as well as to employees living or working in those areas.

The adoption of the teleworking scheme is mandatory, regardless of the employment relationship, whenever the functions in question allow it and the worker has the conditions to perform them, without the need for a written agreement between the employer and the employee.

Exceptionally, when the employer considers that the conditions foreseen for the teleworking scheme are not filled, the employer must communicate its decision to the employee, with reasons and in writing, and must demonstrate that the functions in cause are not compatible with the teleworking scheme or the lack of appropriate technical conditions for its implementation.

The employee may, within three working days of the employer's communication, request the Portuguese Authority for Labour Conditions to verify the lack of the conditions for performing the activity in the teleworking scheme and the facts invoked by the employer, who shall decide within five working days, taking into account, in particular, the activity for which the employee was engaged and the previous performance of the activity in the teleworking scheme or through other means of providing remote work.

The employer must provide the work and communication equipment necessary for teleworking. When this is not possible and the employee consents, teleworking can be carried out through the means that the employee possesses, with the employer being responsible for the necessary programming and adapting to the needs inherent in the provision of teleworking.

Employee, who is unable to perform their duties by teleworking, in particular under appropriate technical or housing conditions, must inform the employer in writing of the reasons for their impediment.

The employee who performs his activity through the teleworking scheme has the same rights and duties as other employees, in particular as regards remuneration, limits on normal working hours and other working conditions, safety and health at work and compensation for damage arising from an labour accident or occupational disease, while retaining the right to receive the meal allowance that was already due.

The teleworking scheme is in force until March 31, 2021, without prejudice to the possibility of extension after consultation with the social partners.
This Decree-Law comes into force on November 4, 2020.

To access the full text of the Decree-Law no. 94-A/2020, please click here.