Remote Work Does Not Remove Employer Responsibility In Case Of Accidents Or Occupational Diseases

Signed Responsibility Term by the Employee and Inspection Visits Can Help Prevent Workplace Issues, Expert Suggests

With so many challenges during the pandemic, remote work seems consolidated as an option for employers and employees alike. However, the fact that the workplace is the employee’s home does not exempt the employer from ensuring the health of the workers. Lawyer and expert in Labor Law and Procedure, Otavio Calvet – also a Labor Judge at the Regional Labor Court of the 1st Region (TRT/RJ) – addresses some of the questions inherent to this new reality.

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Do We Already Have a Legal Definition for Remote Work? Is There a Difference Between It, Remote Work, and Telework?

Otavio Calvet: Remote work is that which is performed outside the employer’s premises, taking place either at the employee’s home or anywhere else. Telework, which has a legal definition (art. 75-B of the CLT), is one type of remote work characterized by the fact that the worker predominantly carries out their activities outside the employer’s premises, using information and communication technologies that, by their nature, do not constitute external work. Home office is a modal of remote work – generally also telework – but conducted at the employee’s residence.

How Could One Define a Workplace Accident in a Home Office?

Otavio Calvet: A typical workplace accident, one that occurs at the employer’s establishment – such as a fall, for example – is difficult to define outside that space, given that the essence of telework in home office is the flexibility of hours; the employee is the one who determines their work and leisure times. Now, illnesses triggered by the way of working, or by the conditions provided by the employer in the home office setup, can more easily be configured as having a link to work and, therefore, considered as a workplace accident. The legislation allows for the recognition of the causal link [the factual connection that ties the effect to the cause] and, furthermore, the civil/labor liability of the employer in case of fault in the event.

What Are the Rights of Employees After a Remote Workplace Accident?

Otavio Calvet: The same as an employee who works on the employer’s premises. If the accident causes work incapacity, the employee must submit a medical certificate for paid leave for the first 15 days, and if incapacity persists, the employer must issue the CAT [Communication of Workplace Accident], sending the employee to the INSS to receive accident-related sickness benefits. In a positive case, upon future recovery, the employee will enjoy at least 12 months of job stability. Furthermore, it should be verified whether the accident occurred due to the employer’s fault, as in this case there may be liability for property and moral damages.

What Is the Employer’s Duty to Ensure the Health of Remote Employees?

Otavio Calvet: The employer needs to understand that placing the employee in a home office does not eliminate their responsibility: they must act with the necessary precautions to ensure that the new work environment, the office in the worker’s own home, is adequate in terms of both equipment and the way of working. It is the employer’s duty to instruct employees explicitly and conspicuously regarding the precautions to be taken to avoid illnesses and workplace accidents. The employee must sign a responsibility term, committing to follow the instructions provided by the employer, as per article 75-E of the CLT [Consolidation of Labor Laws]. Additionally, the employer must supervise the work environment, arranging visits with the employee to verify compliance with the instructions given.

Source: Otávio Calvet, Lawyer and Expert in Labor Law and Procedure;

Labor Judge at TRT/RJ; Master and Doctor in Labor Law from PUC São Paulo; Master in Social Law from Universidad Castilla La Mancha – Spain. Guest lecturer for postgraduate courses: ATAME, IEPREV, IMADEC, Faculdade Baiana de Direito, IBMEC, FDV, CERS. Pedagogical Coordinator of the Online Postgraduate Course at Faculdade ATAME. Pedagogical Coordinator and Professor at Atameplay. Honorary Member of the Brazilian Institute of Lawyers (IAB).