At a time when many are on vacation, the Authority for Work Conditions (ACT) has issued a technical note concerning the duty of abstention from contact. What does the law say on this matter?
“This document aims to clarify ACT’s interpretation of Article 199-A, added to the Labor Code by Law No. 83/2021, of December 6, which establishes the employer’s duty to refrain from contacting the employee during their rest periods,” according to the technical note from ACT.
ACT highlights that the law prescribes a “duty for the employer: to refrain from contacting the employee during rest periods, except in force majeure situations.”
This duty is not limited to teleworking or remote work systems; it has a broad application covering all types of work arrangements.
“The legislator thus reinforced the guarantee of the worker’s right to rest, ensuring that they enjoy effective rest periods free from work pressure,” the document states.
ACT asserts that the “duty of abstention from contact, enshrined in Article 199-A of the CT, and the inherent right to disconnect, are essential to ensure workers enjoy their rest periods, promoting health, well-being, and work-life balance.”
Furthermore, it clarifies that the ‘rest period’ is the time when the worker is no longer ‘bound to perform work’ and is not obliged to be available to the employer.
Calls and more: What contacts are involved?
Under the law, contact is defined as “any communication or attempt to communicate that interrupts the full enjoyment of the worker’s right to rest, regardless of the medium used, including phones, visits, emails, chat notifications, meeting requests, among others.”
“On this matter, Leal Amado states that the duty of abstaining from contact implies ‘do not disturb!’ and is violated whenever a message is directed to the worker, even if it does not request a response or demand immediate action, as ‘the legal norm imposes an abstention from contact, not just from issuing orders or posing questions’.”
Be aware of ‘force majeure situations’. What are they?
It is important to note that the “duty of abstention from contact is not absolute” because the law allows for the “employer to contact the worker during their rest period in ‘force majeure situations.'”
“A ‘force majeure’ situation is characterized by its ‘inevitability’: it will be a natural event or human action that, although foreseeable or even prevented, cannot be avoided, either in itself or in its consequences,” explains ACT.
It further clarifies that these are situations and events that affect the company and “are likely to cause serious destruction or damage to it.”
ACT’s document notes that these are ‘unpredictable situations, beyond the employer’s will, and that the employer was unable to overcome, such as earthquake, fire, flood, severe weather, power outage, etc.‘
“In these situations, the aim is to safeguard the company’s viability and its continuous operation, which will protect jobs,” ACT concludes.
It also explains that “situations created by the employer or superiors which could be resolved during the worker’s regular working hours are not considered ‘force majeure’ for the purposes of the duty of abstention from contact.”
