Brazil: The Right to Disconnect Q&A

The “right to disconnect”, or the ability of workers to disconnect from work-related communications and activities outside their normal working hours, has become a pressing issue following the COVID-19 pandemic and the widespread shift to remote and flexible working. While some workers may appreciate the increased autonomy and flexibility that remote working offers, others may face challenges in maintaining a healthy work-life balance, managing expectations and boundaries, and avoiding burnout and stress.

There are various approaches to the right to disconnect across jurisdictions. For example, while some jurisdictions rely on codes of practice, others address the right to disconnect via legislation, or restrict the right to teleworkers/remote workers only.

With different jurisdictions adopting or considering various legal and policy responses to address the right to disconnect, the below provides an overview of the current position in Brazil.

This Q&A is part of a series providing an overview of the current position and developments in 15 countries, highlighting the main challenges, opportunities, and best practices for employers and employees. This series includes contributions from Mayer Brown’s Employment & Benefits team and local counsel.

1. Is there a right to disconnect in your jurisdiction and, if so, when did it come into force?

Yes. Although there is no law in Brazil specifically regulating the right to disconnect, the right to disconnect is interpreted by Labor Courts as the right to rest established by the workday limits foreseen in the Brazilian Labor Code (“CLT”) since 1943 and in the Brazilian Federal Constitution of 1988. 

2. Is the right governed by legislation, a code of practice or both?

The right to rest in Brazil is governed by the Federal Constitution of 1988 and by the CLT. Additional provisions regarding the right to rest may be stipulated by Collective Bargaining Agreements negotiated by unions. 

3. Do all employees have a right to disconnect? 

According to Article 62 of the CLT, the following categories of employees are not subject to the control of working hours and therefore wouldn’t be entitled to the right to disconnect: employees in external activities incompatible with the control of working hours by the employer; employees in positions of trust (managers, directors and heads of department); and employees working remotely who provide services by production or task. 

Apart from those employees, all other employees are covered by this right.

4. Are all employers obliged to provide the right to disconnect?

Yes. Employers with employees under employment agreements governed by the CLT are all required to provide the right to disconnect, except for the employees who are not subject to control of working hours. 

5. What are the obligations on the employer?

Employers’ obligations regarding the right to disconnect include compliance with workday limits, workday breaks and appropriate remuneration for overtime work, under the terms of the applicable law and any Collective Bargaining Agreement. In this context, employees should not be required to perform tasks or receive communications by any means outside their working hours.

6. What happens if an employer fails to comply with its obligations?

Non-compliance with the periods of rest and workday limits may result in individual labor lawsuits filed by employees, collective claims filed by the Labor Prosecutor's Office or by the employees’ unions and administrative procedures conducted by the authorities from the Ministry of Labor and Employment. 

7. Have there been any reported cases on the right to disconnect?

It is reported that there are more than 200 cases concerning the right to disconnect to be ruled by the Brazilian Superior Labor Court. The labor disputes over the right to disconnect and violations of workday limits have increased after the period of the COVID-19 pandemic, in which there was an increase in remote work along with the development of new technologies. 

8. What are the benefits and challenges of the right to disconnect in practice? 

The right to disconnect contributes to employees’ physical and mental health, which may result in an increase of productivity and engagement at work as well as mitigate risks of occupational diseases and reduce turnover, providing a better work-life balance. 

The practical challenges regarding the right to disconnect relate to the permanent connection to work via mobile phones and other digital equipment related to new forms of employment developed in the past decades, which makes the implementation of the right to disconnect more difficult in some companies.

9. Has the right to disconnect had a significant impact on the workplace since it came into force? 

In Brazil, as noted above, the regulation of the right to disconnect refers to the regulation of working hours and the workday limits foreseen in the CLT since 1943, which should be enforced since its enactment. 

While there is no specific law related to the right to disconnect, enforcing these limits on new forms of remote work provided via digital equipment and new technologies is a challenge in Brazil, but it has been addressed in Labor Court decisions that recognize the right to disconnect. 

10. Are there any changes on the horizon relating to the right to disconnect in your jurisdiction?

Yes. There are bills in the Brazilian National Congress that aim to provide greater protection to the right to disconnect in Brazil, making it a right expressly guaranteed under Brazilian labor law that consider remote work arrangements.