COVID-19 second lockdown

Frequently Asked Questions

This Guide aims to provide some answers to employment-related questions which, in this second lockdown, continue to be a concern to managers and people responsible for human resources, considering the provisions of the general labour law and the provisions of Decree-Law no. 10-A/2020 of 13/03, as amended, Decree-Law no. 10-G/2020, of 26/03, as amended, Decree-Law no. 10-F/2020, de 26/03, as amended, Decree-Law no. 27-B/2020, of 19/06, Ministerial Order no. 170-A/2020, of 13/07, Decree-Law no. 46-A/2020, of 30/07, as amended, Decree no. 3-A/2021, of 14/01, as amended, Decree-Law no. 6-E/2021, of 15/01, Decree no. 3-B/2021, of 19/01, Decree no. 3-C/2021, of 22/01, Decree-Law no. 8-B/2021, of 22/01, Decree no. 3-D/2021, of 29/01, Decree-Law no. 23-A/2021, of 24/03, Law no. 16/2021, of 07/04, Decree-Law no. 32/2021, of 12/05 and Decree-Law no. 56-A/2021, of 06/07.

The answers to the questions below were based on the current legal framework in Portugal and may therefore be reviewed in the light of new developments in the meantime.

1 Teleworking

1.1 Can I determine that an employee starts performing functions under a teleworking regime?

In general, yes. The adoption of the teleworking regime is mandatory for as long as this State of Emergency remains in force, throughout the continental territory, provided that it is compatible with the activity performed and that the employee has the conditions to perform it, without the need of an agreement between the parties. After the termination of the State of Emergency, the telework regime will continue to be mandatory until 31 December 2021, in the areas of the country that the Government will determine at each moment depending on the evolution of the epidemiological situation, whenever the nature of the activity allows it and the worker is able to perform it. In all other cases, the adoption of teleworking regime will depend on a written agreement, under the general terms.

1.2 What happens if the employee’s functions are not compatible with teleworking?

In this case, the employer shall issue a statement attesting the incompatibility of the employee's functions with teleworking regime so that the employee can circulate and shall also organize the hours of entry and exit from the workplaces in a lagged manner, as well as adopt measures to ensure the physical distance and protection of employees, including the alternation of rest breaks, in special for meals. In addition, companies in the service sector with more than 250 employees must send to the Authority for Working Conditions a list of those employees whose duties are not compatible with teleworking, through the following link Work in presence communication (act.gov.pt).

1.3 Am I obliged to pay meal allowances to employees who are performing functions under a teleworking regime?

Yes, employees performing functions under a teleworking regime are entitled to the meal allowance they were already been granted working in presence.

1.4 Does work accident insurance continue to cover employees performing functions under a teleworking regime?

Yes. Work accidents that occur during the period the employees are performing functions under a teleworking regime are covered by work accident insurance policies. In any case, given the procedures adopted by the insurers in such eventualities (e.g., investigation and expert appraisal process), the companies shall formalize and report all teleworking situations, specifying the place where the work is provided remotely and the respective working hours.

1.5 What shall I do if an employee refuses to perform functions under teleworking?

It depends. In fact, the reasons for refusing to provide functions under teleworking shall be assessed. If the employee refuses to work under a teleworking regime because he/she does not have the necessary work and communication equipment, the employer must provide them, and the employee is obliged to adopt teleworking. If the employee refuses to comply with the employer's orders in this regard, he/she may be sanctioned in disciplinary terms for disobedience, without prejudice to the fact that he/she may be held liable under the general terms of law if his/her conduct results in damage to the health of the other employees.

1.6 Do I have to bear the teleworking costs?

It depends. If there is no teleworking agreement to regulate this matter, it is the employer that shall ensure the installation and maintenance of the work tools and the payment of the costs of their use.

1.7 Is there any consequence if the employer does not adopt the teleworking regime, being that possible?

Yes. The failure to comply with the obligation to adopt the teleworking regime is a very serious administrative offence which involves the payment of a fine that can vary between EUR 2,040 and EUR 61,200, depending on the employer’s turnover.

2 Prophylactic isolation and infection of employee

2.1 The suspicion of infection of an employee has been confirmed and the competent health authority has determined his quarantine (prophylactic isolation). Am I obliged to pay his/her remuneration during that period?

It depends. If the employee can start (or continue) to work under a teleworking regime, the employer shall pay his/her remuneration. The impossibility of performing functions under teleworking shall be attested by a declaration of the employer.

In case teleworking is not possible, employees who are temporarily unable to work due to prophylactic isolation are entitled to a sickness allowance paid by the social security system at a daily rate equivalent to 100% of their remuneration reference ("RR") for an initial period of 14 days, after which a new assessment is made by the doctor.

The declaration form for prophylactic isolation is provided for in Order 2875-A/2020 and Order 3103-A/2020, which will replace the form for temporary incapacity due to illness and which is available here, must be filled in by the health authorities and given to the employer.

2.2 What shall I do if an employee has had a risk contact with a person infected with Covid-19?

Where, following contact with the SNS24, there is a risk situation which could lead to the declaration of prophylactic isolation, a provisional declaration of prophylactic isolation shall be issued. This declaration, which contains the start and end date for the provisional prophylactic isolation, is issued by electronic means and is valid for a maximum period of 14 days, or until the contact operated by the entities exercising the power of health authority.

In these situations, the prophylactic isolation scheme applies, and sickness allowance is paid whenever teleworking is not possible. The impossibility of performing functions under teleworking shall be attested by a declaration of the employer.

2.3 The infection of an employee has been confirmed. How should this absence be treated?

The absence of an employee due to infection by Covid-19 is a temporary incapacity for work due to sickness, and the employee is entitled to a daily sickness allowance equivalent to 100% of the RR, for a maximum period of 28 days (from which the days of prophylactic isolation, if any, are deducted). From the 29th day, and depending on the duration of the absence, the sickness allowance to be paid will be between 55% and 75% of the RR. Recognition of entitlement to sickness allowance does not depend on certification of temporary incapacity for work.

The allowance paid on these terms is not subject to a waiting period.

3 Holidays

3.1 Can companies force their employees to take holidays?

No. Holiday periods are scheduled by agreement between employer and employee. In the absence of an agreement, and unless another special rule applies, the employer may determine the employee’s holiday period from 1 May to 31 October of each year.

3.2 Can companies prevent their employees from going on holiday to countries with cases of contagion and infection by Covid-19?

No. Companies may not impose limitations on the enjoyment of holidays by their employees. However, this does not exempt employees from adopting the recommendations issued by the Directorate General for Health ("DGS") or the measures set out in the internal contingency plans of their respective employers.

4 Body temperature control

4.1 Can companies measure and control employees’ temperature as a precondition for access to the workplace?

Yes. Access to the workplace may be conditioned to carrying out body temperature measurements by non-invasive means, using equipment suitable for this purpose, which does not contain any memory or record of the measurements made, and no physical contact with the person concerned is admissible.

Access to the workplace can be prevented whenever the employee refuses to measure his/her body temperature, or whenever the employee shows a result higher than the normal body temperature, i.e. a temperature of 38º or more, as defined by the DGS, in which case the absence is considered justified.

5 Testing for Covid-19

5.1 Can employer impose their employees to test for Covid-19?

In general, no. Only the following employees may be required to test for Covid-19:

(i) Employees of health care establishments;

(ii) Employees of education, vocational education and training establishments and higher education institutions;

(iii) Employees of therapeutic communities and social insertion communities, as well as from temporary reception centres and emergency accommodation centres and residential structures for the elderly, integrated continuous care units of the National Network of Integrated Continuous Care and other structures and responses dedicated to elderly people, children, young people and people with disabilities, as well as to applicants and beneficiaries of international protection and the reception of victims of domestic violence and trafficking in human beings;

(iv) Employees of the Prison Guard Corps and the Directorate General for Reinsertion and Prison Services (DGRSP).

6 Vaccination against Covid-19

6.1 Can I impose that my employees are vaccinated against Covid-19?

No. In Portugal, vaccination against Covid-19 is optional and is not even recommended for certain categories of employees (such as people with a history of severe allergic reactions and pregnant women). Thus, any decision by the employer to impose vaccination against Covid-19 could be considered discriminatory against employees who do not want to be vaccinated, either because of health conditions or for ethical or religious reasons. The imposition of vaccination can also give raise to claims based on breach of personality rights, bearing in mind that the Labour Code protects the physical and moral integrity of employees, and the imposition of a vaccination is considered a breach of this provision.

6.2 Can I ask an employee to disclose if he/she has been vaccinated against Covid-19?

No. This type of information is considered "sensitive personal data" and is protected at European level by the General Regulation on Data Protection. In general, and with a few exceptions, the processing of sensitive personal information is prohibited. At present, there are no exceptions allowing the processing of such information, so the employer will have no legal grounds to do so.

7 Supports to the family

7.1 Can employees be absent from work to take care of their children or grandchildren in quarantine (prophylactic isolation)?

Yes. Absences of employees due to the need of caring for a child under 12 years old or, regardless of age, with a disability or chronic illness or another dependent member of the household in prophylactic isolation, up to a maximum of 14 days, are considered as justified absences, and those employees are entitled to an allowance to be paid by the Social Security, in the amount of 100% of RR for parents and 65% of RR for grandparents.

7.2 Can employees be absent from work to take care of their children or grandchildren infected with Covid-19?

Yes. Absences of employees due to the need of caring for a child under 12 years old or, regardless of age, with a disability or chronic illness or another dependent member of the household infected with Covid-19, up to a maximum of 14 days, are considered as justified absences, and those employees are entitled to an allowance to be paid by the Social Security, in the amount of 100% of RR for parents and 65% of RR for grandparents.

7.3 Can employees be absent from work due to the temporary suspension of the educational establishments where their children or grandchildren are studying? What costs will companies have to bear?

Yes. Absences of employees due to the need of caring for a child or other dependent under the age of 12 years old or, regardless of age, with a disability or chronic illness, motivated by the suspension of classroom and non-teaching activities in a school establishment or social equipment to support early childhood or a disability determined by legislative or administrative means from a government source are considered as justified absences without loss of rights, except for remuneration, being the employees entitled to an exceptional family support allowance equivalent to two thirds of their basic remuneration (66%), borne equally by the employer (33%) and Social Security (33%), regardless of the number of dependent children or dependents, with the companies being responsible for paying the full amount to the employees. The exceptional family support allowance referred to above has a minimum limit of EUR 665 and a maximum limit of EUR 1,995. In any case, the amount of this exceptional family support allowance payed by Social Security is increased in order to assure 100% of the basic remuneration, within the minimum and maximum limits referred above, whenever the employee is in one of the following situations:

(i) He/she is a single parent and the child or other dependent trusted to him/her by virtue of a decision of the courts or the competent administrative authority is a beneficiary of the child benefit for a single parent family;

(ii) Both parents benefit from the support, weekly and alternately. 

Answer updated on 22 February 2021.

7.4 If one parent is at home performing functions under a teleworking regime can the other benefit from the exceptional family support allowance?

Yes, in families with at least one child or dependent, under the age of 12, as well as in cases where the family has children or dependents with a disability or chronic illness, one parent may choose the exceptional family support allowance, even if the other parent is rendering work under a teleworking regime.

Answer updated on 9 April 2021.

7.5 Can both parents benefit from the exceptional family support allowance?

Both parents can benefit from the exceptional family support allowance provided that they do it alternately. 

Answer updated on 22 February 2021.

7.6 Can an employee rendering work under a teleworking regime start benefitting from the exceptional family support allowance?

It depends. Generally, the employees rendering work under a teleworking regime cannot benefit from the exceptional family support allowance. However, the employees can choose between rendering work under a teleworking regime and the exceptional family support allowance, if and when they are in one of the following situations:

(i) Single parent, or when there is a dependent under the age of 12 under his/her care, even if there are other ways of rendering work, namely teleworking;

(ii) The household encompasses, at least, a child or other dependent under the age of 12, even if there are other ways of rendering work, namely teleworking, and even if the other parent is rendering work under a teleworking regime;

(iii) The household encompasses children or dependants with disabilities or chronical diseases, even if there are other ways of rendering work, namely teleworking, and even if the other parent is rendering work under a teleworking regime.

Answer updated on 9 April 2021.

8 Simplified lay-off

8.1 How can I access the simplified lay-off?

The simplified lay-off regime is available to employers under a business crisis situation, i.e. who are subject to the duty to close facilities and establishments by legislative or administrative determination from a government source, in the context of the Covid-19 disease pandemic, in relation to the establishment or company effectively closed and covering the employees directly allocated to the closed establishments. The measure can also be accessed by companies that have submitted an initial application for a simplified lay-off by 30 June 2020 without the maximum 3-month period of validity of the measure and that are under a business crisis situation as a result of:

(i) total or partial stoppage of the company's or establishment's activity resulting from the interruption of global supply chains or the suspension or cancellation of orders; or

(ii) reduction of invoices or orders by at least 40% in the 30 days preceding the lay-off request, with reference to the average of the 2 months preceding that period; companies that started business less than 12 months ago must meet the average for that period.

8.2 During the simplified lay-off what happens to employment contracts?

The employer may choose to reduce temporarily the normal working periods of the employees covered by the measure or to suspend the employment contracts and no work is done.

8.3 What is the impact of the simplified lay-off on the remuneration due to the employees?

In cases of suspension of employment contracts, the employees are entitled to receive compensation equivalent to 2/3 of normal gross monthly salary (always respecting a minimum limit of EUR 665 and a maximum limit of EUR 1,995). In situations of reduction of normal working period, employees are entitled to receive the remuneration due for the hours worked, increased by compensation to the extent necessary to ensure, together with the remuneration, the minimum amount of 2/3 of gross normal monthly remuneration, up to a limit of EUR 1,995. The Social Security bears 70% of the cost correspondent to the compensation paid to employees. If the monthly remuneration resulting from these rules is lower than the employee's gross normal remuneration, the amount of the compensation paid by Social Security is increased to the extent necessary to ensure that remuneration, with a maximum limit of EUR 1,995.

8.4 Can an employee on a sick leave be covered by the simplified lay-off?

No. An employee who is temporarily unable to work because of illness cannot be covered by the simplified lay-off, as he/she cannot be released from an obligation which he/she no longer had.

8.5 Do I have to pay social security contributions over the remuneration of the employees covered by the simplified lay-off?

No. The employer is exempted from paying social security contributions on the remuneration paid to employees covered by the measure, but the full payment of employees' contributions remains.

8.6 How can I apply for support under the simplified lay-off?

The employer shall apply online using the form available at “Segurança Social Direta”. The application shall be accompanied by a list of the employees covered by the measure, which must be completed using the template available on the same page of the form.

8.7 What other procedures shall I adopt to implement the simplified lay-off?

The employer must hear the union representatives and/or works councils, where they exist, and inform the employees in writing of the decision to implement the simplified lay-off, indicating its expected duration.

8.8 How long does the simplified lay-off measure last?

1 month, extendable up to 3 months, or for the duration of the obligation to close the establishment.

8.9 Does the employer have any limitation when benefiting from the support of the simplified lay-off?

Yes, the employer covered by this measure cannot:

(i) Distribute profits in any form, including withdrawal on account;

(ii) Increase the remuneration or any other pecuniary payment to members of statutory bodies;

(iii) Terminate employment contracts by collective dismissal or redundancy, either during the lay-off period or within 60 days following the end of the scheme;

(iv) Receive work from an employee covered by the simplified lay-off in the modality of suspension of the contract, or beyond the time established in the modality of temporary reduction of the normal working period.

8.10 What happens if an employee is dismissed for objective reasons during the simplified lay-off period?

In such a case, the employer is obliged to repay or pay the amount corresponding to the extraordinary financial support he has received, for all employees.

8.11 Can employees enjoy holidays during the simplified lay-off period?

Yes. The simplified lay-off situation does not affect the scheduling and enjoyment of holidays, in general terms, and the employee is entitled to the holiday allowance due under normal working conditions. Thus, with regard to the scheduling of holidays by an employee covered by the reduction or suspension of the employment contract, if there is an agreement between the employer and the employee, the scheduling of holidays may be maintained, and they may be taken, being the employee entitled to receive the amount of the compensation plus the holiday allowance, in total or proportional, which would be due to him under normal working conditions, i.e. without any reduction.

9 Extraordinary support for the gradual resumption of activity

9.1 How can I access the extraordinary support for the gradual resumption of activity?

Extraordinary support for the gradual resumption of activity is available to employers under a business crisis situation, i.e. with a turnover decrease of 25% or more in the full calendar month immediately preceding the calendar month to which the initial application for support or extension relates, compared to (i) the same month of the previous year or (ii) the same month of the year 2019 or (iii) the monthly average of the six months preceding that period. For those who have been in business for less than 24 months, the turnover decrease is measured against the average monthly invoicing between the start of business and the penultimate complete month preceding the calendar month to which the initial application for support or extension refers.

9.2 What happen to the employment contracts under this support?

Employees covered by the measure will have their normal working period reduced in accordance with the following limits:

(i) up to 33% in the event of a turnover decrease of 25% or more;

(ii) up to 40% in the event of a turnover decrease of 40% or more;

(iii) up to 60% in the event of a turnover decrease of 60% or more;

(iv) in the event of a turnover decrease of 75% or more, the reduction may be up to 100% in January, February, March, April and May. In June, July and August the reduction may be (a) up to 75% or (b) up to 100%, limited to 75% of the workers employed by the employer, unless the activity falls within the sectors of bars, discos, recreational parks and event catering or preparation. In these sectors, the limitation does not apply. These limits may be adjusted according to an assessment of the evolution of the pandemic and economic situation, which the Government undertakes to carry out in August. 

The limits on the reduction of normal working period are applied to the members of statutory bodies up to the limit applicable to their employees.

The reduction in the normal working period is measured on average per employee at the end of each month. In any case, while Decree no. 9/2020, of 21 November, or any other law that may succeed it by regulating a new state of national emergency, remains in force:

(i) the employer who already benefited from the extraordinary support may apply for the extraordinary support up to the limit of the reduction in the normal working period corresponding to the turnover decrease immediately following that for which it was covered in November 2020; and

(ii) an employer who has not benefited from the extraordinary support may apply for support up to the maximum limit of a reduction in the normal working period corresponding to the turnover decrease immediately following that for which it was covered in November 2020.

Answer updated on 7 July 2021

9.3 What is the impact of the reduction of the normal working period on the remuneration due to employees?

Employees covered by the reduction will be entitled to receive the remuneration due for the hours worked, plus compensation amounting to 4/5 of the gross normal remuneration corresponding to the hours not worked. The latter compensation cannot exceed EUR 1,995.

The employer pays the remuneration corresponding to the hours worked, except in cases where there is a turnover decrease of more than 75%, in which case the Social Security contributes in 35% of the normal gross remuneration of the employees due for the hours worked, with the limit of EUR 1,995.

On the other hand, as a rule, Social Security contributes in 70% of the amount of the compensation to be paid to employees, the remainder being borne by the employer. In situations where the reduction of the normal working period is greater than 60%, due to a turnover decrease of 75% or more, Social Security's support will correspond to 100% of the compensation.

However, if the monthly remuneration resulting from these rules is lower than the employee's gross normal remuneration, the amount of the compensation paid by Social Security is increased to the extent necessary to ensure that remuneration, up to a maximum of EUR 1,995.

9.4 Do I have to pay social security contributions during the period of reduction of the normal working period?

It depends. An employer who has up to 250 employees is entitled to a 50% exemption of Social Security contributions for the employees concerned, calculated on the amount of the compensation. Contributions relating to remuneration of hours worked continue to be due, as well as employees' contributions.

Regarding the months of March, April and May and in respect of the tourism and culture sectors, in the event of a turnover decrease of less than 75%, the employer is entitled to a full exemption of Social Security contributions for the employees concerned, calculated on the amount of the compensation. Moreover, in the case of a turnover decrease of 75% or more, the employer is entitled to a 50% exemption of the said contributions.

Employers with more than 250 employees, with the abovementioned exception, do not benefit from any exemption.

9.5 How can I apply for the extraordinary support?

The employer shall apply online using the form available at “Segurança Social Direta”. The application shall be accompanied by a list of the employees covered by the measure, which must be completed using the template available on the same page of the form.

The application shall be sent by the end of the month following that to which the initial application for support or extension relates.

9.6 What other procedures shall I follow to reduce the normal working period?

The employer must hear the union representatives and/or works councils, where they exist, and inform the employees in writing of the decision to implement the normal working period reduction, indicating its expected duration.

9.7 How long is the support granted?

1 month, extendable until 30 September 2021, with the possibility of interpolated application of the measure.

9.8 Do I have any limitations by the fact that I am receiving the extraordinary support?

Yes, the employer covered by this measure cannot:

(i) Distribute profits in any form, including withdrawal on account, either during the period of reduction or within 60 days following the end of the measure;

(ii) Increase the remuneration or any other pecuniary payments to members of statutory bodies;

(iii) Terminate employment contracts by collective dismissal or redundancy, either during the period of reduction or within 90 days following the end of the measure.

9.9 What happens if I decide to dismiss an employee for objective reasons during the restriction period?

In such a case the employer is obliged to repay or pay the amount corresponding to the extraordinary support he has received, for all employees. Moreover, failure to comply with the prohibition on dismissal constitutes a serious offence which may entail the payment of a fine of between EUR 612 and EUR 9,690, depending on the employer's turnover.

9.10 Can employees enjoy holidays during the reduction period?

Yes. The reduction does not affect the scheduling and enjoyment of holidays, in general terms, being the employee entitled to the payment of the holiday allowance due under normal working conditions. Thus, with regard to the scheduling of holidays, if there is an agreement between the employer and the employee, the scheduling of holidays may be maintained and taken, receiving the employees during the holiday period the amount of the compensation due plus the holiday allowance, total or proportional, which would be due to him under normal working conditions, i.e. without any reduction.

10 Extraordinary incentive for the normalisation of business activity

10.1 Which companies can benefit from the new extraordinary incentive to standardise business activity?

Employers who have been covered by a simplified lay-off or by the extraordinary support for the gradual resumption of activity, during the first trimester of 2021, can benefit from this incentive.

10.2 What does this incentive consist of?

The new extraordinary incentive to standardise business activity is granted in one of the following modalities:

(i) when requested until 31 May 2021, support in the amount of EUR 1,330 per employee covered by the simplified lay-off or the extraordinary support for the gradual resumption of activity, paid in a phased manner over six months, plus an exemption of 50% of Social Security contributions during the period of the incentive for these employees; or

(ii) when requested between 1 June 2021 and 31 August 2021, support in the amount of EUR 665 per employee covered by the simplified lay-off, or the extraordinary support for the gradual resumption of activity, paid in a one lump sum corresponding to the three-month period.

10.3 Do I have any limitations by the fact that I am receiving the incentive?

Yes. The employer covered by this incentive may not terminate employment contracts by collective dismissal or redundancy, either during the period of the incentive or within 90 days following the end of the measure.

11 Dismissals

11.1 Can I dismiss employees during the Covid-19 pandemic?

It depends. As referred above, there are specific restrictions on certain types of dismissals where employers benefit from support measures such as simplified lay-offs, extraordinary support for a resumption of activity or extraordinary incentives to normalise business activity. Outside these restrictions, employers may terminate employment contracts by dismissal, but the powers of the Authority for Working Conditions to supervise those dismissals have been strengthened and, where this entity considers that there is evidence of unfair dismissal, it may suspend it.

12 Deferment of payment of Social Security contributions

12.1 Which companies can benefit from the deferment of payment of Social Security contributions?

Employers in the private and social sectors with up to 250 employees are entitled to the extraordinary deferment of contributions for November and December 2020.

12.2 Are employees' contributions also deferred?

No. Employees' contributions continue to be due during the deferment period.

12.3 How does deferral of payment work?

The employer's contributions may be paid in three or six equal successive instalments, without interest:

(i) From July to September 2021; or

(ii) From July to December 2021. The exercise of the right to deferment of payment of Social Security contributions is not dependent on any application, the employers shall only indicate in February 2021, at “Segurança Social Direta”, which of the payment periods they intend to use.