Law no. 13,982/2020 provides on the Emergency Aid and other measures in its article 5, and establishes that the company can deduct, from the social security contributions, the amount corresponding to the first fifteen wage days of the employee whose temporary incapacity to work is provenly related to the new coronavirus (COVID-19), observing the maximum contribution wage to the RGPS.

Therefore, two points must be taken into account. The first is that only the absence from work due to COVID-19 authorizes the transfer of the first fifteen days to the Brazilian Social Security (INSS). Another one is that, regardless of the amount of the wage-related to these first fifteen days, the law limits the offsetting right to the maximum wage contribution, which currently is BRL 6,101.06 (six thousand, one hundred and one Brazilian reais and six cents).

Thus, if the amount corresponding to fifteen-day wages is higher than the legal limit, the company must pay the full amount and may deduct the maximum amount authorized, BRL 6,101.06 (six thousand, one hundred and one Brazilian reais and six cents), from the transfer to INSS.

In this context, according to the Guidance Note no. 21/20, of the e-Social Management Group, to immediately benefit from this right, the company shall carry out the following procedures:

        1. to register the amount related to the first fifteen days of leave in the usual record; and
        2. additionally, in case of work leave due to COVID-19, it must create a new informative record using the social security contribution code 51 (the same as the family wage), and the nature of record 9933 (the same as the sickness aid), informing the amount of the register (fifteen first days of absence due to COVID-19) up to the maximum contribution wage.

Following the above, the company will not be subject to taxation, and the value of this record will be sent to DCTFWeb for the deduction, together with the amounts related to the family wage, when applicable. The Brazilian Federal Revenue responsible for the distinction of the benefits out of the register’s code.

To receive the first fifteen days of sickness aid paid by the company, the employee must present a medical statement in the sense that his or her absence is due to contamination by COVID-19.

The Public Ministry of Labor, through Recommendation no. 1 of the COVID-19 Working Group, recommends that companies also accept self-declarations from their workers that have symptoms of COVID-19. According to the Ministry, the statement should be presented in writing and sent by e-mail, digital message, or any other means.

According to the text of the Recommendation no. 1 of the COVID-19 Working Group, the pandemic has caused overcrowding in the health services, which prioritize the care of the most severe cases, and cannot offer a quick response to workers who present symptoms of the disease. Therefore, according to the text, most of the workers will not be able to obtain the medical statements to submit to the employer.

If the work leave is superior to fifteen days, the employee must request the sickness aid via the communication channels with the INSS, and then must follow the Social Security requirements regarding the evidence of the contamination by COVID-19.

The employee must prove to the company the request for sickness aid and the INSS’s decision, since his/her work absence for more than fifteen days, without the due confirmation of the sickness aid application, will be considered an unjustified absence.

The professional teams of Fraga, Bekierman & Cristiano Advogados are at your disposal to help with the requested legal clarifications.