The age of Covid-19: the right to go to work and the employer as regulator

Aloizio Lima
Lefosse Advogados, São Paulo
aloizio.lima@lefosse.com

Paulo Peressin
Lefosse Advogados, São Paulo
paulo.peressin@lefosse.com

Brazilian legislation does not provide clear answers to all questions regarding the vaccination of employees and the role of the employer in providing a safe return to the workplace, but a careful look at the debates on this matter can be a guide.

The Covid-19 pandemic has substantially changed certain paradigms concerning employment relationships, especially about the interaction between employers and their employees.

As a public health situation, the pandemic affects all social relationships, including those at work, and brings an opportunity for employers and companies, in general, to reassess their role in society, in partnership with public and government entities.

Specifically, many questions have arisen within the strict scope of an employment relationship, and the scenario of legal certainty is still far from being achieved.

Vaccination began in Brazil in the January 2021 and, with it, the prospect of a new future, free from hitherto restrictions.

Although small, there is a certain percentage of people who do not wish to be vaccinated, for many different reasons, such as merely due to a fear of an adverse reaction or, even not trusting the real efficacy of the immunising agent. Research on the big picture unveiled in December 2020^[1] that approximately 22 per cent of Brazilians at that time did not intend to be vaccinated against Covid-19 and five per cent were unsure of their intention.

Faced with this situation, the employer ends up having to adopt certain decisions that later may come to be questioned under labour law.

Current legislation does not provide clear answers to all questions, especially if employers may, at their sole discretion, insist on vaccination as a condition for attending the workplace, and also impose an obligation on their employees to be tested for Covid-19.

Likewise, there is no specific rule allowing employers to segregate vaccinated and unvaccinated employees, or stating the circumstances in which vaccination may be imposed as a condition of employment, or if immediate dismissal may apply to an employee who refuses vaccination or those who knowingly challenge Covid-19 regulations and come to the workplace in breach of quarantine requirements or if infected with Covid-19.

In terms of legislation, the Brazilian Constitution, on the one hand, entitles everyone to a safe and healthy working environment, including the workplace. In view of this right, the Brazilian Labour Code has several norms regarding safety and occupational health that companies must observe, as well as allowing regulatory agencies to carry out inspections (administrative labour inspections) in order to confirm fulfilment of the requirements.

On the other hand, legislation does not demand the vaccination of persons as a prerequisite for hiring or continuing with employment. To date, no requirements have been imposed regarding vaccination or any conduct associated with an individual’s health.

At the very beginning of the pandemic in Brazil, Law 13,979/20, which was passed in February 2020, reaffirmed that it is the employer’s obligation to preserve the health and life of its employees and especially of those engaged in essential activities during the pandemic.

In December 2020, the Supreme Court of Brazil held that compulsory vaccination does not mean forced vaccination, since it demands the consent of the person. However, indirect measures, such as restrictions on certain activities and frequenting certain places, may be implemented, if provided for by the law.^[2]

The Supreme Court’s decision states very clear prerequisites for such indirect measures: (1) must be based on scientific evidence and strategic analysis; (2) must be accompanied by ample information regarding their efficiency, safety, human dignity and fundamental rights; (3) must respect human dignity and fundamental rights; (4) must be reasonable and proportional; and (5) the vaccines must be free and available to all.

The Public Labour Prosecutor’s Office, in turn, issued in January 2021 an official technical guideline for orientating employers and employees regarding vaccination. It states that employers are obliged to include vaccination as part of the measures of its Programme of Medical Control and Occupational Health (Programa de Controle Médico de Saúde Ocupacional (PCMSO)).

It also stated that if an employee refuses without justification to submit to vaccination, as foreseen under the PCMSO and freely provided by its employer, this could be deemed misconduct and, consequently, the employee could suffer sanctions prescribed by law.

If the employee maintains his or her refusal, even after having been properly oriented and supplied with the necessary information, he or she could be removed from the work environment and, if necessary, disciplinary actions could be taken, such as dismissal with cause (under Article 482 II of Brazilian Labour Law). Thus, according to the Labour Prosecutor’s Office, the employer could use dismissal with cause as a last step, after trying to convince and educate the employee.

Nonetheless, in response to the study at that time, Justice Maria Cristina Peduzzi, the President of the Superior Labour Court, made it clear during an interview that her standpoint was that, even if an employee completely refuses the vaccination and sanctions follow, ‘it would be hard to conclude in favour of dismissing the employee with cause’, thus rejecting the conclusions of the technical guideline.^[3]

However, most recently (November 2021), the Ministry of Labour issued a regulation under which employers would be prohibited from demanding proof of vaccination or even proceeding with dismissals of employees who refuse vaccination, under penalty of reinstatement and compensation, including payment of moral damages.^[4]

This regulation caused controversy and was questioned by the Supreme Court, which overturned some of its provisions, setting down that employers may adopt such conduct, without any risk of legal challenge. Thus, the Supreme Court’s current understanding is in line with the need of preserving the collective interests at the workplace, authorising employers to require proof of vaccination and even dismiss employees who refuse to be vaccinated.

Scholars on this matter have been divided on its evaluation. The first stream of thinking is that vaccination cannot be compulsorily required from employees, given the absence of a legal provision in this regard. This stream believes that Law No 9,029/1995 may apply in a similar way so as to lead to an understanding of the prohibition, because it prohibits the adoption of any discriminatory criteria in hiring or dismissing employees.

The second stream of thought sees the law in question as not being exhaustive and that the provisions of the Federal Constitution and the Brazilian Labour Code point in an opposite direction, allowing even dismissal with cause of those who unjustifiably refuse vaccination, due to a need to preserve the collective environment and well-being.

Therefore, what has been seen is a very effervescent discussion that is likely to continue for a long time still.

From the authors’ point of view, employers have directive power to establish norms for accessing the work environment and the frequency of the access, being able to adopt those that they deem convenient for ensuring the well-being and health of the community of workers (employees, outsourced workers, suppliers, etc). Therefore, the employer is authorised to demand proof of vaccination, and that its employees must undergo testing as a condition for attending the workplace, provided that they provide the tests free of charge.

Additionally, employers may also establish mechanisms to prevent unvaccinated people from sharing the same physical space or premises as other employees. Many companies are considering adopting teleworking measures for this purpose, for a longer period.

Therefore, we believe that an employee’s unjustified refusal to undergo vaccination may, in the final stage, give rise to the employer’s intention to terminate the employment contract, which is within its directive power and cannot be questioned, as the Supreme Court has recently ruled. This dismissal may be based, essentially, on the refusal to comply with health standards.

On the other hand, dismissal with cause, the maximum punishment applicable to an employee under Brazilian law (since no indemnities or reparations may apply, unlike in an ordinary termination) must be carefully evaluated, on a case-by-case basis, with no possibility of generic authorisation.

It is important to highlight that the Labour Court in São Paulo has already ruled in a particular case, validating the dismissal with cause of an employee who refused to be vaccinated. However, that decision was rendered in the context of a particular case, in which the judge observed and took into consideration all the circumstances, among them the fact that the worker was employed by a hospital and who was in charge of rendering public assistance in the health service.

Therefore, we do not believe that a dismissal with cause may apply to every situation, because dismissals with cause are, essentially, examined on a case-by-case basis. It means that the motivation for a dismissal with cause must be evaluated in the specific scenario and the factual conditions, especially if the employee has presented an unjustified refusal followed by deliberately exposing co-workers to risk (through, say, failing to comply with quarantine requirements expressly imposed by the employer, breaches of hygiene and safety protocols, etc).