Refusal to vaccinate against Covid-19 as a cause for termination of employment in Brazil

Rodrigo Seizo Takano
Machado, Meyer, Sendacz e Opice Advogados, São Paulo
rtakano@machadomeyer.com.br  

Murilo Caldeira Germiniani
Machado, Meyer, Sendacz e Opice Advogados, São Paulo
mgerminiani@machadomeyer.com.br  

Júlia Corrêa Rêgo
Machado, Meyer, Sendacz e Opice Advogados, São Paulo
jcorrea@machadomeyer.com.br

With the development and availability of vaccines against Covid-19, companies around the world have started to return to on-site activities and, as a measure for promoting a safe return, began to evaluate the possibility of requiring employees to be vaccinated.

While certain companies began to encourage vaccination in order to increase vaccination rates among their employees by, for example, offering bonuses for those who get vaccinated, others began to require vaccination, especially as a condition for a return to the office.

In Brazil, when analysing the constitutionality of Law No 13,979/2020, according to which authorities may adopt vaccination as a measure to contain Covid-19, the Brazilian Supreme Court ruled that mandatory vaccination is valid and is in accordance with constitutional principles.

After the Brazilian Supreme Court’s decision, the Public Labour Prosecutors’ Office (‘MPT’), the main labour authority responsible for protecting workers’ rights, published a technical guide on vaccination against Covid-19. It established, in summary, that employees have a ‘right and obligation’ to be vaccinated, as this has a direct impact on the health and safety of the workplace. This is one of the reasons why employers may require employees to be vaccinated, under penalty of subjection to disciplinary measures, including termination.

According to the MPT, based on the Brazilian Supreme Court’s decision, Brazilian labour laws and the National Plan for Operationalization of Vaccination against Covid-19:

• vaccination is a public collective health policy that transcends individual limits and mere private relationships, and is a right and duty also for workers, such that, provided that the elements outlined by the Brazilian Supreme Court, the principles of information, and human dignity, among others, are observed, it is incumbent on workers to cooperate with policies to contain the Covid-19 pandemic, and they are not able, except in exceptional and fully justified situations (eg, an allergy to the components of the vaccine, medical contraindication, pregnancy), to oppose the duty of vaccination;
• an unjustified refusal of a worker to submit to vaccination made available by the employer in a vaccination programme provided for in the company’s health and safety protocols, and observing other legal requirements, such as the right to information, may constitute misconduct and allow the application of disciplinary measures;
• if the refusal is medically justified, the company must adopt measures to protect the worker, such as transferring the person to non-contact work, if possible, in accordance with legislation, so as not to harm the immunisation of the collective of workers;
• in the event of an unjustified refusal, the employer must verify measures to inform the worker, providing all necessary information for the clarification of the vaccination procedure and the legal consequences of refusal; and
• if the unjustified refusal persists, the worker must be removed from the workplace, under penalty of putting collective immunisation at risk, and the employer may take disciplinary actions, including termination for cause, as a last resort.

The Brazilian labour courts have also issued various decisions confirming the validity of termination for cause of employees who refused to be vaccinated without a valid reason.

In this context, over recent months, we have seen a growing number of employers in Brazil requiring employees to be vaccinated against Covid-19 as a condition for entering the office.

However, on 1 November 2021, the Ministry of Labour and Social Security, unexpectedly, issued Regulation No 620/2021 (the ‘MTP Regulation 620/2021’) establishing that:

• employers are prohibited, at the start or continuation of an employment, from demanding any discriminatory or limiting documents in recruitment, especially proof of vaccination;
• the requirement to present certificates of vaccination in recruitment processes for workers, as well as termination for cause of an employment contract due to the employee’s failure to present a certificate of vaccination, is considered a discriminatory practice; and
• termination of employment due to a discriminatory act, as established in MTP Regulation 620/2021, in addition to the right to compensation for moral damages, allows employees to choose between: (1) reinstatement, with full compensation for the entire period of leave, upon payment of the remuneration due, adjusted for inflation plus legal interest; or (2) receipt of double the remuneration for the period of leave, adjusted for inflation plus legal interest.

As the restrictions set out in the MTP Regulation 620/2021 were contrary to the decision issued by the Brazilian Supreme Court, the decisions issued by Brazilian labour courts, as well as the MTP’s understanding of vaccination in the workplace, this created a situation of legal uncertainty for companies. As a result, various judicial measures were filed before the Brazilian Supreme Court challenging the constitutionality of MTP Regulation 620/2021.

After a few days, on 12 November 2021, Supreme Court Justice Luis Roberto Barroso issued an in limine decision suspending the validity of the restrictions imposed by MTP Regulation 620/2021 based on the understanding that they were not in accordance with constitutional principles and statutes.

Justice Barroso, however, highlighted the situation of individuals who have medical contraindications against vaccination and, therefore, could refuse vaccination.

As the suspension of the restrictions imposed by MTP Regulation 620/21 was ordered through an in limine decision, it still needs to be decided by the Brazilian Supreme Court. At the time of writing, the final decision is scheduled to take place between 26 November and 3 December 2021.

In any event, considering the rationale underlying recent decisions issued by the Brazilian Supreme Court involving vaccination, the tendency seems to be for the Supreme Court to rule that the restrictions imposed by the MTP Regulation 620/2021 are unconstitutional.

That said, employers have grounds to require vaccination against Covid-19 as a matter of health and safety in the workplace, provided that such obligation is established in the employer’s health and safety protocols, as well as to impose disciplinary actions on employees who refuse vaccination without a valid reason, including termination for cause.