With the labor reform, Law 13,467, the work of nursing mothers and pregnant women in environments with certain degrees of unhealthiness is now permitted, except for duly certified health reasons.
During the Covid-19 pandemic, the Ministry of Economy and the Ministry of Health issued Joint Ordinance 20/2020, which aimed to make the rights of pregnant women and unborn children more effective during this pandemic period. However, the rules were restricted to pregnant women with high-risk pregnancies.
The absence of an express provision for taking time off work in person caused great insecurity for employers and led the Labor Prosecutor’s Office to issue a technical note, which was also silent on breastfeeding women, with the Labor Courts extending the guarantee of remote work to them during the pandemic period.
Recently, a decision issued by the Regional Labor Court of the 24th Region, granting an injunction for the immediate removal of breastfeeding employees who work in person in an unhealthy environment, after the end of the state of calamity, reopened the discussion on the right of breastfeeding women to be removed from unhealthy activities.
The decision determined that pregnant and breastfeeding women should be completely exempt from face-to-face work in unhealthy environments or activities, regardless of the degree, at a local hospital in Dourados, Mato Grosso do Sul, and also suggested that they should work remotely for the duration of the lactation period or for a period of two years, as recommended by the WHO.
Although the decision of the Regional Labor Court of the 24th Region has rekindled discussions on the subject, it should be borne in mind that there is no legal support for leaving a breastfeeding employee for longer than the six months established in art. 396 of the CLT, even if she works in an unhealthy environment, which in no way exempts companies from paying attention to the measures that can be adopted, not only to promote a safe and healthy environment for breastfeeding women, but also as a way of containing labor liabilities in the face of the different case law decision.
Among the measures are: being clear about the unhealthy conditions in the workplace, relocating pregnant or breastfeeding employees to another area, temporarily assigning them to the home office and also being aware of the guidelines provided by the authorities and current legislation.
The company should also always make sure to prove, through documents, that the employee has been relocated to another area, without loss of salary, for the period provided for by law, recommended by the World Health Organization (WHO) and the Brazilian Ministry of Health (MS), as well as by the CLT, which advises that breastfeeding should be exclusive until the first 6 months of life – four months of maternity leave and a further two months of exclusive lactation, supported by article 396 of the CLT. According to the labor reform, this right can be extended as a result of a medical certificate.
It is not advisable for a breastfeeding employee who is exposed to unhealthy agents to return to work in person before the legal six months have elapsed. Any return should be considered by the company and its labor lawyers, noting that even so, there is an intense risk of employer liability, despite the agreement of the breastfeeding employee.
Legal analysis in the implementation of protective legal measures for the company is fundamental, in order to minimize labor liabilities.
