Ariadne Fabiane Velosa
Lawyer at Marcos Martins Advogados
The pandemic has wreaked havoc in many sectors. We have seen the closure of several companies, the acceleration of unemployment and, consequently, an ever-increasing search for the Labor Court. According to data from the Superior Labor Court, we had 1,161,417 lawsuits in 2020. Of these, 86,058 have a direct cause with Covid-19.
Among the main ones are claims for severance pay, issues related to the inadequate supply of personal protective equipment, home-office rulesand a reduction in the 40% FGTS fine. It is worth noting that 43,820 – equivalent to more than 50% of Covid-related lawsuits – relate to overtime.
In anticipation of the problems, Provisional Measure 927/2020 was approved in March 2020, right at the start of the pandemic, which provided for labor measures to deal with the state of public calamity. The Provisional Measure aimed to provide specific guidelines given the emergency situation.
In addition to basic individual care, such as providing alcohol gel, gloves and masks, it was necessary to provide ways for workers to avoid public transportation. In this context, the home-office gained momentum, especially among administrative workers.
The issue had already been clarified by the Labor Courts since the labor reform in 2017. Even so, many doubts have arisen, especially about who should pay for the extra costs of electricity and internet, and about occupational health precautions, given that many workers don’t have a good ergonomic infrastructure for working from home.
With so many questions, in October the Labor Prosecutor ‘s Office published a technical note with 17 recommended practices in relation to teleworking. According to the note, workers need to be instructed in order to avoid physical and mental illnesses and accidents at work, as well as adopting safety measures such as breaks and exercises. In practice, everyone has their own rights and duties.
Another point of concern was when the Federal Supreme Court eliminated a section of Provisional Measure 927/2020 that defined that cases of Covid-19 infection would not be considered occupational diseases. While the measure previously harmed workers due to the impossibility of proving contamination in the workplace, the suspension of the section worried companies, which would be held fully responsible for cases of contamination.
Despite opening the way for all employees working in person who develop the disease to use the law to hold the company responsible for their illness, the finding depends on an assessment by the INSS which proves that the work environment really did pose a risk to the teams.
More recently, in February, a new legal imbroglio arose. The Labor Prosecutor’s Office has established that workers who refuse to take the covid-19 vaccine, without medical justification, can be fired for just cause.
The case is obviously generating controversy. After all, Article 7 of the Constitution says that the collective good is above individual rights. However, Article 5 guarantees the individual freedom of each citizen. Jurists are divided, and this is a debate that is likely to intensify when the time finally comes to vaccinate people of working age.
In practice, the problems have only just begun, given that workers have up to two years to claim their rights in the Labor Court. At this point, it’s up to companies to take the appropriate measures and always keep records of their actions. Over time, the tendency is for the volume of cases to increase ever more significantly. You need to be prepared.
About Marcos Martins Advogados: Founded in 1983, Marcos Martins Advogados is highly regarded in the areas of Corporate, Tax, Labor and Business Law. Based on values such as commitment, ethics, integrity, transparency, responsibility and the constant specialization and improvement of its professionals, the firm positions itself as a true partner for its clients.
Article published in the Folha de São Paulo newspaper.
