Ariadne Fabiane Velosa
Lawyer at Marcos Martins Advogados
An employee who filed a labor lawsuit seeking compensation for alleged contamination with COVID-19 had his claim rejected for not proving that the infection was due to the activities carried out at the company.
In the Labor Claim, the employee claimed that his contamination by the coronavirus had occurred as a result of his work, since in the sector where he worked he was considered predisposed to contagion and that the employer had not adopted adequate preventive measures, thus claiming moral damages. He also reported that the infection occurred in May last year, and the employee was off work for two periods, resigning when he returned to work.
However, in its defense, the company stated that the worker did not resign because of the infection, but because he had been approved in a public tender. As for preventive measures, the employer demonstrated that it had implemented changes in work organization, and these measures were recognized by the MPT and the Labour Court.
The lawsuit was dismissed because the worker did not prove a link between the infection and the activities carried out by his employer. He also pointed out that the company was already taking preventative measures in relation to the pandemic at the time of the infection.
Another reason used by the magistrate in her ruling was that Law No. 8,213/91, which defines professional and occupational illnesses, “does not consider work-related illnesses to be those originating from endemic contexts found in the place where the worker lives, unless it is proven that the contamination occurred as a result of exposure arising directly from work”[1]. In addition, she pointed out that the measures implemented were effective in preventing the coronavirus, and ruled against the Claimant’s claim, not awarding moral damages.
In this regard, the judge pointed out that the MPT acknowledged compliance with around 35 prevention measures, at a hearing held in April 2020, and that these measures were improved throughout the year, at the same time as other actions were requested.
In this way, it is clear that issues related to whether or not COVID-19 is recognized as an occupational disease will depend on the evidence presented in the case file and the ability of companies to robustly demonstrate compliance with government orders to prevent COVID-19.
To this end, it is highly recommended that companies seek legal advice on how to comply with the regulations and correctly document the information to be presented in any inspections and lawsuits, which Marcos Martins Advogados is able and prepared to offer.
Marcos Martins Advogados has a team of professionals who are specialists and trained to offer legal advice to companies in order to adopt strategic and targeted solutions.
Have any questions? Talk to our lawyers and receive guidance.
[1] Information from the Labor Court of the 4th Region
