Bruna Zampieri Colpani
Lawyer at Marcos Martins Advogados
On November 1, the Minister of Labor and Social Security issued Ordinance No. 620, which instructs Brazilian employers not to require a National Vaccination Certificate when hiring new employees or even when maintaining existing employment relationships, since to do otherwise would be considered discriminatory dismissal.
Reading the Ordinance, it is possible to see that the Minister of Labor used a constitutional basis to regulate the issue of the national vaccination certificate, given that the pre-existing legal provisions do not regulate the consequences of Covid-19.
In fact, the Ordinance expressly states in its text that failure to present a vaccination card against any disease is not included as a just cause for termination of employment by the employer in art. 482 of the Consolidation of Labor Laws (CLT). Nor is it provided for as discriminatory conduct in Law No. 9.029/95.
Furthermore, under the terms of article 1 and paragraph 1 of the Ordinance, employers are prohibited from demanding documents that prevent hiring, especially proof of vaccination. On the other hand, it maintains the obligation for employers to establish and disseminate guidelines or protocols indicating the necessary measures to prevent, control and mitigate the risks of COVID-19 transmission in the workplace, including the national vaccination policy and promotion of the effects of vaccination to reduce COVID-19 infection.
As a result, the Ordinance is a mandatory measure, in the sense of adopting vaccination as a precautionary mechanism.
So, in contrast to the Ordinance drawn up by Minister Onyx Lorenzoni, on November 5 the Labor Prosecutor’s Office published a technical note advising employers to require proof of vaccination from their employees and other service providers when they enter the workplace, with the exception of cases where there is a medical justification based on a contraindication to the vaccine.
This is because, according to the MPT, it is the employer’s duty to protect the right to life and health of its workers, and art. 483(c) of the CLT also stipulates that the employer must refrain from exposing its workers to “manifest danger of considerable harm”, which is also the position of the Superior Labor Court, in the sense that the health and safety of the community takes precedence over that of the individual.
The Federal Supreme Court has already expressed itself along the same lines on several occasions, and this position was ratified on November 12, with the granting of an injunction to suspend the validity of some provisions of Ministry of Labor Ordinance 620, emphasizing the possibility of employers requiring proof of vaccination from their employees, on the grounds that mandatory vaccination does not violate freedom, and it is even possible for companies to adopt indirect measures, such as prohibiting access to premises to those who deny immunization, under the terms of Law No. 13. 979/20. 979/20.
This decision, handed down by Justice Luís Roberto Barroso, also suspended the validity of the Ordinance with regard to the alleged discriminatory practice of requesting the vaccination card, as well as the possibility of dismissal for just cause for the lack of the document.
In any case, it is highly recommended that companies seek legal advice on the correct application of the legislation, which Marcos Martins Advogados is able and prepared to offer.
