Camila Reis Henrique
Lawyer at Marcos Martins Advogados
With the enactment of Law 13.467/17 (Labor Reform), much has been discussed about the probable deterioration of workers’ work and possible reductions in labor rights, and one of the most criticized points of change is the permission for pregnant and breastfeeding women to work in unhealthy places.
The issue is controversial and the discussion requires a more careful analysis of the subject to understand what unhealthy activity is and what the implications are for pregnant/lactating workers.
The Fundo de Amparo ao Trabalho Portal¹ presents unhealthy activities as “those that expose employees to agents that are harmful to their health, above the legal limits allowed. Legally, unhealthy conditions are only recognized when the activity or operation is included in a list issued by the Ministry of Labour”
In order to define which agents and conditions are considered unhealthy, as well as the level of the respective supplement, the Ministry of Labor draws up Regulatory Standards, such as Regulatory Standard No. 15, also known as NR – 15, which must be observed by companies.
Prior to the Labor Reform (Law 13.467/17), pregnant employees had to be removed from any activity they performed in an unhealthy place during pregnancy and lactation (breastfeeding period) and relocated elsewhere in the company.
After the Labor Reform (Law 13.467/17), pregnant/lactating workers were only required to be removed from activities that were unhealthy to the maximum degree. In the case of medium and minimum degree work, the worker would only be removed if there was a recommendation via a certificate from a trusted doctor. With regard to breastfeeding women, they could be removed from any unhealthy activity, also with a doctor’s recommendation via a certificate presented by the worker. Both, if removed, would not lose the unhealthy work bonus.
However, the issue provoked so much debate in such a short space of time that on November 14, 2017, the President of the Republic adopted Provisional Measure 808/17, which, among other changes, sought to regulate the issue in question in more detail.
Provisional Measure 808/17 amended the provisions of Law 13.467/17, removing pregnant/lactating workers from working in unhealthy places, without paying the respective unhealthy working conditions bonus. The Provisional Measure also regulates the work of pregnant/lactating workers only in unhealthy places of medium and minimum degree if they voluntarily present a health certificate with medical authorization.
Also, with regard to breastfeeding women, Provisional Measure 808/17 maintained the recommendation of the Labor Reform, allowing breastfeeding workers to be removed from work when exposed to any degree of unhealthiness, provided they present a health certificate recommending their removal during lactation. However, Provisional Measure 808/17 lost its validity on April 23, 2018, and the original text of Law 13,467/17, which established this, came back into force:
According to Cruz² (2017)
Reform brings different treatments to pregnant and breastfeeding women, which can be observed mainly in two ways:
(1) With regard to the maximum degree of unhealthiness, while pregnant women will be removed immediately, breastfeeding women must present a medical certificate expressly recommending the need for their removal;
(2) With regard to the medium and minimum degrees of unhealthiness, while the pregnant woman must, if she wishes, voluntarily present a certificate in order NOT to be taken off work, the breastfeeding woman must present a medical certificate in order to be taken off work.
But the discussion doesn’t stop there.
With the loss of validity of Provisional Measure 808/17 on April 23, 2018, the full text of Law 13,467/17 came back into force, which does not prevent pregnant and breastfeeding women from working in unhealthy places. Not agreeing with the change and seeing an affront to the right enshrined in the Magna Carta, the National Confederation of Metalworkers filed ADI (Direct Action of Unconstitutionality) 5938, challenging items II and III of article 394-A of the CLT and the wording given by article 1 of Law 13.647/17.
The Confederation argues that the legal provision encourages unhealthy work for pregnant and breastfeeding women, as they have the burden of justifying their vulnerable condition by means of a medical certificate, in contravention of the Federal Constitution’s protection of motherhood, pregnancy, health, women, the unborn, newborns, work and a balanced working environment (Article 1, IV, Article 6, Article 7, XX and XXX); Article 7, XX and XXII; Article 170; Article 193; Article 196; Article 201, II; Article 203, I and Article 225).
There is still nothing certain or definitive about the subject, and it is the subject of various discussions between labor lawyers, employers and employees. However, it is certain that it is up to everyone to apply the Labor Laws with good faith and fairness for a conscious result for both parties.
_______
¹Portal do Fundo de Amparo ao Trabalhador. Ministry of Labor. Unhealthy and Dangerous Activities. 2016. Available at: <http://portalfat.mte.gov.br/programas-e-acoes-2/programa-de-protecao-do-emprego-ppe/perguntas-frequentes/atividade-insalubre-e-perigosa/>. Accessed on: 06.08.2018
²Cruz, Samarah Gonçalves. Pregnant and breastfeeding women in the context of the Labor Reform. Migalhas. 11 Dec 2017.
