Ariadne Fabiane Velosa
Lawyer at Marcos Martins Advogados
Can a company require its employees to keep their jobs if they are vaccinated against Covid-19? The issue is still very controversial, especially in light of the Supreme Court‘s decision, which ruled on the possibility of a mandatory vaccination policy for the population, which led to a trend of understanding on the validity of dismissing employees who unjustifiably refuse to be vaccinated against COVID-19.
On December 17, 2020, the Federal Supreme Court considered the possibility of mandatory vaccination of the population, but without the use of force, when ruling on ADIs 6.586 and 6.587 and ARE 1.267.897, establishing the following theses:
“It is constitutional to make immunization compulsory by means of a vaccine that, registered with the health surveillance agency, (i) has been included in the national immunization program; (ii) has its compulsory application determined by law; (iii) is the object of determination by the union, states and municipalities, based on scientific medical consensus. In such cases, there is no violation of the freedom of conscience or philosophical conviction of parents or guardians, nor of family power.
(I) Compulsory vaccination does not mean forced vaccination, since the user is always free to refuse. However, it can be implemented by means of indirect measures, which include, among others, restricting the exercise of certain activities or the frequentation of certain places, as long as they are provided for by law, or derive from it, and
(i) are based on scientific evidence and relevant strategic analysis,
(ii) are accompanied by ample information on the efficacy, safety and contraindications of immunizers,
(iii) respect human dignity and people’s fundamental rights,
(iv) meet the criteria of reasonableness and proportionality, and
(v) the vaccines are distributed universally and free of charge;
(II) such measures, subject to the limitations set out above, may be implemented by the Union as well as by the States, Federal District and Municipalities, respecting their respective spheres of competence”[1].
According to the STF, in the event of refusal, the public authorities (the Union, States and Municipalities) can impose restrictive measures on citizens laid down by law, such as fines, not receiving social benefits, not enrolling in school, etc.
In view of this, a discussion began about the possibility of the company, through the exercise of directive power (art. 2 of the CLT), requiring its employees to be vaccinated against Covid-19 and what the consequences would be in the event of the employee’s refusal.
The first current defends the possibility of the company ordering the vaccination, on the grounds of its responsibility to keep the work environment healthy and safe, based on article 7, item XXII of the Federal Constitution, which regulates as a workers’ right the “reduction of the risks inherent in work, through health, hygiene and safety standards”.
In addition, they base this understanding on Article 8 of the CLT, which determines the prevalence of collective interests over individual ones:
“Art. 8. The administrative authorities and the Labor Court, in the absence of legal or contractual provisions, shall decide, as the case may be, by case law, by analogy, by equity and other general principles and rules of law, especially labor law, and also in accordance with custom and comparative law, but always in such a way that no class or private interest prevails over the public interest…”. (emphasis added).
Thus, this school of thought argues that in the event of a worker’s unjustified refusal to take the Covid-19 vaccine, the employer can dismiss the employee for just cause (termination of the employment contract on the employer’s initiative), for violating health and safety rules.
The second current argues that the company cannot dismiss the employee for just cause if there is a refusal to vaccinate, based on personality rights, which ensure the freedom of the individual, provided for in article 5, item X of the Federal Constitution and article 11 of the Civil Code.
This school of thought interprets the Supreme Court’s decision as saying that there is no way to force a worker to be vaccinated, because they argue that forced vaccination has been ruled out, and the worker is allowed to refuse, whether justified or unjustified, however, refusal will have legal consequences.
They also argue that the Federal Supreme Court admits the practice of compulsory vaccination by indirect measures, presenting an exemplary and non-exhaustive list, which includes restrictions on the exercise of certain activities, if provided for by law or arising from it.
In line with the first current, the Public Ministry of Labor issued a technical guide on vaccination against Covid-19[2], which aims to guide companies, workers and society in general in relation to its impacts on labor relations.
The understanding of the Labor Prosecutor’s Office is that it is up to employers, together with the government, to comply with the national vaccination plan and adopt the necessary measures to contain the pandemic, whether with individual or collective measures.
Likewise, it points out that the employer must draw up occupational health and safety programs, in which the study of the SARS-CoV-2 biological risk must be mapped through the PPRA, with the inclusion of actions to reduce or contain this risk in the PCMSO, including vaccination against the virus.
Along these lines, it considers that unjustified refusal to take the vaccine against Covid-19 is an act of misconduct, i.e. it would give rise to dismissal for just cause, with private positions, religious, political or philosophical convictions not being allowed as justification.
However, it also argues that this measure (dismissal) must be preceded by a medical assessment of the employee in order to verify the feasibility of vaccination, as well as “clarification of the worker, with the provision of all the information necessary to clarify the vaccination procedure and the legal consequences of refusal”.
It also advises that, if the unjustified refusal persists, “the worker must be removed from the workplace, and disciplinary sanctions may be applied, including just cause, based on Art. 482, h, combined with Art. 158, II, sole paragraph, point a”.
The fact is that there is still a lot of discussion among legal practitioners about the issue, and there is no consensus on what would be the most appropriate course of action, so it is extremely important that the bodies of the Judiciary express their opinion on the matter, defining the issue and providing security and stability to labor relations.
In this way, given the uncertainties, companies should adopt the most conservative stance, working extensively to raise awareness among their employees about the benefits of vaccination against Covid-19, adapt their environmental reports to current legislation, including the study related to Covid-19, and cases of refusal to vaccinate should be assessed individually. It is also extremely important to document all of this in environmental reports, communication with workers and individual procedures with employees in case of future inspections or actions.
It is therefore important to be guided by a team of specialized lawyers, with a view to preventing and reducing the risks that the issue will generate for companies.
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.
[1] https://portal.stf.jus.br/noticias/verNoticiaDetalhe.asp?idConteudo=457462&ori=1
[2] https://mpt.mp.br/pgt/noticias/estudo_tecnico_de_vacinacao_gt_covid_19_versao_final_28_de_janeiro-sem-marca-dagua-2.pdf
