Brazil: Q&A Employer COVID-19 Vaccination Policies (Updated)
*Disclaimer: Given the speed at which new laws, regulations and policies have been implemented to control the COVID-19 pandemic, it is possible that the responses below will be impacted.*
Has vaccination been made mandatory in your jurisdiction?
No.
Can an employer require employees to get the COVID vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
This is still a controversial matter in Brazil. On December 17, 2020, the Federal Supreme Court (“STF”) ruled that the compulsory COVID-19 vaccination is constitutional (but individuals cannot be forced to be vaccinated) and that the federal government, states, and cities are allowed to enact rules establishing restrictive measures for individuals that refuse to be vaccinated against Covid-19 (e.g., application of fines, law establishing that individuals who were not vaccinated are not able to go to specific public places, etc.).
Some labor authorities such as the Ministry of Labor Prosecution (“MPT”) and the president of the Superior Labor Court already manifested their understanding in the sense that the employer can require its employees to be vaccinated because when it comes to vaccines and health, the collective well-being is more important than the individual decision of taking or not the vaccine and that the mere individual unjustified refusal to take the vaccine cannot jeopardize the health of the other employees and community.
In case the employee without a reasonable justification continues refusing him/herself to be vaccinated against the COVID-19, the employer is allowed to terminate with cause.
Aligned with the president of the Superior Labor Court and MPT, some lower and regional labor courts have been granting favorable decisions to companies that terminated their employees with cause due to the refusal to take the COVID-19 vaccines.
We are also aligned with the understanding of the president of the Superior Labor Court and MPT and, therefore, in our opinion, an employer can require employees to get the COVID-19 vaccination and the employer is allowed to terminate an employee with cause in case he/she does not have a reasonable justification to not take the vaccine.
However, on November 1st, 2021, the Ministry of Labor and Social Security enacted the Ordinance No. 620, which prohibits employers to require proof of vaccination (which includes the vaccination against COVID-19) for hiring or keeping employees.
The Ordinance establishes that the termination with cause of an employee who does not present a proof of vaccination is a discriminatory practice and the employee is entitled to be reinstated to the job or to the payment in double of his/her remuneration. In case the employer implements periodical tests for COVID-19, so it will be allowed to require employees to be submitted to the tests or present the proof of vaccination.
Note that the Ordinance No. 620 is an administrative rule and it is not equivalent to a law, but it should be observed by the labor authorities in audits and inspections.
In our opinion, the Ordinance No. 620 has several irregularities, initially, because it exceeds its normative function as well as it conflicts with fundamental precepts of the Federal Constitution and with legal rules that attribute to companies the duty to comply with and enforce health and safety rules to the employees. In addition, such Ordinance conflicts with the understanding of the STF and of the Labor Courts.
Such Ordinance has already been challenged since it establishes provisions against decision of STF and the understanding of some labor authorities. Therefore, it is possible that Ordinance No. 620 is cancelled or considered illegal or unenforceable (depending on the initiative of association or unions, for example).
Taking into account the current scenario and that the Ordinance No. 620 is still valid and effective, in case the employer requires the COVID-19 vaccination from its employees, the employer will be subject to the risk of inspection by the labor authorities and labor claim, since an employee may challenge such employer’s request based on the Ordinance No. 620.
Can employers require the wearing of masks in the workplace?
Yes, but it is important to mention that state/city authorities are relaxing most preventive measures, and in most areas, masks are no longer mandatory.
Companies should first confirm if the state/city authorities of the locality where they are located still require the wearing of masks in indoor spaces. If they do, companies should still require employees to mask.
If the area where they are located does not require wearing marks indoors, companies could still require masking if they have internal policies on the matter. The internal policy would be based on an evaluation performed by the company's health and safety department and require the use of masks in the workplace as a preventive measure in their activities.
Can employees refuse to be vaccinated? How does an employer need to balance its obligation to provide a safe work environment with an employee’s rights?
As mentioned above, the STF ruled that individuals cannot be forced to be vaccinated against COVID-19. Therefore, employees may refuse to be vaccinated and the employer cannot force them to do that.
Although the Ordinance No. 620 establishes that employers cannot require proof of vaccination against COVID-19 for hiring or keeping employees as well as cannot terminate an employee with cause based on that, in our opinion, if the employee refuses to be vaccinated without a reasonable justification, the employer may prevent the employee who was not vaccinated to return to work at the company’s premises in order to avoid that such employee endangers the lives of his/her co-workers based on the principle that the employer has the duty to provide a safe work environment for all employees.
In the event of a refusal, can an employee be dismissed for refusal to comply with the employer’s vaccination policy? Will the employee’s refusal constitute just cause for termination?
It is important that the companies continue investing in awareness and encouraging the employees to be vaccinated against COVID-19.
Although we understand that the employer can terminate with cause an employee who has not a reasonable justification to not take the COVID-19 vaccine, considering the Ordinance No. 620 and that up to now there is no decision of courts about the legality/enforceability of it, it is advisable to avoid the application of disciplinary measures to the employees who refused to be vaccinated against COVID-19, especially termination with cause.
That is because in case the company decides to apply a disciplinary measure or terminate the employee with cause due to his/her refusal to be vaccinated against COVID-19, the employee may file a labor claim requesting to be reinstated to the job based on the Ordinance No. 620. In addition, in case of inspection, the labor authorities may impose an administrative fine on the company.
We recommend following up on any update related to Ordinance No. 620, that may alter the risks mentioned above.
What benefits or accommodations do employers have to make for vaccinated employees?
Up to now, there is no legal provision establishing benefits or accommodations that an employer has to make for vaccinated employees.
Can vaccinated employees refuse to work in the same vicinity as employees who are not vaccinated?
No. Considering that there is no law determining mandatory COVID-19 vaccination, there are no grounds to support the refusal of a vaccinated employee to work in the same vicinity as a non-vaccinated employee.
Although authorities are relaxing prevention and hygiene measures, it is still recommended and a good practice that companies continue adopting some preventive measures in the workplace. These measures include using hand sanitizer, social distancing, employees classified in the risk group of COVID-19 wearing masks, etc.
In your country, are employers required to provide paid leave for employees to get vaccinated?
No. Although Brazilian labor law establishes several paid leaves situations, up to now there is not a paid leave legal provision for employees to get vaccinated. Collective bargaining agreements may, however, establish it.
Considering that COVID-19 vaccination is a public health matter, and it is very important to invest in awareness, explain the benefits of the vaccination and encourage people to get vaccinated, if the employer wants, it may grant paid leave for employees to get vaccinated. An alternative may also be to include the time spent to get vaccinated in a system to offset absences/lateness and overtime (e.g. bank of hours).
Contributors
Tozzinifreire
Ana Carolina Maciel Ribeiro de Almeida
amaciel@tozzinifreire.com.br
Gabriela Lima Arantes
glima@tozzinifreire.com.br