By Israel Cruz and Rafael Mello

As previously reported, the discussion surrounding the possibility of characterizing COVID-19 as an occupational disease has already been the subject of debates, including before the Federal Supreme Court (STF), which ended up defining that it is possible to recognize the disease as an occupational disease, obviously admitting proof of the absence of a link between the work activity and the contamination.

In a new chapter of this discussion, on August 28, 2020, the Ministry of Health published Ordinance 2,345, which updates the list of work-related diseases, including, among them, COVID-19 and the presumed correlation or, in other terminology, the technical link between work activity and illness.

With the inclusion of COVID-19 in this list, in theory, it would no longer be necessary to carry out an expert assessment to presume a causal link and characterize it as an occupational disease. As a result of this, and of absence classified as an occupational disease, effects such as provisional job security for the employee on leave, obligation to pay FGTS for the period of absence, and other consequences arise.

However, and like everything that orbits the topic discussed here, we had a turnaround and, this Wednesday (09/02/2020) the Ministry of Health published a new ordinance rendering the aforementioned Ordinance 2,345 ineffective.

In this way, we return to the previous state that the characterization of COVID-19 as an occupational disease is possible depending, however, on the investigation in an expert assessment before the INSS or the issuance of a Work Accident Report (CAT) by the employee.

In our view, the Ministry of Health's retreat seems to be correct. After all, automatically classifying COVID-19 as an occupational disease would go beyond the understanding of the STF and would apply unfair and indiscriminate responsibility to companies for the contamination of their employees, all without considering the context of the most serious pandemic in recent decades in which not even government entities have been able to manage transmission or ensure prevention, treatment or vaccines.