Put Rafael Mello and Israel Carneiro Cruz  – 15/06/2020

The Federal Supreme Court (“STF”) is facing the trial of some Direct Actions of Unconstitutionality (“ADI”) – ADI nº 6342, ADI nº 6344, ADI nº 6346, ADI nº 6352, ADI nº 6354 and ADI nº 6375 – filed against Provisional Measure 927 of 2020 (MP 927/2020), with a decision already having been made to suspend article 29 of MP 927/2020, which did not consider contamination by workers with COVID-19 as a work-related disease. Let us look at article 29 of MP 927/2020 currently suspended:

Art. 29. Cases of contamination by coronavirus (covid-19) will not be considered occupational, except upon proof of a causal link.

In practical terms, the suspension of article 29 of MP 927/2020 means that the contamination of employees by COVID-19 would be presumed to be an occupational disease, although admitting evidence to the contrary, that is, that the contamination did not occur as a result of work.

The first development of this directly affects work issues, as an employee who has been diagnosed with an occupational illness and is absent for more than 15 days will be entitled to stability for twelve months from his/her return to work and the right to FGTS for the period he/she is absent.

The second possible outcome concerns issues of social security origin, as when considered together with illness or accident at work, the FAP (Social Security Accident Factor) rate will increase, which could lead to a considerable increase in the amounts to be collected as this contribution on the payroll.

The third development refers to the likely increase in the number of labor complaints that may seek recognition of the employer's liability for exposing employees to risk situations.

Experience shows, however, that this understanding should not prevail.

Between 2009 and 2010, with the H1N1 pandemic (Influenza A), also known as “swine flu”, we had a situation of much smaller proportions, but with similar legal content.

As is currently the case, at the time of H1N1, bodies of the Labor Prosecutor's Office filed public civil lawsuits against companies under the argument that they were responsible for a safe and healthy work environment, judicially imposing obligations such as: (i) paid leave for workers with flu symptoms, regardless of a medical certificate, (ii) paid leave for pregnant women and minors, regardless of symptoms, (iii) provision of tissues, surgical masks, alcohol gel 70% and preventive hygiene guidance booklets to all direct and outsourced workers, (iv) posting of posters with instructions on preventing H1N1.

It is worth mentioning here the paradigmatic case “process nº TST-RR-3962700-26.2009.5.09.0007” in which the understanding prevailed that such measures could not be imposed on companies, since throughout 2010 the Brazilian Federal Government had already successfully immunized the population, because the World Health Organization had reduced the severity of the H1N1 pandemic and, mainly, as it is the responsibility of the Public Authorities to contain diseases in cases of outbreaks, epidemics and pandemics, as per art. 196 of the Federal Constitution of 1988, and it is not reasonable to transfer such responsibility to companies.

Returning to the present day, it is natural that companies are required to act in accordance with the precautionary principle and that their operations comply with all guidelines from health agencies and authorities and have strict operating protocols. However, it does not seem reasonable to hold the company responsible for the contamination of an employee who, in fact, could have contracted the coronavirus anywhere, with the State, not the companies, being responsible for containing a pandemic.

Therefore, it is recommended that companies take all possible precautions to minimize the risks of exposure, in particular, by following the recommendations of health authorities, and it is essential that they adopt ways to demonstrate through documents all actions taken in order to demonstrate all procedures taken to prevent the contagion of their employees.

Our office is available to help you identify the best ways to highlight the efforts made by your company.