31/05/2021

By Rafael Mello and Israel Cruz

Once the vaccination campaign began, there was much discussion about the possibility of employers requiring employees to take COVID-19 vaccines as they are made available to them by the government.

As the vaccination campaign progresses and vaccination groups are expanded, it becomes increasingly important to exhaust the discussion about the possibility of the employer, in the exercise of management power, requiring his employee to be immunized.

Among the various questions arising from this topic, the question that gives the title to this brief article stands out: Can a company dismiss an employee for just cause who refuses to take the vaccine?

It is true that the debate is heated, not only in the ideological field, which we will not go into further, but in the legal field, placing in apparent conflict constitutional principles related to the individual rights of employees and collective rights related to public health.

When discussing the possibility of the law determining compulsory vaccination, the Supreme Federal Court, through the judgment of ADIs 6586 and 6587 and ARE 1,267,897, all published on 12/17/2020, understood the possibility of compulsory vaccination, if determined by the public authorities.

However, what we intend to assess here is to what extent an employer's determination for an employee to get vaccinated can override the employee's will for the health of his or her coworkers and, mainly, whether it is reasonable to apply the maximum labor penalty to an employee who simply refuses to get immunized, despite having the vaccine within his or her reach.

Although we are convinced that the effects on public health and employees resulting from a pandemic, especially the one we are currently experiencing, cannot be attributed to the employer as the responsibility, it is important to note that the employer cannot escape the responsibility imposed on him by the Consolidation of Labor Laws (CLT) regarding the burden of providing a safe work environment for his employees.

From this we can draw the first important conclusion, at least in our view, that the employer is not directly responsible for the effects of the pandemic, but must make every effort and take all measures within its reach to ensure a safe environment for its employees. In this context, it is undeniable that the employer not only can, but must, take a position in relation to employees who refuse to take the vaccine, placing their coworkers at risk for personal and individualistic reasons.

The Public Ministry of Labor (MPT), as a measure to support its members, addressed the issue and prepared an “Internal MPT Technical Guide on COVID-19 Vaccination”[1]. In its guide, the MPT points out the employer's responsibility to maintain a safe work environment for all employees and suggests that employees who refuse to take the vaccine be removed from work, as well as the possibility of applying disciplinary sanctions that may result in just cause.

At this point, it is clear that the employer can, and should, prevent the employee who refuses to be immunized from entering the workplace, as well as not paying him/her for the days he/she did not work for this reason.

But then what would justify increasing the employer's reaction towards an employee who, despite being notified, guided and warned, insists on refusing to follow the health standards determined by public authorities and correctly required by the company?

We understand that the legal basis for applying labor penalties to employees who unjustifiably refuse to be vaccinated, without prejudice to other rules, comes from the combination of the provisions of regulatory standard no. 01, items 1.4.2, item "a" and 1.4.2.1, and articles 157, items I and III, 158, items I and II, and 482, h, all of the CLT.

Evidently, each case must be assessed individually and with respect to its own peculiarities, and it is also recommended that the offending employee first receive adequate guidance and information and, if this does not produce any results, be penalized gradually and in proportion to his/her persistence in the wrongful act of unjustifiably refusing to be immunized, despite the fact that such refusal puts the safety of the work environment at risk.

In this scenario, it is clear that it is possible to apply just cause to an employee who repeatedly and insistently, even after being guided and warned, insists on putting everyone at risk in an absolutely unjustified way.

This topic is so relevant that even in the face of a slow and tortuous vaccination campaign, the first practical cases resulting from this type of behavior are beginning to appear.

This was exactly the subject of a recent decision handed down by Judge Isabela Parelli Haddad Flaitt. The case in question involves an outsourced employee who worked on the cleaning team at a municipal hospital in the city of São Caetano do Sul. It was found that the employee refused to take the vaccine for the second time and, given the peculiarity of the activity and the fact that the workplace was a hospital, her contract was terminated for just cause.

In her decision, the judge highlighted that the employee's right to refrain from being vaccinated should be outweighed by the need to promote and protect the health of all workers and patients at the Hospital, which seems to us to be a logical and correct decision.

Considering the high level of misinformation among the population or even ideological and political attribution to the issue, unfortunately it is expected that companies will have to prepare to face situations like the one described above, and as stated above, the ideal is that for each situation an individualized analysis is carried out both of the context of the employee's refusal, as well as of the best way to deal with the situation from a legal point of view.

Our office is available to present clients with customized solutions for each situation, always seeking to ensure compliance with legal provisions and, at the same time, protect our clients from the legal uncertainty that seems even more present in topics such as the one discussed in this text.

[1] MPT INTERNAL TECHNICAL GUIDE ON COVID-19 VACCINATION - Available at https://mpt.mp.br/pgt/noticias/estudotecnico_vacinacaocovid19-2.pdf ; Accessed on 05/18/2021 at 1:12 pm