By Leticia Cordeiro and Rafael Mello

The labor reform established by law 13,467/2017 brought the possibility of lactating and pregnant women working in an unhealthy environment (minimum and medium levels in the case of pregnant women and any level of unhealthiness in the case of lactating women).

This possibility comes from the command inserted in items II and III of article 394-A of the CLT, which determines the removal of the employee from work in unhealthy environments. when the maid “present a health certificate issued by a doctor trusted by the woman”.

Art. 394-A. Without prejudice to her remuneration, including the amount of the unhealthiness allowance, the employee must be removed from:

I – activities considered extremely unhealthy, while the pregnancy lasts;

II – activities considered to be unhealthy to a medium or minimum degree, when presenting a health certificate issued by a doctor trusted by the woman, which recommends leave during pregnancy;

III – activities considered unhealthy to any degree, when presenting a health certificate issued by a doctor trusted by the woman, which recommends withdrawal during lactation.

The provisions contained in items II and III of article 394-A of the CLT established as a rule that pregnant and lactating women could work in an unhealthy environment, which would be an exception in the event of presentation of a medical certificate recommending that the employee be removed from exposure to such conditions. In practice, the provisions inaugurated authorization for these employees to work in unhealthy conditions.

As widely reported in the media, this legislative innovation was the subject of much discussion and debate, given that a large part of the social movements linked to working conditions, members of the Judiciary, the Public Ministry of Labor and the Brazilian Bar Association, as well as a relevant portion of the academic community considered this flexibility as a setback to the minimum protections for pregnant and lactating workers.

The issue was then the subject of a Direct Action of Unconstitutionality (ADIN) filed by the National Confederation of Metalworkers, being processed in the Supreme Federal Court under number 5938.[1].

In general terms, ADIN No. 5938 brought as its basis a constitutional offense to the protection of maternity, pregnancy, health, women, the unborn child, newborns, work and the balanced work environment provided for in articles 1, IV, 6, 7, XX and XXII, 170, 193, 196, 201, II, 203, I, 225 and 227 of the Federal Constitution.

On May 29, 2019, by the votes of ministers Edson Fachin, Luís Barroso, Luiz Fux, Cármen Lúcia, Ricardo Lewandowski, Gilmar Mendes, Dias Toffoli, Marco Aurélio and Celso de Mello, the Supreme Federal Court declared the unconstitutionality of the expression “when presenting a health certificate issued by a doctor trusted by the woman” contained in items II and III of article 394-A of the CLT, in a way that allows lactating and pregnant women to work in an unhealthy environment.

The only opposing vote, out of the 10 voters, was that of Minister Marco Aurélio, who considered the protection of women to be detrimental to gender, understanding as reasonable the considerations and permissions of a medical professional as a possibility for working in an unhealthy environment.

However, all other votes confirmed the understanding that it is unconstitutional to allow pregnant and lactating women to work in unhealthy conditions, highlighting the leading vote of the Rapporteur Minister Alexandre de Moraes, who brought considerations such as the possibility of relocation or leave of absence for pregnant or lactating women, also emphasizing that female protection would in no way imply prejudice or distinction in gender treatment.

Therefore, in view of such observations, a decision was made upholding the decision previously made on a provisional basis, definitively ruling out the possibility of pregnant or breastfeeding women working in unhealthy activities, regardless of the presentation of a medical certificate.

[1] Case No. 0069830-37.2018.1.00.0000, Rapporteur: Rapporteur Minister Alexandre de Moraes, judgment on 05/29/2019. Document available at http://portal.stf.jus.br/processos/detalhe.asp?incidente=5447065