01/02/2021

By Rafael Mello and Israel Cruz

On 01/15/2021, the Public Ministry of Labor (“MPT”) issued technical note no. 1 of 2021 with the aim of protecting health and providing equal opportunities at work for pregnant workers in the face of the second wave of the COVID 19 pandemic.

In its note, the MPT advises companies to allocate pregnant employees to remote work (home office).

If remote allocation of pregnant employees is not feasible, the MPT suggests that they be removed from work based on alternative measures, such as: (i) interruption of the employment contract; (ii) granting of collective vacations, full or partial; (iii) suspension of employment contracts (lay-off), (iv) suspension of the employment contract for qualification purposes (art. 476-A of the CLT), among others permitted by current legislation.

Another suggestion from the MPT is to allocate pregnant women to sectors with a lower risk of contagion, including the right to rotate shifts in order to allow transport at alternative times or even the granting of chartered transport.

It was also recommended that the employee accept leave by means of a certificate, since the employee is a risk group. It is worth noting that the MPT prohibits the indication of CID, so the INSS will hardly accept such leave, which will end up imposing costs on the employer.

The MPT indicates that the dismissal of pregnant workers during this period could constitute discriminatory dismissal.

The central idea of the MPT's guidelines and suggestions is to ensure that pregnant women are physically removed from the workplace, in addition to other measures, aimed at preserving the health of this risk group at this time of pandemic and high contagion rates.

It is clear that a technical note issued by the MPT must be taken into consideration in the decision-making matrix of companies on the subject, including due to the positive intent and common sense found in said document. However, it should be noted that said technical note is not normative in nature and only aims to guide the MPT's actions in order to standardize the agency's actions.

Therefore, it is important that companies are well advised to adopt best practices in relation to pregnant employees in the context of the pandemic, as well as doing so in a way that observes the legislation and avoids unnecessary legal risks.

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