12/29/2020
The coronavirus pandemic caused several changes, especially in the labor world. In this sense, with the advance of vaccines offered by the pharmaceutical industries to prevent Coronavirus, labor relations may suffer impacts in the face of binomials such as mandatory or freedom, individual will or public interest.
The Federal Constitution ensures that everyone has the right to health and that it is the duty of the State to protect it. The legislation also ensures the right to have an ecologically balanced environment. Thus, it is the responsibility of the Public Power and the community to defend and preserve these rights.
Regarding the labor area, Article 7 of the Constitution establishes that the rights of all workers are reduced to the risks inherent to work, through health, hygiene, and safety standards. This article was praised by the Federal Supreme Court in 2017, during a trial, resulting in the ban on the use of asbestos by companies and, more recently, in a decision that suspended the effectiveness of two articles of the extinct Provisional Measure (MP) No. 927, which established no occupational disease to contamination by the coronavirus.
In this sense, law No. 6,259 / 1975 also establishes the competence of the Ministry of Health in the elaboration of the National Immunization Program, stipulating in the single paragraph of this same statute the mandatory vaccinations.
In this same law it was established that for the worker to be entitled to the family salary, he will have to present the vaccination card of his beneficiaries.
Other legal provisions establish that those responsible for minors must respect the mandatory vaccination, except when, under medical order, these minors have some contraindication.
Law No. 13,979 / 2020, promulgated by the President at the beginning of the pandemic, established that the authorities may adopt, within the scope of their powers, among others, compulsory vaccination measures and other prophylactic measures.
In recent research, it was found that Brazil has been facing a problem of anti-vaccine movements. Thus, the goals stipulated by the Ministry of Health have not been achieved and diseases that until then were eradicated are reappearing.
Faced with the possible mandatory vaccination in the face of possible resistance, how should the company proceed?
Regulatory Norm 32 (NR-32) of the Labor Secretariat already stipulated that the Hospital Occupational Health Control Program (PCMSO) must include a vaccination program. There is even an item that ensures free vaccination to workers, determining that companies must provide effective vaccines that exempt their employees from risk. Notwithstanding, NR – 32 also establishes that the employer must keep in the employee ‘s medical record proof of refusal to vaccinate, for purposes of presentation in any work inspection.
In other words, as a rule, the hospital is obliged to vaccinate its employees in order to maintain a healthy and risk-free work environment. Any refusal should be documented.
This concept of a healthy environment also applies to employers in general who, in view of the possible mandatory vaccination stipulated by the Executive Branch, may require their employees to be vaccinated. It should be noted that the Federal Superior Court recently recognized that compulsory vaccination was constitutional.
The big dilemma is concentrated on those who refuse to be vaccinated.
Obviously, a precise analysis of each case will be foreseen, but, in general, the company may adopt punitive measures based on the interest of the community, which supersedes the individual right, and the obligation of the company to maintain a healthy work environment.
In any case, sooner or later, this issue will certainly be submitted to the Judiciary for examination, which will give the final word on the limits of the employer’s directive power and the possibility of requiring vaccination.
Anyway, the best alternative is that the parties always establish a dialogue and that the company can use campaigns to clarify and encourage vaccination, as a way of preserving life and collective interest.
Author: Peterson Vilela Muta
