With the worsening of the crisis, an increase in the number of confirmed cases and the declared coronavirus pandemic by the World Health Organization (WHO), preventive measures, precautions and preparation to face more delicate situations in the work environment become increasingly necessary.
Law No. 13,979, issued by the Federal Government on February 6, 2020, creates policies to deal with the disease, but has no provision for protective measures at work environment related to the coronavirus. It only considers the absence of the employee for purposes of determining his/her health status, as it may relate to medical appointments and ensuing treatment for the disease, as a justified absence (i.e., paid leave). So far, there is no other rule on the issue related to work environment.
However, it is the employer’s duty to preserve the employees’ right to carry out their occupational responsibilities in a healthy and safe work environment. In this context, some prevention measures are already being adopted by companies, such as: (i) informative programs on measures to prevent and cope with the disease; (ii) basic hygiene measures for workplaces and company facilities; (iii) remote work for employees returning from international trips, for those who had contact with people affected by the virus or suspected of having it; and (iv) assessing the need to proceed with business trips and participation in events.
In addition, sensitive legal questions related to the matter have been emerging and deserve attention, such as:
- Compulsory determination by the employer to: (i) carry out medical examinations, (ii) leave the work environment for those employees who are presenting flu-like symptoms, (iii) leave the work environment where there are other employees presenting flu-like symptoms, and (iv) adopt remote work for a fixed or indefinite period;
- Need to adopt immediate measures for groups of employees considered in vulnerable situations;
- Employee’s right to resist to the employer’s determinations, including refusal to carry out medical tests, participation in meetings/events and business trips;
- Possibility to cancel employees’ vacations and private trips that may affect the community and company business;
- Need to suspend the business activities with wage repercussions;
- Union negotiations over preventive issues and dispute resolution;
- Possibility to adopt collective vacations.
It is essential that companies are attentive and follow instructions from health authorities and the Government on the matter. This is an issue that is evolving very quickly and new developments and orientations may arise every day.
We will continue to monitor the situation and are fully available to provide assistance in relation to the measures to be taken and their legal consequences.
TozziniFreire Advogados attorneys are available to assist you with these and other workplace issues. For more information, please contact Mihoko Sirley Kimura (Partner) of TozziniFreire Advogados at Msk@tozzinifreire.com.br or visit www.tozzinifreire.com.br.
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