According to the Brazilian Ministry of Health, the Novel Coronavirus (2019-nCoV) is an agent of the coronavirus family, a group of viruses with effects ranging from the common cold to more severe respiratory disorders. Coronavirus (2019-nCoV) has been identified as the cause of an entirely new infectious disease, now officially called “Coronavirus Disease 2019” (abbreviated “COVID-19”).
COVID-19 is transmitted by saliva through coughing, sneezing or touching (handshake), contaminating the air and surfaces in close proximity therein. From there, the virus can enter the body through the eyes, nose or mouth, effectively spreading the disease to an otherwise healthy individual.
The first case of 2019-nCoV infection was detected in China in December 2019, and has since escalated into a public health epidemic with global implications. In the wake of the coronavirus outbreak, nations, governments, businesses, workers, healthcare professionals, legal associations and medical institutions worldwide share similar concerns regarding widespread contamination, increased risks of infection and a rising death toll. They are likewise seeking policies to effectively respond, combat and prevent the disease from wreaking further havoc on the world’s population.
In this context, on 6 February 2020, the Brazilian Federal Government enacted Law No. 13,979, with the scope of creating specific policies for handling the disease. As a result, when it comes to public health, the COVID-19 epidemic undoubtedly impacts the labour environment, and is therefore linked to the employer’s duty to preserve the employees’ right to carry out their occupational responsibilities in a healthy and safe work environment.
The Brazilian Labour Code (CLT) and Ordinance No. 3,214/1978 of the Ministry of Labour have established a set of rules for the prevention of accidents and illnesses, whether work-related or not. The most recent legislation, Law No. 13,979, does not include provisions for protective measures at work specifically related to COVID-19. However, the new law 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).
Therefore, even though, by law, the employer is not obliged to take any specific measures regarding the COVID-19 outbreak, given the current situation and considering protection, both for the employee and the employer, it is necessary to adopt preventive and precautionary measures.
Modernisation, technological innovation, the advent of new relational dynamics and the emergence of more complex circumstances, such as viruses and diseases infecting tens of thousands of people worldwide, should not habitually suspend the need to protect those involved. Specifically, this applies to the protection of the employee, as a working citizen, as well as the protection of the employer, which, as an enterprise, is afforded the right as well as the obligation to prevent the occurrence of harm and to avoid labour liabilities. This is set out in the Brazilian Federal Constitution (fundamental rights and guarantees, fundamental social rights and a given company’s social purpose) and ISO 26000 (guidance on social responsibility), respectively.
In this current epidemic environment, we recommend adopting the following measures:
- create an extraordinary committee within the scope of SESMT (Specialised Service in Safety Engineering and Occupational Medicine) and CIPA (Internal Commission for Accidents Prevention) for the creation of an action plan to combat the coronavirus;
- establish an informative program on measures to prevent and cope with the disease;
- implement basic hygiene measures for workplaces and company facilities;
- evaluate the travel risks to employees, especially those expected to travel to Asia and Europe, and create an action protocol, analysing the possibility and necessity of every travel assignment;
- when possible, adopt remote work for employees returning from international trips, especially when the visited country is among the countries on alert, as listed by the Brazilian Ministry of Health;
- send employees who have traveled abroad for medical examinations, if there is mutual interest, especially those who have traveled to and from countries listed as areas of risk, even if the employees do not exhibit symptoms of infection from the disease;
- ask the medical care services, whether performed by the company or by a company hired to render such services, to refine inquiries regarding the coronavirus in medical examinations performed upon hiring, termination, or periodically;
- provide immediate care or referral for cases that show the slightest trace of suspicion or symptoms of the disease;
- create an action protocol capable of avoiding harassing or discriminatory treatment of any employee who presents symptoms of the disease, especially regarding the awareness of co-workers;
- formalise, in writing, all actions taken with minutes of the meetings, medical referral records, medical prescriptions, awareness newsletters, etc.
Measures like the ones proposed above may contribute, in a positive way, towards helping employers to address concerns posed by the coronavirus epidemic, including known issues and risks as of yet undetermined. The abovementioned recommendations are not intended to be exhaustive and should be considered in combination with any and all other measures that are deemed necessary.
TozziniFreire Advogados has a team of employment law specialists readily available to assist you with these and other workplace issues. For more information, please visit www.tozzinifreire.com.br.