The Ministry of Labour Prosecutor issued a guideline in February 2021 for companies to invest in awareness and encourage employees to be vaccinated. Among the measures that could be adopted by the employers, the Ministry of Labour Prosecutor states that the mere individual unjustified refusal to take the vaccine cannot jeopardise the health of other employees and of the community.
Hence, if after been informed by the employer of the benefits of the vaccine, the vaccination policy, and the relevance to protect the work environment and the community, the employee still refuses to be vaccinated, the employee could be placed on a leave from the work environment, and as a last measure, the employee could be terminated with cause.
The guideline of the Ministry of Labour Prosecutor is not equivalent to law, it does not create a precedent about the matter or needs to be followed by the Brazilian Labour Courts in the event of a dispute about the matter. It only shows the understanding of the Ministry of Labour Prosecutor about the matter and may be used as argument of defense to try to support the position of employers that opt to follow the measures.
As a comment to the guideline of the Ministry of Labour Prosecutor, the President of the Brazilian Superior Labour Court stated that, in her understanding, it will be difficult to support a termination with cause of employees that refused to be vaccinated, but the duty of the employer to provide a health and safe work environment should not be ignored. Another judge from the Superior Labour Court has also mentioned that in his opinion, the individual right of an employee to refuse to be vaccinated should not prevail when his/her decision endangers the life of the other employees.
Considering that the matter is very recent and controversial and there are arguments to defend both sides, employers should perform a careful assessment of each case’s implications before applying any disciplinary measure, including a termination with cause.
Although several companies are thinking about possible measures related to employees’ refusal for the COVID-19 vaccination, the fact is that the vaccination has recently started in Brazil and the forecast is that people between 29 and 59 years old (the majority of the workforce) will be vaccinated only in May or June of this year. Despite of the importance of this discussion, it is necessary to have available vaccines for the majority of the workforce so that companies start adopting measures for employees’ vaccination refusal. Due to the timing of the vaccination, the Brazilian Labour Courts may take a few months to start rendering decisions about the matter.
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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