Lack of a specific law on the case creates legal uncertainty and hinders decision-making by employers.
As soon as the Covid-19 vaccine was officially released by regulatory bodies in Brazil, governments raced to receive shipments destined for their states. Likewise, there was a move by a group of Brazilian businessmen to purchase the immunizing agent, with the aim of vaccinating their employees and donating the remaining vaccines to the Public Health System (SUS).
Although the private sector was not authorized to go ahead with its plan, SUS was able to set up a large vaccination scheme that would serve all Brazilians. In the last two years, this was certainly the most awaited moment by the population, after all, only the vaccine protects against the new coronavirus (Sars-Cov-2). Therefore, it was expected that everyone would be immunized against the virus, but that was not exactly what happened.
In all, 30 million Brazilians have not been vaccinated yet, according to a survey by the Brazilian Society of Immunizations (Sbim). The number is worrying, as at least 70% of the population needs to be vaccinated so that the virus can no longer replicate, according to the epidemiologist Pedro Hallal.
The immunization certificate is mandatory for entry into most public and private institutions, as well as for participating in events. But, and for a safe return to work, is it possible to force employees to take the vaccine?
Vaccination and dismissal
In May 2021, an outsourced employee at a hospital in São Caetano do Sul (SP) was fired after refusing to take the vaccine. The decision was validated by a judge from the city’s 2nd Labor Court, arguing that the health of all hospital workers must override the individual right of the women not to be vaccinated.
After the case, the Regional Labor Court (TRT) of São Paulo gave the guarantee so that companies could fire employees who refused to take the vaccine.
For the government, however, the decision to take the vaccine or not is a personal one. For this reason, the Ministry of Labor and Welfare published Ordinance 620 on November 1st, whose text states as “discriminatory practice the mandatory vaccination certificate in selective processes for the admission of workers, as well as the dismissal of an employee due to non-presentation of the vaccination certificate”.
Following the judicial decisions already taken on the subject, the Superior Federal Court (STF), through Justice Luís Roberto Barroso, suspended parts of the ordinance just over a week after it was published. Therefore, companies can indeed fire employees who refuse to be vaccinated, as long as this happens as a last resort.
In practice, the company must adopt policies to encourage vaccination and protect its employees. If the worker refuses the vaccine, warnings and suspensions can be applied and, finally, dismissal.
The truth is that the lack of a specific law on the case creates legal uncertainty and hinders decision-making by employers. For now, the Supreme Court decision is valid, but it is necessary to follow the news on the subject.
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