Vaccination of employees and its obligation in the face of Covid-19

Due to the emergency approval of the covid-19 vaccination by Anvisa, a discussion arose in the legal field about the possibility of the employer requiring its employees to be vaccinated against the disease, given that there are positions that do not understand the obligation (given the constitutional principle that no one will be forced to do something that is not defined in law), as well as there are positions that understand the requirement of mandatory vaccination, since it is the employer’s responsibility to ensure a safe work environment, the unvaccinated worker cannot put other workers at risk.

Given the numerous discussions on the subject, it is important to highlight the judgment of the STF (Supreme Court) in the sense that the state may determine that the vaccination of the population against the disease is mandatory, without invasive measures and the use of force to require immunization.

In parallel to the STF decision, the recommendation of the Public Ministry of Labor (MPT) is that companies make awareness campaigns about the vaccine and use dismissal for just cause as a form of punishment in the last case. In this way, according to the aforementioned body, workers who refuse to take the Covid-19 vaccine, without medical justification, may be dismissed for just cause.

This understanding of the MPT is based on the principle that vaccination is a common good, and it is up to employers to carry out awareness campaigns, involving workers ‘unions, in order to address the risk of contagion of the disease in prevention programs and include the vaccine among preventive measures to ensure workers’ health.

Therefore, it is necessary to inform that the guidance of the MPT is in accordance with the decision of the Supreme Court (STF), which decided that the government may impose penalties on those who refuse to take the vaccine, as well as with the CLT and various regulatory standards that seek to preserve the health and safety of workers.

In this sense, since the employer is the holder of the directive power related to the organization of labor standards provided for in internal policies, the creator of internal requirements for the hiring of employees and maintenance of their respective jobs, the applicator of punitive measures to employees (resulting from their noncompliance with internal standards) it seems logical to admit the employer’s requirement of vaccination of its employees, with the presentation of their vaccination certificate.

The absence of such proof may admit the adoption of disciplinary measures that may matter in a termination of the employment contract for just cause, resulting from a conduct of indiscipline and/or insubordination of its employees, since it may be applicable by analogy Article 158, sole paragraph of the CLT, which provides that the employer may penalize the employee who refuses to use PPE, since the use seeks to protect the work environment.

Given the above and according to the understandings of Jurists in this sense, it is important to make it clear that this is not a forced vaccination to be imposed on employees, but rather, restriction of rights to those who refuse mandatory vaccination, since the internal rules established by the employer have legal validity as long as they do not matter in abuse of

Of course, there may be employees who, for health reasons, such as pregnant women,

infants etc. they will not be able to be vaccinated, so that such a requirement on the part of the employer would become unenforceable. In any case, such situations should be analyzed by the employer, who should create alternatives for the provision of services of these employees, such as the transfer of these workers to work through the teleworking regime, etc.

According to jurists, the issue involving the mandatory vaccination of workers involves the use of common sense, discernment (without detracting from the issue of Public Health), the collective interest, and respect for business policies and the executive power of the employer, responsible for maintaining a safe and healthy work environment.

Finally, as already stated, the recommendation of the Public Ministry of Labor (MPT) is that companies carry out awareness campaigns and use dismissal for just cause as a form of punishment in the last case. In addition, the employer may also carry out with the corresponding unions, agreements or collective agreements regulating the matter about the vaccination of employees against Covid-19, procedures that will guarantee the employer greater legal certainty on the subject, in order to prevent the judicialization of the matter.

Geovana Carolina Silva de Andrade

Lawyer, graduated in law from Centro Universitário De Campo Limpo Paulista/SP (2017), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2018). Postgraduate in labor law and process from Faculdade Damásio De Jesus. Lawyer at TM Associados.