Kassio stops judgment in the STF of an ordinance that vetoes dismissal of unvaccinated

Minister Kassio Nunes Marques interrupted the STF (Federal Supreme Court) judgment on the federal government’s ordinance that prohibits companies from firing or vetoing the hiring of people for not having taken the vaccine against Covid-19.

The court already had four votes to uphold Minister Luís Roberto Barroso’s decision, which monocratically overturned the measure published by Labor Minister Onyx Lorenzoni.

Kassio, however, asked for emphasis to withdraw the analysis of the topic from the virtual plenary and take it to the analysis in a face-to-face session. Now, however, the definition of the trial date depends on the president of the court, Luiz Fux.

Meanwhile, Barroso’s order to suspend the effects of the ordinance remains in effect. In the individual decision, the minister said that dismissing anyone who refuses to provide proof is the employer’s right, but this power must be exercised with moderation and proportionality.

“It should be noted, as important, that the power to terminate an employee’s employment contract, although it is a faculty of the employer, must be exercised with moderation and proportionality, in respect of the social value of work,” the minister wrote.

Barroso also defined that the requirement should not be applied to people who have “express” medical contraindications, whether based on the PNI (National Vaccination Plan) or on scientific consensus. In this case, periodic testing must be accepted.

In the norm in question, the obligation to obtain a vaccination certificate in selective processes for hiring workers, as well as the dismissal for just cause of an employee due to non-presentation of the certificate, is described as a discriminatory practice.

The ordinance highlights that the termination of the employment relationship for this reason gives the employee the right to compensation for moral damage and the possibility of choosing between reinstatement with full compensation for the entire period of absence or receiving double the remuneration of the same period.

“The employer is prohibited, when hiring or maintaining a worker’s job, to demand any discriminatory or obtrusive documents for hiring, especially proof of vaccination”, says the ordinance.

Barroso, however, highlighted that, according to scientific research, vaccination is essential to reduce the transmission of Covid-19 and that an employee without immunization can represent a risk in the work environment.

“Threat to the health of other workers, risk of damage to the safety and health of the working environment and of compromising the health of the public with which the company interacts,” he said.

He recalled that the Supreme Court, in previous decisions, recognized the legitimacy of compulsory immunization, through the adoption of indirect inductive measures, such as restriction of activities and access to establishments, not admitting, however, vaccination with the use of force.

“Individual rights must yield to the interest of the community as a whole in the sense of protecting the right to life and health”, said the magistrate.