Ban on dismissal for lack of vaccine is unconstitutional, lawyers say

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In the opinion of specialists in labor law, the Ministry of Labor ordinance issued last Monday (1), which prohibits companies from firing or not hiring employees who refuse to take the vaccine against Covid, is unconstitutional.

The rule, signed by Minister Onyx Lorenzoni, considers that it is discriminatory to require the employee to present proof of vaccination to maintain their relationship with the company.

The ordinance caught companies and lawyers specializing in labor law by surprise, who consider that the measure violates the Constitution and is purely political. They assess that the individual’s right not to take a vaccine cannot override collective health.

It is a decision that makes clear the government’s stance against vaccination, assesses Fernando Teixeira Oliveira, a specialist in labor legislation at Martinelli Advogados. “We expect it to be declared unconstitutional.”

According to the lawyer, the government ordinance gave companies a scare and only served to cause legal uncertainty. “The company can give a warning to the employee who refuses to take the vaccine and impose a suspension, until he gets dismissed for just cause, if he maintains the refusal without justifying it with a certificate that prevents him from taking the immunizing agent.”

“The ordinance was a mistake of the ministry and goes against the position that has been taken in relation to vaccination to contain and end the pandemic as soon as possible. It demonstrates the disharmony between the Powers”, says Thereza Cristina Carneiro, specialist in Law of the Work of CSMV Advogados.

“At the end of last year, we had direct actions judgments of unconstitutionality, in the line that compulsory vaccination is constitutional. The ordinance comes with the speech that the restriction would be discriminatory. But one of the employer’s obligations is to maintain the environment healthy work”, adds the lawyer.

According to Carneiro, it is important for the company to be able to dismiss employees in this condition for just cause, as this is the greatest penalty that exists for an employee in their employment contract.

“Firing without reason means that the company will still have to pay the compensation amounts. The ordinance, however, goes in the opposite direction: to give a compensatory remuneration to the worker who is fired for just cause in this case.”

In the view of labor lawyer Jorge Matsumoto, from Bichara Advogados, the government’s text is unconstitutional in its origins. “With the fallacious argument that the employee must have the freedom of choice, with no obligation to vaccinate, the ordinance puts the health and physical integrity of the community at risk.”

“If the employee works alone and does not put others at risk, dismissal for cause is too serious a measure. But if he was properly instructed and still refuses to take the vaccine, the company must take the necessary measures.”

They emphasize that the 22nd item of article 7 of the Constitution guarantees safety and health to workers in the exercise of their activities.

On Tuesday (2), ten union representations signed a joint note in which they criticized the government’s text. The workers’ organizations say that, more than a distortion of understanding about the rules of social interaction, the measure is a new demonstration of a total lack of sensitivity and empathy.

“The advent of the vaccine against the coronavirus in record time was an achievement of humanity that allows us to resume the economy and a healthy social life”, say the centrals.

The workers’ organizations reinforce that, unlike an authoritarian action, the mandatory vaccination is based on everyone’s responsibility to the collective.

The note is signed by CUT (Single Central of Workers), Força Sindical, UGT (General Union of Workers), CTB (Central of Workers and Workers of Brazil) and NCST (New Central Union of Workers).

CSB (Brazilian Trade Union Center), CSP-Conlutas, Intersindical (Working Class Center) and Public (Servant Center) and Intersindical (Fight Instrument) also signed.

“The minister says that the centrals are defending the punishment of workers, but we are defending life”, says Miguel Torres, president of Força Sindical.

“Most workers were vaccinated thanks to SUS, by pressure from society, and they make an ordinance freeing those who were not vaccinated. The individual right does not override the collective.”

He points out that several legal entities, such as Anamatra (National Association of Magistrates of the Labor Court), also expressed their disapproval of the ordinance.

“We cannot admit that an ordinance will fix the denial and we will do everything to have it overturned,” says Torres.

Senator Humberto Costa (PT-PE) sent a legislative decree (935/2021) in which he revokes the Ministry of Labor ordinance.

This Wednesday (3), the Rede Sustentabilidade party presented an ADPF (Allegation of Non-Compliance with a Fundamental Precept) against the ordinance signed by the Minister of Labor.

According to the document, the measure taken by the ministry favors the action of groups against the vaccine and highlights that the government of President Jair Bolsonaro (no party) treated the Covid pandemic as a “little flu”.

“This is an evident reaction of the Federal Executive Branch to the next stage of confronting Covid-19. The government, which initially minimized the pandemic (“little flu”) and later delayed the start of vaccination (several facts already denounced by the CPI on the Pandemic …), is now trying to encourage the action of groups that are against vaccines.”

Through his Twitter profile, senator Randolfe Rodrigues (Rede-AP) said that any government act that seeks to harm the vaccination of Brazilians will be fought.

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