See how the use of mask in companies looks like with the end of mandatory

The mandatory use of masks in closed places no longer exists in São Paulo, but lawyers heard by the sheet say that companies can still, based on their internal policies, require the use of respiratory protection on their premises.

Since Thursday (17), masks are only mandatory in hospitals, health services, public transport and their access (stations and terminals).

On Friday (18), municipalities in the ABC region of São Paulo announced the adoption of flexibility. In the capital, the municipal government has already said that it will follow the state decision, waiving the obligation to wear masks. Since the 9th, use was no longer mandatory in open spaces, such as streets, squares and parks.

Joint Ordinance 14, from the Ministries of Health and Labor and Welfare, which establishes measures to reduce the risk of transmission of Covid-19 in the work environment, supports the possibility that individual protection is still required. This rule changed previous publication and removal deadlines for contaminated workers, but kept the mask among the protection measures.

The two labor courts in São Paulo –the TRT-15, headquartered in Campinas, and the TRT-2, in Grande SP and Baixada Santista–, for example, announced that they will maintain the need to use a face mask to enter and circulate in its dependencies.

At the TJ-SP (Court of Justice of São Paulo), on the other hand, in addition to masks, temperature measurement and presentation of proof of vaccination were also dropped this Friday (18).

The attorney general for work, José de Lima Ramos Pereira, says he is still evaluating epidemiological data to take a position on flexibilization in the use of respiratory protection.

In a note to sheet, the head of the Public Ministry of Labor says that the institution sees masks as an important instrument of protection. He also states that in the event that two divergent rules are in place, the more protective one should apply.

“Work environments have their peculiarities and a risk assessment of each activity and function is necessary. As people spend many hours inside these places, the use of masks is a collective and individual protection”, he says.

See what lawyers say on the matter:

1) Can companies still require the use of masks?

In the opinion of lawyer Flávia Azevedo, partner in the labor area of ​​Veirano Advogados, companies can maintain the obligation to use respiratory protection, but they must justify the rule based on an internal policy.

This can be done relatively simply, through an email or announcement in a public place and easily accessible by all employees.

For lawyer Jorge Matsumoto, from the Bichara office, companies are obliged to protect their employees. “From the constitutional point of view, even if there is a norm that releases it, if the company feels the need to maintain it, it can”, he says.

In addition to the ordinance of the ministries of Health and Labor and Welfare, the lawyer says that the pandemic situation allows companies to maintain the obligation of protective masks in their spaces.

Lawyer Bruno Tocantins, from the Tocantins e Pacheco office, disagrees. For him, the requirement is still applicable only in environments with pregnant women or people from risk groups. In the others, he recommends that the mask be seen as optional.

“The company has the right to make the demand, but will face resistance. If the employee decides that he is not going to use it, he is backed by the decree”, he says. One solution, in the lawyer’s opinion, would be for the company to map sectors with more susceptible employees. The internal policy would be defined based on this diagnosis.

2) Can I request that the use of a mask be maintained in the company where I work?

The employee can request, through the human resources department, a reassessment of the exemption in the use of respiratory protection. However, the company has the power to decide on the matter.

For lawyer Flávia Azevedo, workers have the right to maintain their individual conduct in relation to the matter. Therefore, whoever feels safer with the protection should keep using it, and should not be constrained by it.

Tocantins says he considers the topic to be sensitive, as it affects each employee’s sense of security. “There may be people who say that without [a exigência da] mask, it won’t work”, he says.

The lawyer reports that, among his clients, most have already chosen to make respiratory protection optional – Tocantins operates in Rio de Janeiro, where the exemption was made official at the beginning of the month.

3) As an employee, can I ask for the use of a mask to be banned? Can the company force the employee to use protection?

The company can maintain the requirement and, once this obligation is among the company’s policies, it is incorporated into the employment contract. In practice, this means that the employee can be seen as insubordinate if he disrespects the company’s decision regarding masks.

In the opinion of lawyer Daniel Santos, labor partner at Machado Meyer, companies cannot ban the use of respiratory protection while ordinance 14 is in force. “It is up to the Union to legislate in relation to labor issues. Therefore, I understand that the recommended thing is to keep employees wearing a mask.”

The refusal to use protection can be seen, says the lawyer, as insubordination. This type of rebellious behavior is one that the CLT (Consolidation of Labor Laws) lists as liable to dismissal for just cause.

Flávia Azevedo, from Veirano, agrees, but emphasizes that it is necessary to communicate the requirement. “This cannot be done ‘by word of mouth’. It could be an email or a statement, but it needs to be formalized.”

4) Can companies and public bodies still require the use of a mask? Can a store make this requirement?

Some public bodies, such as the TRTs of São Paulo, have already defined that they will maintain the obligation for employees and also for people who access their facilities.

Labor law professor Ricardo Calcini says that, with regard to employees, there is no doubt that each company or department decides according to its internal parameters.

This power to decide also applies to those who use these services. “The establishment is dictated by the company’s own rules, so even if local authorities have waived the use of a mask, if it’s the company’s decision, it can demand it.”

In the opinion of lawyer Jorge Matsumoto, from Bichara, the logic is similar to the one that can lead companies to maintain the mandatory use of masks. “Employees are in a situation of vulnerability in contact with other people. The precautionary principle prevails.”