Barroso overturns part of Onyx ordinance, and companies can fire unvaccinated

Minister Luís Roberto Barroso, of the STF (Supreme Federal Court), annulled this Friday (12) the effectiveness of parts of the federal government’s ordinance that prohibits companies from firing or vetoing the hiring of people for not having taken the vaccine against the Covid-19.

With the monocratic decision still being submitted to the plenary of the court, employers can demand proof of vaccination from their employees.

According to Barroso, 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 admitted.

A sheet sought the Ministry of Labor, but there was no manifestation until the conclusion of this report.

This Saturday (13), Minister Onyx Lorenzoni (Labour) released a video in which he claims that the government will appeal the decision.

“We will file a regulatory appeal to take this discussion to the plenary of the Federal Supreme Court, where we will still, God willing, still have new gains and new security so that the relationship between employer and worker is balanced.”

In the norm in question, which was signed by Onyx, 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.

The STF minister 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.

In a video, Onyx Lorenzoni said that the ordinance protects workers and that “both the Brazilian Constitution and the consolidation of labor laws do not make this requirement” of proof of vaccination. “On the contrary, there is free will, there is a decision that is intimate to each person.”

The decree was published shortly after the City of São Paulo began to lay off commissioned employees who had not been vaccinated.

The municipal Executive also decided that civil servants with public exams under these conditions will be subject to administrative proceedings.

In August, the municipal administration had already published a decree to oblige all municipal administration employees to be immunized against the new coronavirus, under risk of punishment.

Last week, the Minister of Health, Marcelo Queiroga, defended the ordinance that prohibits the dismissal of employees who have not been vaccinated. He assessed that this would be a very “drastic” attitude and that the ministry is in favor of job creation.

“So we think it’s very drastic if you fire people because they didn’t want to get vaccinated. As a doctor, I’ve always managed to get my patients to adhere to treatments on the basis of persuasion,” he said.

Barroso, in turn, noted that all business activity is subject to free initiative and the freedom to hire, and the employer, in view of its business strategy and other circumstances, decides whom to hire, as long as it is not based on discriminatory or disproportionate.

“There is no possible comparison between the requirement for vaccination against Covid-19 and discrimination based on sex, origin, race, color, marital status, family status, disability, professional rehabilitation, age or pregnancy,” he said.

“These last factors do not interfere with the right to health or life of other employees of the company or third parties. The lack of vaccination interferes.”