The Brazilian Labor Public Minister (MPT) website reports that since the beginning of the coronavirus pandemic until April 28, 2020, it has received more than 10,000 complaints, issued more than 7,000 recommendations, and opened 2,078 inquiries. Also, it issued 19,218 orders and 30,224 documents, among notifications, letters, and requisitions, all concerning COVID-19.
According to the MPT, most of its institutional work with companies focus on protecting the worker’ health and safety, on raising awareness among employers about the importance of preventing the dissemination of the new coronavirus in the workplace.
These are important information and data that demonstrate the MPT’s active role and should be used as an alert for companies regarding the risks and their prevention, especially when considered the possible framework of cases of contamination of employees by COVID-19 as a labor disease.
In this respect, by definition, occupational illness is the one acquired or triggered as a result of particular conditions in which work is performed and directly related to it. The work is concurrent with the disease; it is a risk factor, but not necessarily a determining one. The disease can affect anyone but may be caused by particular conditions in which the work is performed.
Law no. 8080/90, which created and established the rules of the Brazilian Single Health System (SUS), attributed to the Health Ministry the formulation of an official list of work diseases.
Based on this determination, the Health Ministry issued the Ordinance no. 1.339/1999, listing the work-related diseases. SUS must consider these diseases as a reference of the grievances originated in the workplace, for clinical and epidemiological use, also establishing the possibility of its revision, annually.
Considering that this is a new coronavirus and that we are at the peak of the pandemic, there is still no definition by the Ministry of Health of whether COVID-19 will be included in the list of work-related diseases. In any case, the list of the Ordinance no. 1.339/99 brings several contagious and/or endemic diseases which, depending on the exposure conditions, can be considered work-related and used, by similarity, for the COVID-19 framework in the same category. Among these diseases, we can mention viral hepatitis, dengue, yellow fever, and malaria.
When talking about contagion, we do not refer only to workplace but also to the exposure of the worker going to and coming from work and the equivalent of the infection ‘on the way to work accident’, considered, by legal definition, a work accident, as set for in article 21, item IV, paragraph “d” of Law no. 8213/91, in full force after the revocation of MP no. 905, of 2019.
The risks and uncertainties affect all employers, from small companies to large organizations. In an attempt to minimize future consequences, Provisional Measure (MP) no. 927/20, which establishes labor-related measures, sets in its article 29 that cases of contamination by coronavirus would not be considered occupational, except upon proof of a causal connection.
MP no. 927/20 attributed to the employee the burden of proving that the COVID-19 contamination occurred in the workplace, due to the employer’s fault. However, in a decision rendered on April 29, 2020, the Federal Supreme Court, when judging precautionary measures filed in seven Direct Unconstitutionality Actions, suspended the effects of article 29 of Provisional Measure no. 927/20. It also suspended article 31, which limited the assessment of labor inspectors to the guidance during the public calamity.
Federal Supreme Court granted the decision under its thesis, which established the criteria for concluding that the employer is objectively liable for damages to the employee. The constitutionality of this liability was declared in full session on March 12, 2020, with general repercussion status. The thesis defined was the following: ‘Article 927, sole paragraph, of the Civil Code, is compatible with article 7, item 28 of the Federal Constitution, being constitutional the objective liability of the employer for damages resulting from work accidents in the cases specified by law or when the activity usually developed, by its nature, presents repeated exposure to a particular risk, with potential damaging and implying to the worker a more significant burden than the other members of the community‘.
Given the line adopted by the Supreme Court, the contagion from the new coronavirus and its consequences to workers who have not had their activities suspended may be considered an illness equivalent to work sickness, with the employer being liable for the resulting damages.
For a better understanding, it is appropriate to clarify the difference between the employer’s subjective and objective liability.
Subjective liability depends on proof of intent or fault by the agent. For example, in the case of the new coronavirus, such liability is attributed to the employer who has adopted all possible safety measures to prevent contagion but has kept employees from the risk group, such as diabetics, for not consulting the medical service about possible [co]morbidities of their employees, who are suffering from the contagion and even die.
On the other hand, the objective liability does not result from the fault of the agent and, as declared by the Supreme Court, is characterized when the activity customarily carried out, by its nature, exposes the worker to higher risk than the other members of the community. In the case of the pandemic by the new coronavirus, the best example is health professionals.
Regardless of the activity developed by the company, in times of pandemic and severe exposure to contagion by simple circulation on the streets and the work environment, employers need to redouble their care and safety measures to avoid the illness of teams and the risks of probable compensation actions.
Workers with chronic diseases such as diabetes, hypertension, cardiovascular deficiency, renal deficiency, asthma, and individuals over 60 years of age are the most likely to have complications and die of COVID-19, integrating the so-called risk group of the new coronavirus.
For these employees, safety measures and restrictions should be stricter.
Ordinance no. 454/20 of the Health Ministry declared the state of community transmission of the coronavirus throughout the country. In article 4, it establishes that people over 60 years must observe the social distance, restrict their travel to strictly necessary activities, avoiding group transportation, trips and sport, artistic, cultural, scientific, commercial, religious, and other events with a concentration of people.
Given these rules, the employer must adopt measures that provide collaborators over 60 years with the conditions to render their services in safety, social distancing, and displacement restriction, since the health complications of these people by COVID-19 are uncontrollable, unpredictable and independent of the measures adopted by the employer in the work environment.
The same can be said for all other individuals considered as risk groups, and the decision to keep these employees in the workplace attracts the responsibility of the employer for exposing these employees to the risk of contagion and its consequences.
At this time of public calamity, when the Supreme Court maintains the obligation of governmental supervision of companies, the MPT invokes the task of guiding and supervising the work environment, the personal conditions of employees, and the flexibilization of labor rules for maintaining employment.
To regulate and facilitate the orientation and inspection of companies, the MPT issued several Technical Notes and Recommendations. Although the companies’ adoption is not mandatory, they suggest relevant alternatives, besides pointing out how that body will act in its inspection functions concerning issues related to the pandemic. Based on the Technical Notes guidelines, the MPT will analyze the complaints and inspection reports to establish News of Fact and Civil Inquiries.
Below is a summary of the Technical Notes and Recommendations, which can be consulted through the links provided.
Technical Note no. 01/2020 – MPT work: [a] monitoring the actions carried out by the Health Surveillance, at all levels; [b] encouragement to the Operational Support Centers specialized in health, to contact the sanitary authorities, with the purpose of monitoring and becoming aware of the containment plans; [c] encouragement to the MPT enforcement agencies to approach the local health managers; and [d] systematic monitoring of the measures of the Public Health Emergency Operations Center for COVID-19.
Technical Note no. 02/2020 – defines activities of risk of exposure to the virus, adopting the criteria of Occupational Safety and Health – OSHA for classification of degrees of risk to exposure, considering the functions performed by workers, thus understood:
- very high risk of exposure: those with high potential of contact, with confirmed or suspected cases of COVID-19 during medical, laboratory or post-mortem procedures, including doctors, nurses, dentists, paramedics, nursing technicians, professionals who perform tests, collect sample, or perform an autopsy;
- high risk of exposure: professionals who come into contact with confirmed or suspected cases of COVID-19, such as health providers and support professionals who enter the rooms or environments where confirmed or suspected patients are or have been, professionals who transport patients, such as those who work in ambulances, and professionals who work in preparing bodies for cremation or burial;
- medium risk of exposure: professionals who demand close contact (less than 2 meters) with people who may be infected with the new coronavirus, but who are not considered suspect or confirmed cases; who have contact with travelers who may have returned from areas of disease transmission, in areas without community transmission; who have to contact with the general public (schools, high concentration of people environments, big stores); who work in areas of community transmission; and
- low risk of exposure: those who do not require contact with suspected cases, recognized or that could take the virus, who have no contact [less than 2 meters] with the public; professionals with minimal contact with the general public and other workers.
The MPT concludes, in this Technical Note, that the type of transmission of cases in each location, such as where community transmission already occurs, will imply an increased risk for groups of workers. From this context, the MPT, by Technical Note no. 02/20, established the measures to be adopted by all its members.
Technical Note no. 03/2020 – the text, from March 17, before MP 927/20, sets out guidelines to ensure equal opportunities and treatment at work for female and male workers, recommending flexible working hours with no reduction in wages, providing them to attend sick family members or those vulnerable to infection by COVID-19.
Technical Note nº 04/2020 – the Note provides guidelines for the protection of male and female domestic workers. Among the recommendations are the supply of gloves, masks, and protection glasses to professionals when it is not possible to dispense their attendance.
Technical Note nº 05/2020 – the text brings recommendations for the protection of the workers’ health, employees, trainees, and teenage interns.
Technical Note nº 06/2020 – the objective is to promote social dialogue, collective negotiation, and protection of employment and occupation, given the socio-economic context resulting from the COVID-19 pandemic.
Recommendation no. 1 – MPT recommend that companies accept self-declaration of workers with symptoms of COVID-19 as a justification for the absence from the workplace.
Technical Note CONAFRET nº 01/2020 – Orientation of MPT’s action in the face of government measures to contain the pandemic, destined to freight and passenger transportation companies, through digital platforms.
Recommendation Black Gold Operation – recommends that oil and gas service providers/operating companies adopt preventive and guarantee measures of workers’ rights and operations safety, due to the coronavirus pandemic.
Recommendation to ANTAQ – Recommendation to the National Agency of Water Transportation require the companies in the sector to adopt a plan to combat the dissemination of the new coronavirus.
At a time of so many uncertainties and economic difficulties, awareness of the risks and the adoption of measures to contain the transmissibility of COVID-19 are essential to protect the company from losses with future demands. Therefore, it is recommended to know and adopt the measures proposed by MPT.
The liability of the company for the contagion of its employees has patrimonial nature, which translates into the payment of compensation. However, depending on the situation caused by the employer, its legal representatives may be held criminally liable, according to article 268 of the Criminal Code, which provides that:
‘Art. 268 CP. To infringe the determination of the public authority, destined to prevent the introduction or propagation of contagious disease. Penalty – detention, from one month to one year, and fine’.
For example, considering the Health Ministry determination that people over 60 years should observe the social distance, restrict movements and avoid public transportation, if the employer forces its sexagenarian employees to continue working in the company facilities, their legal representatives can be framed in this legal provision and respond criminally.
In conclusion, even for companies whose activities are legally considered essential, the employer must adopt all possible and necessary measures to ensure the workers’ safety and health, the adaptation of the activities of groups at risk to teleworking and the use of the ways to make work contracts more flexible, as provided for and authorized in Provisional Measures no. 927/20 and no. 936/20.
The employer who determines the maintenance or return to work, during a pandemic and state of public calamity, without observing the safety rules and the normative acts of prevention and containment of the disease, assumes the risk of being held responsible for moral and material damages, as well as their representatives will become criminally liable for the spread of contagious disease.
The professional teams of Fraga, Bekierman & Cristiano Advogados are at your disposal to help with the requested legal clarifications.