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Brazil’s much-debated vaccine passport faces Supreme Court decision
11/11/2021
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Brazil's Supreme Court
Authors
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Flavia Azevedo
Flávia Martina Azevedo is a partner at Veirano Advogados
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Marcella Cruz
Marcella Cruz is an associate at Veirano Advogados

 

Ordinance No. 620, issued by the Ministry of Labor and Social Security (MTP) established as a discriminatory practice the obligation to require a vaccine certificate in hiring processes for the admission of workers, as well as the dismissal for cause of an employee due to failure to present a vaccine certificate.

The ordinance not only considers discriminatory the obligation to present a vaccination certificate, but also determines that termination of the employment relationship due to a discriminatory act will give the employee, in addition to the right to compensation for moral damage (pain and suffering), the possibility to request a job reinstatement and reimbursement of the remuneration due during the period, or compensation in double for the period.

The ordinance also recommended employers to implement policies to incentivise vaccination and/or to submit the employees to periodic tests and take other precautions as an alternative to requesting the vaccine certificate. By reading the ordinance, it is unclear who would bear the costs of such periodic tests.

The ordinance was hugely criticised for the legal community, especially because it goes against the position taken by most labour courts as well as the Labor Prosecutor’s Office, which published a technical guideline, in January 2021, recommending the termination for cause of employees who repeatedly refused to get vaccinated without any justifiable medical condition.

Coincidentally, the day after the ordinance became effective, the Superior Labor Court issued resolution No. 279/2021 stating that the vaccine certificate would be required to all people who intended to enter the court, including its employees.

In addition, some justices of the court provided their opinions on the ordinance. Justice Alexandre Belmont said the ordinance is unconstitutional as the MTP does not have the legitimacy to legislate on labour issues. He added that the vaccine is a matter of public health and, therefore, it should not be treated as an individual right.

In the same way, Justice Augusto César Leite de Carvalho said the ordinance was surprising as, “it does not seem to me that the Ministry of Labor can replace the legislator or the judiciary – which operates with autonomy when required – especially in a sensitive matter like that”.

On the other hand, Justice Ives Grandra Martins declared he does not support compulsory vaccination and does not think that refusing vaccination could trigger a dismissal for cause. Martins also said,“the risk is only on the people who are not vaccinated”.

As can be seen, not even the Justices of the Superior Labor Court have convergent thoughts on the matter and that is the reason why the ordinance is still causing much debate in Brazil.

Right after its issuance, a lawsuit was filed before the Federal Supreme Court to seek an injunction to declare the ordinance unconstitutional due to MTP’s lack of legitimacy to legislate on labour matters. A decision on the legal challenge is currently pending, but it is expected the ordinance will be declared unconstitutional.

Meanwhile, the recommendation to employers who have business in Brazil is to continue safeguarding the working environment. While it is the employer’s duty to guarantee a health and safe workplace according to the article 7, subparagraph XXII, of the Brazilian Federal Constitution, it is not, however, advisable to dismiss for cause any employee due to their failure to present a vaccine certificate – at least until a final decision is made by the Supreme Court.