Publicado em 18/11/2021

Brazilian Supreme Court suspends ordinance provisions related to vaccination proof for hiring and terminating employees

Further to our Alert issued on November 3, 2021, we inform that Justice Luís Roberto Barroso, of the Brazilian Federal Supreme Court (STF), issued an injunction decision suspending the enforcement of Ministry of Labor Ordinance No. 620/2021 provisions on November 12, 2021. The referred provisions barred employers from requiring proof of COVID-19 vaccination as a condition for hiring or maintaining employees, as challenged through specific procedures filed before the STF (Allegations of Non-compliance with Fundamental Principal – ADPF) No. 898, 900, 901 and 904.

In his injunction order, the Justice Barroso reasoned that current scientific researches indicate vaccination as an essential effort to reduce the spread of Covid-19 contamination and that the presence of unvaccinated employees within the company’s premises  “represent a threat to the health of other workers, work environment health and safety risk and compromises the health of the community interacting with the company”.

The Justice excepted employees who have specific medical reasons and recommendation against vaccines.

Regardless of the suspension of such Ordinance provisions, we emphasize that the termination of employment agreements for cause of employees who refuse to present vaccination certificates must be adopted on exceptional cases, with proportionality and caution and after other educational and disciplinary actions are implemented, as indicated by Justice Barroso.

Furthermore, such injunction order does not expressly authorize the dismissal of unvaccinated employees but reinforces the arguments against presential work of such employees and any failures to comply with company policies.

Please note that such injunction order may be reversed and only upon the final ruling of the ADPFs we will have a more stable position by the STF on this matter.

We will continue to monitor such ADPFs and their repercussions on the Labor Courts and remain at our clients’ disposal to assist them in drafting and reviewing their return to work and COVID-19 prevention protocols and policies.