As soon as the news outlets announced the existence of vaccines against Covid-19 and even before the Brazilian Sanitary Surveillance Authority (“ANVISA”) had approved any of them, discussions arose in the Labor Law area with a big question: can the employer demand that their employees get vaccinated?
After the approval and availability to the population of several vaccines, the discussion gained new contours drawn about by a controversial job advertisement that required the candidate to have been vaccinated with a vaccine from a certain manufacturer.
From a legal point of view, the issue of requiring vaccination against Covid-19 is controversial, because, so far, there is no express legal provision about it and it is not yet included in the National Immunization Plan, which presents the mandatory and free vaccines for Brazilians.
However, a recent ruling from the Brazilian Supreme Court, in December 2020, indicates the likely line of understanding to be followed by Brazilian courts, including labor courts, which is, within reason, and, observing the individual characteristics of each case, it is possible for employers to require proof of vaccination, since this is an issue that surpasses individual freedom and personal convictions and severely affects the health of the collective of employees.
The same reasoning has been adopted by a labor court of first instance which considered valid the dismissal of an employee in charge of the cleaning of a hospital who refused to get the vaccine.
For the same reasons, it is also possible to argue that an employee whose coworker has refused to get a Covid-19 shot and, whose employer has not done anything about it, could demand indirect termination of their employment agreement (that is a technical term for termination with just cause given by the employee to the employer).
And the discussion does not end there, for what can be perceived from the controversial job advertisement that made the headlines of the Brazilian press, in which one of the requirements for the position of housekeeper in a family home was having been vaccinated with the vaccine from a specific manufacturer.
Now, if all the vaccines available in the national territory have been approved by the competent authority, ANVISA, the requirement of having received a vaccine from a certain manufacturer is unreasonable and devoid of any legal support, giving an evident discriminatory nature to the job advertisement in question.
Although this topic encompasses so many other approaches and points of view, we believe there is no doubt that this issue is controversial, very sensitive and should be given attention from employers.
Thus, given the problematic potential it has, and, again, stressing out the Supreme Court’s ruling, we recommend that all decisions regarding the vaccination against Covid-19, in labor relationship matters should be based on reasonableness, proportionality and, in observance of the legal limits, scientific evidence and the decisions made by the competent health authorities. Concerning the relationship with employees, the first step to be followed is promoting employee awareness before any other severe measures.
Cristiane Fátima Grano Hain – Social Security Law Master’s Degree and PhD Candidate at PUC/SP
Associate Lawyer at Furriela Advogados
1701 Pennsylvania Avenue NW
Phone: +1 (202) 580-6641
Av. das Nações Unidas, 10.989
Phone: +55 (11) 3040-4900