COVID-19 or Coronavirus has been the most talked about subject in recent days and has had a major impact on the economy. The discussions are numerous and in various sectors; in this brief note we will address issues related to labor relations, but we have already dealt with the impact of this epidemic under the aspect of data protection in an article prepared by the TMT team of Azevedo Sette (for more information, click here).
With the spread of COVID-19 in geometric progression, many companies have faced challenges in relation to their employees, especially to understand the limits of the measures they can take.
In February, the Brazilian Federal Government published Law 13.979/2020 to provide for measures to cope with public health due to the Coronavirus. Among the measures mentioned, isolation and quarantine are options to contain the proliferation of the virus (articles 2 and 3 of the law). As a consequence of these periods of absence, the law established that they are justified absences, which means that the employee cannot fail to receive salary and/or social security benefits, if applicable (article 3, paragraph 3). In addition, there is an express provision in the law that everyone must collaborate with information on Coronavirus (article 5).
With this, how can the employer conduct this issue with the employees within their directive power and the duty to ensure health and safety in the workplace?
Some companies have adopted internal protocols to:
- Suspend employee travel for work, especially international, except for urgent and highly relevant cases;
- Question employees who have recently returned from trips, especially international ones, about the places visited to check whether they have accessed risk areas and whether there is a possibility of exposure of other employees to possible contagion. In the event of being considered a risk, companies have denied access to the workplace and have proposed alternatives for home office work;
- Question whether employees have future travel plans and to where;
- Question whether employees have shown symptoms of Coronavirus;
- Encourage employees to, as far as possible, avoid face-to-face meetings;
- Encourage employees to observe hygiene protocols, such as constantly washing their hands and using alcohol gel. In this sense, companies have invested in making these products available more frequently;
- Request that employees who have returned from risky places or who have had contact with people who have contracted Coronavirus, seek medical service and, if there is no sick leave, work from home.
All of these actions are feasible, as long as they keep proportionality and reasonableness within the context of the companys activities; that is (i) if there is a large number of people on site, (ii) if there are frequent trips, (iii) if there is evidence of people who contracted the virus, (iv) if employees visited risky locations, among others that are pertinent. In addition, inquiries must be as non-invasive as possible; the employee must not be compelled to respond and, therefore, cannot suffer any type of disciplinary penalty in the event of refusal.
It is important to say that companies must ensure that such measures do not result in discriminatory practices and do not generate panic among employees. Eventual actions that aim to segregate employees within the same work space can represent a labor risk.
It is important to note that confirmed cases of Coronavirus are diagnosed by proper examination and the doctor will provide a certificate with probable medical absence. The employee must present the certificate to the employer for the purpose of justifying the absence from work; however, the employee does not need to agree to reveal that they have the Coronavirus indiscriminately.
Another point of attention concerns home-office work; this is one of the alternatives that have been considered by companies, but which involves some cautions, especially in view of the applicable legislation (article 75-A and following of the CLT), as well as of possible collective agreements. In any case, it is recommended that there is an express agreement with the employee on the form and conditions of work
The Brazilian Ministry of Health has provided updated data and guidance on COVID-19, inter alia through this (read here).
It is recommended that companies consult this material from the Brazilian Ministry of Health and, regarding the implementation of any preventive measures, always take care to protect the employee, either in relation to the work environment or because of privacy and intimacy.