First, it is important to mention that up to this moment there is no law or court decision regarding the matter in Brazil. Vaccination has recently started in Brazil and it is currently only available to a limited group of people. At this moment, Brazil is prioritizing healthcare professionals and elder people. For instance, in what concerns the São Paulo State Vaccination Plan, the first phase has been defined as follows:

Moreover, the discussion is very controversial and there are arguments to defend both sides. The main arguments are (i) obligation of the employer to preserve the employees’ right to perform and develop their activities in a healthy and safe work environment, versus (ii) right of the employees to be free to decide if they will or not take the vaccine once there is no law determining the compulsory COVID-19 vaccination.

However, on December 17, 2020, the Federal Supreme Court (“STF”) ruled that the compulsory COVID-19 vaccination is constitutional. According to the STF, the federal government, states and cities are allowed to enact rules establishing restrictive measures for individuals that refuse to be vaccinated against Covid-19 (e.g., application of fines, law establishing that individuals who were not vaccinated are not able to go to specific public places, etc.), but individuals cannot be forced to be vaccinated.

In light of the above, at this moment, employers cannot request compulsory vaccination. Employees may refuse to be vaccinated.

If the competent authorities enact measures establishing that the Covid-19 vaccination is compulsory, in our opinion, the employer will have more grounds to require the compulsory COVID-19 vaccination from their employees.

On the other hand, if the competent authorities do not enact any measures establishing that the COVID-19 vaccination is compulsory, the employer may not be able to require the compulsory vaccination.

Nevertheless, since the employer has the duty to preserve the employees’ right to perform and develop their activities in a healthy and safe work environment, the employer may prevent the employee who was not vaccinated to return to work at the company’s premises in order to avoid that such employee endangers the lives of his/her co-workers.

Furthermore, depending on the activity performed by the employee, if the Covid-19 vaccination is a necessary condition for the employee to render his/her activities, it may be possible to defend the employers right to require the Covid-19 vaccination as a condition for the employee's role even if there is not law related to the matter. For purposes of defining for which role the COVID-19 vaccination is required, the company should ask the evaluation of its occupational doctor.

Can employees refuse to be vaccinated? How does an employer need to balance its obligation to provide a safe work environment with an employee’s rights?

As mentioned above, the STF ruled that individuals cannot be forced to be vaccinated against COVID. Therefore, employees may refuse to be vaccinated and the employer cannot force them to do that.

However, in our opinion, if the employee refuses to be vaccinated without a reasonable justification, the employer may prevent the employee who was not vaccinated to return to work at the company’s premises in order to avoid that such employee endangers the lives of his/her co-workers based on the principle that the employer has the duty to provide a safe work environment for all employees.

In the event of a refusal, can an employee be dismissed for refusal to comply with the employer’s vaccination policy? Will the employee’s refusal constitute just cause for termination?

Our recommendation is to invest in awareness and encourage the employees to be vaccinated before taking any disciplinary measures. Moreover, at this moment, each situation should be analyzed on a case-by-case basis. Depending on the activities of the company, its vaccination policy, and employee’s role, there are arguments to defend the application of disciplinary measures up to termination, but the matter is still very recent and controversial, and disciplinary measures - especially terminations - could lead to court disputes and risks for the company.

For instance, a termination without cause, although allowed in Brazil to be performed at any time upon the payment of the mandatory severance, could be argued to be discriminatory (i.e., only because the employee has refused to be vaccinated) and the employer may have to pay moral damage indemnification to the terminated employee. Moreover, a termination with cause, which is the most severe punishment in an employment relationship, could be disregarded in court because it could be considered that the act (refusal to be vaccinated) does not fit in one of the causes established by law (section 482 of the Brazilian labor code) that allows termination with cause, and the employer may have to pay the severance package as if it was a termination without cause plus indemnification for moral damage. For reference, here are the causes established by law that support terminations with cause:

• improbability (e.g., fraud);

• impropriety and wrongdoings;

• business dealings by the employee for his/her own or someone else’s benefit without permission of the employer; competition with the employer;

• criminal conviction (final decision);

• negligence in the performance of his/her functions;

• drunkenness, either habitual or at work;

• breach of confidentiality by the employee;

• act of disobedience or insubordination by the employee;

• abandonment of employment by the employee;

• libel, slander and any other defamation acts performed at the worksite by the employee, against any person, or physical acts of offense under the same conditions, except in case of self-defense or defense of third parties;

• gambling or similar conduct by the employee; or

• loss by the employee of qualification or of the requirements established in law for the exercise of the profession as a result of the willful misconduct of the employee.

In the event the company takes the decision to perform a termination with cause, the argument to defend the company in the event of a court dispute would be to state that the employee did not comply with the company’s policy (health and safety rules/vaccination policy) and this correspond to an act of insubordination and supports the termination with cause. Moreover, he/she is jeopardizing the right of the other employees to render services in a healthy work environment and also creating risks and liabilities to the employer. The decision of the dispute will depend on the understanding of the judge that will rule the case about the matter and evidence presented by the parties about the situation.

Note that the vaccination policy and the concern about the matter should only be considered when there are vaccines available to the employees in Brazil, which is not the case for most employees at this moment. Furthermore, considering the seriousness of the COVID-19 pandemic in Brazil, when vaccines are available, we understand that very few employees would refuse to be vaccinated without a justification.

Finally, the Ministry of Labor Prosecutor (“MPT”) issued a guideline at the beginning of February 2021, stating that as per their understanding employees who refuse to be vaccinated against COVID-19 without presenting a documented medical reason could be terminated with cause. The MPT guidance is for companies to invest in awareness and encourage the employees to be vaccinated, but the MPT also states that the mere individual unjustified refusal to take the vaccine cannot jeopardize the health of the other employees and community. Hence, if after been informed by the employer of the benefits of the vaccine, the vaccination policy and need to protect the work environment and community, the employee still refuses to be vaccinated, he/she could be terminated with cause.

Note that the guideline of the MPT is not equivalent to a law, it does not create a precedent about the matter or needs to be followed by the court in the event of a dispute about the matter. It only shows the understanding of the Labor Prosecutor about the matter and may be used as an argument of defense to try to support the position of companies that will opt to follow this path.

As a comment to the guideline of the MPT, the President of the Brazilian Superior Labor Court stated that, in her understanding, it will be difficult to support a termination with cause of employees that refused to be vaccinated, but the duty of the employer to provide a healthy and safe work environment should not be ignored. Another judge from the Superior Labor Court has also mentioned that in his opinion, the individual right of an employee to refuse to be vaccinated should not prevail when his/her decision endangers the life of the other employees.

Considering all the above, this is a subject that will still have a lot of discussion in Brazil.

What benefits or accommodations do employers have to make for vaccinated employees?

Up to now, there is no legal provision establishing benefits or accommodation that an employer has to make for vaccinated employees.

Can vaccinated employees refuse to work in the same vicinity as employees who are not vaccinated?

No. Considering that up to now there is no law determining mandatory Covid-19 vaccination, there is no grounds to support the refusal of a vaccinated employee to work in the same vicinity as a non-vaccinated employee. The prevention and hygiene measures (e.g., masks, social distancing, hand sanitizer, etc) must continue to be adopted by the employer and employees even by vaccinated employees. Hence, vaccinated and non-vaccinated employees may work at the same location respecting the prevention and hygiene measures.

In your country, are employers required to provide paid leave for employees to get vaccinated?

No. Although Brazilian labor law establishes several paid leaves situations, up to now there is not a paid leave legal provision for employees to get vaccinated. Collective bargaining agreements may, however, establish it.

Considering that COVID-19 vaccination is a public health matter and it is very important to invest in awareness, explain the benefits of the vaccination and encourage people to get vaccinated, if the employer wants, it may grant paid leave for employees to get vaccinated. An alternative may also be to include the time spent to get vaccinated in a system to offset absences/lateness and overtime (e.g. bank of hours).