Vaccine refusal gives reason, but not consent

Vaccine refusal gives reason, but not consent

The coronavirus vaccine (Photo: Fabio Rodrigues Pozebom/Agnea Brasil)

SAO PAULO, SP (FOLHAPRESS) – The continuous lines in front of the vaccination posts against COVID-19 can give the impression that there is no one who refuses the vaccination agent, which reduces the severity of the infection causing the disease. Is.

However, the right to refuse the vaccine reached the Labor Court, where, for now, there are rulings in favor of dismissal for just cause.

For lawyers, the subject is still new, delicate and should be treated with care by companies. They state that mere refusal or delay in seeking vaccination, when available, does not automatically set the conditions for justifiable reason.

In this type of dismissal, the employee does not receive a 40% penalty of FGTS (Guarantee Fund for Period of Service) and is not entitled to prior notice or unemployment insurance.

A survey conducted by DataLaurer for the Folha de s Paulo newspaper shows that 2,704 labor lawsuits are already being discussed, including initial requests, dismissal for reasonable cause and refusal to receive a vaccine.

The company’s executive director, Cao Santos, says that the mapping done by the tool does not allow us to confirm that all these actions belong to workers who have decided not to take a vaccination agent. These are procedures that deal with matter already in the initial application.

In total, these actions add up to R$157.36 million. Most of the cases were initiated in the state of So Paulo, with 794 cases.

The decision authorizing the dismissal of the cleaning assistant for just cause comes from the So Paulo court. The woman worked through a service provider in a hospital in So Caetano do Sul (ABC Paulista).

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In court, she defended the right not to be vaccinated, as there is no law that requires vaccination.

For Souza’s lawyer, Matthias Vieira, Melo e Torres Advogados, the employee’s workplace was weighed in the decision, as she would be putting patients at risk.

“Dismissal for cause is always the case. We have suggested Parsi to employers. It is necessary to assess the context, campaign and condition the employee to make a decision.”

Roberto Kurtz, labor partner at Kincaid Mendes Vianna Advogados, says employers have responsibility for all employees. If one of them refuses the vaccine, which is an individual protection from collective influence, all other allies are at risk.

To counsel, however, companies must be prudent in deciding just cause. MPT (Ministry of Public Labor) recommends that employers act to inform employees about the benefits of vaccination.

Repeated refusal without medical justification may provide justifiable reason in the assessment of MPT, but should not be considered a first measure.

In the view of Anamatra (National Association of Labor Justice Magistrates), the employer has the right to demand vaccination upon return to office.

“The collective interest is needed and must precede the individual interest”, says the unit’s president, Luiz Antonio Colucci.

For him, it is the employer’s role to make the employee aware of the importance and safety of vaccines. This also includes paying for the day’s work in order to be immunized. “Your responsibility is to protect the team,” he says.

Brazilian companies that have already issued work to their offices are not asking for proof of vaccination, but say they encourage employees to get vaccinated.

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The C&A says it will not make it a requirement this year because vaccination is still a work in progress and understands that the vaccine is more of an individual protection than a collective. Anyone who is vaccinated gets a day off, the same policy adopted by Carrefour Brazil. The supermarket chain says employees who are vaccinated before benefits are announced will also be entitled to it.

Positivo says that, “for everyone’s safety,” it recommends that employees get vaccinated and send evidence to the company.

Amaro, on the other hand, is conducting a “census” of workers who have already been vaccinated but does not intend to demand the vaccine at this time. In Vitacon, incentives come through a “vaccinometer”, a counter incorporated into the developer’s internal system.

Cloud data management’s Daedalus will launch hybrid work next semester and it also says it encourages employees to take vaccines. “It will be an important prerequisite for everyone to get back in a healthy way, without putting other employees at risk,” says Stella Oliveira, human resources director.

In BRF, those who are vaccinated are also invited to inform the virtual HR agent to the company through HR application or through WhatsApp.

In the United States, Google announced that employees would be required to provide proof of vaccination in order to be allowed access to Office.

About the author: Sarah Gracie

Sarahis a reporter covering Amazon. She previously covered tech and transportation, and she broke stories on Uber's finances, self-driving car program, and cultural crisis. Before that, she covered cybersecurity in finance. Sarah's work has appeared in The Wall Street Journal, Bloomberg, Politico, and the Houston Chronicle.

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