Ana Paula Vizintini, labor lawyer and partner at Schmidt Valois analyzes the decision of the Public Ministry of Labor

Workers who refuse to take the covid-19 vaccine without documented medical reasons may be fired for just cause, according to the Labor Public Ministry (MPT).

The guidance of the agency is for companies to invest in awareness and negotiate with their employees, but the understanding is that the mere individual and unjustified refusal to immunization can not put at risk the health of other employees.
The Latin America Lawyer interviewed Ana Paula Vizintini, labor lawyer and partner at Schmidt Valois Law Firm, about this issue:

The Labor Public Ministry pronounced itself about employees who refuse to take the Covid-10 vaccine, without medical justification. According to the agency, it is possible to be fired for just cause. How do you evaluate this decision by the MPT?

The issue is controversial and can be interpreted in many ways, and needs to be carefully evaluated and, especially, contextualized, with prudent analysis of the concrete case, as should be done in any case of just cause, which is the maximum penalty foreseen in the labor sphere. In any case, the Public Prosecutor’s Office statement undoubtedly represents an important precedent that can be used by employers who may have applied the maximum penalty of just cause.

In which cases does dismissal for just cause make sense in this situation?

In certain jobs, for example, the interpretation that unjustified refusal can result in serious misconduct is unacceptable. This is the case of employees who work, for example, on oil platforms or in other confined environments, where the risk of spreading the virus is immense and, if it occurs, can even interdict operations. In these high-risk activities, the health certificate is, therefore, an indispensable prerequisite for entry into the work environment. Another function in which refusal could, in our view, legitimize just cause is that of caregivers of the elderly, due to the manifest risk that the employee can bring to this individual, in a situation of absolute vulnerability to the pandemic. In the examples cited, it seems clear to us that the employee’s individual liberty is emptied before the collective interest to health and life, legitimating the application of serious fault, within the limits of the employer’s legitimate directive power.

And in what cases does it not?

In the functions in which the employee works isolated from the others, without risk of contamination to the collectivity, such as, for example, in the hypotheses of exclusive work at home and/or telecommuting. But, even so, the evaluation of the peculiarities of the concrete case is necessary.