Can an employer require compulsory vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?
First, it is important to mention that there is no law regulating the matter and the COVID-19 vaccination has not started in Brazil yet. However, recently the Federal Supreme Court (“STF”) has 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., the city authority may enact a law establishing that individuals who were not vaccinated are not able to go to public places), but the individuals cannot be forced to be vaccinated.
In light of the above, 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.
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?
Termination with cause is the most severe punishment for an employee and implies the reduction of the employee’s severance entitlements. A company should only terminate employment with cause when the conduct performed by the employee is serious enough to justify such a severe punishment.
It must be based on a misconduct foreseen by the law, as follows (section 482 of the Brazilian Labor Code):
- improbability (e.g., fraud);
- 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 work site 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.
If the competent authorities enact measures establishing the compulsory COVID-19 vaccination, in our opinion, the employer will have grounds to apply disciplinary measures. In a worst-case scenario, the employer can terminate with cause, since the employee who does not have a reasonable justification to refuse the vaccination may cause potential harm in the work environment, particularly if in order to safely render his/her activities and not endanger the lives of co-workers, the vaccination is strongly recommended.
However, if the competent authorities do not enact any measure establishing the compulsory COVID-19 vaccination, in our opinion, if the employer implements an internal policy determining compulsory vaccination, it may be questioned by employees and a termination with cause based on this (assuming that the COVID-19 vaccination is not a necessary condition for the employee to render his/her services) may be challenged by the employee in the labor court. Thus, a termination with cause will represent a high risk for the company and is not recommendable while there is not a definition related to the matter by our authorities.
Ana Carolina Maciel Ribeiro de Almeida