In contrast to the ordinance signed on Monday (1) by the Ministry of Labor, the Superior Labor Court (TST) will start requiring from Wednesday (3) proof of vaccination against Covid-19 for those who join the Court.
Act 279/2021 was signed last Friday (29) by the president of the TST, Maria Cristina Peduzzi, and is cited by ministers of the Court as the best example of the government ordinance prohibiting companies from requiring employees to be vaccinated against Covid- 19 should not be backed up.
“Seems intuitive to me, doesn’t it? It would even be contradictory to decide differently from what is preached in internal organization”, said the CNN the TST minister Alexandre Belmonte. In addition, he assesses that the ordinance is unconstitutional.
“In my opinion, it is unconstitutional. The Ministry of Labor does not have the power to legislate on labor law, contrary to art. 22, I, of the Constitution. Furthermore, the vaccine issue is not an ‘individual decision’. The lack of vaccine puts the health, if not the lives of others, at risk, therefore, with impacts on public health or the work environment. Therefore, it transcends individual freedom. Finally, it is the employer’s obligation to prevent the work environment from risks to health and safety (art.7, XXII, CF). And if this risk comes from employees who do not want to be vaccinated, it is the right (and duty) of the employer to break the contract”, said Belmonte.
TST minister Augusto Cesar Leite de Carvalho was in the same critical line as the ordinance. “About the ordinance, I can tell you that I see it with a lot of reserve and strangeness. I do not think it is up to the Ministry of Labor to replace the legislator or the Judiciary, which will act independently if and when provoked, especially in such a sensitive issue, in which the argument of individual freedom contrasts with the collective interest in immunization,” he pointed out.
“And what worries the most: it promotes legal uncertainty, disavowing, above all, the employer aware of the obligation to provide a healthy environment for its employees.”
Minister Ives Gandra Martins Filho, who has presided over the TST, disagrees with both. “I’m not a fan of mandatory vaccination. And I don’t think it can generate just cause for dismissal. Especially if the person has reasons not to be vaccinated, such as high immunity or has already been vaccinated. And, in the current court, the risk is only for the unvaccinated, and not for the already vaccinated who live with the unvaccinated.”
But TST ministers with which the CNN spoke pointed out that there are more elements against the ordinance than in favor of it, which would signal difficulties for it to prevail in the Court if urged to manifest itself.
One of them, a decision of the Federal Supreme Court (STF) within the Direct Action of Unconstitutionality 6586/DF proposed by the Democratic Labor Party (PDT). There, the STF signed an understanding that mandatory vaccination is constitutional.
Another decision rendered in Special Appeal 1,267,879 ended up turning the topic 1,103 of general repercussion by the STF, which means a reinforcement of the jurisprudence for judicial decisions throughout the country.
The general repercussion says that “it is constitutional the obligation to immunize through a vaccine that, registered with a health surveillance agency, (i) has been included in the National Immunization Program or (ii) has its mandatory application determined by law or (iii ) is determined by the Union, State, Federal District or Municipality, based on medical-scientific consensus. In such cases, there is no violation of the freedom of conscience and philosophical conviction of the parents or guardians, nor of family power”.
In addition, a booklet prepared by the Public Ministry of Labor at the end of January this year recommends that workers who refuse to receive the coronavirus vaccine without submitting a medical report that proves the impossibility of immunization can be dismissed for just cause.
Reference: CNN Brasil

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