The Labor Public Prosecutor (MPT) – National Coordination of Port and Waterway Labor – Conatpa, the Ministry of Economy – Secretariat of Labor, the National Agency for Petroleum, Natural Gas and Biofuels (ANP), the Brazilian Navy – Directorate of Ports and Coasts (DPC), the National Agency for Sanitary Surveillance (Anvisa) and the Brazilian Institute of Environment and Renewable Natural Resources (Ibama), in a joint act in the procedure Pgea no 20.02.001.0002927/2020-35, presented recommendations to be adopted by the oil and gas operators/concessionaires and service providers as per document (link).
However, regarding the Recommendation, we would like to call the attention with respect to the following three matters:
A. Obligation to comply
It is still only a recommendation, and up to the present moment, there is no legal obligation in relation to its full compliance, except for the provisions of Law 13,979 enacted on February 6th, 2020 and the successive rules which have been issued daily by the Executive and Legislative Powers at the Municipal, State and Federal levels.
B. Application of article 501 of Law 5,452/1943 (the CLT – Consolidation of Brazilian Labor Laws)
The recommendation expressly mentions that this is a hypothesis listed in article 501 of the CLT since the pandemic is considered an exceptional situation and a cause of force majeure.
If the pandemic is considered as a force majeure event under in accordance with Article 501 of the CLT, provided that the economic and financial situation of the company is jeopardized, the possibility of application of Article 503 of the CLT arises. This Article contemplates the possibility of a company to proceed with the general reduction of its employees’ salaries, in proportion to the salaries of each one. However, please note, that such reduction may not exceed 25% (twenty-five percent) of the employees’ salaries, and it must respect, in any case, the minimum wage of each region.
It is, therefore, a possibility provided by law to be discussed by companies which are suffering proven losses, and should be adopted observing the package of labor measures to minimize the impacts of the coronavirus which were enacted by the Federal Government on March 22nd 2020.
C. The protection of employees’ personal data
The MPT in a public civil action recently ruled by the Superior Labor Court (TST), claimed that a collective bargaining agreement (“CBA”) was void since it contemplated the need to include the International Code of Diseases (ICD) for the recognition of the validity of medical certificates.
The basis of such public civil action focused on the argument that such CBA’s rule did not observe the employee’s constitutional right of privacy and intimacy.
TST accepted the arguments of the MPT and confirmed that the CBA was void since the “confidentiality between a doctor-patient relationship is an inalienable right of the patient, and the doctor is responsible for its protection and custody”.
At the time, we were against this decision issued by the TST since we believe that the employer is responsible for all employees and, in this case, the health of all employees should supersede the individual right of a sensitive data protection.
With the Covid-19 pandemic, our concerns were confirmed and there was a substantial change in the MPT’s understanding on this subject, since it adopted our orientation that a Healthcare Professional hired by the company should perform medical exams on employees and must have access to the employee’s ICD in the event of suspicion of an infectious disease. Therefore, we recommend that the Healthcare Professional performs the employee’s basic anamnesis and has access to his/her medical certificate because, if it the ICD is not contemplated in the employee’s medical certificate, only the Healthcare Professional will be authorized to contact the doctor responsible for the employee’s health and may or may not confirm and authorize the employee returns to his/her work, depending on the type and severity of the disease.
Schmidt, Valois, Miranda, Ferreira & Agel is at your disposal to discuss the ways to mitigate future labor liabilities and address, in the best possible way, the harmful effects of this pandemic, unprecedented in our recent history.