It is known that the pandemic has been causing deep impacts in economies worldwide and for that reason the government has been publishing a series of measures in order to assist employers and employees in this atypical moment.
As result of this, the Supreme Federal Court (STF) ruled in several Direct Unconstitutionality Lawsuits (ADI 6342, 6344, 6346, 6349, 6352 e 6354) filed against some of those initiatives and settled that the articles 29 and 31 of the Provisional Measure 927/2020 should be suspended. Article 29 determined that the cases of coronavirus contamination would not be considered as an occupational illness, except if the employee could prove the causal link between the contamination and the company responsibility. Article 31, on its turn, stated that labor inspectors would be able to merely advise companies instead of applying fines and penalties for a certain period, except in some situations regarding specific irregularities.
In the first case, it seems to us that things got back to the status quo ante, when the company had the burden to prove the lack of causal link between the contamination and the company’s responsibility. The burden of proof establishes the link between the work – its environment – and the contamination, enabling to decide whether the action or omission of the employer was the cause of the disease. The burden, therefore, is on the employer.
In the second case, the STF understood that the activity of inspection could not be reduced to advising, since the labor audit is essential to guarantee the health of the employees and help in struggle on the fight against the pandemic.
Well, if the contamination via COVID-19 is to be considered as a work-related accident, regardless if the company activity is classified as essential or if the exposure to the virus is done at the employer’s risk, the Accident Prevention Factor (FAP) will reflect this information in the calculations of frequency, severity and cost. The occurrences registered in 2020 will impact the index in the years 2022 and 2023 and, when applied to the percentual of Environmental Occupational Risks (RAT), this could potentially raise social security contributions.
There is an important point of attention here, because if the employer complied with the occupational safety and health rules, the issuance of the document of Communication of Work-related Accidents (CAT) to characterize this sinister could be impaired, or at the very least, raise a substantial doubt about whether the disease was work-related or not.
In this context, the Ministry of Economy published on March 27th the Circular Letter SEI n° 1088/2020, which grants general guidance for the employers and employees within the pandemic.
Essentially, the Circular Letter determines that the remote work must be prioritized. However, in the case of presential services, the employer should be attentive to the rules of personal hygiene of the employees, providing basic items to the sanitization. The Circular Letter highlights the importance of adequation of the work environment to the prevention of the virus and suggests the creation of a plan to diagnose suspicions of contamination and to transmit information to employees regarding the basic protocols of hygiene on their regular work breaks (e.g. washing hands with soap and water or granting hand sanitizer).
Additionally, employers must clean the work environment more often and in a more detailed manner, besides avoid agglomerations, which could be done with the change of work shifts. Still, the Circular Letter advises companies that have a lunchroom to pay attention to the distance between employees and states that cooks should wear face masks and gloves in order to avoid contamination. Regarding companies that offer transportation, the Circular Letter focus on the importance of keeping the windows open and frequent sanitization of seats and all surfaces of the vehicles.
The Circular letter also determines that face masks should only be used if recommended and in this hypothesis the employer must provide the material to its employees. Nonetheless, the Decree n° 64.959/2020 regulated the obligatory use of face masks in the state of São Paulo.
Hence, it is essential that the companies do care about the work environment, considering not only the applicable legislation of occupational safety and health, but also the recent publications that we briefly commented. Note that the municipalities and states not only can issue opinions about the subject, but also sponsor inspections.
Sócio e líder de Consultoria Tributária e Societária, PwC Brasil
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