Vaccination and a return to the office: what to do if your employee refuses to get vaccinated?

As the vaccination efforts progress in Brazil, face-to-face activities are also starting to return, but this requires a lot of care from companies.

An important aspect of the return to in person activities is the vaccination of the population in percentages which allow for a certain level of normalcy. However, some companies have been faced with employees who refuse to be vaccinated.

First, it is very important that the company advise its employees on the benefits of vaccination and define, in an internal policy, whether or not vaccination is mandatory for returning to face-to-face activities.

The definition of guidelines given by the company regarding vaccination and in-person activities will serve as a guide for any measures to be taken in the event of employees who refuse to be vaccinated.

Thus, if it is defined by the company that vaccination is mandatory for the return to face-to-face activities, companies must incentivize employees to be vaccinated.

With these measures adopted, in the case of vaccination refusal on the part of the employee, the Courts have understood that dismissal with just cause can be applied to employees who refuse to be vaccinated.

This was the recent understanding of the Regional Labor Court of the 2nd Region, which judged the first case, in second instance, on the subject. In the judgment of case 1000122-24.2021.5.02.0472, the Court highlighted:

“Furthermore, it should be noted that the C. STF (Supreme Court) has already stated that mandatory vaccination appears to construe legitimate conduct, provided that the prophylactic measures comply with the criteria contained in the aforementioned regulation, in particular the right to information, to free treatment, among others (…)”

In addition, it is the employer’s duty to provide its employees with a healthy and safe working environment, under the terms of the Law, and in this case, the defendant has proven the adoption of the necessary measures and provided its employees with information on the need to minimize the risks of contagion, including, of course, the need to adhere to the immunization system.

In view of such circumstances, and considering that the claimant had already been warned for the same reason, and at no time tried to justify (either to the defendant or in court), the reason that would have justified their refusal to take the vaccine which was made available in an emergency and priority way to the work group to which she belonged (given the risk conditions of working in a risky hospital environment), I am fully convinced that the conduct adopted by the defendant (application of just cause) did not prove to be abusive or inappropriate, but rather, absolutely legitimate and regular, since, for all purposes, the claimant did not comply with the company’s resolution.”

It is important to note that the subject is still recent in the Brazilian Courts, and will require follow-up on the evolution of the subject in the Superior Courts.

Written by Daniel Rangel, Head of Labor Law at Drummond Advisors

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