Ordinance No. 620/21, published by the Ministry of Labor and Social Security (MTP Ordinance 620/21) on November 1 (and in effect since then), establishes that:

  • when hiring a worker or continuing the employment, employers are forbidden to demand any discriminatory or limiting documents, especially proof of vaccination;
  • requirement of a vaccination certificate in recruitment processes, as well as the termination for cause of an employee due to the non-presentation of a vaccination certificate, is considered a discriminatory practice;
  • the termination of employment due to a discriminatory act, under the terms established in MTP Ordinance 620/21, in addition to the right to compensation for moral damages, allows employees to choose between: (i) reinstatement, with full compensation for the entire period of leave, upon payment of the remuneration due, adjusted for inflation plus legal interest; or (ii) receiving, in double, the remuneration of the period of leave, adjusted for inflation plus legal interest;
  • employers must establish and disseminate guidelines or protocols indicating the necessary measures to prevent, control, and of the risks of transmission of COVID-19 in the workplace, including the national policy guidelines on vaccination and the promotion of the effects of vaccination in reducing COVID-19 contagion; and
  • employers may establish policies to encourage the vaccination of their workers.

MTP Ordinance 620/21 also establishes that, to ensure the preservation of sanitary conditions in the workplace, employers may offer staff periodic testing to prove that they are not contaminated by COVID-19. In this case, workers are obliged to carry out testing or present a vaccination card.

The ordinance goes against recent decisions of the labor courts – based on the prevalence of a public interest in protecting the health of the community in the workplace – that validated termination for cause of workers who refused to be vaccinated. It also goes against the understanding of the Public Labor Prosecutors’ Office (MPT), which has expressed its support for requiring vaccination of workers as a measure to protect the health of workers in the workplace, under penalty of adoption of disciplinary measures by employers, including termination for cause in the event of an unjustified refusal.The restrictions imposed by MTP Ordinance 620/21 are also at odds with the recent decisions of the Brazilian Supreme Court involving mandatory vaccination.

Due to this, there are great chances that MTP Ordinance 620/21 will be deemed unconstitutional. However, until that happens, employers who have already adopted measures requiring vaccination for working on-site must review (albeit temporarily) such practices, under penalty of they being considered discriminatory and the employer being subject to the consequences established by MTP Ordinance 620/21. Any termination based on the lack of vaccination, even without cause, may be included in this case and, therefore, considered discriminatory for the purposes of the ordinance. For now, it is only possible to recommend that employees get vaccinated.

The full Portuguese version of MTP Ordinance 620/21 can be accessed at this link.

UPDATE - 19/11/2021
 
In a preliminary decision, Brazilian Supreme Court suspends restrictions imposed by MTP Ordinance 620/21

The Justice of the Brazilian Supreme Court (STF) Luís Roberto Barroso granted a preliminary decision last November 12th to suspend the restrictions imposed by the Ministry of Labor and Social Security (MTP)’s Ordinance No. 620/21 in its article 1, caput and §§ 1st and 2nd; article 3, caput; and article 4, caput, items I and II. The Justice’s decision responds to lawsuits filed in the Supreme Court questioning the constitutionality of the restrictions imposed by the ordinance.

As we had anticipated above, the rules established by Ordinance No. 620/21 prohibiting employers from requiring proof of vaccination in the workplace were at odds with the recent decisions of the Brazilian Supreme Court involving the possibility of requiring vaccination. Nor were they in line with labor courts’ decisions that validated termination for cause of workers who refused to be vaccinated and with the understanding of the Public Labor Prosecutors’ Office on the subject.

Justice Barroso, however, determined that this preliminary decision does not apply to people who have an express medical contraindication to vaccination, provided that it is based on the National Vaccination Plan against COVID-19 or on scientific consensus. In this case, he considers it acceptable that immunization is not mandatory.

As the suspension of the articles mentioned in the ordinance was determined by the Justice in a preliminary decision, it still needs to be judged by Brazilian Supreme Court.

According to the Court’s schedule, the judgment session should take place between November 26th and December 3rd, 2021.

We will continue to follow developments of these topics and their potential consequences.

 UPDATE - 12/02/2021

 

Interruption of the judgment regarding Brazilian Supreme Court preliminary decision which suspends restrictions imposed by MTP Ordinance 620/21.

On December 2nd, Justice Nunes Marques interrupted the virtual session of the judgment regarding the preliminary decision granted by Justice Luís Roberto Barroso, which suspended the restrictions imposed by the Ministry of Labor and Social Security (MTP)’s Ordinance No. 620/21, for the judgment to be done face to face and not virtually.

Up to now, four Supreme Court Justices have already voted and all of them were in favor of the suspension of the restrictions imposed by MTP Ordinance 620/2021.

We will continue to follow the developments regarding the reschedule of the judgement.