During the covid-19 pandemic, since in-person medical examinations were not allowed, the federal government issued Law 13,989/20, which allowed the use of telemedicine for the duration of the public health emergency.
However, with the declaration of the end of the state of public health emergency of national importance on April 22, 2022 (GM/MS Ordinance 913), the use of telemedicine for medical examinations has lost its legal basis.
To allow and regulate the continuation of this practice, the federal government published, on December 28, 2022, Law 14,510/22. Besides repealing Law 13,989/20, the norm authorizes and definitively governs the practice of telehealth[1] in Brazil.
Despite the legal authorization, there are still doubts about the possibility of performing occupational medical examinations (upon hiring, return to work, change of function, periodically, and upon dismissal) remotely.
But, after all, is it possible to use telemedicine to assist workers in occupational examinations after the enactment of Law 14,510/22?
Before the covid-19 pandemic, there was no express legal provision authorizing the use of telemedicine to perform these exams. Only in 2020, at the height of the health crisis, Federal Law 13,989/20 and Ordinance 467/20 allowed the use of telemedicine during the pandemic period. None of these standards, however, expressly established that telemedicine could be used in occupational medical examinations. Many questions then arose and remained unanswered.
At the time, there was a lot of resistance from the medical boards regarding the use of telemedicine for occupational medical examinations. It was emphasized, above all, that direct, face-to-face clinical examination of the patient was indispensable.
On this subject, the Federal Board of Medicine (CFM) issued CFM Opinion 08/20, according to which article 3 of Law 13,989/20 allowed the use of telemedicine only for clinical consultations for health care, research, teaching, prevention, or health promotion.
That is, the CFM understood that teleconsultations could not be performed in occupational examinations, which would require the examination and direct contact with the worker, under the argument that occupational examinations are regulated by Regulatory Norm 7 (NR7) of the Ministry of Labor.
It is worth pointing out that we did not analyze the issue from the point of view of the Federal Board of Medicine (CFM) and, therefore, we did not discuss the possibility of applying sanctions to physicians who perform acts that are not in accordance with the understanding of CFM Opinion 08/20. In fact, our analysis is purely from the standpoint of the Labor Judiciary.
Thus, although the norms and opinions of the medical boards have relevance when considered by the Labor Judiciary to assist in the interpretation of the norms that govern occupational medicine, the fact is that the federal legislation had not restricted the use of telemedicine in occupational examinations.
But, even without an express prohibition in the labor legislation, there was a risk of questioning of the validity of occupational health certificates (ASOs), because, although the norms and the opinions of the CFM or CRM have no binding effect in the Judiciary, they could be used as a decision-making parameter.
In addition, Law 13,989/20 authorized the use of telemedicine for the duration of the pandemic. Therefore, if there was no law/regulation that allowed the use of telemedicine after the pandemic, telemedicine examinations would no longer have a legal basis.
Law 14,510/22 does not expressly provide for the possibility of conducting occupational medical examinations via telemedicine. It does, however, establish guidelines that bring greater legal security to the performance of these exams via the use of telehealth.
The norm allows remote care both in the public network and in private hospitals and clinics, as long as the physician and the patient agree to the method. In the event of refusal, the patient must be guaranteed face-to-face care. Law 14,510/22 also guarantees physicians broad autonomy to decide whether or not to use telehealth.
By conditioning exams using the telehealth method on the physician's and patient's agreement, Law 14,510/22 brought more legal security to companies to use this exam method. However, since there are no precedents from the Labor Courts on the subject, there is still a risk of questioning the validity of ASOs prepared via telemedicine.
Thus, even with the enactment of Law 14,510/22, companies are still not fully protected and sure that the validity of ASOs prepared by means of telemedicine examinations will be recognized.
The new standard, however, in our opinion, brings in great arguments for validation to happen, if the physician and the patient agree to a remote method for occupational medical examinations.
[1] According to Law 14,510/22, telehealth is a method of providing health services at a distance, through the use of information and communication technologies, which involves, among others, the secure transmission of data and health information, by means of text, sound, images, or other appropriate forms.
