Illness Occupational and the Coronavirus

1.0 INTRODUCTION

In the context of the novel coronavirus pandemic, a wide range of areas of society have been affected, with multiple debates emerging in the labor field with the aim of reconciling this scenario of uncertainty with the preservation of jobs.

As a way of trying to provide a response, Provisional Measure No. 927 was issued on March 22, 2020, providing for labor measures to address the state of public calamity recognized by Legislative Decree No. 6 of March 20, 2020, and the public health emergency of international importance resulting from the coronavirus (covid-19).

The Plenary of the Federal Supreme Court (STF), on April 29, 2020, ruled that article twenty-ninth of Provisional Measure (MP) 927/2020 was unconstitutional, which establishes that the coronavirus is not considered an occupational disease, except upon proof of a causal link.

In practical terms, the aforementioned Provisional Measure established, as a rule, that employee absences due to the coronavirus pandemic could not be considered an occupational disease. However, if the individual affected by COVID-19 can prove a causal relationship with their work activity, demonstrating some action or omission by the employer, the absence will be considered an occupational disease, albeit as an exception.

Therefore, this article aims to discuss the impacts of the Supreme Federal Court's decision and its implications for labor law. We will analyze the fundamental concepts related to the topic and highlight the possible practical effects of the aforementioned decision.

2.0 DEVELOPMENT/THEORETICAL CONTRIBUTIONS

Minister Alexandre de Moraes justified that the unconstitutionality of the aforementioned article was due to the fact that it differs from the purpose of the Provisional Measure, which would be to reconcile the social values of work with the perpetuation of the employment relationship with free initiative, maintaining, even if shaken, the financial health of thousands of companies (SUPREME FEDERAL COURT, 2020).

Associated with the central theme, it is of fundamental importance to understand the concept of a typical work accident, as provided for in art. 19 of Law 8.213/1991, which occurs during the performance of work in the service of a company or domestic employer, causing bodily injury or functional disturbance, which leads to death or the loss or reduction, permanent or temporary, of the capacity to work.

Sá; Gomide and Sá (2017) state that for most legal scholars, the configuration established by law is superficial and, therefore, they conceptualize a work accident as an event that is usually sudden, violent and fortuitous, which is linked to the performance of an activity by the employee and results in a certain bodily injury.

Thus, by combining the concept established by legislation and doctrine, it is possible to verify that a work accident is characterized by a harmful event, caused by an external agent in a violent, unexpected manner, resulting from the exercise of work and resulting in bodily injury or functional disturbance, causing death, loss or reduction, permanent or temporary, of the capacity to work (SÁ, GOMIDE, SÁ, 2017).

Equivalent to a typical work accident, we have occupational disease, a generic term used to refer to professional disease and work-related illness, provided for in article 20 of Law No. 8,213/1991.

Art. 20. The following morbid entities are considered to be work accidents, under the terms of the previous article:

I – occupational disease, understood as that produced or triggered by the performance of work specific to a given activity and included in the respective list drawn up by the Ministry of Labor and Social Security;

II – occupational disease, understood as that acquired or triggered due to special conditions in which the work is carried out and is directly related to it, as set out in the list mentioned in item I.

§ 1º The following are not considered occupational diseases:

a) degenerative disease;

b) inherent to age group;

c) that which does not result in incapacity for work;

d) an endemic disease acquired by an insured person living in the region where it develops, unless it is proven that it is the result of exposure or direct contact determined by the nature of the work.

§ 2 In exceptional cases, if it is found that the disease not included in the list provided for in items I and II of this article resulted from the special conditions in which the work is performed and is directly related to it, Social Security must consider it an occupational accident. (BRAZIL., 1991)

Thus, occupational disease is related to how a given professional activity can trigger illness in an employee. Occupational disease is linked to the work environment, and whether there are elements there that can cause illness in workers.

Furthermore, it was noted that the twentieth article of Law 8,213/1991, in its §1, item d, determines that those resulting from endemic diseases acquired by an insured person living in the region in which it develops will not be considered as occupational diseases, unless it is proven that it is the result of exposure or direct contact determined by the nature of the work.

Regarding health services, on the front lines of the fight against the pandemic, managers must, under penalty of liability, comply with NR 32, reducing occupational risks. Social security legislation (art. 20, §1º, c, of Law 8213/91), by equating diseases with workplace accidents and excluding endemic diseases, makes an exception in the case of direct contact due to the nature of the work. The lack of basic preventive measures will lead to the presumption of employer fault, which can be rebutted, for example, by demonstrating the effective impossibility of acquiring PPE due to a shortage in the market (CALCINI, 2020).

In this sense, Pritsch (2011) states that in order to recognize in court the occurrence of a work accident or occupational disease, it is necessary to determine the causal link between the alleged disease or injury and the work activities or the typical accident in question.

The primary means of convincing a judge is medical expert evidence. However, the expert's conclusion is not binding on the judge, who must analyze the entire factual basis of the evidence, highlighting, as appropriate, the existence of recognition of the causal link by the National Institute of Social Security (INSS). Furthermore, the judge must also analyze the statements issued by the employer in the Workplace Accident Report (CAT) and the existence of a technical epidemiological link (PRITSCH, 2011).

Provisional Measure 927/2020, in its twenty-ninth article, limited the monitoring and classification of COVID-19 as an occupational disease. With its unconstitutionality, we will have a broader possibility of classifying the coronavirus as an occupational disease, based on the factual evidence in each case.

However, in a scenario of intense and uncontrolled pandemic spread of the novel coronavirus, it will be difficult to effectively prove a causal link between the coronavirus and work. Therefore, it is clear that this decision by the Supreme Court (STF) has a direct impact on healthcare professionals (nurses, nursing technicians, doctors, etc.) who come into direct contact with the virus on a daily basis in their work. Therefore, in the case of these professionals, there is a much greater likelihood that they will be able to characterize the disease as an occupational disease.

Another relevant fact is that the aforementioned Supreme Court decision will also have repercussions for workers in general, as, in a global context of social isolation, professionals who must work in person are exposed to risk on a daily basis, which allows for the establishment of a precedent for classifying it as an occupational disease. However, in this case, proving a causal link is more difficult than for professionals on the front lines of the fight against the disease.

3.0 FINAL CONSIDERATIONS

The fact that an employee is infected with the new coronavirus will not necessarily result in the employee being classified as an occupational disease, and the worker must prove the causal link between the disease and the performance of the work.

The Supreme Court's decision should prompt companies, especially those whose activities are directly linked to combating the virus, to reevaluate their respective management practices, taking into account all the risks involved.

Given the above, employers are encouraged to further reinforce their actions regarding the health and safety of their employees, aspects that should be a priority at this time. Companies must ensure a healthy work environment by adopting all possible educational and preventive measures.

For companies that can, it is recommended to adopt a teleworking or home office regime to preserve employee safety and maintain productivity. For companies that cannot adopt such measures, as previously mentioned, all possible health and safety measures should be implemented, including the provision of PPE and educational measures, to protect employee safety as much as possible and mitigate risks.

REFERENCES

BRAZIL. LAW Nº 8.213 of July 24, 1991. Available at: http://www3.dataprev.gov.br/SISLEX/paginas/42/1991/8213.htm. Accessed on: May 8, 2020.

BRAZIL. PROVISIONAL MEASURE No. 927. Brasília, March 22, 2020. Available at: http://www.planalto.gov.br/ccivil_03/_ato2019-2022/2020/Mpv/mpv927.htm. Accessed on: May 8, 2020

CALCINI, Ricardo. Coronavirus and Labor Impacts: Rights and Obligations of Workers and Companies – Questions and Answers. [S. l.]: JH Mizuno, 2020. ISBN 978-65-5526-023-6.

PRITSCH, CZ Civil liability resulting from work accidents or occupational diseases. Jus Navigandi Magazine, ISSN 1518-4862, Teresina, year 16, no. 3021, October 9, 2011. Available at: https://jus.com.br/artigos/20177. Accessed on: May 8, 2020.

SÁ, Ana Carolina Micheletti Gomide Nogueira de; GOMIDE, Maíra Helena Micheletti; SÁ, Antonio Tolentino Nogueira de. Work accidents: their legal repercussions, social security impacts and importance of management in control and prevention: systematic literature review. Medical Journal of Minas Gerais, [sl], 2017. Available at: http://rmmg.org/artigo/detalhes/2232. Accessed on: May 8, 2020.

FEDERAL SUPREME COURT. STF rejects sections of the Provisional Measure that relaxes labor rules during the Covid-19 pandemic. Supreme Federal Court, [sl], April 29, 2020. Available at: http://portal.stf.jus.br/noticias/verNoticiaDetalhe.asp?idConteudo=442355&ori=1. Accessed on: May 8, 2020.