Executive Order No. 927/20 (MP 927), which sets forth labor measures to address the state of public emergency resulting from the covid-19 pandemic, establishes that cases of contamination by the coronavirus will not be considered occupational, unless a causal link between the disease and the performance of the work is proven.
In a similar situation, the Social Security Benefits Law (Law No. 8,213/91) already provided, in its article 20, paragraph 1, "d", that endemic disease is excluded, as a rule, from the concept of an occupational disease. The law considers a disease to be occupational only if it is proven that the contamination resulted from exposure or direct contact determined by the nature of the work.
Thus, the general rule of classifying cases of workers contaminated by the coronavirus as a non-occupational disease is reasonable and appropriate, especially since, in view of the pandemic declared by the World Health Organization (WHO), it is not possible to know when and where the worker was contaminated.
The exception provided for in MP 927 is the case of an employer who assumed the risk of contamination and acted negligently with the employee's health.
As an example, contamination of an employee urged to travel for work to a place that is notoriously the epicenter of covid-19 may be considered an occupational disease. The same cannot be understood in the situation of employees who travelled for work, before the declaration of a global pandemic, to countries where there were not many confirmed cases of contamination.
A causal link may also be established when it is proven that the employer failed to comply with the guidelines issued by the health authorities, such as in the event that the quarantine of employees who have returned from travel to countries classified as at a higher risk of transmission of the virus has not been implemented.
Also, a company's omission in adopting preventive measures and containment of contamination may be understood as a contributory cause of possible disease due to the coronavirus. For this reason, companies need to evaluate the risks and the indispensability of their presence at work, in addition to taking actions to preserve the health of their employees.
As the occupational disease has repercussions and effects on the employment contract, it is essential to establish the origin of the contamination by the coronavirus. The main implications of recognition of an occupational illness are suspension of the employment contract and recognition of the employee's provisional job security for a minimum period of 12 months, as per article 118 of Law No. 8,213/91.
In addition, demonstration of a causal or contributory causal link between the work and the illness acquired, resulting from an employer's action or omission, may give rise to the payment of civil compensation to the contaminated employee.