The Federal Supreme Court (STF) en banc has partially approved an in limine decision issued by Justice Marco Aurélio de Mello as reporting judge for seven Direct Unconstitutionality Suits (ADIs) filed against Executive Order No. 927/20 and suspended the understanding that covid-19 is not an occupational disease. The decision was reached by a majority vote in a session held on April 29.
The Justice writing for the court, who had rejected the preliminary injunction requested by the parties and the workers' representative entities, voted to maintain his decision. However, the dissenting opinion opened by Justice Alexandre de Moraes prevailed, to the effect of suspending article 29, which does not consider contamination of workers with the coronavirus to be an occupational illness, except when the existence of a causal link between the illness and work has been proven. Article 31 was also suspended, according to which labor inspectors must act in a guiding manner with respect to irregularities found during the 180-day period when the Executive Order came into force.
For most of the Justices on the STF, the requirement that the employee prove a relationship between coronavirus contamination and work imposes "diabolical proof," given the impossibility of precisely defining in which circumstance the disease was contracted. The decision, therefore, signals that it would be the employer's burden to prove that the disease was not acquired in the work environment or because of it, thus reversing the burden of proof in the specific case of infection with the coronavirus.
The main implications of recognition of an occupational illness are suspension of the employment contract and the right to provisional job security for a minimum period of 12 months.
Considering the dizzying increase in the number of people infected with the coronavirus in Brazil and the economic impacts of the pandemic, a temporary guarantee of employment for workers who contract the disease places an even greater burden on companies, which are already being forced to lay off employees or even close down their activities.
In addition, if the STF's understanding is maintained and employers are unable to prove the absence of a causal link between contamination with the coronavirus and work, there will be an increase in taxation on companies due to the impact on the calculation of the Accident Prevention Factor (FAP).
For that reason, it is recommended that companies submit an appeal in the administrative sphere, in the event that accident illness aid (type B-91) is granted to workers placed on leave due to covid-19 in order to convert the social security benefit into common illness aid (type B-31). The absence of a causal link between contamination and work must be demonstrated through evidence of the adoption of mandatory measures, in addition to the guidelines and recommendations of the Brazilian authorities to confront the pandemic.
Similarly, in labor claims, if there is a request for recognition of an occupational illness by a worker contaminated with the coronavirus, companies must handle the case like any other request for recognition of an occupational illness. To this end, they must submit documents proving the adoption of individual and collective protection measures to preserve the health of their employees and request medical expert evidence, including at the workplace.
It is important to remember that the Social Security Benefits Law (Law No. 8,213/91) provides 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 when it is proven that the contamination resulted from direct exposure or contact determined by the nature of the work.
Based on this provision, the precedents of the Labor Courts do not consider cases of contamination of employees by endemic diseases, such as malaria or leishmaniasis, to be occupational, precisely because of the impossibility of determining the time and place of infection. Labor case law finds an occupational nature only in cases where the workplace puts the employee at permanent risk to the vector of the disease or where there is displacement from a place where there was no risk of contracting it in order to fulfill the contract in a region prone to its development.
Although article 20, paragraph 1, "d" of Law No. 8,213/91 specifically governs endemic diseases, it is reasonable to apply the same understanding, by analogy, to covid-19, since the motivation for the rule is even more fitting in a pandemic scenario: difficulty in establishing when and where contamination occurred.
Therefore, based on the interpretation of this passage of the law and the principles of protection of the work environment, although the STF may declare in a final judgment the unconstitutionality of article 29 of MP 927/20, we believe that the cases of workers contaminated by the coronavirus whose employers have adopted preventive measures to contain the disease and complied with the workplace health and safety rules, in addition to the guidelines of the health authorities, cannot be classified as occupational.