Licks Attorneys' Government Affairs & International Relations Blog

Doing Business in Brazil: Political and economic landscape

Licks Attorneys' COMPLIANCE Blog

COVID-19 IN THE WORKPLACE

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More than a year after news of the spread of the pandemic in Brazil broke, and despite the death of more than 350 thousand people in the country, media coverage continues to focus on the irresponsibility of individuals: those attending indoor parties, the stubbornness of others in not wearing a mask and the selfishness of many who seem to care little for the life of others, a close relative or not.

Recently, the press published a story about a hospital in the north of São Paulo, apparently one among many, where intubated patients were physically tied to their beds because the supply of neuromuscular blockers and analgesia drugs had run out. It is unconscionable to imagine someone intubated without the neuromuscular blockers and analgesia necessary to keep a human being in such a situation.

Despite the authorities restricting parties and crowded meetings, they have not enforced Article 132 of the Criminal Code.  This identities the offense of Danger to Life or Health of Others: Exposing the life or health of others to direct and imminent danger. Penalty - detention, from three months to one year, if the act does not constitute a more serious crime. Such an offense would apply both to the organizers and those who voluntarily participate in such events. Not to mention the deliberate act of intending to contaminate someone, as has already been reported in the media. This would constitute a violation of Art. 131 of the Criminal Code: Practice, contamination, with the intent of transmitting a serious illness to another, an act capable of producing contagion. Penalty - imprisonment, from one to four years, and a fine.

On the other hand, many companies, either because of the nature of their business or financial need, had to continue economic activity in person, establishing containment measures to prevent the spread of the disease in their facilities.

Concerning the impacts of COVID-19 in work environments, the Provisional Measure 927 of March 22, 2020, initially determined that cases of coronavirus contamination would not be considered occupational without proof of a causal link. However, the Supreme Federal Court (STF) later suspended this legal provision on April 29, 2020. Subsequently, COVID-19 was considered an occupational disease, according to Ordinance No. 2,309 of the Ministry of Health of August 28, 2020. However, on September 2, 2020, Ordinance No. 2,345 of the Ministry of Health effectively nullified this rule. As a result, the issue quickly became controversial.

The decision of the STF (above) encouraged the view that COVID-19 could be cited as the cause of an occupational accident. However, subsequent court decisions on whether or not to recognize COVID-19 as the cause of an accident at work have been controversial. Potentially, the biggest obstacle to this recognition is identifying the causal nexus of contamination within the work environment, given that contamination could have occurred in a different place or even on the way to and from work.

After discussing the issue from a legal standpoint, we consider the perspective of compliance (corporate ethics).

There is a maxim in the compliance field: both appear and be! If a company needs its employees to work face-to-face and if from a legal perspective, the company is not concerned about the risk of COVID-19 contamination of the work environment, as an occupational disease or even as a workplace accident, from the perspective of compliance, it is imperative that:

1. the company's middle and senior management set an example and wear a mask throughout their working hours and cover employees with the same behavior, applying disciplinary measures including termination of the employment contract, regardless of the employee's position.

2. rotate employees and ensure measures are taken to avoid crowding on company premises, that is, in meeting rooms, restaurants, and manufacturing facilities, etc.

3. collective protection equipment (CPEs) be adopted, such as acrylic partitions, forced air ventilation from top to bottom or bottom to top - never lateral, etc.

4. meetings are preferably virtual.

5. there is an abundance of alcohol gel and strict rules for its use in all company facilities.

Arguably, a reckless manager who does not set the right example should be punished, even with losing their employment.  Because in addition to putting the company at legal risk, they also put the lives of third parties at risk since the consequences of coronavirus infection are unpredictable. On the other hand, the irresponsible subordinate employee may be equally accountable.

It is also imperative to make it clear that having already been infected by the virus does not exempt an employee from using a mask and gel, which are individual measures for preventing the spread of the coronavirus. Such an act of negligence would undoubtedly encourage other employees to follow suit and must therefore be vehemently rejected in the corporate environment.

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