UPDATED December 20, 2021: Four cases of Non-Compliance with a Fundamental Principle (“ADPF” #s 898, 900, 901 and 905) were filed with the Supreme Court of Brazil last week, with a preliminary injunction request. The Supreme Court of Brazil on November 17 published its decision suspending the provisions of Ordinance # 620/2021 that prohibited employers from requiring proof of vaccination from employees and job applicants and stipulating that such requirement or actions related to non-compliance with a vaccination mandate would be considered a discriminatory practice. The Supreme Court will decide on the merits of the four ADPFs on February 9, 2022.

*  *  *

Deviating from recent labor courts’ decisions and Labor Prosecutor’s Office recommendations, on November 1, 2021, Brazil’s Ministry of Labor and Welfare (a body of the Federal Government) issued Ordinance # 620/2021, establishing rules and restrictions relating to the vaccination of employees against COVID-19.

In short, this Ordinance provides the following:

1. Failure to present proof of vaccination against any illness does not constitute cause for employment termination;
2. The employer is prohibited, when hiring or during employment, from requiring any discriminatory documents, or documents that could hinder one’s hiring, especially proof of vaccination, a negative certificate of labor claim, or any test, examination, report, certificate or statement related to sterilization or pregnancy status;
3. It is considered a discriminatory practice (under Law # 9,029/95) to demand proof of vaccination in recruitment processes, as well as to terminate an employee for cause, due to their failure to present proof of vaccination;
4. Companies may establish policies to encourage the vaccination of their workers;
5. Employers may provide periodic testing of their workers to confirm that they are not infected with COVID-19. In this case, workers are required to be tested, or, alternatively, to present proof of vaccination;
6. The Ordinance emphasizes that the termination of the employment relationship, on discriminatory grounds, is prohibited. Should this occur, in addition to the company’s being required to pay moral damages suffered by the employee, the employee may choose between their reinstatement to the job with full reimbursement for the entire period of leave, or receiving double the remuneration related to the period of leave.

The Ordinance is unclear on what the “period of leave” would be. It is safe to assume that it starts at the employee’s termination date, but it could end at/with several possible scenarios (job reinstatement date, preliminary judicial decision’s date, unappealable judicial decision’s date, etc.), which the Ordinance has failed to properly address.

As mentioned at the outset, the Ordinance at hand goes against the position taken by the majority of labor courts (including the Brazilian Supreme Court), as well as the Labor Prosecutor’s Office, as they all have been leaning in the direction of supporting mandatory COVID-19 vaccination for workers. In fact, on September 14, 2021, the President of the Superior Labor Court, Justice Maria Cristina Peduzzi, made a public statement clarifying that, in her understanding, employees who refuse to be vaccinated may be terminated for cause on grounds that the collective interest (and public health, in the face of the pandemic) must prevail over the individual one, as well as that it is the employer’s obligation to ensure the health and safety of its employees.

Additionally, many local governments (states and municipalities), such as São Paulo's municipality, have been enacting local regulations requiring proof of vaccination for most indoor activities and events; thus, in an overall context, mandatory vaccination is quickly becoming a norm in post-pandemic Brazil.

It is expected that Ordinance # 620/2021 will soon have its constitutionality challenged because the Ministry of Labor and Welfare can only regulate existing labor laws. In fact, On November 2, 2021, Justice Alexandre Belmonte of the Superior Labor Court issued a statement that in his view, the Ordinance is indeed unconstitutional, as the Ministry of Labor may not legislate on labor law and the COVID-19 vaccination topic is not a matter of “individual decision.”

For the time being, companies must revise internal policies and procedures on mandatory vaccination requirements so as not to incur potential discriminatory practice violations, and be on the lookout for further legal developments.

*Marilia Minicucci and Pamela Gordo are attorneys with Littler’s Brazilan correspondent firm, Chiode Minicucci Advogados