The obligation to vaccinate

Terry Winters, Morula III, 1983/4.


Instead of punitivism, it is necessary to protect employment, even if it involves social risk, as there is no greater social risk than living in a capitalist society without having paid work

Ordinance 620 of the Ministry of Labor does not remove the obligation to vaccinate, which by the way never existed in Brazil. What your text does is prohibit the farewell of those who are not vaccinated. It also prohibits that the vaccination card is required at the time of hiring or as a condition for continuing the bond.

Even so, the Minister of Labor sells the measure as an act against arbitrariness and in defense of the fundamental rights of freedom and employment. This is not the case, for sure. In any case, one cannot deny that there is some coherence in this government initiative.

The Ordinance is consistent with the stimulus that the government has been doing since the beginning of the pandemic to expose bodies, illness and death. Never forget that the government refused to recognize the relevance of the pandemic and, above all, to buy vaccines. In addition, it boycotted social distancing measures and protection through the use of masks.

But not only. He also sought to build followers to spread a denialist stance. Now, what you see is that many of these people, denialists of all kinds, are suffering consequences, notably with regard to job loss and for “just cause”.

In this context, seeking not to abandon its supporters, the government issued, through the Ministry of Labor, Ordinance 620, which prohibits the dismissal for just cause of workers who refuse the vaccine and curbs the act of the employer that denies access to employment for people who have not been vaccinated.

The government's attitude, of course, is in no way related to a concern with the effectiveness of fundamental rights and with the social question linked to the preservation of jobs, as the minister of labor has been spreading in several interviews. Nor does it concern a public employment policy, but rather a response to those the government assumes are its followers (which are fewer and fewer people).

And it intends, as always, to create a factoid to divert the focus of the news from the countless and perverse effects generated in labor relations by the policy it adopted in the course of the pandemic in favor of large employers, through the edition of MPs 927 and 936, which authorized the reduction of wages, the elimination of inspection of working conditions (a task that falls precisely to the Ministry of Labor). In addition, it is always good to remember that the government did not prevent, as it did in other countries (the same ones that the minister now says he mirrors), the dismissal of workers for any reason.

Let it be clear, therefore: the federal government does not deceive us.

The problem is taking these elements – and many others that are related to the rejection of the government – ​​as a prerequisite for analyzing the content of the Ordinance. And even more so, using the situation just to try to further weaken the government, acting, this time, through a strange alliance formed between the big media, the business sector and the leftist parties.

The concrete fact is that, in our view, without the government's intention being important for this position and without the personality of the issuer of the document also influencing us, writing with all intellectual honesty, the Ordinance is in line with the legal order, whose values, it is worth remembering, have been systematically ignored and even denied in recent times.

Now, Article 7, I, of the Constitution prohibits the termination of employment by arbitrary act of the employer. Thus, for the termination of an employment relationship, the unilateral will of the employer is not enough. It is necessary to have a motivation and, obviously, the motivation needs to be lawful. In addition, the motivation in question does not lead to a “dismissal for just cause”, which is an institute that, despite being banned by the 1988 Constitution, continues to be improperly applied in the national labor legal scenario.

At most, therefore, what could lead to legal discussion is whether the employer would have, due to the employee's refusal to be immunized, a lawful reason for dismissal. But that would be, so to speak, a motivated, non-arbitrary termination of the employment relationship and not a “dismissal for just cause”, which is, it is worth emphasizing, a legal institute of a punitive nature, consistent with the corporatist period, in which , on the other hand, job stability was granted to the employee. In just cause, the worker is punished not only with unemployment, but also with the loss of already acquired rights and others that would be essential for survival at the time of job loss, not to mention the mark that is printed on him and that makes their reintegration into the labor market extremely difficult, even more so if the reason for dismissal is discussed here, which would therefore amount to a kind of banishment of the worker from social relations.

It is very important to realize that, although the government treats these people as its allies, most likely among them a good number of workers are workers who object to vaccination due to lack of adequate information (in addition to the enormous unpunished and criminal dissemination of fake news). and for lack of trust in the mass media, since they were never in favor of their rights and always preached lies against the vital interests of the working class. Do not forget that the mainstream media was one of the most responsible for spreading false news and biased “analyses” that helped to approve the labor “reform” that led millions of Brazilian workers to an even higher degree of suffering, with withdrawal of rights, precarious working conditions and reduced wages.

It is in this aspect that it is surprising to see, read and listen to people and entities with a relevant history in defense of workers' rights (even workers' unions and union centrals), placing itself in alignment and in partnership with the mainstream media and large employers, so that, in their eagerness to express themselves critically in relation to the governmental act, they ended up formulating a public defense of the “just cause”.

What has the effect is a moral reprimand coming from all sides and a downgrading of the citizenship of the entire working class, since only the attitude of refusal of the vaccine by the employee and the maid would be socially punished. The President of the Republic, ministers, politicians, high-ranking public servants, magistrates, businessmen, liberal professionals, speculators, etc. the male and female servants, reprimand is fatal. At the very least, there is a legal problem related to the breach of isonomy, established in Article 5 of the Constitution.

It frightens us, above all, to see the union centrals manifest themselves in the sense of banning male and female workers, to the distorted argument that the individual right to work must give way to the social right to immunization. There are at least two misconceptions here. First, labor rights are not just individual. They all have social repercussions and this is even what justified the creation of rules of this nature as a response to the collective organization of the working class, dissatisfied with the collective situation of reduced living conditions that was being imposed on it by capital. Therefore, the right to remain employed is as relevant, from a social perspective, as the right to immunization of all people. Secondly, dismissal for “just cause” does not have immunization as a concrete effect. Therefore, it is a false opposition. Anyone who loses their job on the grounds of “just cause” for refusing the vaccine will continue to refuse it and will have difficulty surviving.

It would be, at least, some would say, an additional incentive for vaccination, but the medicine used is not legally supported and concerns that it is accepted for convenience and even for logic of exception or supposed rule of weighting, because that is just how fundamental rights are undermined and authoritarian regimes are consolidated. Furthermore, it is a dose that has great potential to kill the patient. Of course, the lives of other workers and workers who vaccinated themselves also matter. But this isn't an all-or-nothing game; of them, or us. This is not, therefore, a “Sophie's choice”. There are multiple legal solutions to the situation and these must be sought with intelligence and solidary commitment. The “just cause”, in addition to being legally improper, is not a solution, it is, rather, part of the problem or an expression of its extent.

The fact is that with the widespread acceptance of "just cause", taken even as another act of power by the employer, instead of a problem, we will have many others, the most serious of which is the transfer of all blame for the tragic situation experienced in Brazil (contagions and deaths) to this very small portion of workers who still refuse to be vaccinated, starting to be treated as the true outcasts of a society considered morally unshakable, just and supportive, while the real culprits for the delay unbearable impact of the start of vaccination, they leave unscathed and even, given the punitive eagerness that plagues part of the left (and which is aimed against the wrong enemies), they have the opportunity to publicly position themselves as defenders of fundamental rights, employment and against arbitrariness.

That is why what was expected of those who claim to be linked to the interests of the working class is that they express themselves in favor of class unity and with a spirit of solidarity, which, in this case, would require, in relation to workmates, the opening of dialogue, in a serious and responsible process of convincing, combined with expressions of tolerance and respect.

If we want to overcome all the harmful effects of the pandemic, we will not do it with institutionalized, experimental and oppressive punishment for those who work.

And just look at the extremely harmful effect of this politicization of labor legal protection: at the time when RE 999.435, which will define the crucial issue of collective dismissals of workers, is about to be judged in the STF, a political party that claims to be left to the same Supreme Court to request that an Ordinance that opposes the discretionary power of the employer to extinguish the employment relationship be declared unconstitutional.

Refusal to vaccinate is undoubtedly a social issue, to be faced by all other employees and not an individual issue or one that only affects the interest of the employer, who as a rule rarely frequents the work environment. It is therefore up to the workers themselves to resolve the situation, within the scope of a collective deliberation, within the pillars of solidarity. With solutions that encourage immunization and not simply condemn an ​​even greater number of people to unemployment.

It never hurts to remember that the vaccine, due to the negligence of the federal government, has only been given in Brazil in recent months. For more than a year without vaccination, male and female workers were forced to continue working, at serious risk of losing their lives. With that, they saved the lives of those who today stab them with “just cause”. This is not just a lack of solidarity, it is really ingratitude!

Incidentally, it is extremely important not to forget that it was exactly male and female workers, especially black men and, even more, black women (and their family members) who were the biggest victims of COVID-19 in Brazil, both in the formality of the employment relationship and in the informal work, which, in most cases, is better translated as fraud in the employment relationship.

And what a cynical society this is that says that the lack of vaccination of male and female employees, as a matter of public health, cannot be tolerated, deserving immediate punishment, while taking advantage of the work of millions of Rappi and Ifood delivery men and drivers of Uber and 99 Taxi, which operate without employment, without labor rights and without any control or vaccination requirement? Even because, not being employed, they cannot be punished with “just cause”….

Remember that we spent practically two years attending clandestine parties, in which many people worked without being immunized. Official delegations walking around the world without their members being vaccinated, government representatives opening and closing trade, on the grounds that Brazil could not stop, when we didn't even have a vaccine available.

Granting the employer the possibility of applying a “just cause” for the situation of refusal to vaccinate further increases the employer's field of discretion – and the Ordinance is expressly opposed to this (see this) – by prohibiting punishment in a way discriminatory (as a result of harassment or reprisal, including) its employees. With this, the need for a broad interpretation of what constitutes discriminatory dismissal is reinforced, imposing the overcoming of the understandings that previously saw with restriction the hypotheses listed in Law n. 9.029/95, as the TST positions itself, for example, through Precedent 443.

Dismissal for “just cause” due to the refusal of vaccination, which may or may not occur, since it would be an arbitrary act by the employer (there is no provision in the legal system that obliges the employer to act in this way), can cover up other motivations , much less “noble” and much more full of legal aggressions. The only way to know if the termination of the employment relationship is taking place due to non-immunization, skin color, gender, or some other form of discrimination, is to require the employer to licitly motivate the act by which it puts an end to the employment bond.

It is, therefore, a norm to be maintained, whose merits are not restricted only to the aspect in which it guarantees against dismissal, something fundamental in a country where working is a condition for living, but there are millions of unemployed people. The Ordinance, by other means, even unintentionally, ends up revealing what everyone should have known a long time ago: there is no, in our constitutional legal order, the potestative right to dismiss.

What exists is a legal order that limits and determines the conduct of those who employ the workforce.

More than that: it makes it clear that vaccination is not an individual issue, to be resolved with punishment, with deprivation of the possibilities of living decently. Immunization is something collective, which depends primarily on committed action by the State and necessarily involves education, awareness and public discussion about the social importance of eradicating a perverse disease like COVID-19. Something that, as we know, is not resolved with chloroquine, but with the immunity obtained through vaccination.

There is no doubt that the reaction against the Ordinance is a symptom of the institutional violence to which we have been subjected. A government that refuses to buy a vaccine, whose participants encourage ineffective treatment, refuse to wear masks and boycott social isolation measures, causes emotional damage that we are certainly not yet in a position to measure. For more than a year, we were prevented from accompanying our affections in their ordeal in the fight against COVID19; we were unable to mourn our dead and we witnessed a policy of death, with scenes from a horror movie like those experienced in the State of Amazonas. We passed 608 fatalities and 21,8 million people infected, just considering the data released on November 03, 2021.

It is possible to perceive the deep level of social illness we are in, when we read the news that 164 people died in the last 24 hours from COVID19 and this represents, for those who report and account for this horror, a drop in the moving average capable of justifying speeches for the liberation the use of masks and the possibility of holding events indoors. As if the death of people was just a number and that with this number it would be within the standards of reasonability or even normality. That's because we've had more than 3.000 deaths a day. It is reasonable, therefore, that in such a scenario, in which we are constantly violated by rules and practices that disrespect us, everything that is produced causes, as a first reaction, disgust. When we hear the Minister of Labor defending the text of Ordinance 620 and, at the same time, we perceive the eagerness of the mainstream media, always so complicit in the aggression against the working class, to dare to discuss and criticize the same norm, it is acceptable let us be confused. This is exactly where we run the risk of taking the path of punishment, leaving part of the working class unsupported, which, for complex reasons, is not completely immunized nor does it feel encouraged to seek vaccination.

The strange situation driven by Ordinance 620 confronts us with a fundamental question: whether even those who refuse immunization, putting their own lives and those of their co-workers, clients, etc. at risk, must have respected the fundamental right to licit motivation of dismissal (and in this respect one cannot disagree with the Ordinance), then all workers urgently need to have this right respected. The Ordinance, therefore, has the merit of explaining that no worker can be led to unemployment by an arbitrary act of the employer and, even less, for “just cause”, unless, of course, the legal and political means of left wants to militate against it.

What we propose, then, is that Ordinance 620 serves to expand the discussion forums on the importance of everyone being immunized, the only effective weapon against the new coronavirus, and so that, finally, the ignored item I of Article 7 is effective. of the Constitution.

After all, what is extracted as a discourse from the text of this norm is that protecting employment matters, even if it implies social risk, since there is no greater social risk than living in a capitalist society without having paid work, without a legal and institutional order that guarantee, in an effective and concrete way, respect for fundamental rights, notably those who sell their workforce to survive.

The guarantee against arbitrary dismissal or dismissal for just cause does not absolutely prevent the termination of employment relationships, but it represents a minimum parameter of civility, in which the dissemination of tolerance, dialogue, respect and solidarity outweighs the greed, individualism, the naturalization of inequality and the various forms of discrimination, the emptying of freedom, disciplinary punitivism and the desire for exclusion.

May we all come out of this tragic reality together, alive and with dignity!

*Jorge Luiz Souto Maior is a professor of labor law at the Faculty of Law at USP. Author, among other books, of Moral damage in employment relationships (Studio editors).

*Valdete Souto Severo Professor of labor law and process at UFRGS and labor judge at the Regional Labor Court of the Fourth Region.


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