Ambiguity of COVID-19 as an ”Occupational Disease” in Brazil – What Do Companies Need to Consider?

December 18, 2020

Brazil was inconclusive on deciding if Covid-19 should be deemed as an occupational disease, which means that Covid-19 still falls under the established legislation on occupational diseases. Employers need to understand the laws and their implications to avoid possible legal liability on this issue.
 
Brazil has struggled to bring clarity on classifying the novel coronavirus, which significantly shook the nation’s economy and workplace norms. In March, the federal government published Provisional Measure (MP) No. 927. The article 29 specially established that cases of COVID-19 would not be considered occupational diseases unless the employee can prove a causative connection with their work. However, in April, the Supreme Court suspended this provision and left it to be decided by previous relevant legislations. In August, COVID-19 was included in the List of Work-Related Diseases (LDRT) by the Ministry of Health Ordinance. This rule, however, was repealed less than a week later by another Ordinance. The series of changes indicated the hesitation of Brazil’s government on this issue, and the uncertainty of the future characterization on Covid-19. 
 
Even though COVID-19 did not make to the List, it still can be recognized as an occupational disease under existing laws if contamination is proven to be a direct result from work due to employer’s negligence. Once recognized, certain Social Security benefits will be granted. Employers need to hold the affected employee’s position for 12 months and might have to provide medical aid. The affected worker can also be compensated by the company in case of permanent injury or death resulting from the identified occupational illness. Furthermore, pressure from unions and international organizations might force Brazil’s government change their mind once again and officially recognizes COVID-19 as occupational illness. 
 
Employers need to be cautious when dealing with Covid-19 related workplace issues. The Brazilian labor courts have been looking at circumstantial evidence regarding these types of cases, such as infection of employee’s family members, personal preventive measures the employee has taken, and most importantly, what protective measures were adopted and implemented by the employer in the workplace.  It’s controversial for employers or employees to carry the burden of proof, but it’s important for employers to follow public health authorities’ recommendations, enforce a clear workplace policy, and ensure thorough communication to every employee.
 
Outlook: with the ambiguity of current laws, global employers who have operations in Brazil need to have a strategic plan of implementing and communicating their workplace policy regarding COVID-19, to promote a healthy and safe work environment and prevent possible legal liability.