Provisional Measure No. 927/2020, which dealt with labor measures to face the state of public calamity arising from the pandemic caused by COVID-19, had established, in its article 29, that: “the cases of contamination by the coronavirus (covid-19) will not be considered occupational, except upon proof of the causal link.”
In a session held on 04/29/2020 the STF, by majority vote, suspended the effectiveness of said article 29. In practice, the decision removed the employee’s burden of proving that the coronavirus infection would have been occupational. However, the STF did not recognize that Covid-19 would, as a rule, be an occupational disease.
In practice, the classification of the illness as occupational – and the consequent equation with an accident at work – remained dependent on technical expert analysis by the Social Security or Labor Courts.
In a recent decision, the 10th Panel of the Regional Labor Court of São Paulo (2nd Region) analyzed a case in which it concluded that there was no employer negligence or fault with regard to the prevention measures for COVID-19, reversing on this basis the first instance decision that had condemned the company to pay compensation for moral damages for the recognition of the disease as arising from work.
The lawsuit was brought by a nursing assistant who claimed to have been contaminated by the new coronavirus in her workplace – a diagnostic area of a hospital. In pronouncing the sentence, the judge considered that there was a direct relationship between the work performed and the contagion.
On the other hand, the TRT of São Paulo dismissed the condemnation to pay compensation because “there is no allegation in the initial document of negligence or employer’s fault regarding preventive measures or in the supply of individual and collective protection equipment, or in the orientation as to its use. Such is the contagiousness of Covid-19, that, especially when working in hospitals or other health care facilities, it is not possible to define the form of infection unless the carelessness is evident, which was not raised in the record.”.
The decision also pointed out that the preliminary suspension of art. 29 of Provisional Measure No. 927 by the STF did not imply the presumption that the contamination by the new coronavirus would have an occupational character, i.e., work-related.
Earlier, in February of this year, the 9th Panel of the same TRT São Paulo, in a Public Civil Action involving the Post Office, had decided that COVID-19 should be considered an occupational disease in that context, because the employer would have been negligent in the prevention measures against coronavirus contamination at work, since the measures adopted would not have been sufficient for the necessary containment. The appellate decision upheld the conviction of the first degree as to the imposition of the issuance of occupational accident communications (CAT) to those contaminated by Covid-19.
Although apparently opposed, what can be seen in the decisions is a convergence in the sense that COVID-19 should not be presumed to be an occupational disease, and that proof of the adoption of sufficient measures for the preservation of safety and health by the employer may rule out the recognition of the so-called “causal link” between COVID-19 contamination and the work.
In the same sense, it is understood that the employer’s civil responsibility is characterized by the damages it causes intentionally or by negligence, that is, contamination by COVID-19 can be considered an occupational disease if it is verified that the company did not observe preventive measures or, even if it did observe them, it adopted them insufficiently.
The above text is not exhaustive and does not represent or replace a specific recommendation from an analysis of the case. DDSA Advogados will be available to guide its clients.