Companies in the offshore market, industry and technology require a certificate for future hiring; labor law specialists debate validity and benefits of collection
With the advancement of immunization against Covid-19 in Brazil, the proof of vaccine begins to be required in several states and municipalities for various occasions. In Rio de Janeiro, the presentation of the health passport is mandatory for entry into places of collective use, as well as test events. In turn, in other parts of the country and the world, the demand goes beyond the limits of leisure and entertainment and reaches the job market. The airline United Airlines, for example, one of the largest in the segment on the planet, announced the dismissal of 600 employees who refused immunization. According to the company, employees had seven weeks to adhere to the vaccination, but about 1% of workers did not take the vaccine and, therefore, there will be dismissal for just cause. At the same time, Airlines stated that the company’s health policy will demand vaccination against Covid-19 for the hiring of 25,000 new employees who will be hired in the coming years. O vaccine passport seems to have come to stay.
Like the US giant, selection processes for Brazilian companies also already place the proof of immunity as a requirement. The human resources consultancy Winner RH announced last week, on LinkedIn, a position for a machine consultant that made it a requirement to have the vaccination against Covid-19 up to date, which means, according to the company, being with the complete immune scheme. The consulting director, Leonardo Moura, explains that the charge is still limited to some market segments, but that he sees a trend in demand for future contracts, which also includes temporary and outsourced labor. “Companies in the offshore segment are the ones that most demand this type of requirement, but the industry has also made this move. Today, with the new pandemic scenario, it becomes a requirement, for reasons of risk, that people are vaccinated and prove it”, points out Moura, who does not see resistance from the candidates. “Those who need a job end up being conditioned by the company’s requirements. In this case, the charge is for protect life.”
Far from being an exception, proof of vaccine is also required by other segments. Alberto Lopes, head of Sales and Partnerships at Revelo, an online recruitment platform for the technology sector, says that some companies have already started to ask for the certificate for employees who, after being hired, want to work in person. “If companies consider health protocols, the tendency is that they will have to put this in place. It’s not something simple, but they should make it mandatory”, says Lopes. In his view, measurement is a way of protect the collective and, at the same time, respect the determinations of the health authorities. “It would be strange for a company not to follow a public health policy. Today, for you to go to a stadium, you need the vaccine, so follow the same rule. Not to do this is to take a very big risk. Can you imagine if an employee ends up getting infected and has a more serious health problem?”
What does the labor law say?
The discussion about the requirement – or not – of the vaccine certificate for the maintenance or hiring of employees is a matter of debate among experts and there is no consensus. Labor lawyer Claudia Securato, a partner at Oliveira, Vale, Securato and Abdul Ahad Advogados, shares the companies’ view that the requirement for a document is a form of ensure worker safety. “They cannot hire anyone who puts the health of other employees at risk. In this case, the collective right takes precedence over the individual, then the company can demand vaccination for future job openings”, he points out, stressing that the charge is legal and similar cases already demonstrate the validity. “It has already been authorized, for example, the dismissal for just cause of an employee who refused to vaccinate, another situation is that the Court of Justice of São Paulo issued an order requiring the presentation of the certificate to enter the agency. So we don’t have a specific decision [sobre a cobrança em processos seletivos], but in similar cases, proof has already been required, which ends up encouraging people to get vaccinated, and that’s great.”
On the other hand, other experts dispute the validity of the charge. Judge Otavio Calvet, from the Regional Labor Court of Rio de Janeiro (TRT/RJ), believes that there is no basis for the requirement. According to him, although the Supreme Court (STF) has decided that it is possible to create restrictions for those who refuse vaccination, there is still a lack of regulation. In Calvet’s view, the concern is that the collection – without a consistent decision by the competent authorities – sets precedents for other information to be required, making the discriminatory process. “People with good intentions, because deep down the intention is good, they are sacrificing the fundamental rights of citizens, this is the great concern. If we authorize this to be at the employer’s discretion, not by law, we can set a precedent that could end up discriminating, unjustifiably preventing access to work. It is a topic that cannot be decided by each employer, but by society. And we do this by law”, he reinforces. Also according to Calvet, candidates who feel aggrieved in selection processes that require the immunological certificate can appeal in court. “The legal consequence could be moral damage and property damage, involving all the expenses that the candidate had on account of this discriminatory selection”, he concludes.