Supreme Court ruling on covid-19 raises risk of labor lawsuits
With a Federal Supreme Court decision that lets covid-19 be considered an occupational disease, companies run the risk of being liable to damage claims. Suits may be filed by employees more seriously affected by the disease or by relatives.
Workers who the social security puts on leave for more than 15 days for treatment have one-year stability and right to the Workers' Severance Fund (FGTS) over the leave period. Companies may also have a cash impact with the increase of the Factor of Accident Prevention (FAP).
Especially now, with several cities relaxing lockdowns and more workers on site, companies must take care and produce evidence in their favor to demonstrate that they are taking all the necessary precautions to avoid the spread of the virus, labor lawyers say. They should prove they are following the World Health Organization rules and government protocols about covid-19 in the workplace.
The Supreme Court has already received 2,682 cases related to the pandemic. More than 2,400 decisions of the most diverse matters involving the disease have been issued, according to data of the Covid Lawsuits Panel, which the court implemented.
On April 29, by overturning article 29 of provisional measure (MP) 927, which stated covid-19 was not an occupational disease, the Supreme Court enabled infected workers to hold companies accountable for their disease. Companies must then prove in the proceedings that they took all prevention measures. The ruling was for an injunction request in seven Direct Actions of Unconstitutionality (ADIs) filed against the MP. According to the justices, the article would hurt countless workers of essential and risky activities who are constantly exposed to the virus, for not considering the infection a work accident.
Attorney Cássia Pizzotti, partner of law firm Demarest Advogados, says she is worried about the consequences of this decision. She says some unions already are demanding issuance of the Notice of Work Accident (CAT) in cases of employees put on leave because of covid for more than 15 days, and with this it is as if the company already assumed its accountability.
She explains that the Superior Labor Court (TST) must still define how this accountability should be. The court should define whether there is objective accountability of the business, regardless of proof of guilt, which in this case would make it difficult to overturn these convictions. Or if there is a subjective accountability, that is, if the...
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