Pablo Christian Dias
Sanctioned by the Presidency of the Republic and published in the Official Gazette of the Union on May 13, 05, Law No. 2021/14.151 brings new protection measures and guidelines adopted by the Federal Government as a way to reduce the risks of contamination and exposure resulting from the COVID-2021 pandemic, which, in this case, is linked to the protection of pregnant employees.
Originating from Bill No. 3.932/2020, the proposal had been approved by the Federal Senate on April 15, 04, after approval by the Chamber of Deputies in August 2021.
The new Law's primary objective is to reduce the risk of pregnant women becoming infected with COVID-19, essentially considering the advance of the pandemic in the country, the exponential increase in the number of cases and the respective occupancy of hospital ICUs.
According to data published on 19/04/2021 by the Brazilian Obstetric Observatory Covid-19 (OOBr Covid-19), in 2020, 453 pregnant women died and, in 2021, this number has already reached 362 deaths due to contamination by the new Coronavirus.
Under the new Law, during the public health emergency resulting from the Coronavirus, pregnant employees must remain away from in-person work activities, without prejudice to their remuneration.
With her absence from in-person work, the pregnant employee will be available to the employer to carry out her activities from home, through teleworking, remote work or any other form of remote work.
Therefore, the new Law's primary objective is to reduce pregnant employees' exposure to the Coronavirus.
While this represents a significant legislative advance for the protection of pregnant employees and their fetuses, the new law is quite simplistic and has led to questions regarding specific aspects not covered or detailed in the text. One of the most significant is the lack of a clear solution for cases in which teleworking, remote work, or distance work are not possible.
Unfortunately, the Law does not present a clear solution to the employer or pregnant employee in the event that remote work is not possible, since, in interpretation stricto sensu of the Law, if the employee is pregnant, she must be removed from her in-person work activities, regardless of whether her work allows for remote work or not, without prejudice to her income.
In addition to these doubts, the Law creates uncertainty regarding other points that have not yet been clarified or regulated, for example:
- In the event of a pregnant employee's absence and remote work not being possible, who is responsible for paying her remuneration, the employer or the government? It is worth remembering that the vast majority of small and medium-sized companies are experiencing severe financial difficulties due to the duration of the pandemic in the country. However, there is no provision for benefits, financial assistance, or the provision for early maternity leave for this (new) scenario;
- In the case of a pregnant employee who has already received the Coronavirus vaccine in accordance with the State or Federal vaccination plan, can she work in person or must she remain away based on the provisions of the Law, which does not make this distinction?
- There is also no clarity about the period of “public health emergency arising from the coronavirus”. It is worth remembering that each State finds itself in a different moment or situation of different severity and, strictly speaking, the state of national public calamity established by Legislative Decree No. 6/2020 expired on 31/12/2020.
Regarding this last topic, it is important to mention that, although the validity of Law No. 13.979/2020, which provides for measures to address the public health emergency of international importance resulting from the coronavirus, is linked to the validity of Legislative Decree No. 6/2020, which declared a state of public calamity, the Supreme Federal Court, in a decision issued on December 30, 12, extended the effects of Law 2020/13.979 until December 2020, 31.
Under the terms of the decision, the health measures provided for in the Law must be included in the arsenal of measures taken by health authorities to combat the pandemic, and these must be maintained, even if the validity of the Legislative Decree has expired.
Although the maintenance of measures to address the public health emergency was approved, with the extension of the validity of the rule, it is clear that the problem regarding the clear definition of the period of “public health emergency arising from the coronavirus” is not satisfied, since the implementation of security measures are not linked to the declaration of a state of public calamity contained in the now expired Legislative Decree No. 6/2020.
In addition to all the issues presented above, and as if they weren't enough, there is still fear of discrimination and a reduction in the hiring of pregnant women during the pandemic. It is worth remembering that, according to Technical Note No. 01/2021 of the National COVID-19 Working Group issued by the Public Ministry of Labor, the dismissal of pregnant workers during the pandemic may constitute a case of discriminatory dismissal under Article 373-A, item II, of the CLT and Article 4 of Law No. 9.029/99.
Are there effective alternatives to overcome all these problems? Unfortunately, no.
Although the Federal Government has issued new Provisional Measures 1.045 and 1.046, which reissued, respectively, the Emergency Program for the Maintenance of Employment and Income and the relaxation of labor regulations regarding vacations, teleworking, health and safety at work (which we wrote about in the article at this link https://montgomery.adv.br/novas-medidas-provisorias-em-ambito-trabalhista-covid-19/), it is noted that the application of these measures is restrictive, since, having a validity period of 120 days (expiring on August 25, 08), this may not coincide with the gestational period of the pregnant employee, which, ultimately, may cause more complications for the application of the rule, rather than actually helping to implement it. As if that were not enough, many companies have already exhausted the possibilities of bringing forward vacations and holidays in the first year of the pandemic.
Perhaps an alternative, for illustrative purposes, would be to classify the pregnancy as high-risk, since there are legal restrictions on the movement of pregnant employees to the workplace, which would result in the receipt of maternity pay during the period of absence, under Law No. 8.213/1991.
However, for now, this alternative faces another problem, related to the INSS assessment and doubts about whether or not to grant the benefit due to possible questions regarding this risk classification, since, strictly speaking, there are legal alternatives that are in some way capable of guaranteeing the social distancing of these workers, whether with the application of the measures of the Law itself, with the application of remote work, or even with the alternatives presented by the Provisional Measures currently in force.
However, these possibilities are scarce, limited in time and may have already been fully utilized, as they were previously implemented as a form of “breathing space” for the drowning resulting from the economic and financial crisis generated by the pandemic.
Regardless of the doubts and interpretative margins that the new Law triggers, it is certain that the protection of pregnant women is a Constitutional guarantee, which covers not only the protection of pregnant employees, but also the preservation of the fetus and the family entity as a whole.
