The concierge n. 620, issued by the Minister of State for Work and Pension, was published in the Official Gazette of 01/11/2021 and fostered the debate on the obligation of vaccination and the requirement of the vaccine passport, global sanitary measures that have been adopted to reduce the Effects of the pandemic of the new coronavirus.
In its five articles, the concierge provides that employers can not require their employees or admission candidates in> any discriminatory or obstate documents for hiring, especially voucher to vaccination. The text also establishes that they constitute discriminatory practicing the act of requiring the presentation of vaccination certificate to admit vacancy candidate and farewell by just cause of the employee to deny certificate of vaccination in the course of employment contract.The ordinance establishes that the termination of the employee's employee's negative in submitting a vaccination certificate generates the right to repair by moral damageand grants the employee fired to requesting their reintegration to employment, with payment of salaries corresponding to the period of removal or, with no interest in returning to work, the right to receive the remuneration of the double removal.
The MTP n. 620/2021, therefore, establishes that the employer may not require their employees to vaccinate, nor can vaccination be established as a requirement to hire.
It is worth remembering that in December 2020 the Federal Supreme Court - STF had signed understanding in a diametrically opposite sense, establishing that it is possible, yes, require vaccination, which would not constitute violation of freedom of conscience and conviction philosophical. Given the relevance of the debate caught in that Judgment by the STF, its general repercussion was recognized - which is a definition of the court involving relevant issues that surpass the interest of the people involved in the process, establishing a definition that applies to all. The duel of understandings between the STF and the Ministry of Labor and Socialization externalizes the misalignment between the judicial and executive powers, generating a climate of uncertainty, not only to the operators of law but essentially to society. One concierge is an ordinary administrative act, which is within the competence of the Minister of State, according to the Federal Constitution. The purpose of these acts is issue instructions for the execution of laws, decrees and regulations. In other words: the minister can only guide the interpretation of the law, can not create it.
The relevance of the debate is not limited to labor relations, given the universal character of a pandemic. The obligation of vaccination (or the seal of this imposition) reaches society as a whole, generating sanitary and economic effects of global importance.
Considering the uncertainties as to the correct rule to be applied, the Carpena Advogados team is available to remedy any questions about it.
