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20 May 2020
Article 29 of Provisional Measure 927, enacted on 22 March 2020, states that infection with COVID-19 is not considered a labour-related disease unless a relationship between the disease and the employee's job or occupation can be evidenced. Several institutions, especially political parties, have questioned the constitutionality of this provision before the Supreme Court.
On 29 April 2020 the Supreme Court suspended the effects of Article 29. After this decision, the media stated that COVID-19 is now a labour-related disease. However, this view is arguably flawed because, although the Supreme Court's decision was not published, the suspension of Article 29 does not result in its opposite literal interpretation; this would have an unprecedented impact on Brazilian employers.
The correct rationale of this matter indicates that, on the suspension of the article, the general previous rule applies. The general rule states that for a disease to be considered labour related, it must be linked to the activities performed by an employee. In addition, social security law regarding benefits expressly states that endemic diseases are not considered labour related unless it is evidenced that the disease resulted from exposure or direct contact due to the nature of the employee's job.
Thus, in contrast to what the media has stated, COVID-19 is not a labour-related disease. In order to be so considered, the disease must relate to the work performed by the infected employee (eg, doctors and nurses working with COVID-19-infected patients, who are clearly exposed due to the activities that they perform) or evidence must show that the employee was infected because of the work they perform.
For further information on this topic please contact Patricia Barboza or Poliana César at CGM Advogados by telephone (+55 11 2394 8900) or email (firstname.lastname@example.org or email@example.com). The CGM Advogados website can be accessed at cgmlaw.com.br.
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