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STF concludes trial of Direct Unconstitutionality Actions onPPD 927 and understands that COVID-19 may be considered an occupational disease

On 04/29/2020, the Brazilian Federal Court (“STF”) concluded the trial started the previous week, by videoconference, of the 7 Direct Unconstitutionality Actions (“Adins”) filed against several points of Provisional Presidential Decree 927 ("PPD 927”).

PPD 927 provides for labor measures that may be adopted by employers, to preserve employment and income, and to cope with the state of emergency resulting from the coronavirus pandemic, such as immediate granting of individual or collective vacation, anticipation of holidays and adoption of an hour bank for compensation in 18 months, after the end of the state of emergency.

STF Justices analyzed actions filed by PDT - Democratic Labor Party (6,342), Rede Sustentabilidade (6,344), CNTM - National Confederation of Metallurgical Workers (6,346), PSB - Brazilian Socialist Party (6,348), PCdoB - Communist Party of (6,349), Solidarity (6,352) and CNTI - National Confederation of Industrial Workers (6,354).

According to these entities, PPD 927 would go aganst fundamental workers' rights, including the exclusive use of a complementary law and protection against arbitrary or dismissal without cause.

Justices validated PPD 927, for the most part, but the majority of them decided for suspending articles 29 and 31, which provide, respectively, on the relationship between COVID-19 and the work and guidance for labor auditors' inspection actions during the pandemic.

Main points discussed

Covid-19 may be considered an occupational disease

By majority, the STF understood that it is possible to characterize Covid-19 as an occupational disease, without workers' having to prove that the disease is linked to work, precisely because of the difficulties in proving the moment of contamination with the disease, depending on the activities, as is the case with delivery couriers, for example.

Consequently, it suspended the application of article 29 of PPD 927, according to which cases of contamination by the coronavirus would not be considered occupational, except upon proving a causal link, that is, it would be up to the worker to prove that he/she contracted the disease due to work, through technical expert examination.

According to Law 8,213/91, causation is a requirement to receive social security benefits, except for activities already considered high risk, such as, for example, health professionals on the front line.

By recognizing Covid-19 as an occupational disease and removing the application of article 29 of PPD 927, the STF allows workers from contaminated essential sectors to have access to benefits such as sickness benefits, protected by the National Institute of Social Security (INSS). If the article remained valid, pharmacy, supermarket and commercial workers, for example, would not be fully supported by social security and worker protection rules when affected by the virus.

The following voted for the suspension of article 29: , , Luís Roberto Barroso, , Cármen Lúcia, and .

Inspection by labor auditors

The STF understood that labor auditors must continue to fulfill their duties, even during the pandemic.

Article 31 provides that for 180 days, as from the date of PPD 927's entry into forc (03/22/2020), the abor Auditors of the Ministry of Economy will act in a guiding manner only, with the exception of cases involving lack of registration of employee, based on complaints; situations of serious and imminent risk, only for irregularities immediately related to the configuration of the situation; occurrence of fatal work accident and work in conditions similar to slave or child labor.

According to Justice Alexandre de Moraes, it is not possible, by provisional presidential decree, to establish lesser inspection, which is against employees' health. The Justie said that the Ministry of Economy itself can define the way auditors work, without any reason to suspend the activity.

The following voted for the suspension of article 31: Alexandre de Moraes, Edson Fachin, Rosa Weber, Cármen Lúcia, Ricardo Lewandowski and Luiz Fux.