Public agencies in São Paulo are already authorized to call back most of their employees, who have been in the home office system for over a year because of the covid-19 pandemic.
However, those who have comorbidities and who have not yet been immunized with two doses or a single dose vaccine are still entitled to remote work. The state government defined this measure to resume part of the activities that were suspended or partially functioning.
Private companies can call
In the private sector, however, the situation is different, according to specialists heard by UOL. Lawyers who work with labor and social security law point out that companies can call back their employees, even if they have comorbidities and have not been fully vaccinated.
The professor at PUC/SP and partner at the Abud Marques office, Fabíola Marques, states that the worker’s call for return must be made at least 48 hours in advance by the company and answered by the worker, according to the text of Provisional Measure 1.046/2021 , which defined the rules for remote work during the pandemic.
That is, the employee may indeed be required to return to face-to-face work. “If the employee refuses to return to work, he can be warned, suspended or even fired for just cause. It is a breach of the employment contract, and dismissal can happen. Obviously it will not happen because of one day , but if he continues to be absent, he can, yes, be fired for just cause”, says the teacher.
When is it possible to stay in a home office
However, there are some exceptions that ensure that the employee has the right to remain in a home office, even if the company requests his return, says the lawyer.
“The employee may not return to face-to-face work if he has a medical justification or a court decision that attests to a high health risk.”
Other exceptional cases that guarantee the right to a home office are those of pregnant women. “In these cases, they can refuse because there is a specific law that guarantees that they stay at home, work remotely and have no loss of salary”, says the lawyer, referring to Law 14,151, which came into force on May 13th. this year.
A woman who has just had a child is also entitled to leave. “The puerperal woman has maternity leave from 120 to 180 days. During this period, she obviously will not need to work. After the leave ends, she has the obligation to return, unless there is a medical certificate or a court decision that authorize her to stay at home,” says Fabíola.
In functions where remote work is impossible, the company has the possibility of moving the pregnant or postpartum employee to other activities, which allow working at a distance and prevent the employee from being idle, says Marques.
Responsibilities in the event of illness
Rômulo Saraiva, a specialist in social security law, says that the labor legislation has not been specifically prepared for the pandemic innovations, including this issue of returning to the work routine.
However, there is an understanding that the company can require the employee to return to face-to-face work even for employees in risk groups without vaccination.
Saraiva says that the company may be held liable in the event that an employee contracts covid-19 and the disease is considered by the courts as a work accident. It is possible to hold the company responsible for the contamination if it is proven omission in collective health care.
“Depending on each case, it is possible to gather a set of evidence that indicates signs that the employer was the direct cause or that it collaborated with the illness”, says the lawyer.
The negligence and consequent fault of the company can be identified, according to the lawyer, if the lack of PPE (individual protection equipment), such as masks, gel alcohol, and environmental hygiene care is proven. The company may have to bear fines and indemnities related to moral, aesthetic and material damages.
Saraiva recommends that employers who choose to return to face-to-face work devote themselves to providing basic care materials against contamination, and, “above all, act sensibly and find a particular solution for each employee, taking into account personal needs and any comorbidities of each one”, he declares.
The Ministry of Health publishes, on its website, a list of comorbidities that were included as priorities in the National Immunization Plan (PNI), and which can serve as a guide for companies to identify which employees require more care – and perhaps more time for home office – in this phase of gradual return to the workplace.