Companies are increasingly returning to face-to-face work. But what about pregnant women? Are they required to return to the office if they have been vaccinated?
Home office became a right of all pregnant women in Brazil during the pandemic. Thus, while the state of emergency lasts, pregnant women must work from home, without risk of unfair dismissal or suspension and salary reduction.
The right is found in law 14,151, in force since the last 12th of May, which says:
- During a public health emergency of national importance resulting from the new coronavirus, the pregnant employee must remain away from face-to-face work activities, without prejudice to her remuneration.
The legal provision also establishes that “the employee on leave will be available to carry out activities at home, through telework, remote work or other form of distance work”.
How long is this right worth?
The public health emergency mentioned in the law is valid until December 31 of this year or before that, if the international health emergency resulting from the covid-19 pandemic ends, by decision of the WHO (World Health Organization) .
The deadlines were established by the STF (Supreme Federal Court), which extended the validity of some measures determined in another law (13.979/2020), on measures against the coronavirus.
What if the company forces the pregnant woman to return?
Adriana Supioni, member of the Labor Law Commission of the OAB São Paulo, says that, according to legislation, pregnant women have the right to paid leave, even if they are unable to perform work at home.
“The law did not give criteria in relation to complete vaccination and the percentage (vaccination) of society, and linked [o afastamento] just to that state of public emergency,” says Supioni.
But, in practice, the lawyer says that, for pregnant women who are unable to carry out their activities at home, what has been proposed by companies is the suspension of the employment contract, the use of a bank of hours or the granting of vacations.
“There are pregnant women who are not doing this, precisely because of a demand from the employer, and the fear of losing their job, since we are in a situation of widespread unemployment,” says Supioni.
If the pregnant woman is fired for not wanting to work in person, the lawyer explains that the employee can file a labor lawsuit against the company, requesting her reinstatement to work in court.
“Dismissal should only be done if it is for just cause. For example, if the pregnant woman can work from home and refuse to do it. This would be configured as an act of negligence or insubordination”, says the lawyer.
If she goes back to work, what are the pregnant women’s rights?
If the pregnant woman returns to work in person, whether by decision of the company that ignores Law 14,151 or by the end of the state of emergency, she would normally have guaranteed labor and social security rights.
Thus, she is stable and cannot be dismissed in the period between the confirmation of pregnancy and the fifth month after delivery.
It also continues with the right to full maternity leave.