– STF decides that health professionals who are victims of covid-19 should be compensated Federal Council of Nursing

In the legislation in force, the right to compensation of 50 thousand reais is maintained.

Unanimously, the Federal Supreme Court (STF) rejected the Direct Action of Unconstitutionality (ADI) 6970, filed by the federal government and the Attorney General’s Office (AGU) against Law 14,128/2021, which ensures the payment of financial compensation to Nursing professionals permanently disabled by Covid-19 or their families and dependents, in case of death resulting from infection by the new coronavirus.

“This decision is final and represents justice for the health workers who risked their lives to care for patients infected with a lethal and unknown virus. It is the least the country can do for those who, at the most critical moment of the current health crisis of covid-19, dedicated themselves with courage and professionalism to the care of the people who most needed help”, says the president of the Federal Council of Nursing (Cofen), Betânia Santos.

Under the terms of the decision and the legislation in force, the right to compensation of R$ 50 thousand is maintained for health professionals who worked on the front lines of the fight against the pandemic and who became unable to work due to covid-19. In the event of the worker’s death, compensation must be paid to the family. In addition to this amount, underage dependents will be entitled to R$ 10,000 per year, until reaching the age of majority or until the age of 24, if they are a student.

In case of death, the death certificate with the cause of death must be used by the family to file the application.

Rapporteur of the action, Minister Cármen Lúcia concluded that the law does not violate the Constitution. This is an exceptional measure designed to face the social and economic consequences resulting from the health crisis. “It is an indemnity due to a specific event, not constituting a mandatory expense of a continuing nature”, she sentenced. The understanding was accompanied by ministers Alexandre de Moraes, Gilmar Mendes, Dias Toffoli, Ricardo Lewandowski, Luiz Fux, Nunes Marques, Luís Roberto Barroso, Rosa Weber and André Mendonça.

“The legislator created compensation due to health professionals or their families, in the event of death, which is exhausted in just one installment. In other words, it is not a social security benefit, nor an expense that lasts over time”, pointed out Gilmar Mendes. “The look of the judge must turn to the peculiarity of the performance of health professionals and workers in the context of the pandemic. Therefore, I understand that the legislation under attack took into account the complexity of the outbreak and the attributions exercised by health agents, for the measurement of financial compensation”, added Ricardo Lewandowski.

The granting of compensation to permanently disabled professionals will be subject to the assessment of medical expertise carried out by employees who are part of the federal medical expert career and will be due even if the disability or death occurs after the end of the state of public calamity or before the publication of the Law. In case of death, the death certificate with the cause of death must be used by the family to file the application.

As the compensation will be indemnifying, the amount received will not be subject to the payment of income tax or social security contribution, in addition to not impairing the right to receive social security or assistance benefits provided for by law. The indemnities must be paid in three equal and successive monthly installments.

The presence of comorbidities does not exclude the right to receive financial compensation

It is important to note that the presence of comorbidities does not exclude the right to receive financial compensation. Compensation may be granted even if covid-19 was not the only cause, main or immediate, for the occurrence of permanent incapacity for work or death. However, the temporal link between the date of onset of the disease and the diagnosis must be maintained, confirmed by laboratory tests or a medical report attesting to a clinical picture compatible with the disease.

Law 14,128/21 was unanimously approved in the Senate and by 272 votes to 185 in the Chamber of Deputies. Subsequently, the proposal was vetoed in full by the government, but the veto was overturned by the National Congress on March 17, 2021. Nevertheless, the executive branch and AGU filed a request for unconstitutionality in the Supreme Court, which, however, rejected the thesis unanimously. Once this process is complete, the standard is in effect and must be applied immediately.

According to the Nursing Observatory, 64,557 nurses, nurses, technicians, technicians, assistants and midwives were infected by Covid-19 and 872 lost their lives on the front line as a result of the disease. In addition to nursing professionals, physiotherapists, social workers, community workers, laboratory technicians, doctors and other workers who work on the front line, in addition to mortuary and gravediggers, will be entitled to compensation.

Source: Ascom – Cofen

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