Article published on the portal Rota Jurídica
By Anthony de Oliveira Braga
With the arrival of the end of the year, the number of temporary hirings at companies grows, driven by the increase in demand and by the festivities. This movement, in addition to heating up the labor market, rekindles important discussions about the legal limits of the employer in the stage prior to the formalization of the employment contract, notably regarding the requirements the company may make of the candidate.
The pre-employment examination is a mandatory procedure provided for in NR-7 (Regulatory Standard of the Ministry of Labor), and must be carried out before the worker takes up his activities, with the exclusive purpose of assessing his physical and mental fitness for the intended function.
In this context, it is important to distinguish what may and what may not be required by the employer at this stage. Clinical and laboratory examinations directly related to the working conditions are legitimate, such as visual acuity tests, audiometry examinations, and cardiological evaluations for activities of intense physical effort.
On the other hand, the employer may not require examinations or information that violate intimacy, private life, or that are irrelevant to the performance of the function. Pregnancy and HIV tests, or any investigation into diseases not related to the function, are prohibited by the legislation and by the case law of the Superior Labor Court (TST), which recognizes such practices as discriminatory, subjecting companies to citations from the Ministry of Labor and the Labor Public Prosecutor’s Office (MPT).
It is worth remembering that the occupational health certificate (ASO) must contain only the conclusion regarding the candidate’s fitness, and the disclosure of diagnoses or confidential medical information is prohibited.
The phase prior to contractual formalization also deserves attention under another aspect: the questions asked during interviews or selection processes.
It is prohibited to question the candidate about religious or political convictions or sexual orientation. The employer must limit himself to ascertaining technical and behavioral competencies compatible with the function offered.
Finally, companies must be attentive, since temporary hiring, in accordance with the law that governs this modality, has as a prerequisite, among other obligations, the disclosure of the reason justifying the hiring and the registration of the employment contract with the employee, with a maximum duration of 180 days, extendable by up to 90 days, provided that the maintenance of the conditions that gave rise to it is proven.
In a scenario of strong movement in the labor market, compliance with the rules on pre-employment examinations and personnel selection protects both the employer and the employee. For companies, it means legal and reputational security, and for workers, the guarantee that they will not be evaluated by criteria that exceed their professional capacity.
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