A pregnant worker may remain away from the work environment, without prejudice to her labor rights, during the pandemic period.
In the exercise of its statutory jurisdiction, the Judicial Vice-Presidency examined and summarily denied a writ of mandamus filed by a company from Campinas and assigned to the 1st Section of Individual Disputes of the Regional Labor Court of the 15th Region (TRT-15), ensuring the pregnant worker the right to remain on leave, during the pandemic, without prejudice to her labor rights.
In the concrete case, the judgment of the 4th Labor Court of Campinas had granted the anticipation of relief, in favor of the pregnant claimant, to maintain her leave, in accordance with the terms of Law 14,151/21 (under which, “during the public health emergency of national importance arising from the new coronavirus, the pregnant employee must remain away from in-person work activities, without prejudice to her remuneration” – art. 1), as well as the full payment of remuneration, food baskets and the meal voucher, including for the months not yet settled.
Against this decision, the defendant company filed a writ of mandamus, in order to defend an alleged clear and certain right to receive the services of the person it pays, since, in São Paulo, “the quarantine determined due to the emergency situation was in force until August 16, 2021, ceasing to exist as of August 17, 2021”, such that, in its understanding, “Law 14,151/21 ceased to have effects in the State”.
And as if that were not enough, Law 14,151/2021 would not impose on the employer the payment of salaries, such that, should the leave apply, the employee’s subsistence should be guaranteed by Social Security.
The judicial vice-president, however, refuted such arguments and denied the employer’s claim, in summary cognition, citing what was decided by the STF in ADI 6341 (on the concurrent legislative and executive authority of the Union, the States, the Municipalities and the Federal District) and examining the concrete condition of the worker, who provides her labor activity in a niche with a high risk of contagion by the new coronavirus (a hospital).
He noted, in this regard, that it is incoherent “to allow the pregnant woman, expressly sheltered by Federal Law No. 14151/2021, which guarantees her leave from in-person work activities, including without prejudice to her remuneration (and not to any social security benefit), to be exposed to a demonstrably heightened risk condition, that is, the labor of a pregnant woman in a hospital unit dedicated to the care of patients infected by the coronavirus”.
The company further alleged that there was no longer a “quarantine” in the state of São Paulo, such that Law 14,151/2021 would no longer have effect. The Judicial Vice-Presidency understood, however, that the concept of quarantine – indeed ended on the occasion of State Decree 65,897/2021 – is not to be confused with that of pandemic and with the respective state of public emergency of national importance, which derives from articles 1, caput, and 2, II, of Law 13,979/2020.
The quarantine is a measure to confront the public health emergency; it is not equivalent to the very state of calamity arising from the pandemic. For this very reason, despite the temporal limits of Decree No. 65,897/2021 (8/16/2021), Law 14,151/2021 continues to have effects as long as the coronavirus pandemic is not yet reasonably under control in the national territory.
The preservation of labor rights, ultimately, must reach even rights of a collective-bargaining nature, such as the right to food baskets and meal vouchers.
In the understanding of the appellate judge, “it is reasonable to consider that the will of the legislator was to place this pregnant woman at the disposal of the employer, to perform any and all services compatible with her personal condition, in the form of art. 456, sole paragraph, of the CLT; and, therefore, the pregnant employee, on leave for sanitary or prophylactic reasons, due to the pandemic, who cannot perform her function in person (by force of the leave) or remotely (due to the nature of the activity), even if not present at the establishment, must be considered, in the wording of art. 1, sole paragraph, of Law No. 14.151/2021 in conjunction with art. 456, sole paragraph, of the CLT, to be at the disposal of the employer.
Consequently, the co-litigant is potentially in service, which is why there is no room to consider the incidence of the restrictions of clauses 13 and 14 of the category’s collective bargaining agreement (CCT), id dc22528 of p.168/169-pdf, in the sense of removing from these workers the right to the aforementioned benefits of the food basket and the meal voucher, also because the worker cannot be punished for an extraordinary fact that she did not cause”.
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