Nelson Mannrich [1]

Alessandra Barichello Boskovic [2]

On March 20, 2020, the Brazilian government declared a state of public calamity resulting from the pandemic of the new coronavirus (Legislative Decree No. 6/20).

To address the labour repercussions of the pandemic, the federal government published Provisional Measure (MP) No. 927, which relaxed legal requirements for the adoption of home office and bank of hours, among other measures.

The MP also established, in article 29, that cases of COVID-19 would not be considered occupational diseases, unless the causal link with work is proven. However, on April 29, 2020, the Supreme Court ruled the Direct Actions of Unconstitutionality (ADI) No. 6,342, 6,344, 6,346, 6,348, 6,349, 6,352 and 6,354. By a majority of votes, Justices Alexandre de Moraes, Edson Fachin, Luís Roberto Barroso, Rosa Weber, Carmen Lucia, Ricardo Lewandowski and Luiz Fux suspended article 29 of MP 927.

With this decision, part of the Brazilian jurists began to question whether COVID-19 would automatically be considered an occupational disease. This discussion was further aggravated by the publication of the Ministry of Health Ordinance No. 2,309 of August 28, 2020, which included COVID-19 in the List of Work-Related Diseases (LDRT). This rule, however, was repealed less than a week later by Ordinance No. 2,345 of September 2nd.

To evaluate whether or not COVID-19 should be considered an occupational disease, it is first necessary to rescue some concepts established in Law No. 8,213/91. Occupational disease is the genus that encompasses two species: technopathy and mesopathy.

Technopathies are diseases that stem from the peculiar exercise of a certain profession. In such cases, the causal link between work and the disease is presumed by the epidemiological technical link - NTEP (list C, Annex II, decree 3.048/99). This is done by crossing data between the main and predominant activity of the company (CNAE - National Classification of Activity) and the ICD (International Classification of Diseases). At the present time, COVID-19 is not listed in the NTEP. In this context, it is not considered a technopathy.

Mesopathies, in turn, are diseases acquired or triggered due to specific conditions in which the work is performed. In order to recognize the causal link between work and the disease, there must be evidence of exposure of the worker to etiological agents or occupational risk factors, according to lists A and B, of Annex II, of Decree 3.048/99 (professional or occupational technical nexus).

Thus, in the social security scope, the recognition of an occupational disease presupposes, as a rule, its provision in Annex II of Decree 3.048/99. However, exceptionally, when a given illness is not included in the LDRT, but still resulted from special conditions in which the work was performed and relates directly to it, social security should consider it an occupational disease (art. 20, §2, of Law 8.213/91).

Therefore, for the employer's civil liability purposes, the worker affected by an occupational disease will be compensated when proven (i) damage, even if it is exclusively moral (art. 186, of the Civil Code, and art. 223-B, of the CLT); (ii) causal link between the disease and work; and (iii) fault of the employer (art. 7, XXVIII, of the Federal Constitution) or exercise of an activity that, by itself, is considered risky (art. 927, sole paragraph, of the Civil Code, and Thesis of General Repercussion No. 932, of the Supreme Court).

As a rule, endemic diseases are not considered mesopathies (art. 20, §1, 'd', of Law 8.213/91). However, for the purpose of COVID-19, some observations should be considered: (i) endemic diseases are considered those that often manifest themselves in certain geographical regions, of local causes, and which are not spread by other localities; (ii) therefore, the COVID-19 pandemic is not endemic - although it may be considered so, in the future; and (iii) even endemic diseases can be considered occupational, when proven to result from exposure or direct contact, determined by the nature of the work (art. 20, §1, 'd', final part, of Law 8.213/91).

Thus, COVID-19 can be recognized as an occupational disease, in the mesopathy modality, only if contamination is proven to be directly related to work, resulting from the special conditions in which it was provided.

Whereas Article 29 of MP 927 rightly established that COVID-19 would not be considered an occupational disease, unless a causal link with work is proven, the suspension of that provision by the Supreme Court does not produce, ipso facto, concrete consequences.

In other words, in the case of COVID-19, the technical difficulties for its characterization or not as an occupational disease precede article 29 of MP 927 and its suspension by the Supreme Court. Similarly, the consequences of that decision go beyond simplistic analysis involving cause-consequence: the suspension of the legal provision according to which COVID-19 was not an occupational disease does not produce the reverse effect of automatically declaring it as such.

[1] Master, PhD and Free-Lecturer in Law, Universidade de São Paulo (USP). Full Professor of Labour Law at the Law School of the Universidade de São Paulo (USP). Partner lawyer at Mannrich e Vasconcelos Advogados.

[2] Master and PhD in Law from the Pontifícia Universidade Católica do Paraná (PUC-PR). Partner lawyer at Mannrich e Vasconcelos Advogados.