After all: Is COVID-19 considered an occupational disease in Brazil?
- IBREI
- 2 days ago
- 2 min read
In April of this year, when the government began adopting preventive measures, the understanding was that COVID-19 would not be considered an occupational disease (as stated in Provisional Measure 927, Article 29).
In other words, employers could not be held liable as if it were a work-related illness.
At the time, the understanding was that only if the employee could prove in court that they contracted the disease at the workplace could it be considered an occupational disease.
Without such proof, it would be treated as a common illness.
However, more recently, the Supreme Federal Court (STF) began reviewing this interpretation and considered that this article of the Provisional Measure (previously issued by the government) would be unconstitutional.
The argument was that placing the burden of proof exclusively on the employee would be unfair. However, there is still no final decision on the matter.
Following the STF’s position, the media has been reporting that COVID-19 would automatically be considered an occupational disease.
That is not exactly the case: it is important to understand that this interpretation does not mean that every case of COVID-19 is considered an occupational disease.
In other words, employers are not always liable.
Companies may present evidence showing that the infection was unlikely to have occurred in the workplace—that is, that it was not the result of exposure or direct contact during work activities.
Companies may also demonstrate that they adopted all necessary safety measures to prevent contamination, such as: requiring the use of masks, reducing occupancy, providing hand sanitizer, and giving guidance on distancing and hygiene.
It is important for companies to document all these measures and guidelines to avoid future disputes in court.
Both employees and employers may present evidence to support their claims—in other words, the burden of proof is dynamic and does not rest solely on one party.
However, if the employee works in a high-risk environment, such as hospitals or clinics, then objective liability may apply. In such cases, there is a presumption that the infection occurred in the workplace.
If this is not the case, then liability is subjective and depends on proof.
Watch the author’s video on the topic:
Melina Simão – on behalf of the IBREI Business Labor Law Commission
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