On March 9, 2022, Law 14,311/2022 was published in the Official Gazette, amending Law 14,151/2021, providing for cases in which pregnant employees can return to on-site work. In summary, there are three hypotheses in which the employer can determine the return to on-site work of pregnant employees: (i) after the end of the state of public health emergency of national importance resulting from the SARS-CoV-2 pandemic, (ii) when the employee’s immunization is complete, in accordance with the guidelines of the Ministry of Health and (iii) when the employee, by individual choice, opts not to be immunized, case in which she must sign a liability waiver.
With the advent of the new legislation, some of the existing gaps in Law 14,151/2021 are filled, which was criticized precisely for determining the widespread removal of pregnant employees from on-site work, even when their professional activities are incompatible with remote work.
However, we understand that the aforementioned legislation brings a new controversy, by affirming the employee’s right to refuse vaccination by her individual choice, contrary to the understanding that had been established in the sense that it was mandatory to maintain the employment relationship. An immediate question that arises is the possibility (or not) of refusing the return to on-site work of such employees.
In addition, the aforementioned Law expressly provides that, while the pregnant employee is working remotely, the employer may, respecting the competences for the performance of the work and the personal conditions of the pregnant woman for its exercise, change the functions performed by her, without prejudice to their full remuneration and reinstatement to the previously occupied position, when returning to on-site work. Considering that the aforementioned legislation can directly impact ongoing actions that deal with the subject, as well as the environment and work dynamics, our labor team is available to assist with specific questions on the subject.