A obrigatoriedade da vacinação contra Covid-19 na perspectiva do direito do trabalho

Abstract

The Constitution of the Republic of 1988 establishes that health is a right of all and the duty of the State. Given the context of the COVID-19 pandemic, this right began to be threatened, vehemently, and measures had to be considered, among them, social distancing, involving collective and individual hygiene actions. In the face of the high lethality rate, an outcry for the vaccine was established, which was consistent with numerous discussions, fostered, especially, with a fulcrum in vaccine hesitation, which, it should be noted, has historical roots. Soon, the subject sparked proposals and, among them, Ordinance No. 620/2021 of the Ministry of Labor and Social Security (MTP) was published, which provided for limitations in relation to the employer's potestative right, with regard to the dismissal of the unvaccinated worker against COVID-19. Despite being declared unconstitutional such Ordinance, the controversy over the (im)possibility of the employer rescinding the contract of the unvaccinated worker, persisted, and the present study sought to investigate the legitimacy of this dismissal. It was found that the employer may terminate the contract of unvaccinated workers, except for cases where there is proven contraindication to vaccination against COVID-19 and provided that the power is exercised in moderation and proportionality, respecting the social value of the work, which should be the last measure.