COVID-19: Govern enacts Ordinance stating that vaccine mandates by employers are discriminatory

On November 1, 2021, the Ministry of Labor and Social Security issued an Ordinance (MTP No. 620/2021) disciplining the limits for employers to require proof of vaccination from their employees, as well as from job applicants.
 
According to the Ordinance, companies cannot demand proof of vaccination as a requirement to maintain the employment relationship. Termination for cause based on the refusal to provide proof of vaccination will be considered as discriminatory (which guarantees the employee the right to compensation or reinstatement into employment).
 
In addition, proof of vaccination cannot be a requirement for candidates to participate in selection processes, so its requirement will also be interpreted as a discriminatory practice.
 
The Ordinance also considers as discriminatory the request for clearance of labor claim filed by the candidate and documents related to pregnancy status.
 
There is no mention to whether companies may request proof of vaccination for the purpose of implementing alternative work arrangements, such as teleworking or remote work.
 
The Ordinance is in the opposite direction of positions already taken by certain Labor Courts and the Labor District Attorney, in the sense that, under certain circumstances, it is generally lawful for companies to request proof of vaccination (especially against COVID-19).
 
This new directive on vaccines trigger impacts from an Employment and Data Privacy perspectives, since vaccine data is subject to the Brazilian Data Privacy Law (“LGPD”).
 
Our Employment and Data Privacy teams are available to discuss the impacts of this Ordinance on the practices implemented by your company.