The decrease in the severity and number of cases of Covid-19 brought about the relaxation of the mandatory use of masks in open places, such as in the states of São Paulo, the Federal District, Rio Grande do Sul, Santa Catarina, among others. At the same time, many companies are returning to face-to-face work.
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But after all, can the company force the employee to wear a mask, even in the face of flexibility by decree of the governors? The lawyers interviewed say yes. The legal body heard is composed of: Adriana Calvo, author of the Labor Law Manual and member of the Labor Law Commission of the OAB/SP; Andrea Bucharles, partner in the labor area at Salusse, Marangoni, Parente e Jabur Advogados; and Aparecida Tokumi Hashimoto, partner at Granadeiro Guimarães Advogados.
According to the lawyers, the law that deals with Labor Law is federal and, therefore, a state decree does not have the power to supersede it. Therefore, state companies are obliged to comply with safety, medicine and occupational hygiene standards.
If such rules are not complied with, the company will be at risk of being fined by the Public Ministry, as well as of the damage caused to its employees.
Law 13.979/20 brought broad measures to face the pandemic period and provided for the mandatory use of the individual protection mask. The law also established that companies in operation are obliged to provide their employees with equipment free of charge.
Ordinance 20/2020 provides that one of the measures that must be observed in order to prevent, control and mitigation of the impacts of Covid-19 on work environments is exactly the mandatory use of mask.
Another published norm was the interministerial ordinance MPT/MS 14, which edited annex I of the joint ordinance 20/2020, implementing that the Employers should include measures to prevent, control and mitigate the impacts of the Covid-19.
The effects of these norms will only cease with the end of the public health emergency declaration. Therefore, most companies are not releasing the use of the mask in the work environment.
Aparecida Hashimoto cited Ordinance No. 14, of 2020, edited by the Ministers of Labor and Social Security, which deals with measures to prevent, control and mitigate the impacts of the coronavirus on the environments of work.
The rule states that it is the duty of companies to ensure a safe and healthy environment and ratifies that workers have the right to reduce the risks inherent to work through health, hygiene and and security. Therefore, she considers that employers should continue to maintain the use of masks in the workplace. within the company, which should mainly protect those most vulnerable to serious forms of Covid-19.
The legal body of lawyers understands that dismissal may occur in this case, however, the worker must first be advised to respect the company's rules. That is, the punishment must be gradual.
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