The Brazilian Supreme Court delivered a very important decision related to compulsory vaccination to immunize the population against the coronavirus (Direct Actions of Unconstitutionality #6586/6587).
During the judgment, Justice Lewandowski stated that “collective health cannot be harmed by people who deliberately refuse to be vaccinated, believing that they will still selfishly benefit from herd immunity”. Delivering a decision under the same basis, Justice Barroso said that “(…) the right to collective health, and particularly for children and adolescents, should prevail over freedom of conscience and philosophical conviction. It characterizes as illegitimate that, in the name of an individual right, the collective right is frustrated”.
The question is: how does this decision affect work relations in Brazil? Or, in terms of work relations: is it possible to grant a justified dismissal of an employee if there is a refusal to be vaccinated?
Firstly, it ought to be informed that the Brazilian Supreme Court decision was delivered in a direct action of unconstitutionality, which means that the whole public administration and also all other courts of the Brazilian judiciary branch are simply obliged to respect the Supreme Court decisions in such direct actions.
Obviously, private enterprises are obliged too. Therefore, it is absolutely necessary to face this problem because there can be a collision between public health and conscientious objection. According to the decision, there is no basis for an employee’s refusal for vaccination as long as a collective right to public health must prevail over conscientious objection.
However, there are countless cases of employee’s refusal to vaccination, which is why it seems to be a serious work relations problem to be immediately solved.
The Brazilian Supreme Court is absolutely correct. Pondering over these two fundamental rights, it is by no means defensible the prevalence of conscientious objection over public health, especially since people’s right to life is at stake.
Thus, the refusal of employees to vaccinate in Brazil authorizes the employer to dismiss for just cause. Hopefully, vaccination will become the only way to resume a normal life. Hopefully, too people in general, and employees in particular, will understand this and submit, without discussion, to the only scientifically proven way to quell this terrible disease: the vaccine.
Manoel Jorge e Silva Neto is the Brazilian Deputy Attorney General of Labor and Deputy Director-General of the Superior School of Prosecutors. He is one of the greatest Constitutional Law thinkers in Brazil and a Professor at two important Brazilian law schools: Universidade Federal da Bahia and Universidade de Brasília. He is also the Visiting Professor at the University of Florida, Levin College of Law.
This piece was created in collaboration with the US Brazil Comparative Law Institute (USBCLI). You can find their website here or follow them on Twitter @USBCLI.
Suggested citation: Manoel Jorge e Silva Neto, Compulsory Vaccination and Work Relations in Brazil, JURIST – Academic Commentary, February 26, 2020, https://www.jurist.org/commentary/2021/02/manoel-jorge-vaccination-brazil/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org.
