A few weeks ago, Reuters reported that some of the biggest meatpackers in the United States were denying workers’ compensation benefits claimed by their employees infected with COVID-19 (see here). The reason? According to the companies, there was no proof the employees were infected in the workplace.
The impossibility of proving causation between the infection and the work is also a problem in Brazil. According to Brazilian law, occupational diseases or injuries grant the infected or injured employees additional rights and benefits, such as a one-year stability (meaning the employee benefits from temporary protection from dismissal without cause) from the date of the return to work and the right to a compensation for damages if the employer was negligent. The law also provides that occupational diseases are those developed or triggered due to the work performed for an employer or those acquired in the workplace.
The burden of proof usually falls on the worker to prove causation between the illness and the work: that it happened at work or during the performance of his or her job. Due to the practical impossibility of linking airborne infections to employment, the first Brazilian labour courts to address the issue looked at circumstantial evidence, such as whether or not other the employee’s family members were infected, to what extent did the employee respect the preventive measures suggested by the competent authorities and, more importantly, what protective measures were adopted by the employer in the workplace.
Therefore, in the absence of evidence that the employee was infected at home or in the course of social activities not related to work, the best way for an employer to avoid a finding that an employee’s COVID-19 infection is an occupational illness is to prove that the company has adopted state of the art protective measures and best practices, as per the recommendations provided for by local and international authorities.
Given the high numbers of infections in Brazil, we anticipate an increasing number of administrative and judicial cases involving this issue, which demands attention and strategic planning from companies doing business in Brazil. In fact, according to a press release, the Labour Courts are already dealing with more than 16,000 cases related to COVID-19.