Justice recognizes right to unhealthy work additional for Manaus hospital receptionist

work justice

Employee proved that, among his attributions, there was the receipt of biological material from patients

Manaus (AM) – Habitual and intermittent exposure to biological agents entitles to payment of unhealthy work additional. Based on this understanding, the Third Panel of the Regional Labor Court of the 11th Region (AM/RR) upheld the sentence that condemned a private hospital in Manaus (AM) to pay a medium-level additional unhealthy wage to a former employee. She worked as a receptionist from February 2018 to September 2021. It was proven in the records that, among her attributions, there was the receipt of biological material from patients.

Unanimously, the collegiate followed the vote of the rapporteur of the process, judge Maria de Fátima Neves Lopes, and rejected the hospital’s appeal. According to the technical expertise carried out in the work environment, the worker’s exposure to the unhealthy agent was characterized as intermittent, with the rest of the day being completed in the administrative routine. There is still an appeal to the Superior Labor Court (TST).

Expertise

Among the arguments presented, the hospital maintained that the mere probability of contact with infectious and contagious objects would not be sufficient for the payment of the additional claimed, requiring effective contact with a patient or infected material. He added that the contact attested in the expert report was not even considered permanent, not meeting the requirements stipulated in the corresponding rule. Finally, it claimed that the biological agent should be classified in the list of unhealthy activities to give rise to the approval of the additional.

When analyzing the appellant’s arguments, the rapporteur highlighted that the judicial expertise was not based on probability. On the contrary, the expert inspected the workplace, described the activities, discussed the applicable legislation and detailed the contact with the alleged unhealthy agent. In this sense, the magistrate read excerpts from the report in which the habitual and intermittent contact was confirmed through the receipt of biological material from the patients for examinations.

Considering the workday, the expert concluded that the worker’s permanence in contact with patients was approximately 40% (3.2 hours of exposure) in attendance and 60% (4.8 hours of exposure) of her workday in the administrative area in the laboratory performing the other activities relevant to their function. Therefore, 40% is equivalent to approximately 192 minutes of your working day, thus being considered an intermittent exposure.

As for the lack of classification of the activity as unhealthy in the official list of the Ministry of Labor, the rapporteur pointed out that Annex XIV of Regulatory Norm n. 15 (NR-15), which deals with biological agents, provides for the “list of activities involving biological agents, whose unhealthiness is characterized by qualitative assessment”. In this sense, she explained that a qualitative assessment of environmental risks is enough to conclude that exposure is at a maximum or medium level, exactly what was done by the judicial expert.

Finally, he cited the thesis on Repetitive Theme n.º 0005, signed by the Superior Labor Court (TST), according to which the recognition of unhealthy conditions, for the purposes of perceiving the additional provided for in article 192 of the CLT, does not dispense with the framework of activity or operation in the list prepared by the Ministry of Labor, or the finding of extrapolation of established tolerance levels for harmful agents expressly listed in the official table.

In the action filed in May 2022, the claimant requested the payment of unhealthy work additional for the entire period worked at the maximum level. Based on the expertise, substitute judge Larissa de Souza Carril, from the 10th Labor Court of Manaus, upheld the requests in part, condemning the defendant to pay the additional 20% for unhealthy work throughout the contractual period (2/15/2018 to 9/3/2021), calculated on the evolution of the minimum wage and with effects on 13th salary, vacations and FGTS. The calculations will be carried out after the decision becomes final.

*With advisory information

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