Adicional de insalubridade por agentes biológicos na perícia judicial: a necessidade do contato frente a exposição para sua efetiva caracterização – Estudo de caso em uma Vara do Trabalho na Cidade de Maceió (AL)

Abstract

When a regulation enters the legal system, it needs to have maximum clarity in order to avoid subjectivity giving rise to varied interpretations and the commision of injustices. In order to elucidate technical matters, the judiciary system turns to justice auxiliaries known as legal experts. These professionals are of utmost importance, since their work directly influence judicial decisions. Thus, the legal expert needs to base his or her work into rules and regulations that contain the least amount of subjectivity possible and hand the magistrate a technical report aligned with legal principles. The health risk bonus, a right established since the 1940s with the Consolidation of Labor Laws (CLT, in Portuguese), was implemented at the end of the 1970s with regulatory norms and started then to be given constitutionally to workers whose jobs and activities are considered insalubrious. This institution of the health risk bonus was created with the intention of compeling the Brazilian business community to strive for better work environment and conditions, making it possible to end the obligation to pay the bonus as they reach this goal. Safe work environments are one of the directives of the United Nations Sustainable Development goals for 2030. The right to the bonus is occasionally not recognized by the employer, and the worker, believing that they have it, demand a compensation instalment in Labor Court. This paper follows the annex 14 in the Regulatory Norm n. 15 (NR-15), that explains about insalubrious activities when in contact with biological hazards, and that, frequently, workers when exposed to those agents, request this mentioned bonus in the justice court. We made a comparative multiple case study with four lawsuits judged in the city of Maceió, State of Alagoas, and distributed to the second labor court. The job of the workers were: driver of an urban garbage truck, receptionist in a private hospital, stockroom auxiliary in a philanthropic hospital and administrative auxiliary, also in a philanthropic hospital. The research, based on technical literature, articles and case law, concluded that the annex 14 in the NR-15 does not cover situations in which workers are exposed to biological agents, but rather in contact. As an intervention suggestion, this paper proposes the annex 14 of the NR-15 to be revisited by the legislator in order to be reformed and include the minimal degree of insalubrious exposure, which currently does not exist, for situations of exposure to biological agents taking into consideration that the respiratory tract is also an important manner of contamination of workers. We also suggest that, in the absence of the legislator, the judiciary should settle the understanding whether the annex is applicable in cases of exposure, since there is a divergence in the understanding of law operators and legal experts concerning the issue.