Ordinance No. 453, of June 1, 1998, of the Ministry of Health, which deals with the basic guidelines for radiological protection in medical and dental radiodiagnosis, provides for the use of diagnostic x-rays throughout the national territory and makes other provisions, no provides for the compulsory removal of pregnant employees.
In this sense, the pregnant woman can, in theory, work normally, provided that the provisions of item 2.13 of the aforementioned Ordinance are observed:
b) For pregnant women, the following additional requirements must be observed in order to protect the embryo or foetus:
(i) the pregnancy must be notified to the service holder as soon as it is discovered;
(ii) working conditions must be reviewed to ensure that the dose to the surface of the abdomen does not exceed 2 mSv throughout the remainder of the pregnancy, making it unlikely that the additional dose to the embryo or fetus will exceed about 1 mSv in this period.
Item 32.4.4 of Regulatory Standard 32 (NR32), which deals with safety and health at work in health services, provides that “all workers with confirmed pregnancy must be removed from activities with ionizing radiation, and must be reassigned to an activity compatible with their level of education”.
In view of the small dose of radiation allowed by the Ministry of Health, aiming to fully protect the health of the pregnant woman and the fetus, and also, in view of the notorious paternalism of the Labor Court, it is still recommended that the employee be removed from her current role until express and proven release by the competent physician (all of this, of course, if their function is linked to the core activity of the clinic).
The law guarantees pregnant employees the right to change jobs without prejudice to their remuneration (CLT, Article 392, § 4, I).
In the same sense, article 468 of the CLT provides for the immutability of the employment contract, whereby the initially contracted clauses cannot be changed[1].
Thus, due to the principle of salary irreducibility, especially in the case of a stable pregnant woman, and in view of the already mentioned protectionism existing in the Labor Court, it is prudent that the remuneration of the pregnant employee eventually removed from her initial function is fully maintained - including the additional ones inherent to the remuneration.
Alan Skorkowski
CBR legal advice
[1] In case No. 00200-2014-004-09-00-2, by way of illustration, the TRT-9 expressed its understanding in the following sense: “Women who perform a risk function and are transferred during pregnancy must continue to receive additional unhealthy conditions, because they have the right to retain their labor rights”.