The unhealthy work premium, in the percentage of 40% (forty percent) on two minimum wages, is due to the Radiology Technician pursuant to the provisions of article 16 of Law nº 7.394/85.
This percentage is due even if the technician does not operate devices that emit ionizing radiation, such as magnetic resonance imaging, since Law No.
In fact, not being allowed the accumulation of premium for dangerous work and unhealthy work, and the worker must choose one of them, he must pay the one that is most beneficial to him.
Radiologists, since the specific norm does not guarantee them the unhealthy work premium, may be entitled to receive the premium for dangerous work, if exposed to dangerous agents.
The surcharge, if due, will be 30% on salary (CLT, article 193).
It is important to clarify that ionizing radiation or radioactive substances, currently, lead to the payment of additional dangerous work, and no longer unhealthy.
This was the understanding consolidated in a summary issued by the Superior Labor Court, in accordance with the guidelines set out by the Ministry of Labor: “Precedent 364 – Additional for hazardous work.
eventual, permanent and intermittent exposure.
(Conversion of Jurisprudential Guidelines Nos. 5, 258 and 280 of SDI-1 - Res. 129/2005, DJ 20.04.2005)
I – An employee who is permanently exposed or who, intermittently, is subject to risk conditions is entitled to the premium for dangerous work. Improper, only, when the contact happens in an occasional way, thus considered the fortuitous, or what, being usual, happens for an extremely short time. (former OJs n.º 05 – Inserted on 14.03.1994 and n.º 280 – DJ 11.08.2003).
II – The setting of the hazard pay premium, in a lower percentage than the legal percentage and proportional to the time of exposure to risk, must be respected, provided that it is agreed in collective agreements or conventions. (ex-OJ nº 258 – Inserted on 09.27.2002).
Law nº 8.213/91, which deals with Social Security Benefit Plans, provides for special retirement benefits for policyholders who have worked with exposure to harmful agents – ionizing radiation, for example – to their health for fifteen, twenty or twenty-five years.
Decree nº 3048/99, which approved the Social Security Regulation, provides for special retirement in its articles 64 and following: “Subsection IV Special Retirement Art. 64.
Special retirement, once the required grace period has been met, will be due to the insured person who has worked for fifteen, twenty or twenty-five years, as the case may be, subject to special conditions that may harm their health or physical integrity.
§ 1 The granting of special retirement will depend on proof by the insured person, before the National Institute of Social Security, of permanent work time, not occasional or intermittent, exercised under special conditions that harm health or physical integrity, during the minimum period established in the caput.
§ 2 The insured person must prove, in addition to working time, effective exposure to harmful chemical, physical, biological agents or association of agents harmful to health or physical integrity, for the period equivalent to that required for granting the benefit.
Art. 65. Working time, for the purposes of this Subsection, is considered to be the periods corresponding to the exercise of permanent and habitual activity (not occasional or intermittent), during the full day, in each employment relationship, subject to special conditions that harm health or physical integrity, including vacations, sick leave and sick pay resulting from the exercise of these activities.
Art. 66. For the insured person who has successively exercised two or more activities subject to special conditions harmful to health or physical integrity, without completing the minimum period required for special retirement in any of them, the respective periods will be added after conversion, according to the table below, considering the predominant activity:
TIME TO CONVERT MULTIPLIERS FOR 15 TO 20 TO 25 OF 15 YEARS – 1.33 1.67 OF 20 YEARS 0.75 – 1.25 OF 25 YEARS 0.60 0.80 –
Art. 67. The special retirement consists of a monthly income calculated in accordance with item V of the caput of art. 39. Art. 68. The list of harmful chemical, physical, biological agents or association of harmful agents to health or physical integrity, considered for purposes of granting special retirement, is included in Annex IV.
§ 1 Doubts about the classification of the agents referred to in the caput, for the purpose of the provisions of this Subsection, will be resolved by the Ministry of Labor and Employment and by the Ministry of Social Security and Assistance.
§ 2 Proof of the insured person's effective exposure to harmful agents shall be made using a form, as established by the National Institute of Social Security, issued by the company or its representative, based on a technical report on environmental conditions at work issued by an occupational physician or occupational safety engineer under the terms of labor legislation.
§ 3 The technical report referred to in the previous paragraph must contain information on the existence of collective or individual protection technology that reduces the intensity of the aggressive agent to tolerance limits and a recommendation on its adoption by the respective establishment.
§ 4 The company that does not keep an updated technical report with reference to harmful agents existing in the work environment of its workers or that issues a document proving effective exposure in disagreement with the respective report will be subject to the fine provided for in art. 283.
§ 5 For the purpose of granting the benefit referred to in this Subsection and observing the provisions of the previous paragraph, the medical expert of the National Institute of Social Security must analyze the form and the technical report referred to in §§ 2 and 3, as well as inspect the workplace of the insured person to confirm the information contained in said documents.
§ 6 The company must prepare and keep an updated professional profile covering the activities carried out by the worker and provide him, upon termination of the employment contract, with an authentic copy of this document, under penalty of the fine, provided for in art. 283.
§ 7 The Ministry of Social Security and Social Assistance will issue instructions defining parameters based on Regulatory Standard No. 7 (Occupational Health Medical Control Program), Regulatory Standard No. 9 (Environmental Risk Prevention Program) and Regulatory Standard No. 15 (Unhealthy Activities and Operations), approved by Ordinance/MTb No. 3,214, of June 8, 1998, for the purpose of accepting the technical report referred to §§ 2 and 3.
Art. 69. The start date of the special retirement will be fixed in accordance with the provisions of items I and II of art. 52. Sole paragraph. The provisions of art. 48 to the insured person who returns to the exercise of activities or operations that subject him to the harmful agents listed in Annex IV, or remains there.
Art. 70. The conversion of uptime under special conditions into ordinary uptime is prohibited. Single paragraph. Working time worked up to May 28, 1998, with effective exposure of the insured person to harmful chemical, physical, biological agents or association of agents under the terms of Annex IV, will be added, after the respective conversion, to the working time exercised in common activity, provided that the insured person has completed at least twenty percent of the time necessary to obtain the respective retirement, observing the following table: TIME TO CONVERT MULTIPLIERS MINIMUM TIME REQUIRED WOMAN (FOR 3) 0) MALE (FOR 35) 15 YEARS OLD 2.00 2.33 3 YEARS OLD 20 YEARS 1.50 1.75 4 YEARS OLD 25 YEARS 1.20 1.40 5 YEARS
In consultation with the social security legislation, it appears that there is Normative Instruction INSS/PRES No. 45, of August 6, 2010 – DOU of 08/11/2010, which, regarding the special retirement of workers who are exposed to ionizing radiation, determines as follows: “Art. 241.
Occupational exposure to ionizing radiation will give rise to special retirement when the tolerance limits established in Annex 5 of NR-15 of the MTE are exceeded. Single paragraph. When dealing with exposure to X-rays in radiology services, the methodology and evaluation procedures contained in NHO-05 of FUNDACENTRO must be obeyed; for the other cases, those contained in Resolution CNEN-NE-3.01”. In fact, Regulatory Norm 15, drawn up by the Ministry of Labor, provides for the following:
“IONIZING RADIATION (115.009-0/ I4). In activities or operations where workers may be exposed to ionizing radiation, the tolerance limits, principles, obligations and basic controls for the protection of man and his environment against possible undue effects caused by ionizing radiation, are those contained in Standard CNEN-NE-3.01: “Basic Guidelines for Radioprotection”, of July 1988, approved, on an experimental basis, by CNEN Resolution No. 12/88, or that which may replace it.” The CNEM-NE-3.01 standard establishes the maximum degrees allowed with regard to ionizing radiation.
Thus, the worker's right to special retirement will depend on a technical analysis of the degrees of radiation determined by the CNEM. According to the guidance on the Social Security website itself, “Proof of exposure to harmful agents will be made using a form called Profissiográfica Previdenciario Profile (PPP), filled out by the company or its representative, based on a Technical Report on Environmental Working Conditions (LTCAT) issued by an occupational physician or occupational safety engineer.
The Biomedical, duly qualified (course focused on radiological techniques), and always under the supervision of a Radiologist, can operate radiodiagnosis equipment to perform x-ray exams, mammography, bone densitometry, etc. The Biomedical workday is 8 (eight) hours a day. The law that regulates the profession does not establish a salary floor. Therefore, the salary can be freely negotiated, except for the existence of a collective bargaining agreement or collective bargaining agreement.
It is only important to designate different tasks related to the profession of biomedical professionals, so that they are not equated with radiology technicians who eventually work in the radiology sector.The doctor's workday is provided for in the Federal Constitution, 8 (eight) hours a day or 44 (forty-four) hours a week.
The terms of Law nº 3.999/61 allude to the minimum value for a day of 4 (four) hours a day, in the amount of 4 (four) minimum wages in the region.
Since that specific norm does not stipulate a minimum working day, it is lawful to hire doctors to work 8 (eight) hours a day, or 44 (forty-four) hours a week, subject to the provisions of any Collective Agreement applicable in the region of professional practice.
The doctor's base salary is 4 (four) minimum wages common in the region or sub-regions in which they practice the profession, under the terms of article 5 of Law nº 3.999/61. This wage floor is applicable to a workday of 4 (four) hours per day.
Considering that it is lawful to hire a doctor for the common working day — 8 (eight) hours a day and 44 (forty-four) hours a week, the minimum salary for that must be calculated proportionally.
It is suggested, however, that the contractor work with the Union of Physicians in the region to verify whether the collective norm ensures a more beneficial condition for the worker.