Legislação veta gestantes em locais de trabalho insalubres

Legislação veta gestantes em locais de trabalho insalubres

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O advogado especializado na área trabalhista, Agostinho Zechin Pereira, prevê dificuldades para empresas com 100% de áreas com más condições

Segundo a lei, funcionária grávida será afastada e exercerá a sua atividade em espaço que seja salubre.

Campinas – A Consolidação das Leis do Trabalho (CLT) tem previsão específica para a proteção à maternidade, mas a nova Lei de Gestantes e Lactantes 13.287, publicada em 12 de maio de 2016, vai além, ao proibir a gestante ou lactante em atividades ou locais insalubres.

A insalubridade é constituída por todo agente físico, químico ou biológico que pode causar danos à saúde do trabalhador. Essa nova lei veda à empregada gestante ou lactante de exercer algum tipo de atividade em locais desse tipo. Se uma empresa tem algum tipo de setor que seja considerado insalubre e nesse local preste serviço uma empregada grávida ou que esteja amamentando, ela não poderá trabalhar nesse local. Segundo essa lei, a empregada terá que ser afastada e passar a exercer a sua atividade em um local que seja salubre.

O advogado especializado na área trabalhista e sócio do escritório Lemos e Associados de Campinas, Agostinho Zechin Pereira, prevê dificuldades para empresas com 100% de locais de trabalho insalubre. “O espírito da lei é que ela seja deslocada. Imaginemos que em uma empresa uma funcionária gestante ou lactante trabalhe em um setor que tenha muito ruído e isso é um agente insalubre. Ela não pode trabalhar nesse setor, que tem ruído, então a empresa terá que deslocar essa funcionária para um outro setor que seja saudável. Isso pode acontecer se a empresa tiver locais salubres. Se for o caso de uma empresa onde 100% das instalações são insalubres, não há a saída para essa situação, segundo a lei. A partir daí vão se criar situações jurídicas. Na minha avaliação, num caso desses, a empresa não terá outra alternativa a não ser colocar a funcionária em casa e continuar a pagar o salário. Demitir não se pode, pois a mulher tem estabilidade de cinco meses após o parto”, avalia.

A nova lei reforça que a empregada gestante ou lactante, afastada de suas atividades originais, pare de receber o adicional de insalubridade, durante esse período.

A CLT já tem um dispositivo, o artigo 194, informando sobre o direito ao adicional de insalubridade, que cessará com a eliminação do risco.

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“Se a empregada não estiver exercendo a sua atividade em local insalubre, ela não deve mais receber esse adicional de insalubridade, enquanto estiver afastada do ambiente insalubre”, reforça Agostinho.

Lei é omissa

O advogado Agostinho Zechin Pereira destaca que a lei é omissa com relação à troca de função, como por exemplo, se a funcionária trabalha em uma câmara fria e durante esse período passa a ser telefonista.

“A lei não diz que pode ou que não pode. A única coisa que a lei diz é que a empregada deve exercer as suas atividades em local salubre. Isso já nos traz o raciocínio que ela não deve ser afastada e ficar em licença remunerada. A lei em momento algum fala isso.

Muito pelo contrário”, diz o advogado. Ele acescenta que “a lei fala que a empregada deve continuar exercendo a sua atividade, contudo em local salubre. No caso de trabalhar em uma câmara fria, ela terá que mudar de função. Entendo que ela poderá exercer outra função, desde que seja compatível com a que vinha exercendo anteriormente. A empregada não poderá ser colocada em um cargo muito inferior ao que exercia, que seria considerado uma redução funcional hierárquica, o que poderia gerar, segundo alguns, uma indenização por dano moral”, explica. No caso do setor de saúde, estudos oficiais comprovam que 90% dos profissionais que exercem atividade de enfermagem são formados por mulheres.

“Dessa forma, em um hospital com 100 profissionais de enfermagem, cerca de 90 são mulheres. Se 10% desse número for de gestantes ou lactantes, o hospital poderá ter problemas. Imagine hoje uma empresa seja ela qual for ficar sem 10 pessoas? Com certeza teremos outras situações que podem caracterizar insalubridade, como exposição ao ruído ou a poeira ou ao calor ou frio excessivos”, diz.

O advogado acredita que muitas empresas não tem conhecimento dessa nova lei. Com relação ao período de amamentação Agostinho Pereira diz que é outra questão a ser analisada. “O objetivo dessa lei não foi colocar limites para o período de amamentação. Até porque esse período tem que ser definido caso a caso, inclusive levando-se em conta a necessidade do período de amamentação de cada criança. Provavelmente essa questão deverá ser definida mediante uma declaração médica, que comprove o período necessário de amamentação”, finaliza.

Fonte: Fenacon
Data: 29 de julho de 2016
Acesso em: 29 de julho de 2016

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