Following up on our series on the Infralegal Labor Regulatory Framework, we will discuss in this article its impacts on the Certificate of Approval of Personal Protective Equipment (PPE), in accordance with the provisions of Art. 167 of the Consolidation of Labor Laws.

According to the Regulatory Standard No. 6, Personal Protective Equipment shall be considered as any device or product, for individual use used by the worker, intended to protect risks that may threaten safety and health at work.

Companies are legally obliged to provide employees free of charge with the risk-appropriate PPE, in perfect condition and operation, in the following circumstances:

  • where general measures do not offer complete protection against the risks of accidents at work or occupational and occupational diseases;
  • While collective protection measures are being implemented; and
  • To respond to emergencies.

Article 167 of the CLT[1] determines that the PPE can only be put on sale or used with the indication of the Certificate of Approval of the Ministry of Labor. By changing the device, the Decree 10,854/21 determines that, for the commercialization of PPE, the certificate must be requested exclusively by the manufacturer or importer and issued through a simplified electronic system by the Labor Secretariat of the Ministry of Labor and Social Security.

Through the Ordinance 672/21, the Minister of Labor and Social Security disciplined the necessary criteria for the issuance, renewal and alteration of the Certificate of Approval by the manufacturer or importer, and the technical requirements stipulated in Annexes I, II and III of the ordinance must be observed.

The standard expanded the responsibility of the manufacturer and importer, who responds technically, civilly and criminally to THE EPIs. In no event will this responsibility be transferred to the Ministry of Labor and Social Security, even if the Approval Office has been duly issued by the agency.

Although the company that acquires the effective PPE, as attested by the Certificate of Approval, has some legal certainty regarding the product, in case of possible ineffectiveness or irregularity of the PPE, it will be held accountable to the Labor Court for the consequences suffered by the employee, since the standard is expressed by removing the responsibility of the issuing body of the Certificate of Approval. Thus, the mere issuance of the certificate does not guarantee the full effectiveness and validity of the PPE. However, the liability of the employer acquiring the PPE to the Labor Court does not rule out any civil action of return in the face of the manufacturer or importer.

If the manufacturer or importer submits false declarations or documents for the issue of the certificate, it shall be subject to:

  • imprisonment of two to six years and fine in case of falsification or alteration of public document;
  • imprisonment from one to five years and fine in case of falsification or alteration of a private document; or
  • imprisonment from one to five years and fine (if the document is public) or imprisonment from one to three years and fine, from five hundred thousand réis to five contos de réis (if the document is private), in case of omission or insertion of false or different statement that should be written, in order to prejudice right, create an obligation or change the truth about a legally relevant fact. Currently the fine is fixed in the sentence and calculated in fine days according to the economic situation of the defendant. The amount is at least ten to a maximum of 360 days-fine, and may not be less than one thirty of the monthly minimum wage in force at the time of the fact, nor more than five times that salary. Thus, considering the minimum wage of R$ 1,045.00, the fine ranges from R$ 34.83 to R$ 5,225.00.

The ordinance expressly determined that the analysis of the request for issuance of the certificate be made by the Labor Secretariat of the Ministry of Labor and Social Security, and no longer by Inmetro, through the General Coordination of Safety and Health at Work of the Subsecretariat of Labor Inspection of the Labor Secretariat. To this end, the test report issued by a national laboratory accredited by Inmetro to prove the effectiveness of ppe protection will be verified.

A test report has been allowed abroad, provided that the certifying body of the issuing country is accredited by a multilateral recognition agreement signatory body and that the test report is issued by a foreign laboratory also accredited by a multilateral recognition agreement signatory body provided for in the standard.

Thus, Brazilian companies are allowed to import any PPE, but the analysis and verification of the equipment will not be done by the Ministry of Labor and Social Security, which may eventually affect the quality and effectiveness of the product and, in a way, reduce the safety of the acquiring company.

The validity period of the PPE Certificate of Approval shall be five years from its date of issue if the test report has been issued less than one year ago, or from the date of the test report, if it is longer than one year.

The newly published ordinance also integrated the regulation of the Respiratory Protection Program – Recommendations, Selection and Use of Respirators to the measures to be observed for the use of respiratory protection equipment.

The standard unified and organized procedures, programs and conditions of safety and health at work, in addition to the infralegal standards for issuing the CERTIFICATE OF APPROVAL OF PPE, which should be made through a single system totally electronic, which makes the process and the supervision of the validity of the PPE more accessible and agile.

Once the criteria stipulated and observed the technical requirements provided for in Ordinance 672/2021, with an assessment of the impacts according to the needs of each company, will be possible to guarantee greater legal certainty and avoid penalties for the provision of PPE not validated by the labor authorities.

All changes in the obligations related to the issuance of the CERTIFICATE OF APPROVAL OF PPE become effective on December 11 of this year, 30 days after the publication of Decree 10.854/21.

In the coming weeks, we will continue to publish articles to explore, in a simple and practical way, the main changes brought by the decree, ordinances and normative instructions, clarifying the main impacts for companies.

Click here to read the other articles in the series.

 

[1] Art. 167, CLT – Protective equipment may only be put up for sale or used with the indication of the Certificate of Approval of the Ministry of Labor.