Burnout and the legal impact on employment relationships in Brazil

Rodrigo Seizo Takano
Machado, Meyer, Sendacz e Opice Advogados, São Paulo
rtakano@machadomeyer.com.br

Murilo Caldeira Germiniani
Machado, Meyer, Sendacz e Opice Advogados, São Paulo
mgerminiani@machadomeyer.com.br

Ana Júlia Sales Aragão Bunduki
Machado, Meyer, Sendacz e Opice Advogados, São Paulo
abunduki@machadomeyer.com.br

Introduction

According to research conducted by the International Stress Management Association in Brazil (ISMA-BR)[1], 30 per cent of Brazilian workers suffer from burnout. This makes Brazil the second country in the world with the most cases of burnout, with Japan being the first.[2]

As defined by the Brazilian Ministry of Health[3], burnout is an emotional disorder resulting from exhausting work situations that demand a lot of competitiveness or responsibility.

Burnout can cause psychological symptoms, such as feelings of failure, incompetence, and insecurity, and physical problems, such as high blood pressure and frequent headaches.

The medical perspective

Until December 2021, burnout was considered by the World Health Organization (WHO) to be a psychological diagnosis. As of 1 January 2022, with the publication of the 11th Revision of the International Classification of Diseases (ICD-11) by the WHO, burnout has been classified as ‘a syndrome conceptualized as resulting from chronic workplace stress that has not been successfully managed’ and ‘refers specifically to phenomena in the occupational context and should not be applied to describe experiences in other areas of life’. According to ICD-11, burnout is characterised by three dimensions: (1) feelings of energy depletion or exhaustion; (2) increased mental distance from one’s job, or feelings of negativism or cynicism related to one’s job; and (3) reduced professional efficacy.

Based on the definition by the WHO, burnout is thus classified as an occupational phenomenon.

In Brazil, employment laws establish that occupational diseases are considered as work-related accidents. In this context, how should employers address burnout cases in Brazil?

If a specialist medical professional, such as a psychiatrist or a psychologist, after medical analysis of the employee, issues a diagnosis that the patient is suffering from burnout and the employee delivers that finding to the company, the employer should request that the employee is submitted for clinical analysis by the company’s occupational health physician to confirm the diagnosis.

This is so because, in order for the burnout syndrome to be characterised, the psychological symptoms must be related to the specific working conditions, either due to harassment by his/her managers or work colleagues, or due to excessive working hours and/or other workplace-related issues. There must be a clear connection between the employee’s symptoms and the workplace (eg, work overload, moral harassment, etc.), in order for the diagnosis to be classified as burnout. The mere existence of symptoms without a connection between the individual’s symptoms and their employment is not enough to define burnout, since other health conditions may be causing the symptoms.

The legal obligations

If the company’s occupational health physician assesses that the employee is not suffering from burnout, he/she should issue a medical certificate in this regard. According to Article 6, paragraph 2 of Law No 605/1949, the certificate issued by the company's occupational health physician prevails over the medical certificate issued by a private physician. Thus, in this case, the company would not be legally required to accept the burnout diagnosis.

If the company’s occupational health physician, however, confirms that the employee is suffering from burnout, the company must report it to the Brazil’s Ministry of Social Security by the first working day following the diagnosis by the occupational physician (Article 22 of Law 8213/1991), through the issuance of a specific form called the work accident report (CAT).In this context, in a situation where it is recognised that the employee is suffering from a work-related disease, although the employer will not be required to pay the employee’s salary after 15 days of leave (which occurs in the case of sick leave), the company is obliged to continue making deposits into the Severance Guarantee Fund (FGTS) while the employee is on leave (for regular sick leave FGTS deposits are not due).

In addition to this, reporting occupational illnesses to the Ministry of Social Security directly impacts the company’s social security contributions relating to payroll, as the higher the number of occupational illnesses suffered by the company’s employees, the higher the amount due that the company must collect as its social security contribution.

In this case, upon return to work, the employee will be entitled to a guaranteed 12 months of employment following the date in which the employee is considered ‘able to work’, which restricts the possibility of him/her being dismissed without cause.

Finally, from a judicial perspective, in the case of a work-related disease being diagnosed, the employee is also able to file a labour lawsuit to claim compensation for moral and/or material damages, such as medical expenses, caused by the burnout and the employer could be deemed liable for such payment.

Conclusion

In this context, in order to prevent burnout cases among their employees, with all the consequences mentioned above, companies should reassess their practices to adopt measures aimed at creating a healthy working environment.

Companies should stimulate employees to re-evaluate their lifestyle and psychological conditions, incentivising them to look for help whenever necessary. The WHO also lists preventive measures that could be adopted by companies in this context, such as providing training, creating support groups, as well as providing consultations for employees who are facing job stress, encouraging regular breaks, and adopting flexible schedules.[4]

The increase in burnout cases, together with its consequences for companies in Brazil, highlights that every employer should rethink ways to create a healthy workplace, free from any form of harassment, discrimination, poor employment conditions and excessive workloads.