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Stability of the pregnant woman – All you need to know

08 de May de 2019

The greatest fear among women at the moment they discover they are pregnant is whether or not they are fired, whether they are stable and when it begins, and whether to tell the employer about the pregnancy as soon as it is discovered.

So it is important to know that pregnancy is not a disease, that is, it does not disqualify a woman from working, except when the function performed is in an unhealthy place or situations that pose a risk to her and / or her baby’s health.

Pregnancy brings with it constitutional stability, where it guarantees the pregnant employee her source of income during her gestational period and one after birth, thus protecting the mother and the child.

Therefore, we will clarify some points that most bring doubts about the subject, which are:

  • The employer can not demand pregnancy test at the time of hiring, however, to protect both parties, you can ask for the examination at the time of dismissal of the employee;
  • The stability of the pregnant woman, according to the text of the law, begins from the confirmation of the pregnancy, until 5 months after the birth. However, there is the understanding that stability occurs from conception, that is, from the first day of pregnancy;

  • This stability can be extended by collective agreement. For example, some categories extend stability up to 60 days after the end of maternity leave and even give stability to men 60 days after the birth of the child;

  • If the pregnant woman has been contracted through a fixed-term employment contract, she is guaranteed temporary stability;

  • Pregnant apprentice has the right to temporary stability, as it falls within the model of a fixed-term contract;

  • In situations where the pregnancy occurs during prior notice, having been worked or indemnified, the employee will have the right to stability, provided that she has been dismissed and not asked to resign;

  • In cases in which the pregnant woman quits, she will not have stability, because by resigning, she waives her right to the temporary guarantee of employment;

  • In situations of non-criminal abortion, the woman will be entitled to a 2-week paid rest. In the case of stillbirth, the employee is entitled to stability up to five months after giving birth;

  • If the employee was not aware of the pregnancy at the time of dismissal, it does not remove the responsibility of the employer for the payment of the stability indemnity;

  • The lack of knowledge about the pregnancy by the employee and / or the absence of communication to the employer does not exclude the provisional stability of the pregnant woman;

  • Although the law establishes stability for the pregnant woman, there are situations that allow the dismissal of the employee for just cause, which are:

a) act of improbity;

b) conduct incontinence or poor procedure;

c) habitual negotiation on his own account or on his own behalf without permission of the employer, and when it constitutes an act of competition to the company to which the employee works, or is harmful to the service;

d) criminal conviction of the employee, which is final and unappealable, if there has been no suspension of execution of the sentence;

e) depreciation in the performance of their functions;

f) habitual drunkenness or in service;

g) breach of company secrecy;

h) act of indiscipline or insubordination;

i) abandonment of employment;

j) act prejudicial to the honor or good reputation practiced in the service against any person, or physical offenses, under the same conditions, except in case of self-defense, own or others;

k) act prejudicial to the honor or good reputation or physical offenses committed against the employer and hierarchical superiors, except in case of self-defense, own or others;

l) constant practice of games of chance.

Legal Amparo: Art. 7º, I, XVIII, XXII, XXVI CRFB e art. 482 CLT

Dr. Athos Feitas Fernandes Souza – OAB/MG 176.707
Dr. Giovanni Bittencourt de Souza – OAB/MB 176.984