The decision issued by the Federal Supreme Court (STF) in Extraordinary Appeal No. 1,520,468 (Topic 1,370 of general repercussion) established a binding understanding on the mandatory economic protection of all women removed from work due to domestic or family violence. The STF recognized that the protective measures provided for in Law No. 11,340/2006 (the Maria da Penha Law) also produce effects in the labor and social security spheres, in order to ensure the effectiveness of the court-ordered leave.
As stated in the leading opinion, “maintaining remuneration, in this context, is a logical consequence and a guarantee of the effectiveness of the leave”, since the situation arises from facts beyond the worker’s control and compromises her physical and psychological integrity. For social protection purposes, the STF equated such leave with an “accident of any nature”, authorizing social security coverage.
Where the woman is insured under the General Social Security System (RGPS), it was established that the employer will be responsible for paying the first 15 days of leave, with the National Social Security Institute (INSS) covering the subsequent period, regardless of any minimum contribution period.
The Court also recognized the jurisdiction of the state criminal court to order the protective measure of a financial nature, even if its material fulfillment involves the employer or the INSS, and this understanding must be followed by all levels of the Judiciary.
Failure to comply with the protective measure, in addition to constituting the crime of disobedience (art. 330 of the Criminal Code), may, specifically in the labor sphere, lead to an order to pay the amounts owed for the period set by the decision (15 days) plus interest and monetary adjustment, recognition of moral damages — especially if the non-payment jeopardizes the livelihood of a worker in a judicially recognized situation of vulnerability — and possibly the characterization of constructive dismissal, if the conduct makes the continuation of the employment relationship unfeasible.
