Practical issues during temporary disability (IT)

Since always temporary disability of the worker entails a series of implications regarding the employment relationship that underlies between the company and the worker. The fact of being on medical leave is a cause for suspension of the employment contract, and in turn, generates the right to a benefit. Let's see what a medical leave affects.

Regarding the trial period

He article 14 of the Workers' Statute (ET) It says that situations of temporary disability interrupt the trial period, as long as it is stated in the employment contract. Therefore, it is important to include a clause that stipulates this, since, otherwise, the trial period will not be stopped during the IT.

Regarding vacations

Likewise, the article 38.3 of the ET regulates how vacations should be enjoyed when they coincide in time with pregnancy, childbirth or a period of suspension of article 48 of the ET. For cases other than the above, the ET temporarily qualifies this enjoyment - at another time - as long as no more than 18 months have passed from the end of the year in which they originated.

Regarding the provision

Temporary disability is another Social Security benefit, with the particularity that usually It is managed through companies. They are the ones who pay these benefits to people on medical leave, and subsequently deduct said amount from social insurance. This mechanism is what is called delegated payment modality.

Regarding the replacement contract

While a person is in a situation of Temporary Disability, the contract that the company must use to replace them is the replacement contract (previously called interim contract). In such a way that when the person who is on sick leave receives medical discharge, all the rights and duties they previously had will continue to be respected and maintained.

Regarding deadlines

Temporary disability has a maximum period of 365 days, extendable for another 180 days, a total of 545 days. During these periods:

• The first three days are not paid, unless there is an improvement in the collective agreement.
• From the 4th day to the 15th day of the leave, the company will be responsible for the 60% of the regulatory base.
• From the 16th day to the 20th day of the withdrawal, it is the responsibility of the mutual insurance company or the INSS at 60% of the regulatory base.
• From the 21st day of the withdrawal onwards, 75% of the regulatory base is the responsibility of the mutual insurance company or the INSS.
• After 365 days of withdrawal, the benefit becomes direct payment, so the mutual insurance company will pay the corresponding amount.
• As of 545 days after the withdrawal, the company will stop contributing to social security, processing the corresponding withdrawal in the online system. This does not mean that the person is fired. Your medical leave record continues, and in the event that a medical discharge is processed, the company has the obligation to re-register you in the same position.

Challenge of medical discharge less than 365 days

In the event that the worker is medically discharged by the INSS, the person may express his or her disagreement with the medical inspection of the Public Health Service within four calendar days.

If the SPS disagrees with the criteria of the managing entity, the SPS, within a period of 7 calendar days, will have the power to propose reconsideration of its decision.

If the medical inspection confirms the decision or does not issue a ruling within the eleven calendar days following the date of the resolution, the aforementioned medical discharge will acquire full effect. During the period of time elapsed between the date of medical discharge and the date on which it takes full effect, the situation of temporary disability will be considered extended.

News: Medical Parts

From April 1, 2023, during the first 365 days of the Temporary Disability processes, only one copy of the medical report of sick leave, confirmation or discharge will be delivered to the worker, eliminating the second copy and the obligation of the worker to deliver it to the company, managing entity or mutual fund.

Dismissal during medical leave

In general terms we can affirm the following: whenever the contract is suspended, the company's disciplinary regime could apply. Therefore, those people who carry out activities incompatible with their IT situation, theft or fraud in the workplace where they provide services, etc. could be grounds for disciplinary dismissal even while on medical leave.

Until the publication of the Law 15/2022, of July 12, 2022, had been achieved some legal certainty regarding how we should interpret the dismissal of a person in a situation of temporary disability. The illness itself did not fall within the grounds of discrimination (STS of May 31, 2022) unless the indications established by the CJEU existed: long-term medical leave or serious illnesses. In this case, the disease is equivalent to disability.

Since the publication of Law 15/2022, we return to the uncertainty (not only theoretical, but also practical - sentences handed down -) as to whether the dismissals of workers in a situation of temporary disability are void, or in any case, inadmissible.

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