Priscilla Folgosi Castanha
Lawyer at Marcos Martins Advogados
On August 24, 2018, the Second Section of the Superior Court of Justice (STJ), in the judgment of repetitive special appeals (REsp¹ 1680318/SP and REsp² 1708104/SP), established the following thesis (Theme 989):
In collective health plans funded exclusively by the employer, there is no right for the former employee who has retired or been dismissed without just cause to remain as a beneficiary, unless otherwise expressly provided for in the contract or in an employment agreement/convention, and the payment of only a coparticipation does not characterize a contribution, nor does it qualify as an indirect salary.
In other words, the payment of a co-payment does not constitute a contribution, nor does the provision of medical services by the employer, directly or through a health insurance provider, constitute an indirect salary.
The judge was Justice Villas Bôas Cueva, who, based on articles 30 and 31 of Law 9.656/98, pointed out that workers who have been dismissed without just cause or who have retired and who have contributed to the health plan are guaranteed the right to remain as a beneficiary, under the same conditions of healthcare coverage as during the period in which the employment contract was in force, as long as they assume full payment of the plan.
He also outlined that the co-participation does not constitute a contribution, which should be understood as payment of a monthly fee, regardless of the use of the health plan.
However, he considered that, in the event that the employee is included in another private healthcare plan, with payment of a fixed periodic amount, offered by the employer to replace the one originally made available without his participation, the rights of permanence provided for in Law 9.656/98 will apply.
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¹STJ; Special Appeal No. 1.680.318 – SP (2017/0146777-1). Reporting Justice Ricardo Villas Bôas Cueva. Second Section. Judgment Date: August 24, 2018.
²STJ; Special Appeal No. 1.708.104 – SP (2017/0267768-8). Rapporteur: Minister Ricardo Villas Bôas Cueva. Second Section. Judgment date: August 24, 2018.
