Luara Zanfolin Frasson de Rezende
Lawyer at Marcos Martins Advogados Associados
Legal and social security limbo occurs when a worker who has been taken off work by the INSS starts to receive sickness benefit and, after the period for receiving this benefit has expired, the employer finds, via a common medical procedure, that the employee is still unable to work and that the discharge granted by the INSS contrasts with his condition as a sick person.
Cases like this are increasingly common, causing a major issue in the labor and social security areas, as there is no specific legislation on the subject to define the company’s responsibilities towards this worker.
Companies are left wondering whether or not they should take on an employee who has not been considered fully fit to work and who has not been granted a new extension of the benefit because the social security authorities believe that he or she is in perfect working condition.
So what is the employer’s responsibility in this matter? Should they order the employee to return immediately? Does he have to guarantee his salary during the period of discussion? Does it have to file a lawsuit against the INSS in order to seek a review of the decision?
The Labor Courts have held that the employer is responsible for the employee when the social security agency considers him fit to return to his activities, and that the employer is responsible for paying his wages even if he does not actually return to his previous activities. This is because, with the medical discharge, the contractual suspension ceases, i.e. the contract takes effect again, and the employee, on his return, has the right to perform the same job or be retrained:
LABOR SOCIAL SECURITY LEGAL LIMBO. EMPLOYER’S LIABILITY FOR WAGES AND OTHER BENEFITS ARISING FROM THE EMPLOYMENT RELATIONSHIP. After the medical discharge from the INSS, the suspension of the employment contract ceases to exist, and the contract in question returns to produce all its effects. If the employer prevents the employee from returning to work, this situation should be seen as if the employee was at the company’s disposal awaiting orders, where the working time should be counted and the wages and other benefits arising from the employment relationship paid by the employer, under the terms of art. 4 of the CLT, unless there is a deliberate and unjustified refusal by the employee to take up the services. (TRT-2 – RO: 7152120125020 SP 00007152120125020461 A28, Rapporteur: MAURILIO DE PAIVA DIAS, Date of Judgment: 17/09/2013, 5th COURT, Date of Publication: 24/09/2013)
ORDINARY APPEAL. SICKNESS BENEFIT. SUSPENSION OF EMPLOYMENT CONTRACT. DISCHARGE BY THE SOCIAL SECURITY AGENCY. NEW MEDICAL LEAVE DETERMINED BY THE COMPANY. -SOCIAL SECURITY LEGAL WORK LIMIT. PAYMENT OF WAGES DUE. 1) The employer is responsible for the payment of wages for the period in which the employee is not on social security assistance and is taken off work on the recommendation of the company’s own doctor, and the employer should appeal against the INSS decision granting medical discharge for the purpose of compensation, rather than leaving the worker without any means of subsistence in the face of an undefined situation in relation to his employment contract. 2) Defendant’s ordinary appeal dismissed. (TRT-1 – RO: 4033720125010020 RJ , Rapporteur: Jose da Fonseca Martins Junior, Date of Judgment: 21/05/2013, Ninth Panel, Date of Publication: 03-06-2013)
INCAPACITY TO WORK. RSI/WMSD. EMPLOYEE DEEMED FIT BY INSS AND UNFIT BY COMPANY DOCTOR. NON-RECEIPT OF SALARY OR SOCIAL SECURITY BENEFIT. DIGNITY OF THE HUMAN PERSON. ART. 1º, III E IV C/C ART. 170 OF THE FEDERAL CONSTITUTION. MORAL AND MATERIAL DAMAGE. SUBJECTIVE LIABILITY OF THE EMPLOYER. VOLUNTARY OMISSION. PROOF. DEFERRED. It should not be forgotten that the basic foundation of the Federative Republic of Brazil is the dignity of the human person and the social values of work (art. 1, items III and IV of the FC). In addition, valuing human labor, on which the economic order is founded, is intended to ensure a dignified existence for all, in accordance with the dictates of social justice (art. 170 of the Federal Constitution). In this case, the unlawful act and the defendant’s guilt for moral and material damage stem from the voluntary omission in not returning the claimant to a job compatible with her working capacity, paying her wages while the social security benefit was denied and, furthermore, in not issuing a new CAT, seeking reinstatement of the accident sickness benefit from the competent body. Thus, the causal link between the unlawful omission of the defendant company and the immaterial and material damage suffered by the plaintiff is evident, as there is no doubt that – taking into account the perception of the average man – in the situation of total helplessness experienced by the plaintiff, who spent ten months without receiving social security aid, because she was considered fit to work by the INSS, and without receiving her wages, because the company did not accept her return to work, without having any way of providing for herself and her family and in the face of the vagueness of the situation narrated; the personal pain, intimate suffering, psychological distress and embarrassment are obvious. (TRT-14 – RO: 68220084011400 RO 00682.2008.401.14.00, Rapporteur: CONVOCATED FEDERAL LABOR JUDGE SHIKOU SADAHIRO, Date of Judgement: 26/08/2009, FIRST COURT, Date of Publication: DETRT14 n.0160, 28/08/2009)
It is important to mention that the medical discharge is an administrative act with a presumption of legitimacy and veracity, and it is the employer’s burden to disprove these characteristics at the administrative level or in a proper action against the social security authority.
Thus, if the employer’s occupational physician finds that the employee is unable to return to work, he must inform the company of his conclusion and the company, in turn, must file an appeal or accident lawsuit against the INSS. In addition, if it is impossible for the employee to return to work, they must be given paid leave until the issue is resolved, so that the weaker side of the contractual relationship, i.e. the employee, is always honored.
These procedures are essential to avoid any deterioration in the employee’s health, as well as major problems for the company, insofar as ordering the worker to carry out their normal activities without being fit could lead to the employer’s duty to compensate them, since the company would be contributing to the worsening of the illness (concausa modality).
