CAN AN employee ON SICK LEAVE BE DISMISSED?
Written by Josep Conesa
Employment and insolvency lawyer
CAUSES OF TEMPORARY
DISABILITY (IT) SICK LEAVE
There are many reasons that can give rise to temporary disability (IT) in an employee. According to studies conducted in Spain, the leading cause of temporary disability (IT) sick leave is musculoskeletal disorders, followed by depression. Over the next ten years, depression is projected to become the primary reason for workplace sick leave.
temporary disability (IT) covers situations in which workers are temporarily unable to work due to a common or occupational illness, or an accident — whether work-related or not — while receiving healthcare from Social Security, as well as observation periods for occupational illness during which the worker has been signed off work.
Requirements for taking sick leave
The requirements that must be met are as follows:
1.- The employee must be registered with and contributing to Social Security, or in a situation treated as equivalent to active registration (receiving contributory unemployment benefit, posted abroad in the service of a Spanish company, or on legal strike or employer lockout).
2.- The employee must have completed a minimum contribution period of 180 days within the five years prior to the triggering event, in cases of common illness. For accidents, whether work-related or not, and occupational illness, no prior contribution period is required.
The amount of the subsidy for temporary disability (IT) depends on the regulatory base and the cause of the incapacity:
· For common illness or non-work-related accident: 60% of the regulatory base from the fourth to the twentieth day, and 75% from the twenty-first day onwards.
· For occupational illness and work-related accident: 75% of the regulatory base from the day following the start of sick leave.
How long does sick leave last?
The maximum duration of the subsidy is 12 months, extendable by a further 6 months where it is anticipated that the employee may be medically discharged as recovered during that period. Once this timeframe has elapsed, the condition of the incapacitated individual will be assessed over a maximum period of 3 months with a view to classifying them, at the appropriate level, as permanently disabled.
During temporary disability (IT), the employment contract is suspended; however, a number of obligations remain in force, for both the employer and the employee.
The employer is responsible for paying the subsidy: they pay it directly between the fourth and fifteenth days, and thereafter as a delegated payment — though the actual cost is borne by the Mutual Insurance Entity or Managing Body — along with Social Security contributions and Personal Income Tax (IRPF) withholding at source, as well as the obligation to hold the employee's position open and to count the period of temporary disability (IT) towards length of service, among other duties.
If the employee was not registered with Social Security at the time the illness or accident occurred, the employer will be liable for all benefit payments. The company must verify the information recorded by the medical practitioner on the sick leave, confirmation, and return-to-work certificates, correcting any errors. In addition, it must provide the contribution data relating to the employee on temporary disability (IT), for the purposes of calculating the regulatory base of their benefit.
Employee obligations during sick leave
During temporary disability (IT), the employee must:
· Submit the initial sickness certificate, any confirmation certificates, and the discharge certificate to the employer
· Comply with the prescribed treatment
· Attend any medical examinations requested by the employer or the managing body as a means of verifying the illness or accident reported by the employee
· Repay any benefits received to which they were not entitled
· Continue to fulfil any other contractual obligations that remain in force, including the duty to act in good faith
The right to the subsidy may be refused, cancelled or suspended: where the beneficiary has acted fraudulently to obtain the benefit, where the beneficiary takes up employed or self-employed work, or where the beneficiary refuses or abandons medical treatment without reasonable justification.
Infringements are classified as follows:
· A minor infringement consists of failing to fulfil the employee's information obligations towards the employer in these matters. The penalty is loss of benefit for 1 month
· A serious infringement consists of carrying out employed or self-employed work while receiving temporary disability (IT) benefit, where this is legally or regulatorily incompatible, as well as failing to attend, without justified cause, medical examinations ordered by the Managing Body
· A very serious infringement consists of actions aimed at fraudulently obtaining Social Security benefits, or unduly prolonging their receipt through the submission of false documents or collusion with the employer to obtain benefits unlawfully. The penalty is loss of benefit for a period of 6 months; all of this is without prejudice to the obligation to repay any amounts unduly received.
Circumstances in which sick leave TERMINATES:
The right to the subsidy will cease:
· upon expiry of the maximum period established for the temporary disability (IT) situation in question;
· upon the employee being discharged, with or without a declaration of permanent disability;
· upon the beneficiary being recognised as entitled to receive a retirement pension;
· upon death.
When a period of temporary disability (IT) comes to an end upon expiry of the maximum time limit, the individual's condition must be assessed within the following three months to determine whether they qualify for classification as permanently disabled, at the appropriate grade.
However, where ongoing medical treatment is required and the individual's clinical condition makes it advisable to delay that classification, it may be postponed for as long as necessary — provided that the total period does not exceed thirty months from the date on which the temporary disability (IT) commenced. No obligation to make Social Security contributions subsists during these periods.
Without prejudice to the above, where the temporary disability (IT) ends upon expiry of the maximum time limit or upon medical discharge with a declaration of permanent disability — as well as in cases where it is advisable to defer the disability classification — the effects of the temporary disability (IT) shall continue until the date on which the permanent disability is classified. From that date, the corresponding financial benefits shall begin, unless those benefits are higher than the payments the employee had been receiving, in which case they shall be backdated to the point at which the temporary disability (IT) was exhausted. No obligation to make Social Security contributions subsists during the extended period.
Employment lawyers for disability claims
If you need advice regarding an occupational disability — whether absolute or total for your usual profession — please visit our employment lawyers page.
