A long-term sick leave due to temporary disability usually occurs when, due to illness, accident or operation, the worker cannot carry out his or her usual work activity for a period of more than six months. During that time and up to 18 months, it is the company that must pay the benefit and maintain the worker registered with Social Security. However, when exceeded, these They can terminate the employee without firing him.
As the lawyer specializing in disabilities, Marina Alaminos, explains, this does not mean that the company has fired the worker while he is on sick leave. Something, let us remember, is prohibited as long as the cause of the termination of the contract is illness or medical leave. But, according to article 174 of the General Law of Social Security, the right to receive the subsidy is extinguished.
This means that the contract of the worker who is on sick leave is suspended, as explained by Social Security, so the company stops contributing for the employee. Likewise, after completing 545 days of sick leave due to temporary disability, the National Social Security Institute begins to evaluate the worker’s case and is responsible for deciding whether to extend it for a maximum of 6 months, give medical discharge or grant permanent disability.
Payment of the benefit becomes the responsibility of the INSS or the Mutual Fund
While making the decision, the worker does not lose the right to receive medical leave benefit. Simply, the company is no longer responsible for said payment and the responsibility passes to the INSS itself or to the Mutual Collaborator. Therefore, at the time when you receive the SMS at work informing you of your withdrawal from Social Security, what the lawyer recommends is “request direct payment” to the corresponding organization.
“It will correspond to one or the other depending on internal agreements that the companies have,” explains the lawyer. If you do not know which organization should be responsible for paying the benefit, what Alaminos recommends is to contact the mutual insurance company directly and ask if it is responsible and how payment should be requested. A procedure that It can be done with a simple form.
“If it is up to the mutual insurance company, they will tell you which form to present,” he assures, while if it is the INSS that must pay the benefit, the form must be presented. application through the Social Security telematic headquarters. You can also present the direct payment form for temporary disability at a Social Security Information and Attention Center (CAISS) or send it to the corresponding Provincial Directorate.
The amount will continue to be 75% of the regulatory base
The amount of said payment will continue to be the same as that received when the company was responsible, that is, 75% of the regulatory base, and will continue to receive it until the INSS makes a decision. In the event that the permanent disability file is denied, “You must contact the company to regularize your employment situation and evaluate reincorporation,” explains the lawyer.
While, if you decide to extend the withdrawal within a maximum period of 6 months, the INSS or the Mutual Fund will continue to be responsible for making the direct payment. This situation can be extended up to a maximum period of 24 months. Moment at which, if the worker has not recovered, the absolute maximum limit is reached and the entity must reassess whether to grant permanent disability or give a medical discharge.
However, as Marina Alaminos warns, “The INSS denies 80% of disabilities”. Therefore, it is important to know that the entity’s refusal does not mean the loss of the right to request it. The worker can appeal the decision within 30 days and, if not, file a claim before the Social Court. In some cases, the case can escalate to the Superior Court of Justice, although this will require the advice of a specialized lawyer and rigorous medical reports.