The suspension of the contract after 545 days of medical leave is a relevant legal situation that directly affects the continuity of the employment relationship. When the legal ceiling for the situation of Temporary Incapacity (IT)the National Social Security Institute (INSS) must issue a decision which may have significant consequences for the worker. This article analyses the legal implications of this suspension, as well as the rights of the worker in this context.
The regulatory framework for temporary incapacity
The Spanish legislation provides that the maximum duration of the temporary incapacity is of 365 days, for an additional period of 180 days where the worker is expected to recover at that time. As the day reaches 545the INSS must take a decision in accordance with Article 170 of the General Social Security Act.
What decisions can INSS make after 545 days of leave?
Once the legal maximum period of temporary incapacity is exceeded, INSS may:
- Issue a medicalconsidering that the worker is in a position to return to his post.
- Start a permanent disability fileif it is considered that there are still consequences that limit or prevent professional exercise.
- Denial of permanent disability and issue improvement.
In any of these cases, the employer has the possibility of suspension of the employment contractin accordance with Article 45.1.c of the Staff Regulationsuntil there is a final decision or an effective reentry.
Suspension of the contract after 545 days of medical leave
The suspension of the employment contract means the temporary interruption of the reciprocal obligations between the undertaking and the worker:
- The worker not providing servicesand the company does not pay remuneration.
- The work link is maintained, but it is discontinuing the contribution to social security with exceptions.
This suspension does not constitute a dismissalor to extinguish the employment relationship, although it may be the step before more definitive decisions (such as an objective dismissal for ineptitude arising in the event of a declaration of permanent disability).
Workers' rights before a decision of the INSS
The worker may take several actions on the basis of the decision issued:
- Impuding medical discharge within the period of 4 working daysif you do not think you are in a position to rejoin.
- Interpose claim and judicial action the refusal of permanent incapacity.
- Request review of the degree of disabilityif new pathologies or aggravation arise.
In addition, if the company decides to dismiss the contract after the suspension of the contract, the worker may challenge the decision before the courts, requesting the declaration of non-origin or invalidity.
