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I have been discharged, but I am not yet able to work
When a worker on sick leave receives the notification of medical discharge, he/she has the obligation to return to work immediately, taking into account that it is grounds for disciplinary dismissal for failure to attend without any justifiable cause.
However, on many occasions, a worker receives medical leave without really being in conditions to return to work. Thus, when someone is in this situation, it is essential to be informed of the rights available to them, including the right to claim against such medical discharge.
To be informed
In order to be able to carry out such a claim, it is essential to know the existing deadlines, since these will vary depending on the time or the reason for which we have been on sick leave.
In addition, it is also very important to keep and provide all the medical reports deemed appropriate, in order to prove as adequately and safely as possible that the worker is still unable to return to his daily work and therefore needs to remain on sick leave. A lawyer specializing in labor law, or in social security will be able to help you with this.
Leave of absence of less than or more than 12 months
First of all, it is necessary to differentiate those leave that have been less than 12 months and those that have been superior, since depending on this will vary the deadlines of the challenge procedure.
In the event that the leave is less than 365 days, the employee has 11 calendar days to carry out the challenge. Likewise, it is important to know that, once 7 days have passed without any reply to such contestation, a period of 20 days is available to file a court action.
On the other hand, if the sick leave is exceeding 365 days, the employee has 4 calendar days to challenge it. In this case, as for the Public Health Service, it has 7 days to propose to the INSS that the decision to declare the worker’s discharge be reconsidered. In the event that it states that the worker is fit to work, it has 11 days to confirm such discharge. And, finally, if the worker continues to disagree with such decision, he/she may go, within 20 days, to the social jurisdiction to file a lawsuit of challenge.
Specialties – Article 140.3
According to the third paragraph of article 140 of the Law Regulating the Social Jurisdiction, the process of challenging medical discharge shall have the followingspecialties:
- The claimwill be directed exclusively against the Managing entity and, if applicable, against the collaborating management company
- It will be urgent and will be processed preferentially
- The hearing shall be scheduled within five days following the admission of the claim, and the judgment, which shall not be subject to appeal, shall be handed down within three days and its effects shall be limited to the contested medical discharge
- No other actions
may be accumulated.
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