Medical leave due to temporary disability has a maximum initial duration of 12 months, so many workers in this situation wonder what will happen if they have not yet recovered. Until recently, it was normal for a Social Security medical tribunal to decide at that moment whether to discharge or grant an extension of disability. However, after the entry into force of Royal Decree-Law 2/2023, this feared administrative procedure has become history. The extension is now completely automatic.
Therefore, if an employee is prevented from working for more than 365 days and does not receive a discharge resolution from the National Social Security Institute (INSS), his or her benefit is automatically extended up to the ordinary limit of 18 months (545 days). This is stated in article 169 of the General Social Security Law (available in this BOE).
Workers who receive a disability due to a common illness will not be able to change it to a work-related accident even if their company is later fined for not performing medical examinations.
They summon him to talk about vacations and in reality it is an interrogation about his leave: he ends up fired the same day but it is void
Thus, during these additional six months, the amount of the benefit will not vary and will remain at 75% of the regulatory base. That is, the money continues to reach the worker’s account through the company’s delegated payment mechanism. In this sense, you must know that the employer acts as a mere intermediary, advancing money that will later be compensated by Social Security (if it is a common illness) or mutual insurance (if it results from a work accident).
What does change from the first year is the jurisdiction of medical control, since absolutely all sick leave become supervised and supervised exclusively by the Social Security medical court.
The business contribution is cut from month 18
After 545 days or 18 months, the General Social Security Law activates the ex officio procedure to evaluate whether or not the worker’s clinical condition warrants granting permanent disability.
In this sense, labor lawyer Pablo Ródenas explains that Social Security has a maximum period of 90 days to open three only possible paths:
- Issue a medical discharge, which requires immediate return to work.
- Recognize the permanent disability pension to the degree that corresponds to the anatomical or functional limitations established (partial, total, absolute or major disability).
- Approve a “qualification delay”, extending the temporary disability exceptionally up to the absolute limit of 24 months (730 days).
This last extension is only approved if the medical inspectors verify that the therapeutic process has not concluded and there is a real and demonstrable medical expectation of cure that allows the recovery of work capacity (for example, being immersed in active rehabilitation after a recent surgical intervention).
Furthermore, exceeding the 18th month entails a cut-off for the employer, since the worker’s obligation to contribute to Social Security definitively ceases and the delegated payment comes to an end.
The worker must understand that this does not mean that it is a dismissal, in fact, the Supreme Court confirms that it is not. If at that time you receive a vacation settlement (which, by the way, stop accruing as of this 18th month) the employment relationship has not been terminated, it simply enters a suspension phase.
To continue being paid month after month, the worker must request direct payment from the managing entity or the corresponding mutual insurance company.
What happens if the Administration is delayed and exceeds 24 months?
In practice, administrative overload causes many files to exceed the legal limit of 730 days without the Disability Assessment Team (EVI) having issued its opinion.
The law is fully guaranteeing in this scenario and says that the payment of the economic benefit is not interrupted. As the delay is attributable exclusively to the Administration and not to the worker, the coverage remains intact.
To avoid situations of helplessness, the recent management criterion of the INSS 26/2023 has settled the conflicts with the collaborating mutual societies, outright obliging them to maintain the payment of the subsidy to their associates beyond two years until there is a definitive resolution.
At the end of the journey, the medical verdict will be based exclusively on the objective severity of the definitive consequences and how these impact the ability to work, determining whether the employee should return to his company or if he finally accesses a permanent pension.