04/10/2024
The issue regarding the employer’s responsibility for the payment of wages during the period when the employee finds themselves in what is called the previdentiary limbo is a topic that raises many questions and discussions in labor courts.
The labor previdentiary limbo occurs when an employee, after being away from work due to illness or accident, is deemed fit to return to work by the Social Security Institute (INSS), but unfit by the employer.
In this scenario, the employee stops receiving social security benefits (because the INSS considers them fit and discharges them) but is unable to return to work (because the company considers them incapable). As a result, the employee receives neither their salary nor the INSS benefit, falling into what we call a “limbo.”
In situations of previdentiary limbo, the labor courts generally understand that the employment contract remains active, and the employee does not receive their wages for a situation that was not caused by them, placing the responsibility on the employer to pay the wages and other rights for the entire period the employee was left without support.
Thus, the company must seek a solution to this issue, which may involve:
Functional Readaptation: accommodating the employee in a role compatible with their health condition;
Reintegration to Work: if the employee is deemed fit;
Payment of Wages and Rights: while the impasse between the INSS discharge and the company’s medical assessment of incapacity remains unresolved.
However, if the employee does not return to work voluntarily, without any refusal from the company to accept them, a different situation arises.
After being discharged by the INSS, the employee has a duty to inform the employer and return to work.
According to TST Summary 32 from the Superior Labor Court (TST), if the employee does not return to work within 30 days after the end of the INSS benefit and does not provide justification for their absence, the employer may consider this as job abandonment, which may lead to dismissal for just cause.
To avoid issues related to previdentiary limbo, we recommend that companies adopt the following preventive practices:
1.Monitoring of Leave: During the employee’s leave, the company should maintain regular contact and stay informed about the worker’s recovery process. This can be done through regular communications from HR or the company doctor.
Formal Summons: As soon as the employee is discharged by the INSS, the company should formally summon them to return to work and schedule an occupational medical examination to assess their fitness.
Prevention of Job Abandonment: Although it is the employee’s responsibility to prove they did not abandon the job, the company should, as a precaution, formally summon them once it is aware of the social security discharge. If the employee does not return within 30 days without justification, the company may consider job abandonment.
Legal Guidance in Cases of Discrepancy: If there is a disagreement between the medical reports (INSS and the company doctor), it is recommended that the company consult its legal team to assess the risk of leaving the employee in limbo.
The labor team at LO Baptista is available to provide clarification on this and other labor issues.
Co-authored by:: Fabio Chong De Lima e Elaine Martins Staffa
