Worker without assistance and without salary receives compensation

The TST (Superior Labor Court) ordered a company to pay compensation for moral damages to a former employee who was left without a salary after being discharged from the INSS (National Social Security Institute).

According to the records, the woman, who worked as a cleaner at a firm in Vitória (ES), suffered an accident at work and started receiving social security benefits for one year. After this period, the INSS interrupted the payment of the benefit, as the expertise found that she was able to return to her activities.

However, upon returning to the company, the occupational physician vetoed her reinstatement, claiming that she was still unable to perform her duties. Therefore, he was left without his salary, as he did not, in fact, go back to work, and without the INSS benefit, as he had already been discharged.

This situation is known as social security limbo and creates many problems for workers. Especially because, according to specialists, there is no specific legislation that deals with this matter and, mainly, that defines the responsibilities of each one after the INSS discharge.

“It’s the INSS throwing the insured to the company and the company saying that it cannot admit him because he is not able to work”, comments lawyer Joseane Zanardi Parodi, coordinator of the IBDP (Brazilian Institute of Social Security Law).

For Joseane, both sides — employers and INSS — commit mistakes that culminate in welfare limbo. “The INSS is sometimes discharged when the person is not, in fact, able to work. And many companies are not interested in rehabilitating the employee to perform another function. Or, depending on the activity, there is no way to do it”, comments.

The specialist suggests whoever is in this situation to look for the doctor with whom they are monitoring and ask him for a report on the situation, with the opinion on the possibility or not of returning to work.

Attorney Priscilla Simonato, professor at the Faculty of Law of São Bernardo and president of Iape (Institute of Social Security Lawyers), explains that it is possible to file a lawsuit against the INSS or against the employer, depending on the case.

In situations where the incapacity is proven, the insured can judicially charge the INSS to restore the benefit. In such cases, it is important to communicate this decision to the company. On the other hand, if the aptitude for work is verified, it is possible to charge the company to reinstate the worker and pay wages again.

Another possibility, says Priscilla, is to apply for indirect termination in court, which is when the company is forced to fire the employee and pay all the severance payments (which would not happen if the employee resigned). If the person has been the victim of an accident at work, he or she is also entitled to a minimum of 12 months’ stability. If there is a dismissal during this period, the firm must pay the corresponding salary months.

Priscilla adds that, in order to better define responsibilities after discharge from the INSS, some professional categories are including this topic in agreements and collective agreements, in order to prevent the worker from becoming unprotected in these situations.

wanted by Now to comment on this matter, the INSS did not comment until the publication of this report.

Pension Limbo | Which is

• The so-called social security limbo occurs when a worker who was on leave for health reasons is discharged after inspection by the INSS (National Social Security Institute), but the company disagrees with the opinion and does not reintegrate because it understands that the person is not yet able to return to work
• In this case, the insured loses the sick pay because he has already been discharged from the INSS, but he also has no salary from the company, as he has not, in fact, returned to work

What does the law say

• According to lawyers, Brazilian law is not clear about what should be done when the worker falls into social security limbo
• The CLT (Consolidation of Labor Laws) defines that the professional who is on leave due to incapacity and receiving sick pay has the employment contract suspended
• During this period, he is without salary and starts to receive only the INSS benefit
• Theoretically, when the benefit is terminated, the employment contract is no longer suspended, so that the employer has to return to fulfill its obligations and pay the salary normally, however, this does not always happen in practice.

What to do after being discharged from the INSS

• As soon as the worker is discharged from the INSS, the first thing to be done is to notify the employer
• If this does not occur, the company may consider that the employee has abandoned his/her job
• After the professional re-presents himself, the company sends him to an occupational physician, who will check if the person is really able to resume his/her duties

What if the company does not authorize the return to work?

• In this case, it is recommended that the worker seek the doctor who performs his treatment and ask him to issue a report stating whether, in his opinion, it is possible or not to return to work
• If the doctor accompanying the professional understands that there is really no way to go back to work, the insured person can go to court against the INSS to charge the resumption of payment of the benefit

If my doctor’s report finds that a return is possible

• If the doctor interprets that the worker is indeed able to carry out his activities, the professional can file a lawsuit against his employer to charge reinstatement (and wages)
• Another possibility is to request, in court, indirect termination, in which case the company is required to dismiss the employee, pay all severance payments and stability of at least 12 months if the incapacity is due to an accident at work

What to do to avoid social security limbo

• Some professional categories are including this theme in collective negotiations between companies and unions
• In this way, the collective agreement or convention already establishes more clearly who is responsible in case there is a divergence in relation to the possibility of the worker’s return after the leave
• In addition, specialists argue that the INSS should be more judicious when deciding to return a professional to their activities and that they carry out a follow-up that enables rehabilitation

indemnified worker

• A labor outsourcing company headquartered in Vitória (ES) was ordered by the TST (Superior Labor Court) to pay compensation to a cleaning assistant who was prevented from returning to work after being discharged from the INSS
• According to the process, the woman was cleaning the buses of a logistics company and, in 2006, she had fractures in her ribs and spine after slipping down the stairs of one of them.
• The worker, then, started to receive social security benefit for one year
• After this period, the INSS expertise found that she was able to return to work
• However, when she returned to the company, the occupational physician denied reinstatement, alleging that she was still unable to perform her duties; with that, she was left without the benefit and without the salary.
• After processing the case in court, the company was ordered to pay compensation for moral damages to the worker

Sources: lawyers Joseane Zanardi Parodi and Priscilla Simonato, TST (Superior Labor Court) and report