New criteria change before the exhaustion of rights during a Temporary Incapacity (TI). Several recent rulings, such as the Appeal for the unification of doctrine or the Ruling of the Superior Court of Justice. Social Chamber of the Regional Government of Andalusia, have established workers’ rights. Beyond the exhaustion of the TD process, when it reaches 545 days.
New criteria regarding the rights during a Temporary Incapacity
Once the maximum period of a sickness process has expired, the National Institute of Social Security is responsible for reviewing and classifying the worker’s Permanent Disability (PI). And one of the following resolutions must be chosen:
- First. To issue medical discharge for recovery considering that the worker is in full conditions for the performance of his work.
- Second. First, an IP file must be initiated, considering that it will be granted given the worker’s previous pathologies. This file must be resolved within a maximum period of 3 months.
- Third. If it is considered that the worker can recover from his injuries, it is possible to delay the qualification of the disability file for six more months on an exceptional basis.
However, apart from the provisions of article 174. 5 of the General Law on Social Security, which grants the right for the worker to continue receiving the TD benefit in the same amount that he/she had been receiving up to the date on which the obligation to continue paying Social Security contributions by the company arises, a benefit that is paid by the mutual insurance company as the party responsible for payment, the worker is entitled, if this is contemplated in the applicable collective agreement, to the payment of the sickness benefit supplement until the INSS issues a decision on the Permanent Disability file.
Once the IT has been exhausted, the worker continues to generate his right to accrue vacation until the resolution of the aforementioned file.
Therefore, it is concluded that the worker continues to generate his right in the same terms as if he were registered with the company. Except for the obligation to make the contribution by the company. While the disability file is resolved, which must be resolved in one of the terms that we indicated previously.