If you are working and suffer an accident while performing your duties, or if, on the other hand, you are working and develop an illness that prevents you from performing your duties. It is important to distinguish between
WORKPLACE ACCIDENT:
The definition is set forth in Article 156 of the General Social Security Law (LGSS): A work-related accident is any bodily injury sustained by a worker in the course of or as a result of his or her work.
As the definition makes clear, a work-related accident can occur both as a result of work and in the course of work.
Thus, this concept includes accidents that occur while commuting—that is, during the trip to and from work—as well as those that occur in any other situation in which the worker finds themselves in connection with their work (activities related to representing workers, work-related illnesses, etc.).
Examples of workplace accidents include tripping over a cable in the office and sustaining injuries in the fall, falling from scaffolding while working on a construction site, sustaining cuts while operating company machinery, etc.
COMMON DISEASE:
A non-work-related accident is one that, in accordance with the provisions of Article 156, does not qualify as a work-related accident.
Health conditions that do not qualify as work-related accidents or occupational diseases shall be considered common illnesses, in accordance with the provisions of Article 156, paragraphs 2(e), (f), and (g), and Article 157, respectively.
What benefits are you entitled to in the event of temporary disability, whether due to a work-related accident or a general illness?
You will be eligible to apply for temporary disability benefits
In order to receive temporary disability benefits, in both cases, the worker must be enrolled in Social Security and either actively registered or in a status equivalent to active registration.
- However, if the disability is due to a common illness, a prior contribution period of 180 days within the previous 5 years is required.
- For work-related accidents there is no requirement to have made prior contributions, so this cause of disability can be recognized starting on a person’s first day of work.
As for potential recipients of the benefit, although the law refers only to employment as a context in which a work-related accident may occur, workers covered by the special regime for self-employed workers (RETA) are also eligible for the benefit in cases of both work-related accidents and common illnesses.
How does this Temporary Disability Benefit work?
In this regard, the differences between the two situations lie in the start date for receiving the benefit and the amount of the benefit (Art. 173 of the LGSS):
- In the case of a common illness, 60% of the calculation basis is paid from the 4th day of sick leave through the 20th day, both inclusive, and 75% is paid starting on the 21st day.
- In the event of a work-related accident, 75% of the regulatory base is paid starting the day after the employee is placed on leave from work, which is assumed to be the day the accident occurs. The employer will pay the employee’s full wages for the day of the accident.
However, in this regard, we must abide by the provisions of the collective bargaining agreement, which may enhance workers’ rights (for example, by stipulating that they receive 100% of their salary from the first day of sick leave, through a disability supplement that the company must pay).
Who pays the temporary disability benefit in the event of a work-related accident or a common illness?
- In the case of employees:
- In general, payment is made by the National Social Security Institute (INSS), the mutual insurance company affiliated with Social Security, or the Social Institute of the Navy (ISM), depending on the case.
- For common illness, the employer is responsible for payment between the 4th and 15th days, but starting on the 16th, payment is made by the INSS, the mutual insurance company, or the authorized entity chosen by the employer (Art. 173 of the LGSS).
- In the event of a workplace accident, the Social Security-affiliated mutual insurance company chosen by the company will be responsible for making the payment.
- In any case, the employer will make the payment as a delegated payment and at the same intervals as wages, although there are exceptional cases in which the payment is made directly by the INSS, the ISM, or the collaborating mutual insurance company (direct payment of benefits, which must be requested by the affected individual in any case).
- For self-employed workers. Payment will be made directly by the participating mutual insurance company or the relevant administering agency.
How long does the temporary disability benefit last in the event of a work-related accident or a common illness?
In the event of either illness or an accident, the maximum duration of the benefit is legally set at 365 days, extendable for an additional period of 180 days if, during that time, a recovery is expected (Art. 169.1.a of the LGSS).
When does the temporary disability benefit end?
In the event of a work-related accident or general illness, the benefit ceases either upon the expiration of the maximum period established by law or upon receiving a medical discharge (regardless of whether this results in a declaration of permanent disability), which may occur at any time during the period of medical leave.
The subsidy may also be terminated if the worker voluntarily requests to be discharged from medical care, if the worker begins receiving a retirement pension, and, obviously, in the event of death.
It is possible that the employee may fail to attend the medical examinations scheduled by Social Security professionals, which will also result in the termination of the benefit.
HOW SHOULD WE PROCEED IF WE HAVE AN ACCIDENT OR CONTRACT A COMMON ILLNESS?
In the event of a workplace accident -> We must request a medical certificate from the company for the company’s workers’ compensation insurance provider
If the accident is particularly serious, the police may arrive on the scene, and the Labor Inspectorate itself may visit the workplace; they may initiate proceedings to impose additional benefits on the company if they determine that the workplace accident occurred because the company failed to comply with its obligations regarding safety and occupational risk prevention.
In the event of a common illness—> — we go to our health center, where they will issue us a sick leave certificate.
It is no longer mandatory for employees to submit sick leave forms to their employers; they are only required to notify their employers that they are on sick leave, and the same applies when they are notified that they have been cleared to return to work.
There is a Social Security FIE file that indicates whether a company’s employees have filed for sick leave or returned to work, but this information is not available immediately; therefore, employees are advised to notify their employers if they begin a period of temporary disability.
Who pays us, and how much?
As I mentioned earlier, the company will always be the one to make the final payment as the designated payer.
In addition to the general amounts indicated, we must also review each employment contract to determine whether we are entitled to a Temporary Disability Supplement.
Sheila Quiroz Sifuentes
Attorney Specializing in Labor Law
MC Abogados
