One question that usually arises when employees appeal their medical discharges after a temporary disability process is whether they must return to their job or can wait to receive the corresponding resolution. We will see in this post that the general rule is that the medical discharge determines the obligation to return to work, but there are exceptions.
The third paragraph of article 5 of Royal Decree 625/2014, dated July 18, provides the general answer to the question posed in this post, establishing that the medical discharge of employees determines their obligation to return to work:
“The medical discharge will terminate the employee’s temporary disability process with labor effects from the day following the day of its issuance, without prejudice that the referred public service, as the case may be, continues to provide the employee with the health care it deems appropriate. The medical discharge will determine the obligation for the employee to return to his/her job on the same day on which its effects are produced”.
However, there are two exceptions:
- Medical discharge issued by a mutual insurance company or collaborating company in processes derived from professional contingencies prior to the expiration of the 365-day period of temporary disability.
First of all, any employee who has appealed the medical discharge issued by a mutual insurance company for occupational accidents and diseases of the Social Security or a collaborating company in the context regulated in article 4 of Royal Decree 1430/2009, of September 11 (RD 1430/2009) must not return to work.
This article regulates the special administrative procedure for the review of the medical discharge issued by the aforementioned collaborating entities, in processes of temporary disability derived from professional contingencies before the expiration of the 365-day period. The concerned party may request this review procedure within 10 working days following the notification of the medical discharge.
The start of this procedure, as expressly referred to in article 4.3 of the aforementioned royal decree, “will suspend the effects of the medical discharge issued, and the situation of temporary disability derived from an occupational contingency […]”.
- Medical discharge issued by the National Institute of Social Security (INSS) after the 365-day period of temporary disability has elapsed.
Secondly, those who have initiated a process of disagreement with their medical discharge due to recovery, improvement or unjustified failure to appear for medical examinations issued by the medical inspection of the INSS, in accordance with articles 170.3 of the Consolidated Text of the General Social Security Law and 3 of RD 1430/2009, should not be reinstated in their jobs.
These provisions establish that when the concerned party, within a maximum period of four calendar days from the medical discharge, expresses his/her disagreement before the medical inspection of the public health service, the temporary disability is extended “during the period of time elapsed between the date of the medical discharge and the date on which it becomes fully effective”.
Article 3.3 of RD 1430/2009 establishes that the concerned party who starts the non-conformity procedure must notify the company on the same day on which the non-conformity is presented or on the following working day.
The rest of the situations do not exempt the employees from the possibility of appealing, through the pertinent procedural channels, the medical discharge issued, but the appeal will not suspend their obligation to return to their job.
Having thus resolved the question that opens this post, the following question remains to be answered: does an employee who does not return to the job after receiving a medical discharge commit a work-related misconduct?
The answer may be positive, depending on the case. The maximum penalty of disciplinary dismissal could even be applied to those who do not return to work after medical discharge, justifying their refusal on the grounds that they have filed a prior complaint against the discharge issued before the 365-day period has expired, if their action is not covered by any of the exceptions indicated above. However, it will be necessary to assess the circumstances of the case in question to determine whether the employee has committed an infringement for not returning to work after the medical discharge and whether this is punishable or not.
