Inculpable diseases are an obvious manifestation of the protective principle, placing the obligation on the employer to pay wages during said period and asserting the “tutelary” nature of labor law.
Both in the periods of art 208 LCT and in the reservation of the position of art 211 LCT the end of the legislator is protective.
How to proceed
The worker has the obligation to notify the employer of his illness. He must do it by some reliable means.
The most usual means is a telephone call to the company, since, if he suffers from a high fever, it is impossible for him to stand up or go outside to send a telegram notifying him of his illness.
It is very common today that workers take the power to send text messages, WhatsApp messages or even call the employer’s cell phone. These customs should not happen because they are not the appropriate or respectable means for a worker-employer relationship.
The most frequent and used notice is the telephone call to the company giving notice of your illness or ailment. Once the worker resumes his normal and usual tasks in the company, the first thing he must do is deliver the medical certificate signed by the doctor where he indicated his ailment and the days of rest justifying his days of absence from work.
In this way, the company will recognize the days as “justified illness” and they will be paid.
How is it settled in the salary receipt?
In the salary receipt, if a worker justified his days of sick leave, it must be stated as follows.
First the absence is marked:
“absences”, “days of absences”, “absences due to illness”.
And the number of days is placed in the units column.
in the column “Remunerations subject to withholding” the result is placed in negative by the following formula. It takes the basic agreement and divide it by 30, once the result is obtained, it is multiplied by the days that were absent.
If I justify the days, in the same column, it is placed justifying the days but the divider by 25 according to the employment contract law.
Example 1:
Basic Agreement Salary $14,623
Absence due to inculpable illness: 4 days. ($14,623 / 30 *4)
The result is placed in Negative in the “Remunerations subject to withholding” column.
In the event that the worker has justified his absences with the medical certificate signed by a physician, the following is placed below the previous review:
“justified absences” “justified days” and proceeding in the same way, the days are placed in the unit column, either the same days that he was absent if he justified them or it may happen that he was absent 4 days and justified only 2.
Example with a basic of $10,000
Absences due to inculpable illness. 4 Days… (-$1,333)
Excused Absences 4 Days…. $1,600
Example 2:
Basic Agreement Salary $14,623
Absence due to inculpable illness: 4 days. ($14,623 / 30 *4)
The result is placed in Negative in the “Remunerations subject to withholding” column.
Then, there is a difference in favor of the worker, the basic is not divided by 30, but the common denominator is 25 and the result is multiplied by the days that he justified.
With this, a difference of five points is obtained in favor of the worker, which is a criterion of labor jurisprudence in the sense that the employee is oblivious to the disease because it is the same blameless and therefore and strictly to the guiding principles that govern labor law, the difference is in your favor.
The reason for this difference is legally reasoned in Art. 159 of the Labor Agreement Law, which indicates that the calculation of licenses will be made in accordance with Art. 155 of the same law. The aforementioned article sets a common denominator of 25.
The result is placed under the absences and in this way it would be justifying the days that it could justify.
How should the employer act?
The employer, when notified by the worker of an absence, must, because it is a burden and not an obligation, carry out the medical controls of Art. 210 of the Labor Agreement Law.
Through a home medical service company, the employer can send a home doctor to the address reported by the worker in his entry technical file.
In the event of a discrepancy between the worker’s certificate and the company’s medical certificate, the latter prevails, and the worker must go to a central medical board, a body dependent on the Superintendence of Health Services (SSS) to act as arbitrator between both conflicting medical diagnoses.
Once the worker returns to his usual tasks, the employer must request a copy of the medical certificate to compare it with that of the company, in the case of exercising control.
In no way, the employer can take reprimands or sanctions for absences of a worker who, upon returning to his tasks, justifies all the days he was absent.
If the worker does not bring the certificates the first day he returns to his usual tasks, he will no longer be able to justify his days, and the employer must, -with just cause- deduct the day or days in question that he was absent for subsequent deduction. on your next salary receipt.
If the employer does not exercise the controls and has doubts about the worker’s certificate, the employer is not entitled to challenge or reject it. The only way for the employer to question the worker’s certificate is with the certificate of her part through the controls of Art. 210 of the Labor Agreement Law.
Companies and all employers must exercise, for the best administration and organization of their personnel, the medical controls that the law grants them in cases where their employees are absent due to inculpable illness.
To reduce the number of absences in an adequate and legal way, it should be taken into account when choosing a company that performs pre-employment, periodic, discharge exams, that it can also be used to control absenteeism (that the doctor visits the employee’s home and verify if the employee has the excused sick day or not).
Finally, we must highlight the deadlines set by law for each worker according to their seniority and their family responsibilities.
The period of paid licenses, sets the following terms.
Article 208 of the Labor Agreement Law says: Each accident or inculpable illness that prevents the provision of the service will not affect the right of the worker to receive remuneration during the period of three months, if his seniority is less than 5 years, and six months if it is greater. If the worker has family responsibilities, the period is extended to six and twelve months, depending on whether his seniority is less than or greater than 5 years.
These terms are not per year, but correspond to each disease, a worker can have different diseases in the year and each pathology generates independent paid terms of leave for each disease.
For family charges we refer to Law 23660 where the concept of family charges becomes the beneficiary holder and his/her primary family group, spouse, saltero children up to 21 years of age, older than 21 years of age up to 25 who are attending regular studies recognized by the competent authority. The unborn child is not considered by the doctrine by family group to extend the term.
Settlement of wages due to illness
Article 208 of the Labor Agreement Law establishes that the worker has the right to receive his remuneration during the periods that the law indicates, since it is a period of protected inactivity, the remuneration that in these cases corresponds to pay the worker It will be settled according to what you receive at the time of the interruption of services, plus the increases that during the interposition period were agreed to those of the same category by application of a legal norm, collective agreement or decision of the employer.
The remuneration of the sick worker cannot be less than what he would have received if the impediment had not occurred, he must be paid as if he were working.
When the worker receives variable remuneration, and it is consigned in his contract that his salary is made up of this type of remuneration, he will be paid according to the average of what was received in the last semester of service provision (the semester divided by 6 is added).
If the illness persists and the deadlines are met in each particular case and if the worker is prevented from returning to his normal and habitual tasks in the company, the excesses of the days will be without pay, and the employer must keep his low job “Seat reservation” for 1 year from the expiration of the terms in accordance with Art. 144 of the Labor Agreement Law.
The employer does not pay salaries or social charges. The reservation time counts as seniority.
Only the dependency relationship is respected, the position is saved.
Once the reservation period has expired, the following may occur:
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When the worker is able to provide services and with medical discharge, the employment relationship normally continues
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When the worker is in good condition with the medical discharge, but with some decrease in his capacity or faculties, the employer must assign him light tasks, leaving the usual remuneration intangible. Two contingencies occur here: if the employer does not have these tasks and cannot reassign him, he must compensate him according to article 247 of the Labor Agreement Law. You must be compensated with half a salary per year and terminate the employment relationship; in the event that he does not want to reassign him having the tasks in the company, the compensation is that established in Art 245 of the Labor Agreement Law.
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In the event that the worker is absolutely and permanently disabled, he must pay the compensation of Art. 247 mentioned and the worker must carry out the retirement procedures for disability.
Total and absolute disability.
In the case of absolute disability, more than 66% of working capacity, compensation must be paid under article 245 LCT.
This situation may or may not occur during the validity of the job reservation period.
This is applicable to the withdrawal due to disability of art 48 inc A of law 24,241.
Layoff situation.
The art. 213 provides that if the employer dismisses the dependent during the period of paid interruptions due to inculpable illness, he must pay, in addition to the compensation of 245 LCT, the missing wages for the entire period corresponding to the expiration of the illness or discharge date. The purpose of the rule is to protect the delicate situation of the dependent against arbitrary dismissal by the employer during the period of illness.
The medical discharge is the document in which it denotes that the dependent is in working conditions to continue their normal and usual tasks.
Remuneration based on art 213 LCT can only recognize a temporary incapacity and an unjustified unilateral will to resolve the employment relationship. The claim and art 213 LCT does not proceed when the incapacity is total and absolute.
Source: Ambito
