Throughout the duration of an employment contract, various situations may arise that prevent a worker from attending work. One of these circumstances is being on medical leave due to a workplace accident.
According to Article 195 of the Costa Rican Labor Code, workplace risks are defined as follows:
"Workplace risks include accidents and illnesses that occur to workers as a result of or in connection with the work they perform in a subordinate and paid manner, as well as any aggravation or re-aggravation that directly, immediately, and undoubtedly results from those accidents and illnesses."
In this regard, it is important to remember that, in accordance with Article 193 of the Labor Code, employers are required to insure their employees under the Workplace Risk policy of the National Insurance Institute (INS).
Thus, if an accident occurs in the course of work-related duties, the INS will not only provide necessary medical care but will also grant the worker paid leave for recovery.
In such cases, it is crucial to consider Article 254 of the Labor Code, which states:
"The employer is required to reinstate the worker to their usual job once they are fit to work."
Since the employer is obligated to facilitate the worker's return, terminating the employment contract through dismissal with employer liability is generally not an option.
Now, despite the aforementioned prohibition, there is a scenario in which the company may terminate the contract with employer liability. This occurs when, as a result of the workplace accident, the worker's health condition prevents them from effectively returning to their position without endangering their health, and when the company, under such circumstances, has no possibility of reassigning them.
In this regard, Article 254 of the Labor Code states:
"If, according to medical assessment, the worker cannot normally perform the job they had at the time of the accident but can perform a different job within the same company, the employer is required to provide it, as long as it is feasible. The employer may make the necessary personnel adjustments to accommodate this change.
If reinstating the worker would cause them undue harm due to the nature of the position, the salary, or negative effects on their rehabilitation process—or if the worker would remain exposed to the conditions that caused the accident—the employer must pay their legally mandated severance benefits. This applies when reassigning the worker within the company is not possible."
Thus, if at the time of returning to work and in accordance with a medical assessment, the worker is unable to perform the duties of their position, the employer will be obligated to reassign them, assigning tasks adapted to the medical recommendations.
Only in cases where reassignment is also not feasible because it would harm the worker’s health, affect their salary, or because there is no available position that meets their medical needs and/or academic profile, dismissal with employer liability should be considered.
However, in such cases, workers may file a lawsuit before the Courts of Justice, claiming discrimination and requesting reinstatement on the grounds that their dismissal was discriminatory due to their health condition, based on the provisions of Article 404 of the Labor Code.
"Discrimination in the workplace is prohibited based on age, ethnicity, gender, religion, race, sexual orientation, marital status, political opinion, national origin, social background, ancestry, health condition, disability, union affiliation, filing complaints or testifying about corruption-related acts, economic status, or any other analogous form of discrimination."
Given this scenario, the company must demonstrate that it fully complied with the procedure established in Article 254 of the Labor Code, particularly that before proceeding with termination, it attempted to reassign the worker, and, when reassignment was not possible, it proceeded with dismissal with employer liability.
In a case like this, the Second Chamber of the Supreme Court of Justice ruled:
"Although the analysis of the medical report (document incorporated on 04/13/2018 at 16:49:08) indicates that the plaintiff's injury was in the right arm and does not entirely rule out the possibility of performing some tasks with his left arm, the case file does not contain any medical assessment that would have allowed the defendant to disregard the recommendations made by the specialists who evaluated the plaintiff at the INS. In any case, Mr. [Name 014], Occupational Health Coordinator, clarified that it was not feasible to keep the plaintiff assigned to a single task, as the company does not have positions with such characteristics. Due to Occupational Health and Safety recommendations, employees' tasks must be rotated periodically to prevent injuries. Furthermore, it should not be overlooked that the defendant considered reassigning the plaintiff to more than 50 different positions; however, it was determined that the company did not have a position that aligned with the medical recommendations and the plaintiff's level of training (document incorporated on 06/18/2018 at 16:30:43). According to the termination report, after conducting a thorough job reassignment study and determining that it was not possible to reassign Mr. [Name 001], the company decided to terminate him with employer liability: 'Although Mr. [Name 001]'s departure is unfortunate, the company has no other job options to offer' (sic; image 13, document incorporated on 06/18/2018 at 16:30:39). From the above, it is concluded that the defendant complied with the process established in Article 254 of the Labor Code and explored all possibilities to reassign the plaintiff to functions or positions that conformed to the recommendations made by the INS. Therefore, there is no evidence of the alleged discriminatory conduct in the lawsuit; on the contrary, the evidence shows that the company took actions aimed at safeguarding the worker's health and integrity but was unable to find a position within the organization that matched his physical condition and educational level."(Ruling 909-2019 of the Second Chamber of the Supreme Court of Justice, May 24, 2019, at 10:40).
Thus, before proceeding with a dismissal with employer liability, it is recommended to properly document each of the following procedures:
a) Jointly assess with the treating physician the tasks the worker can and cannot perform.
b) Evaluate, together with occupational health experts, the functions of the worker’s position, and if it is not possible for them to remain in the same role, assess potential positions for reassignment.
c) Consider all reassignment options, ensuring they comply with medical recommendations and the worker’s academic or technical qualifications.
d) Only proceed with dismissal if there is no viable reassignment option.
Finally, it is important to consider that having a clear and transparent procedure regarding the worker’s situation can reduce the risk of legal proceedings. However, if a claim is filed before the Courts of Justice, it will be crucial to provide evidence that the company complied with the provisions established in article 254 of the Labor Code.
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