In accordance with the provisions of Article 79 of the Labor Code, during incapacity, the employment contract is suspended.
Therefore, the worker is exempt from fulfilling the service provision, and reciprocally the employer is exempt from paying a salary. However, the fact that the employment contract is suspended does not release the parties from fulfilling the rest of their obligations.
And although the employer is unable to apply a dismissal with responsibility while the worker is incapacitated, there is no rule prohibiting executing a dismissal without liability if it is determined that the worker has committed a serious offense before or during the incapacity.
An example of a serious offense is a worker who becomes incapacitated solely to engage in recreational activities, as the purpose of an incapacity is to grant the worker the necessary time to recover their health in the face of any eventuality that may affect their capacity to work. It is also important to consider that incapacities are financed with contributions that all workers and employers make to social security, so using an incapacity to engage in recreational activities constitutes a breach of good faith, not only against the employer but also against social security.
Equally serious is the conduct of the worker who, while incapacitated due to a health impairment, engages in recreational activities that affect their recovery or the medical prescriptions indicated for that purpose.
In this regard, numeral 14 of the Regulation for the granting of licenses and incapacities to beneficiaries of health insurance states:
Regarding the disqualification due to incapacity or licenses(*). The active insured incapacitated, based on the prescribed rest, as part of their treatment, is unable 24 (twenty-four) hours a day during their incapacity to perform any type of paid or unpaid activity, public or private, both during their ordinary hours and outside of them, as well as academic, physical, or recreational activities that interfere with medical advice, as well as trips inside and outside the country, and any other unspecified activity that jeopardizes the recovery of the health of the active insured.
Equally serious is the conduct of the worker who, while incapacitated due to a health impairment, engages in recreational activities that affect their recovery or the medical prescriptions indicated for that purpose.
In the same sense, the Second Chamber of the Supreme Court of Justice has indicated:
"In this way, the worker who fails to comply with the orders given by a doctor from the Costa Rican Social Security Fund first affects their health, but also violates the principles of universality, equality, solidarity, subsidiarity, obligation, unity, and equity that characterize the Costa Rican health system, because neglecting the doctor's order implies, in many cases, resorting to health services again, which undoubtedly increases costs. Furthermore, anyone who does not follow the guidelines ordered by the doctor who incapacitates them violates the principles of good faith and loyalty to their employer because disobeying the doctor's order implies putting their health at risk, delaying their recovery and their return to work. As established in judgment 751-2008, a criterion reiterated in this judgment, it will be necessary to assess each specific case and especially the type of incapacity to establish whether the worker has violated the aforementioned principles, because only in this way can it be determined whether the dismissal was legal."(Res: 2010-0598, SECOND CHAMBER OF THE SUPREME COURT OF JUSTICE at 8:45 am on April 23, 2010).
Consequently, it is important to mention that if the recommendation of the doctor who granted the incapacity includes the possibility for the worker to engage in some recreational activity, this situation must be recorded in the worker's medical record , as there is a presumption that every incapacity entails the requirement of rest.
In case of doubt and due to the impossibility for the company to access by itself the reasons that originated the incapacity, since they are sensitive data found in a medical record, prior to the application of dismissal, the worker must be required to demonstrate that participation in recreational activities is not contrary to the medical prescription, for which he must request from the professional who issued the incapacity the respective written opinion.
If the employer were to ascertain that the worker has committed a serious offense warranting dismissal without employer responsibility, the incapacity does not constitute any impediment or suspend the one-month period established by article 414 of the Labor Code to sanction the offense.
In this regard, the Second Chamber of the Supreme Court of Justice has indicated:
"The appellant considers that in this case the prescription of the disciplinary power to dismiss the worker did not operate because it was interrupted by the incapacity period; which he interprets as an impediment to exercise disciplinary action. This Chamber, repeatedly and from old data, has explained that the suspension of the employment contract, derived from an incapacity due to illness of the worker, does not undermine the power that the employer entity has to discipline - during that period - the labor inaccuracies that may have occurred before or during the suspension, being able to even decree dismissal without employer responsibility when there is a just cause that motivates it (consult, among others, the votes of this body 198-1998, 646-2001, 150-2002, 569-2011, 62-2012)." (Res: 2023-0151, SECOND CHAMBER OF THE SUPREME COURT OF JUSTICE at 14:35 on February 1, 2023)
Therefore, this may place the employer in the need to locate the worker outside the workplace in order to apply the corresponding disciplinary measure, understanding that, if not done, by the time the worker resumes his duties, the offense could be prescribed. Similarly, in case it is impossible to personally deliver the letter, akin to someone who does not wish to receive it and always within the one-month period, a copy of it must be delivered to the Ministry of Labor and Social Security.
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