On April 1, 2023, new developments regarding the management of temporary disability processes came into force, regulated in the Royal Decree 1060 / 2022, of 27 of December, which modifies Royal Decree 625/2014, of July 18, which regulates aspects of the management and control of processes for temporary disability in the first three hundred and sixty-five days of sick leave. 

 One of the new measures stipulated in article 7.2 of RDL 1060/2022 is the elimination of the obligation, on the part of the worker, to deliver a copy of the sick leave medical report to the company. This is because, from that moment on, it will be the INSS or the collaborating mutual insurance company that will send the company the necessary information to manage the appropriate procedures. 

However, this novelty is causing discrepancies between workers and employers. Since in RDL 1060/2022 The obligation to notify the company about the start of a temporary disability process is not expressly reflected.. For this reason, on repeated occasions employees have not notified the company of their absence from their workplace when they have started an IT, this being supported by article 7.2 of RDL 1060/2022 mentioned above. And, consequently, causing problems in the business organization. 

The question that arises is: Is there an obligation to notify a sick leave process due to IT, even if it is no longer necessary to submit the medical sick leave report? 

Given this uncertainty, we find a recent ruling from the National Court, No. 136/2023 of December 18, 2023. The lawsuit was filed by the CGT union, which sought to eliminate the obligation to notify the company in advance of assistance. to a medical appointment, as well as the subsequent communication of medical leave by the worker. 

The National Court dismisses the claim and highlights that the elimination of The obligation to provide a copy of the medical report does not exempt the worker from informing the company about the start of a medical leave process.

It emphasizes that we must distinguish between justifying and communicating the medical leave, with advance notice being compatible with subsequent justification. The AN is protected by article 5.a) of the Workers' Statute, which states that the duty of diligence and good faith must be present in labor relations, both in the execution of the functions performed and in the facilitation of adequate business organization that, in this case, is affected by the absence. That is, the AN bases the communication on the need to maintain adequate internal functioning and safeguard organizational and productive planning, and thus the company's activity is affected to the least possible extent and avoiding any type of damage.

The National Court also relies on the codes of conduct stipulated in the applicable collective agreement, arguing that an absence from work without prior communication is considered a minor offense. 

Therefore, given this judicial resolution (SAN 136/2023), We consider it advisable to make a statement to the staff, so that they can inform and notify them of their absences., even when they have started a medical leave process, and even more so in the event that their applicable collective agreement establishes as a lack of work “failure to communicate an absence in advance”, which entails the obligation to notify.

Paula Ordinana Torro

Tomarial Work Area

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