Reinforced job stability for health reasons applies in cases where the worker is in a situation of manifest weakness due to limitations in their physical or mental condition, and aims to protect the worker from potential dismissal, ensuring proper access to the medical care required by their condition.
The concept of manifest weakness has been developed through case law and is understood as a situation in which the worker is in a position of inferiority vis-à-vis the employer, making them more vulnerable to unjustified dismissal.
In this regard, the unification judgment SU-087 of 2022 focuses the protection of health-related job security on the mere status of the worker as an individual in their work context, thereby unifying the criterion to protect the fundamental rights not only of workers who have suffered a qualified loss of work capacity, but also those whose health condition substantially prevents or hinders the performance of their duties under regular conditions.
Subsequently, the Labor Chamber of the Supreme Court of Justice, in its most recent ruling (SL 1152-2023), departs from its initial stance by stating that Article 26 of Law 361 of 1997 seeks to protect persons with disabilities and prevent the creation of discriminatory environments within the workplace based on their disability status, which could lead to termination of employment without just cause. The protection enshrined in this article applies to those persons who demonstrate a significant degree of disability, and the following requirements must be met:
- The worker is in a state of disability, regardless of its origin.
- The employer is aware of such condition.
- The dismissal occurs without proven just cause.
- The employer fails to request the corresponding authorization from the Ministry of Labor.
Likewise, the Supreme Court indicates that it is not the illness itself that triggers the protection of reinforced job stability for the worker, because the disability situation does not depend on the findings recorded in the medical history, but rather on the limitation they produce in the performance of their usual work.
For a person to be considered a beneficiary of the aforementioned labor protection, it is not sufficient that they be in a state of manifest weakness; it is also necessary that the employer's knowledge of that disability situation be established and that the decision to terminate the employment relationship stems from a discriminatory decision.
It is important to remember that to dismiss a person with a disability, prior permission from the Ministry of Labor is required; otherwise, a presumption of discriminatory dismissal is activated, which may be rebutted by the employer, who must prove that reasonable accommodations were made to guarantee the worker's right to work and equality, and if unable to make them, demonstrate that they constituted a disproportionate or unreasonable burden and that such situation was communicated to the worker.
It should be noted that the employer has the autonomy to terminate the employment relationship if the worker incurs an objective cause or just cause enshrined in Article 62 of the CST, the internal work regulations, or any other applicable to said contractual relationship, taking into account that in light of the Convention on the Rights of Persons with Disabilities, the employer must also demonstrate the implementation of reasonable accommodations.
Finally, the Labor Chamber of the Supreme Court of Justice makes a significant change in its stance regarding workers who suffer momentary health alterations or who suffer from temporary, transient, or short-duration pathologies, since such protection only applies to those persons who suffer from medium- and long-term impairments that, when interacting with workplace barriers, hinder their full and effective participation on an equal basis with other workers.
It is worth clarifying that not all health conditions are considered a disability; they can only be assessed for purposes of said guarantee if the aforementioned characteristics are met, since reinforced job stability is not an absolute right. For this reason, mechanisms have been created whereby it is possible to terminate the employment contract in cases of non-compliance with labor regulations.Reinforced job stability for health reasons applies in cases where the worker is in a situation of manifest weakness due to limitations in their physical or mental condition, and aims to protect the worker from potential dismissal, ensuring proper access to the medical care required by their condition.
The concept of manifest weakness has been developed through case law and is understood as a situation in which the worker is in a position of inferiority vis-à-vis the employer, making them more vulnerable to unjustified dismissal.
In this regard, the unification judgment SU-087 of 2022 focuses the protection of health-related job security on the mere status of the worker as an individual in their work context, thereby unifying the criterion to protect the fundamental rights not only of workers who have suffered a qualified loss of work capacity, but also those whose health condition substantially prevents or hinders the performance of their duties under regular conditions.
Subsequently, the Labor Chamber of the Supreme Court of Justice, in its most recent ruling (SL 1152-2023), departs from its initial stance by stating that Article 26 of Law 361 of 1997 seeks to protect persons with disabilities and prevent the creation of discriminatory environments within the workplace based on their disability status, which could lead to termination of employment without just cause. The protection enshrined in this article applies to those persons who demonstrate a significant degree of disability, and the following requirements must be met:
- The worker is in a state of disability, regardless of its origin.
- The employer is aware of such condition.
- The dismissal occurs without proven just cause.
- The employer fails to request the corresponding authorization from the Ministry of Labor.
Likewise, the Supreme Court indicates that it is not the illness itself that triggers the protection of reinforced job stability for the worker, because the disability situation does not depend on the findings recorded in the medical history, but rather on the limitation they produce in the performance of their usual work.
For a person to be considered a beneficiary of the aforementioned labor protection, it is not sufficient that they be in a state of manifest weakness; it is also necessary that the employer's knowledge of that disability situation be established and that the decision to terminate the employment relationship stems from a discriminatory decision.
It is important to remember that to dismiss a person with a disability, prior permission from the Ministry of Labor is required; otherwise, a presumption of discriminatory dismissal is activated, which may be rebutted by the employer, who must prove that reasonable accommodations were made to guarantee the worker's right to work and equality, and if unable to make them, demonstrate that they constituted a disproportionate or unreasonable burden and that such situation was communicated to the worker.
It should be noted that the employer has the autonomy to terminate the employment relationship if the worker incurs an objective cause or just cause enshrined in Article 62 of the CST, the internal work regulations, or any other applicable to said contractual relationship, taking into account that in light of the Convention on the Rights of Persons with Disabilities, the employer must also demonstrate the implementation of reasonable accommodations.
Finally, the Labor Chamber of the Supreme Court of Justice makes a significant change in its stance regarding workers who suffer momentary health alterations or who suffer from temporary, transient, or short-duration pathologies, since such protection only applies to those persons who suffer from medium- and long-term impairments that, when interacting with workplace barriers, hinder their full and effective participation on an equal basis with other workers.
It is worth clarifying that not all health conditions are considered a disability; they can only be assessed for purposes of said guarantee if the aforementioned characteristics are met, since reinforced job stability is not an absolute right. For this reason, mechanisms have been created whereby it is possible to terminate the employment contract in cases of non-compliance with labor regulations.