The disability of a worker can only be ordered by a doctor or dentist from the Costa Rican Social Security Fund (C.C.S.S.), or even by the company doctor through the form provided by the C.C.S.S.
During the period of disability, the employment contract is temporarily suspended, under article 79 of the Labor Code, which establishes the following: "Likewise, a proven illness that incapacitates him for the normal performance of his work for a period of no more than three months is a cause for suspension of the contract, without liability for the worker."The total or partial suspension of employment contracts does not imply their termination or extinguish the rights and obligations that emanate from them.
In addition to the above, in the event of a worker's disability, the employer must assume the following obligations:
- 1) Allow the worker to rest and not interrupt said rest period in any way.
- 2) He will not be obliged to pay the salary under the suspension of the employment contract. The preceding is justified because if the employee did not work, he is not entitled to receive a salary but a subsidy.
However, the jurisprudence of the Second Chamber of the Supreme Court of Justice has indicated that the worker must not carry out any other work or recreational activity that may imply danger to their health. Moreover, carrying out this type of action makes the worker disregard the command to remain at rest. To support the preceding, the following excerpts are brought up:
It is concluded that the plaintiff's decisions put her health at risk, since the disabilities were granted to her to rest from the aforementioned ailments and not to travel abroad, unless such trips were made by prescription or medical suggestion, which was not demonstrated, or at least it was not the point under debate (Resolution 751-2008, Second Chamber of the Supreme Court of Justice).
Mr. A., during the periods of disability, carried out other activities and tasks, such as attending thirty-seven sessions of the Board of Directors of the Solidarity Association of Employees of the Fund, where it is noted that he did not comply with the prescribed rest. During the same period, while incapacitated, he traveled to Colombia to carry out activities of that body (Resolution 598-2010, Second Chamber of the Supreme Court of Justice).
The worker who is incapacitated, as a general rule, is prevented from providing services in the same workplace (even in a different area) and also from performing recreational activities that go against the said period of rest, even if it is a matter of tasks that they do regularly or daily basis. This prohibition is based on the assumption that the worker who fails to comply with the rest period puts his health at risk, delays his recovery, and return to work.
Now, as any rule or general principle, there are exceptions, which have been set out in numeral 14 of the applicable regulation, this being the Regulation for the granting of licenses and disabilities to beneficiaries of health insurance and the reform of the Health Insurance Regulations within Work, Insurance, disability and death, affiliation, Instructions for payment of benefits, etc., of April 24, 2014, as follows:
(…) The following are excepted: a) those cases that, according to the criteria of the professional who extends the disability, recommends performing some physical or recreational activity as part of the treatment, which must be noted and justified in the clinical file, indicating the time and type of activity that the insured requires for his recovery, during his period of disability and that does not endanger his health and b) what is stipulated in article 16 of these Regulations (…).
Thus, a disabled worker could not go to the gym, practice sports, go for a walk, be absent or leave the country unless the treating doctor authorizes such activity as part of his rest or recovery. The prescription must expressly stipulate the recreational activity and the period the worker will be carrying it out. Being disabled is not synonymous with vacation.
Likewise, in those cases that the worker leaves the country to complete medical treatment, he must provide the corresponding epicrisis upon his return, which will be part of his medical record. It is clarified that this assumption does not apply to workers who are outside the national territory at the time of receiving the disability.
As part of what is indicated, it is necessary to clarify that the disabled worker may carry out those tasks that are compatible with his condition and do not imply a violation or risk for his rest period, such as household chores.
Similarly, he may request the medical management of the center where the disability was granted to certify the activities that he can perform during that period, noted in the medical consultation.
Performing activities not authorized by the treating physician or working during those periods would have consequences for the employee; for example, suspension of disability, suspension of payment of the corresponding subsidy, and there could also be a dismissal without employer liability.
Faced with the question of what happens if the employer suspects that the disabled worker is not taking the required rest, the previously indicated regulation empowers the employer to request the medical management of the center where the disability was granted to certify the activities that the employee could perform during that time. If a breach is found, the worker runs the risk of suffering any of the consequences indicated above.
Finally, it is clarified that retroactive disabilities can be granted when the worker has been assisted in successive days without being incapacitated, and then it is found that he was unable to do his work.
For example, the worker received medical attention on September 7 and 8, 2021, without being incapacitated and afterward attended again on September 9, 2021. In that third visit, the corresponding doctor could determine that the worker required rest and delivers a disability that runs from September 7, 2021.
In that case, if the employee carried out activities that were incompatible with his state of health in the days before being declared disabled, by criteria of logic and reasonableness, it could not lead to any consequence because, although the declaration of the disability was retroactive, it was granted until a later date when such tasks were already carried out.
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