On September 13, 2024, Bill 121/000033 was published, introducing a significant amendment to the Workers’ Statute that affects cases of permanent disability and the termination of employment contracts. This reform clarifies the steps that both employers and employees must follow when an individual is affected by a permanent disability that may prevent them from continuing in their job.
This reform clarifies the steps that both employers and employees must take when an individual is affected by a permanent disability that may prevent them from continuing in their job.
Article 49.1 of the Employee Statute
The regulations have been updated. Until now, if a worker was granted a permanent disability of any degree, the contract was automatically terminated. The new wording establishes that when an employee is declared to have an absolute or total permanent disability, or is granted the third-party assistance supplement (formerly known as “severe disability”), the company must take a series of steps to attempt to reassign the employee or, if that is not possible, proceed with the termination of the contract.
Steps the company should take to try to find the employee a new position
When an employee is deemed permanently disabled, the company is required to assess whether it is possible to accommodate the employee in their current position or reassign them to another position. Here are the measures the company should consider:
- Reasonable Accommodations in the Workplace: The company must assess whether changes can be made to allow the employee to continue performing his or her duties. These accommodations include:
- Modifying the job duties or conditions to accommodate the employee’s new abilities.
- Adapting tools or work equipment to make them accessible, if necessary.
- Additional training to enable the employee to perform their duties in accordance with their new situation.
- The occupational safety and health services shall determine, in accordance with the provisions of the regulations on occupational safety and health and with the participation of worker representatives in matters of occupational safety and health, the scope and characteristics of the adjustment measures, including those related to training, information, and monitoring of the worker’s health, and will identify the job positions compatible with the worker’s new situation
- Reassignment to Another Available Position: If it is not possible to adapt the original position, the company must seek another vacant position that matches the employee’s professional profile and is compatible with their new circumstances. The goal is to avoid terminating the employment contract as long as there are reasonable options for reassigning the employee within the organization.
- Assessment of Undue Hardship: If the company determines that accommodations or job reassignment would constitute “undue hardship,” the following must be taken into account:
- Are there any grants or public assistance programs for people with disabilities that can help cover the costs of accessibility modifications?
- The size of the company, the average salary, and the revenue, to determine whether the adjustment would require a disproportionate effort.
Deadlines for Taking Action
- The employee has 10 days from the date of notification of the disability determination to indicate their desire to remain with the company.
- The company has three months from the date of notification to make the necessary adjustments, reassign the employee, or terminate the contract if both options prove unfeasible.
Termination of the contract if there are no alternatives
If the company determines that neither adjustments nor reassignment are possible, it may terminate the contract; however, this decision must be duly justified and communicated in writing to the employee.
During the adaptation or reassignment process, the employee will continue to receive the financial benefits associated with temporary disability for a maximum of three months. If, at the end of this period, the employee has not been adapted or reassigned, payment of the permanent disability pension will begin.
This legislative amendment seeks to protect workers who are unable to work, while providing a clear framework for companies to evaluate all options before deciding to terminate a contract, thereby balancing labor rights and economic viability.
