Administrative status of a staff member during the time between the end of temporary disability and the assessment of the disability assessment team (EVI)

The consultation is about the administrative situation of a staff member during the time between the end of the temporary disability and the assessment of the disability assessment team (EVI).

Article 85 of the consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October (hereinafter, TRLEBEP), states that career officials will be in one of the following situations: active service, special services, service in other Public Administrations, leave and suspension of duties.

For its part, Article 88 of the General Regulations of Administrative Mutualism approved by Royal Decree 375/2003, of March 28, establishes that:

“1. Officials who fall within the scope of the Special Social Security Regime for Civil Servants of the State shall be in a situation of temporary incapacity when, due to illness or accident, they demonstrate the simultaneous concurrence of the following circumstances:

a) To suffer a pathological process due to a common or professional illness or injury due to an accident, whether or not on duty, or to be in a period of observation due to a professional illness, which temporarily prevents them from performing their normal public functions.

b) Receive health care for their recovery facilitated by the General Mutuality of Civil Servants of the State.

(c) Obtaining a sick leave in accordance with the established procedure.

2. Likewise, staff members who are in special situations of temporary incapacity due to common contingencies referred to in article 169.1.a), second and third paragraphs, of the consolidated text of the General Law of Social Security, approved by Royal Legislative Decree 8/2015, of October 30, under the terms of articles 144, 172 and 173 of the same norm, will be in a situation of temporary incapacity.”

It follows from the foregoing that, in accordance with the provisions of article 85 of the TRLEBEP, an official may find himself in only one of the five administrative situations indicated therein, and must consider the situation of temporary incapacity not as one of the aforementioned situations, but as a state or contingency in which an official may find himself, and which is characterized by the simultaneous concurrence of the circumstances referred to in article 88 of the General Regulations of Administrative Mutualism.

Consequently, and according to the information provided, the staff member is in one of the above-mentioned situations, which is presumed to be the situation of active service, based on the circumstances described.

On the other hand, article 20 of the consolidated text of the Law on Social Security for Civil Servants of the State, approved by Royal Legislative Decree 4/2000 of 23 June, provides the following in its first and second paragraphs:

“1. The duration and extinction of the temporary disability situation shall be those provided for in the General Social Security System with the particularities set out in the following paragraphs.

2. The duration of the first and successive licenses will be the time foreseeably necessary for healing. The deadlines for the presentation of the parties or medical reports that demonstrate the need to maintain the license will be determined by regulation. For the purposes of calculating time limits, a new pathological process shall be considered to exist when the illnesses suffered by the official are different or not directly related to those of the previous process and, in any case, when the licences have been interrupted for a minimum period of 6 months.”

The fourth paragraph of this same precept establishes the following:

“4. When the situation of temporary incapacity is extinguished by the lapse of the maximum period established in the General Social Security System, the situation of temporary incapacity of the civil servant will be examined in the same terms and deadlines established in this System and by the corresponding team or unit of assessment of permanent incapacities to which the General Mutuality of Civil Servants of the State has entrusted this function or which is appropriate according to the Body or Scale of the civil servant.

This examination will determine whether the staff member’s incapacitation status will result in his or her qualification as permanently incapacitated for the functions proper to his or her Corps or Scale and the subsequent declaration of retirement for permanent incapacity for service.

In those cases in which it is determined that, continuing the need for medical treatment due to the expectation of recovery or the improvement of the status of the official with a view to his return to service, the clinical situation of the interested party makes it advisable to delay the aforementioned qualification, this may be delayed for the precise period, which, in no case, may exceed the maximum duration from the date on which the temporary incapacity situation has been initiated, as established in the General Regime. In this period, the effects of the temporary disability situation will be extended.”

In this regard, it should be noted that the consolidated text of the General Social Security Law, approved by Royal Legislative Decree 8/2015, of 30 October, provides in its article 169.1.a) the following:

“1. They will consider situations determining temporary incapacity:

a) Those due to common or professional illness and accident, whether or not at work, as long as the worker receives health care from the Social Security and is prevented from work, with a maximum duration of three hundred and sixty-five days, extendable by another one hundred and eighty days when it is presumed that during them the worker can be discharged by medical treatment. (…)”.

However, article 174.2 of the same Law provides in the second paragraph the following:

“However, in those cases in which, continuing the need for medical treatment due to the expectation of recovery or the improvement of the worker’s condition, with a view to his return to work, the clinical situation of the interested party makes it advisable to delay the aforementioned qualification, this may be delayed for the precise period, without in any case exceeding the seven hundred and thirty calendar days added those of temporary incapacity and those of prolongation of its effects.”

The rule regulates the maximum term of temporary incapacity, as well as the extension of the term when there are expectations of recovery or improvement. Once this period has elapsed, it must be understood, in general, that the official must be discharged and must be reinstated in his/her place of work, which seems to be clear, not only from what has been said, but also from the provisions of Article 92(4)(f) of the General Regulations of Administrative Mutualism, according to which the right to recognition of the situation of temporary incapacity shall be extinguished by: “f) In any case, for the exhaustion of the maximum duration referred to in paragraph 1 of this article.”

On the other hand, the evaluation opinion referred to in article 20.4 of the consolidated text of the Law on Social Security for Civil Servants of the State, is not intended to indicate whether or not the situation of temporary incapacity is extinguished — for which it is necessary to comply with the provisions of article 92 of the General Regulations of Administrative Mutualism — but to assess whether the conditions for the recognition of the situation of permanent incapacity are met, and consequently, the consequent declaration of retirement for permanent incapacity for service since, as has been indicated, the aforementioned report is generally issued once the temporary incapacity has been exhausted.

However, there are diseases or injuries that do not make it possible to determine the permanent incapacity of the same, but, despite this, it is a disease that repeatedly and constantly prevents the official from performing his functions correctly, so that the corresponding license must be granted, without prejudice to carrying out the necessary checks on the veracity of the alleged facts.

In short, both during the entire period of temporary incapacity, and in the period that you gave from the end of the temporary incapacity and until the official is examined by the Disability Assessment Team (EVI), the official is in an active service situation, so that, once the maximum period of temporary incapacity is exhausted, and until it is reviewed by the EVI, in principle, the official will have to return to work unless he presents a new part of leave and the corresponding sick leave is granted.

All of the foregoing is without prejudice to recalling that, according to the regime of competences of this management center, the answers to queries issued by this general directorate are merely informative and, consequently, are not of a binding criterion, nor do they give rise to rights or expectations of law, nor imply any link with the type of procedures to which they refer. Furthermore, in the absence of a mandatory or binding nature, the bodies receiving such replies may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The responses to queries contained in this bulletin address the issues raised in the light of the regulations in force at the time of their issuance, so that such responses may be affected by subsequent legislative changes or judicial decisions.