Action to be taken when an official, who, after having exhausted the maximum period of incapacity for work, continues to send sick leave

The question raised is about how the competent body should act when an official, who, after having exhausted the maximum period of incapacity for work, continues to send sick leave, despite the fact that the EVI resolution states that the interested party is not affected by a stabilized and irreversible injury or pathological process that makes it impossible for him to perform the functions proper to his Body or Scale.

In the first place, the legal framework for implementation must be analysed. The IT has been regulated, mainly, in article 20 of Royal Legislative Decree 4/2000, of 23 June, approving the consolidated text of the Law on Social Security of Civil Servants of the State, which refers in article 20 to the regulations of the General Social Security Regime regarding the duration and extinction of the situation of the Royal Temporary Disability Decree, specifically in articles 173 and following of Royal Legislative Decree 8/2015, of 30 October, approving the consolidated text of the General Social Security Law (LGSS).

In turn, Article 92 of Royal Decree 2/2010, of 8 January, amending the General Regulations of Administrative Mutualism, approved by Royal Decree 375/2003, of 28 March, on temporary disability and risk during pregnancy and during natural lactation, amending Royal Decree 375/2003, of 28 March, approving the General Regulations of Administrative Mutualism). It provides in its first paragraph that: "the maximum duration of the situation of temporary incapacity derived from illness ..., including those of the extensions that may be appropriate, will be that provided for in article 128 of Royal Legislative Decree 8/2015, of 30 October, approving the revised text of the General Law of Social Security, or provision replacing it" (this article provides that the maximum duration of the temporary incapacity situation is 365 days, extendable by another 180 days), adding the third paragraph that "At any time when the sickness ... is expected to definitively impede the performance of public functions and, in any case, before the maximum period referred to in paragraph 1 of this Article expires, the retirement procedure for permanent incapacity for service shall be initiated by the competent retirement body, ex officio or at the request of the person concerned.".

As for the extinction, the fourth paragraph f) stipulates that "The right to recognition of the situation of temporary incapacity shall be extinguished by, in any case, the exhaustion of the maximum duration referred to in paragraph 1 of this Article."And paragraph 5 that "when the situation of temporary incapacity is extinguished by the lapse of the maximum period established in the first paragraph of the article 131.bis. 2 of the Consolidated Text of the General Law of Social Security, Royal Legislative Decree 1/1994 or provision replacing it, will proceed to the examination of the situation of temporary incapacity of the official in the terms, deadlines and conditions established in article 20.4 of the consolidated text".

For its part, in the article 131.bis.2 of the TRLGSS states that "When the situation of temporary incapacity is extinguished by the lapse of the period of 545 days (365 + 180), it will necessarily be examined within 3 months for the purpose of its qualification in the degree of permanent incapacity that corresponds.Notwithstanding the provisions of the previous paragraph, in those cases in which, continuing the need for medical treatment due to the expectation of recovery or improvement of the worker's condition, the clinical situation of the interested party makes it advisable to delay the aforementioned qualification, this may be delayed for the precise period that, in no case may exceed 730 days (2 years or 24 months, before 30 months) following the onset of the temporary incapacity”.

The second paragraph of Article 20, fourth paragraph of the TRLSSFCE determines that:

"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 official shall be examined in the same terms and deadlines established in this System and by the corresponding permanent incapacity assessment team or unit 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 official.

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."

Finally, according to article 21.5 of the TRLSSFCE "the entitlement to the temporary incapacity allowance, whatever the situation giving rise to it, shall in any case be deemed extinguished by the lapse of the maximum period of duration, including that of extension of effects, from the date on which the temporary incapacity situation established in the General System has been initiated..”

Therefore, at the end of the maximum IT term, the employee must proceed to the examination of the temporary disability situation.

In addition, in accordance with the procedure for declaring the forced retirement of public officials, approved by a Resolution of the Secretariat of State for Public Administration of 29 December 1995, it is necessary for the body competent to issue the forced retirement to request the issuance of a report by the corresponding medical body which must state, in a reasoned manner, its opinion on the capacity or incapacity of the official for service. However, this opinion was mandatory but not binding, so the final decision on whether or not the public official was in a position to be forcibly retired was left to the retirement body.

In view of the above, the question raised focuses on the way in which the competent body will have to act if, after the maximum period of IT, the staff member continues to submit discharge portions.

The Social Chamber of the Supreme Court in Judgment of July 8, 2013 (appeal 2988/2012, which has been followed by others, has had the opportunity to point out that the maximum period is granted for it to proceed to the qualification of permanent disability, adding that the provision of such maximum period is not addressed to the interested party, that no power has in the qualification procedure, but to the managing entity, which is the one that has to carry out the qualification, that "may be delayed for the required period", but without exceeding "in no case" the maximum period foreseen.

Thus, if, after the maximum period, the withdrawal parties continue to arrive, the competent body must attend to them, without prejudice to adopting the necessary verification measures on the veracity of the alleged facts, through the corresponding health inspection services.

In any case, it should be remembered that it is the doctrine of the Supreme Court (for all, judgments of 22 October 1991 (rec. 1075/90), 2 January 1992 (rec. 595/91) and 7 October 2004 (rec. 4173/03)) that the extinction of temporary incapacity generates the birth of the duty to return to work, when an administrative decision is issued declaring that the worker is not affected by permanent incapacity for work.

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.