Elimination of the obligation to provide the company with a sick leave report

In this article we analyse the most important aspects of Royal Decree 1060/2022 of 27 December.

The most important new feature of Royal Decree 1060/2022, of 27 December, which amends Royal Decree 625/2014, of 18 July, which regulates certain aspects of the management and control of temporary incapacity processes during the first three hundred and sixty-five days of their duration, is the disappearance of the obligation for the worker to send the medical leave report to the company.

The traditional modus operandi to date (and until the new rules come into force on 1 April 2023) is designed in such a way that the medical practitioner gives the worker, in addition to the medical report intended for him/her, a paper copy of the medical reports of sick leave, confirmation and medical discharge so that he/she can present them to the company within a given period, which, in turn, has to fill in certain information required in them and send them to the managing body.

However, the current level of development of computer systems makes it possible to dispense with the need to provide the worker with a paper copy of the medical report for the company and, therefore, with its subsequent submission.

In fact, the current electronic means allow for the timely communication to the company, directly by the Administration, of the issuing of medical reports.

It is also possible for companies to provide the Administration with the additional data it needs to manage and control the situation of temporary incapacity and the corresponding benefit, as well as the compensation in the contribution, where applicable, of what has been paid in delegated payment, without the need for the worker to present the report beforehand.

In this way, the worker is also spared bureaucratic obligations which, precisely because he or she is temporarily incapacitated, can be burdensome for him or her. The situation that has arisen as a result of the COVID-19 pandemic provides further reasons for such a change, as it has highlighted the limitations of the aforementioned scheme, causing various incidents and highlighting the need to modify the current methods of managing temporary incapacity processes.

On the other hand, this Royal Decree also regulates certain aspects of the management and control of temporary incapacity processes during the first 365 days of their duration.

Thus, the sick leave and sick leave confirmation reports will be extended according to the period of duration estimated by the doctor issuing them. For this purpose, four groups of processes are established:

a) In processes with an estimated duration of less than five calendar days, the doctor from the public health service, or from the collaborating company or mutual insurance company, will issue the sick leave report and the discharge report in the same medical act.

The doctor, depending on when he/she foresees that the worker will recover his/her ability to work, will include in the report the date of discharge, which may be the same as that of the sick leave or any of the three calendar days following the sick leave.

However, the worker may request a medical examination on the day set as the date of discharge, and the doctor may issue the sick leave confirmation report if he/she considers that the worker has not recovered his/her capacity to work.

b) In processes with an estimated duration of between five and thirty calendar days, the doctor of the public health service, or of the collaborating company or of the mutual insurance company, shall issue the sick leave report stating the date of the planned medical check-up, which shall in no case exceed the date of the initial sick leave by more than seven calendar days. On the date of the check-up, the sick leave report or, if the incapacity continues, the sick leave confirmation report shall be issued. After this first confirmation report, subsequent reports, when necessary, may not be issued more than fourteen calendar days apart.

c) In processes with an estimated duration of between thirty-one and sixty calendar days, the doctor of the public health service, or of the collaborating company or of the mutual insurance company, shall issue the sick leave report, stating therein the date of the planned medical check-up, which shall in no case exceed the date of the initial sick leave by more than seven calendar days, and shall then issue the discharge report or, where appropriate, the corresponding sick leave confirmation report. After this first confirmation report, subsequent reports, when necessary, may not be issued more than 28 calendar days apart.

d) In processes with an estimated duration of sixty-one or more calendar days, the doctor of the public health service, or of the collaborating company or of the mutual insurance company, shall issue the sick leave report, in which he shall set the date of the planned medical check-up, which in no case shall exceed the date of the initial sick leave by more than fourteen calendar days, and shall then issue the discharge report or, where appropriate, the corresponding sick leave confirmation report. After this first confirmation report, successive ones, when necessary, may not be issued more than thirty-five calendar days apart.

In any of the processes referred to in this section, the doctor of the public health service, of the collaborating company or of the mutual insurance company may set the corresponding medical check-up in a shorter period than that indicated in each case.

It is also worth highlighting the following points included in this Royal Decree:

Proposal for discharge by the mutual insurance company: When the proposal for discharge formulated by a mutual insurance company is not resolved and notified within five days, the latter may request discharge from the National Social Security Institute (INSS). The managing body must take a decision within four days of receipt.

Processing of medical reports by the INSS: The doctor who issues the medical report of sick leave, confirmation or discharge will give the worker a copy of it. The public health service or, where applicable, the mutual insurance company or the collaborating company will send the data contained in the medical reports of sick leave, confirmation and discharge to the National Institute of Social Security, by telematic means, immediately, and in any case, on the first working day following the day on which they are issued.

The National Social Security Institute, in turn, will communicate to the companies the merely administrative identification data relating to the medical reports of sick leave, confirmation and registration issued by the doctors of the public health service or of the mutual insurance company, referring to their workers, at the latest on the first working day following their receipt at the said Institute, for their knowledge. Companies are obliged to transmit to the National Social Security Institute through the Electronic Data Remission system (RED), immediately and, in any case, within a maximum period of three working days from receipt of the notification of the sick leave, the data determined by ministerial order.

The aforementioned transmission shall not be obligatory when the worker belongs to a group for which the company or employer is not obliged to join the RED system. Failure to comply with the aforementioned obligation may constitute, where applicable, an infringement of those classified as minor in article 21.4 of the revised text of the Law on Infringements and Penalties in the Social Order, with fines of between €70 and €750.

Recovery of the amount not deducted in social security payments: When the employer has paid a worker a temporary incapacity benefit in delegated payment, without having compensated this amount by deducting it from the settlements for the payment of Social Security contributions, he/she may apply to the National Social Security Institute, the Social Marine Institute or the mutual insurance company, depending on which is the competent entity for the management of the benefit, for the reimbursement of the amounts paid to the worker for this concept and not deducted. P

rocessing of a discharge by a medical inspector: When the medical discharge report is issued by the medical inspector of the National Social Security Institute or, where applicable, of the Social Marine Institute, these entities will transfer the data contained in the report immediately, and, in any case, on the first working day following that of said issue, to the corresponding public health service for its knowledge and also to the mutual insurance company, in the case of workers protected by the same, with the aim of the latter issuing an agreement declaring the entitlement extinguished due to the discharge, its reasons and effects, and notifying the company of the agreement.

Likewise, the medical inspector will give a copy of the report to the worker, for his/her knowledge, informing him/her of the obligation to return to work on the day following the day of issue. The managing body shall inform the company, for its knowledge, of the purely administrative details of the medical discharge reports of its employees, at the latest, on the first working day following the day on which they are issued.

When in a temporary incapacity process the medical discharge report has been issued by the National Social Security Institute or, where applicable, by the Social Marine Institute, through the medical inspectors of these entities, during the 180 calendar days following the date on which the discharge was issued, these entities shall be the only ones competent, through their own doctors, to issue a new medical leave for the same or a similar pathology.

Ongoing medical leave processes: The provisions introduced by this Royal Decree will be applicable, as of its entry into force on 1 April of this year, to processes that at that time are ongoing and have not exceeded 365 days in duration.

The Labour Management Department of AddVANTE – Baker Tilly remains at your disposal to provide further information or to resolve any queries that may arise in relation to this article.