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New Understanding of Labor Justice Overturns Requirement for Leave and INSS Benefit: Sick Dismissed Employee Can Demand Reinstatement or Indemnity If There Is a Nexus to Work
A new understanding of Labor Justice is changing the way companies and employees deal with cases of occupational diseases. Until recently, the jurisprudence required that the worker had been away for more than 15 days and had received accident-related sick pay (code B91 in INSS) to ensure provisional stability of 12 months in employment. Now, this is no longer necessary: it is enough to prove the nexus between the disease and the work, even after dismissal.
In practice, this closes the loophole used by many companies, which claimed the absence of formal leave or social security benefits to deny stability.
The change gives sick workers the chance for reinstatement to employment or indemnity equivalent to the stable period, even if the incapacity is recognized only after dismissal.
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What Changes with the New Understanding of Labor Justice
According to Magalhães & Moreno Law Firm, Article 118 of Law 8.213, which addresses stability in cases of accidents or occupational diseases, had been interpreted restrictively.
This allowed employees to be dismissed even when already weakened, under the argument that there was no long leave or INSS benefit.
With the new guidance, the central criterion becomes the causal or concausal nexus, that is, the relationship between the disease and the activity performed.
If a medical report or judicial expertise proves that the work caused or aggravated the illness, the employee’s right to stability will be recognized, regardless of prior leaves.
How the Worker Should Act After Dismissal
The first step is to seek medical attention immediately after dismissal, ensuring recent medical certificates and tests (X-rays, MRI, ultrasound, among others).
These documents help contest the dismissal examination, which often marks “fit” even in cases of illness.
Additionally, it is important to gather evidence of working conditions, such as photos, videos, and records of activities that demonstrate repetitive physical effort or exposure to risks.
With these elements, the employee can file a labor lawsuit seeking reinstatement or substitute indemnity, as explained by the Magalhães & Moreno Law Firm.
Another key point is access to sick pay from INSS right after dismissal.
If the benefit is granted, this reinforces the evidence that the incapacity already existed at the time of dismissal.
The worker can also, in severe cases, request compensation for moral, material damage, and even lifetime pension if there is a permanent loss of work capacity.
Impact on Companies and Workers
This new understanding of Labor Justice increases the responsibility of employers, who can no longer rely on the “loophole” of the absence of social security benefits to deny stability.
On the other hand, it strengthens the protection of the worker who has fallen ill in the exercise of their duties, balancing the relationship in cases of litigation.
Experts point out that the decision may also encourage companies to invest more in the prevention of occupational diseases, ergonomics, and workplace safety, as negligence can lead to costly reinstatements and indemnity sentences.
The shift in understanding by Labor Justice ensures that the right to stability no longer depends on formal leave or INSS benefits, but rather on the proof that the illness originates or was aggravated by work.
This strengthens protection for the worker and closes one of the biggest loopholes used by companies in judicial disputes.
And you, do you believe this decision brings more balance or could create insecurity for companies?
Leave your opinion in the comments — we want to hear from those who live this reality every day.
Eu paasei por uma revascularizacão se eu nao me achar em condições de voltar e me negarem o bebeficio o que tenho que fazer?
Eu descobri que estou com artrose nos dois joelhos, mas não tinha adquirido na empresa atual em que eu trabalhava, apenas descobri estando nela, e fui demitida, fui atrás do sindicato para tentar rever se eles poderiam me mandar embora, e o próprio sindicato me disse q eles poderiam sim me mandar embora pelo fato de eu não ter mto tempo de serviço na empresa, e pq eu não adquiri lá, só que isso me afetou!
Seja empregador, saberás que as decisões não acompanham o que é real e o justo.
O justo é demitir um funcionário que está doente e que adquiriu ou agravou a doença na empresa?
Empregador se doendo. Vira funcionário de uma empresa, adoeça nela de tanto trabalhar e depois volta aqui 0ra defender essa pauta.