What provisions should an employer take for employees with work disabilities?

Executive Decree No. 45 of April 7, 2022, adopts new labor protection standards for individuals with chronic, involutional, or degenerative diseases (hereinafter chronic illnesses) resulting in work disability.

While Panama already had regulations protecting workers or public officials with chronic illnesses resulting in work disability, this decree creates specific regulations concerning the procedure that both the worker/public official and the employer must follow to request and obtain an official certification determining whether there is or isn’t a presence of work disability due to a chronic illness.

In this regard, the existing regulations on this matter, which remain in force, are detailed as follows:

• Every worker has the right to maintain their job under the same conditions as before their diagnosis.
• The suffering of a chronic illness cannot be used as grounds for dismissal, provided the worker meets the requirements to perform a position compatible with their hierarchy, strength, skills, preparation, expertise, and new condition.
• Discrimination against workers with chronic illnesses resulting in work disability is prohibited.
• Any form of pressure or persecution for this reason, forcing the worker to leave their job, is also prohibited.
• Dismissal based on this ground will be deemed unjustified.
• In this regard, dismissal will only be valid with prior judicial authorization from the Sectional Labor Courts. In the case of public servants, a justified cause in the law must be invoked, following the corresponding procedures.
• The new regulations are outlined as follows:
• It is the worker’s responsibility to submit certifications indicating they suffer from a chronic illness to the Human Resources department of their employer or public entity promptly.
• This certification will be requested from the Interdisciplinary Commission for Physical or Mental Certification of the General Directorate of Public Health of the Ministry of Health through the Executive Technical Secretariat office attached to the General Directorate of Public Health of the Ministry of Health.
• The worker can also request this certification after being dismissed or removed from their position to establish their physical or mental condition. During the period in which the Interdisciplinary Commission resolves the request, the worker will remain in their job position.
• The employer may also request the physical or mental health certification to identify if the work disability is partial or absolute and the feasibility of the worker’s job performance.

Terms

When workers request a physical or mental health certification after their dismissal or removal, the employer must keep them in their position until the Interdisciplinary Commission determines their condition. According to the terms of the law, this could be for approximately two months.

Considerations

If the physical or mental health certification determines the worker’s absolute disability to perform their job or any job compatible with their hierarchy, strength, skills, preparation, expertise, and their new condition, the application of article 213 B, numeral 4, of the Labor Code is feasible, which states the following:

Justified causes empowering the employer to terminate the employment relationship:

Of a non-imputable nature

The mental or physical incapacity of the worker, duly proven, or the loss of the suitability required by law for the exercise of the profession makes it impossible to fulfill the essential obligations of the contract.”

By the cited norm, I consider that while the law protects a worker with a work disability resulting from a chronic illness from being dismissed, the law also empowers the employer to request a physical and mental health certification, determining the viability and possibility of the worker’s job performance.

With this decree, the opportunity is presented to present the evidence that the dismissal ground mentioned establishes a condition for executing a non-imputable dismissal under these circumstances since it creates the creation of the Interdisciplinary Commission and the Technical Secretariat, as well as the concepts of physical and mental Certification and partial and absolute work disability.

Before this norm, the ways, procedures, formalities, and conditions with which both workers and employers could certify, prove, or demonstrate the existence or absence of work disability, whether partial or absolute, were not clear or defined.

It is also an opportunity for the worker, who now has a mechanism to establish officially that they can maintain their job position in the company. Their rights regarding the protection of their job against unjustified dismissal are reinforced. Alternatively, they can apply for a disability pension with the Social Security Fund.

 

Recommendations:

1. This new provision obligates the worker to submit certifications verifying their condition promptly so that Human Resources offices can request this information firsthand and provide the requirements, such as first aid care or any accommodations the worker requires to perform their tasks.
2. Consider that, in the event of dismissal or removal, the Interdisciplinary Commission can be requested to certify the worker’s accurate and current condition, which may take approximately two months.
3. Note that to apply the maximum penalty of dismissal, the employer has a maximum term of two months for notification and execution.
4. Document each worker’s file, which will be helpful if it is necessary to request authorization for dismissal before a Labor Judge. Providing evidence of the alleged dismissal ground will be required.
5. Avoid making dismissals without thoroughly reviewing each case, as it could lead to reinstatement processes, compensations, and judgments against the employer for unjustified dismissal.