Currently, the Brazilian Social Security Institute (INSS) is becoming more aware and vigilant to possible pensions/benefits that are no longer necessary. In fact, this Institute frequently organizes task-forces with experts (usually physicians) to determine the actual situation of the beneficiaries.
As an example, we can mention the lawsuits on disability retirement, which can last for many years, in which case does it make sense for the INSS to verify the beneficiary’s condition, to determine the maintenance or the end of such benefit.
Through these verifications, in many cases, even before the analysis by the expert, the INSS may decide to end the benefit because the insured is able to work again. Then, the benefit is terminated and the labor agreement (that was suspended during the length of the benefit) can be reactivated, as per the legal provisions of Article 475 of the Brazilian Labor Laws (CLT).
The issue is that the INSS does not communicate the end of this benefit to the employer, making it more difficult to manage employees on absence/leave. Conversely, the communication about the termination of the benefit is fully known by the insured, who can even appeal the INSS decision.
Given this situation, we understand that the insured, upon becoming aware of the cessation of ‘disability retirement’, is the one who has the duty/burden to inform their employer about this fact, giving unequivocal knowledge that they are available to return to work, under penalty of characterizing job abandonment, and they may also indicate whether or not they are appealing the INSS decision.
From such communication, the employer’s responsibility to initiate internal procedures that allow for the insured to return to work will begin. The employer may be liable for the payment of wages, counted from the date of end of disability retirement until the effective return to work, a situation commonly referred to as ‘social pension limbo’.
Furthermore, this understanding is in line with Summary No. 32, by the Superior Labor Court (‘TST’), which sets forth: ‘JOB ABANDONMENT. Job abandonment is presumed if the worker does not return to service within thirty (30) days after the end of the social security benefit and does not justify the reason for not doing so.’
Thus, even if the responsibility to communicate the end of the benefit falls upon the employee, we understand that an assertive management of employees on leave is an important cautionary measure.