Sick leave due to work accident: rights and necessary procedures

According to figures from the Ministry of Labour and Social Economy, a total of 786,569 occupational accidents occurred in Spain from January to August 2023. Of this amount, 52.4% were accidents resulting in time off work. What does this mean? That employees were able to temporarily absent themselves from their duties due to injuries or illnesses caused by their work.

In this article, we talk about leave for an occupational accident, who authorises it, how it is authorised, and how much the worker is paid during this period. Let's get to it! 

What does the Law say about occupational accidents?

In Spain, Article 156 of the General Social Security Law defines an occupational accident as any bodily injury that the worker suffers as a result of or in consequence of the work they perform for another person. This includes accidents that occur on the way to work or on the way home, known as accidents in itinere, as well as those that occur while performing tasks that benefit the company, even if they are not part of the usual responsibilities.

However, there are some exceptions. For example, an accident is not considered an occupational accident if it is caused intentionally or by gross negligence on the part of the worker, or if it is caused by force majeure that has nothing to do with work.

Now, do all accidents lead to sick leave? The answer is no, and in the next section we explain why. 

When is an accident considered to cause sick leave?

For the accident to be considered a cause for sick leave, it must meet certain characteristics. And the first is the one we mentioned before, that is, that it occurs during the performance of work activities or on the journey between the home and the workplace. In addition:

• The accident must result in a physical injury or illness that incapacitates the worker from performing their usual functions.

• There must be a direct relationship between the accident and the work performed. In other words, the injury or illness must be a direct consequence of the work activities.

Find out who grants leave for an occupational accident and how to apply for it

Leave for an occupational accident can be granted by a primary care doctor or the mutual insurance company's doctor. The process for processing leave due to an occupational accident generally follows these steps:

• Initial medical attention: when a worker suffers an occupational accident, the first thing is to receive medical attention. If the injury is not serious, the employee can go to their primary care doctor to receive treatment and obtain a medical report that certifies the sick leave.

• Accident report: if the company is affiliated with a mutua (mutual insurance company), the worker can be treated by the mutua's doctor instead of going to the primary care doctor. This doctor will issue an accident report, which is an official document that certifies the existence of the accident and its relationship with the work, as well as the need for sick leave if necessary.

• Notification to the company and Social Security: the doctor gives a copy of the report to the worker, and the National Social Security Institute is the one who informs the company about the worker's leave. The sick leave report must include the day of the examination and the time the employee will be out of service.

• Economic data: the company must inform Social Security of the worker's economic data.

Economic benefits during leave

During leave for an occupational accident, the worker has the right to receive an economic benefit, which is assumed by Social Security or the corresponding managing entity. On the day the accident occurs, the company must pay the full day's salary. From the second day, 75% of the salary is received through Social Security. 

Furthermore, it is important to know that certain labor agreements may offer additional compensation. Likewise, some mutual insurance companies also offer additional supplements to the subsidy, such as the payment of 100% of the salary during the first days of leave, or aid for medical and rehabilitation expenses. We must also mention that, during the leave, the worker continues to receive the extra payments (pagas extras) of their salary. 

Dismissal during leave for an occupational accident: justified or not?

Let's clarify something: during leave for an occupational accident, you can be dismissed from the company. However, the leave cannot be the cause of the dismissal. In other words, if the company decides that you have engaged in harmful conduct or that you do not perform your duties well, they can dismiss you. But if it is discovered that the medical condition was what motivated the decision, it is considered unfair dismissal (improcedente).  

Below, we explain the types of dismissal in cases of leave due to an occupational accident: 

• A dismissal based solely on a worker being on leave due to an occupational accident may be considered null and void (nulo). This means that the dismissal is illegal and the worker must be reinstated to their job with the same conditions they had before the leave, in addition to receiving payment for the salaries lost during the dismissal period.

• If the causes for dismissal are not adequately justified, it may be declared unfair (improcedente) by a judge. The company would have to choose between readmitting the worker and paying them the salaries lost or compensating them with an economic amount determined by law.

• The dismissal is justified (procedente) when it is based on justified objective causes, such as economic, technical, organizational, or production reasons, or on a serious fault by the worker. In this case, the dismissal is carried out in accordance with current regulations and the worker would receive the corresponding compensation if applicable.

We also recommend this article on leave for work-related stress and another one about the keys to the Occupational Risk Prevention Law. Subscribe to Educa.Pro for more content on current business affairs!