Dismissal during medical leave in Brazil: is it allowed?

*A medical certificate (atestado médico) does not, on its own, give job security. But there are important limits: during INSS leave the contract is suspended and a dismissal without cause cannot take effect until the benefit ends; a dismissal motivated by a serious illness that carries stigma is presumed discriminatory; and an illness caused by work guarantees 12 months of job security.*

Quick summary

• Certificate for up to 15 days: the employer pays the days off (Law 8,213/1991, art. 60, §3).
• From the 16th day: the INSS (National Social Security Institute) takes over the benefit and the contract is suspended.
• Notice period and benefit: if the benefit starts during the notice period, the dismissal only takes effect after the benefit ends (TST Precedent 371 — the TST is the Superior Labor Court).
• Serious, stigmatizing illness (such as HIV): dismissal is presumed discriminatory (TST Precedent 443), with the right to reinstatement.
• Occupational disease or accident: 12 months of job security after the accident benefit.
• A false certificate can lead to dismissal for cause.

Situations and what applies

• Certificate for a few days, common illness — The rule: no job security; the employer must pay the justified days
• INSS leave (more than 15 days) — The rule: contract suspended; a dismissal without cause only takes effect after medical clearance
• Serious, stigmatizing illness — The rule: dismissal presumed discriminatory (TST Precedent 443; Law 9,029/1995)
• Illness caused or worsened by work — The rule: treated as a work accident; 12 months of job security (Law 8,213/1991, art. 118)

Step by step if you were dismissed while ill

1. Keep certificates, reports and test results with dates.
2. Check whether there was an INSS benefit in the Meu INSS app and on which dates.
3. Consider whether the illness is related to work and whether the CAT (work accident report) was issued — see Work accidents and CAT.
4. Write down how the dismissal happened: who told you, what was said and when, and whether there were comments about the illness.
5. Seek guidance and, where appropriate, ask for reinstatement or compensation in the Labor Court, within 2 years.

Frequently asked questions

Can my employer dismiss me while I'm on a medical certificate?

A common certificate does not give job security, but during INSS leave a dismissal does not take effect until medical clearance. A dismissal linked to a serious, stigmatizing illness is presumed discriminatory.

Who pays for days covered by a medical certificate?

The first 15 days are paid by the employer; from the 16th, by the INSS, if the benefit is granted.

Does work-related depression give job security?

If it is recognized as an occupational disease, it is treated as a work accident and can guarantee 12 months of job security.

Read more in this series

• Job security: who is entitled and for how long
• Work accidents: CAT, leave and workers' rights
• Severance pay: what you receive for each type of dismissal
• Evidence in a labor case: how to gather and organize it
• Index: complete guide to labor rights