O limbo jurídico previdenciário no auxílio-doença: responsabilidade do empregador e do INSS diante da lacuna legal

• Autor(a) principal: Santos, Amanda Cretella dos
• Data de Publicação: 2016
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/33214
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PRIVADO::DIREITO DO TRABALHO; Limbo jurídico; Previdência Social; Auxílio-doença; Ordenamento Jurídico brasileiro; Justiça do Trabalho; Legal limbo; Social Security; Illness benefit; Brazilian Legal System; Labor Courts

The present study review the legal status called “limbo jurídico-previdenciário” (“legal and social security limbo”) which, occurs in Brazil when an employee is discharged by the Social Security after receiving sick leave benefit, and the mandatory medical examination performed by the employer work physician concludes that the employee remains inapt to work, despite the Social Security´s discharge. Such situation is recurring and result in possible costs and damages to for both parties: the employee may not receive compensation during this period (in case the company concludes that the employment agreement remains suspended) and also may not receive any Social Security benefit (considering that the Social Security concludes that the employee is apt to work). In addition, the employee may be reassigned by the Company to perform activity that can worsen his medical condition. The review revolves on the fact that the Brazilian legal system does not provide any clear solution for the impasse. For this reason, currently, the responsible for finding a way out of this “limbo” is provided in a case-by-case review by the Brazilian courts. In this regard, the labor courts have been deciding that the employers are responsible for reallocating the employee to an appropriate labor activity or position and also for the payment of the compensation due along the limbo period. However, the employers cannot be held liable to pay to the employees’ compensation while they remain inapt to work, as a result of a negligent medical discharging procedure by the Social Security