Does the cosmetic nature of the procedure preclude the existence of incapacity for work?
The fact that a procedure is performed exclusively for cosmetic purposes, without any therapeutic or reconstructive indication, does not mean that any subsequent absence cannot be classified as temporary incapacity for work.
For the purposes of sickness protection, particular relevance should be given to the existence of a medical condition that effectively results in temporary incapacity to perform the employee’s professional duties.
Portuguese Social Security defines sickness benefit as a benefit designed to compensate for the loss of income of employees who are temporarily unable to work due to illness. One of the eligibility requirements is the existence of a Temporary Incapacity Certificate (Certificado de Incapacidade Temporária para o Trabalho, “CIT”), without prejudice to the other legally applicable requirements.
In this context, the fact that the procedure was voluntarily decided upon and scheduled by the employee should not be confused with the subsequent medical assessment of the employee’s actual capacity to work.
How should the absence be treated?
From an employment law perspective, three separate aspects should be distinguished:
1. Justification of the absence
Article 249 of the Portuguese Labour Code classifies as justified, among others, an absence resulting from an inability to work due to circumstances not attributable to the employee, including illness.
The classification of the absence should therefore be assessed considering the specific circumstances and the documentation provided by the employee, while also complying with the statutory rules concerning notification and evidence of the grounds justifying the absence.
2. Temporary incapacity for work
A CIT is issued to certify a situation of incapacity or inability to work. The information provided by Portuguese Social Security covers, among other situations, illness, hospitalisation and outpatient surgery.
Accordingly, it would not be advisable to establish a general rule whereby a cosmetic procedure, merely because it is voluntary, necessarily excludes the possibility of certification of temporary incapacity for work.
3. Remuneration-related consequences
The fact that an absence is considered justified does not necessarily mean that the employee is entitled to continue receiving remuneration from the employer.
It is therefore important to distinguish between the justification of the absence for employment law purposes and any entitlement of the employee to sickness benefit or another Social Security benefit, the granting of which depends on compliance with the relevant statutory requirements.
Can the employer verify the employee’s incapacity?
While an employer cannot replace healthcare professionals in assessing an employee’s medical condition, the law has long provided specific mechanisms allowing employers to request verification of an employee’s temporary incapacity for work.
Portuguese Social Security itself, in a spirit of cooperation with companies in combating fraud in the granting of sickness benefits, allows employers to request verification of the incapacity of employees covered by a CIT.
This mechanism may be particularly relevant where there are doubts as to the existence or continuation of the employee’s incapacity for work and should be used judiciously and with due respect for the employee’s privacy and health data.
Why is a preventive approach important?
In the case of scheduled procedures, companies are advised to establish clear internal guidelines regarding the notification and justification of absences, while avoiding policies that automatically result in less favourable treatment based on the origin of the employee’s medical condition.
Where there is no temporary incapacity for work, and subject to agreement between the parties, alternative arrangements may be considered, including:
- scheduling the procedure by reference to the employee’s holiday period, without prejudice to the statutory rules applicable to the scheduling of annual leave;
- using rest days or working-time compensation mechanisms, where available and legally permissible;
- granting unpaid leave; or
- adopting other organisational arrangements appropriate to the specific circumstances, such as a temporary agreement for the performance of work under a remote working arrangement.
However, these alternatives should not be used as a means of circumventing the applicable statutory framework where there is a duly certified situation of temporary incapacity for work.
In summary: the voluntary or exclusively cosmetic nature of a procedure should not constitute the determining criterion for the employment law treatment of a subsequent absence.
The analysis should focus on the employee’s specific circumstances, particularly the existence of an actual incapacity for work and the corresponding certification, carefully distinguishing between the justification of the absence, continued payment of remuneration and any entitlement to Social Security benefits.
For employers, the adoption of clear, consistent and non-discriminatory internal procedures, combined with appropriate protection of the confidentiality of employees’ health data, represents the most prudent approach to managing these situations.
The Employment Law Department of Belzuz Abogados, S.L.P. – Portuguese Branch, comprising lawyers with extensive experience in assisting with the preparation and review of internal policies and regulations, is available to support companies in assessing and managing these situations, ensuring a legally sound approach aligned with employment law best practices.