Quem recebe auxílio-doença tem direito à estabilidade?

Quem recebe auxílio-doença tem direito à estabilidade?

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Se você é um microempresário e já possui funcionários, pode se deparar um dia com a confusão de termos sobre estabilidade provisória em caso de doenças. Porém, vale a pena explicar desde início que o auxílio-doença não dá direito à estabilidade.

É recorrente os trabalhadores confundirem muitas vezes dois tipos de benefícios previdenciários distintos: auxílio-doença previdenciário e auxílio-doença acidentário.

Qual a diferença entre o auxílio-doença previdenciário e acidentário?

A principal variação entre ambos é a origem da incapacidade do trabalhador em desempenhar suas funções normalmente no trabalho.

No previdenciário, que é o mais comum, a incapacidade do funcionário se deve a uma doença que não está relacionada ao trabalho. Já no acidentário, a incapacidade do funcionário se deve ao resultado de um acidente ocorrido no trabalho ou no deslocamento do trabalhador até o local onde executa suas atividades e vice-versa.

Somente por um afastamento decorrente de um acidente de trabalho é que pode configurar a estabilidade por parte da lei trabalhista. Como bem especifica o art. 19 da Lei 8.213/9:

“O acidente de trabalho é aquele sofrido pelo exercício do trabalho a serviço da empresa, provocando lesão corporal ou perturbação funcional que cause a morte ou a perda ou redução, permanente ou temporária, da capacidade para o trabalho.”

Vale lembrar ainda que a Súmula nº 378, II, do Tribunal Superior do Trabalho (TST) esclarece ter recebido o auxílio-doença acidentário não é obrigatório para consolidar a estabilidade, uma vez que se for provado que o funcionário adquiriu a doença em decorrência do trabalho mesmo sem gozar do auxílio-doença, fica resguardada sua relação de causalidade.

Por fim, fica ainda estabelecido que o trabalhador precisa possuir a carêcia de 12 contribuições no INSS para se tornar segurado.

Exemplo prático

Digamos que Adalberto escorregue em casa e acaba quebrando seus dois braços. Seu tempo de recuperação é estimado em 45 dias, desta forma Adalberto receberá o auxílio-doença previdenciário a partir do do 16º (décimo sexto) dia, mas nada impede que em sua volta a empresa opte por desligá-lo devido a outros motivos.

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Agora, e se Adalberto tivesse escorregado no escritório ou a caminho dele e quebrasse ambos os braços, com o mesmo tempo de recuperação estimado?

Neste caso, como a origem do fato aconteceu no local de trabalho ou em seu trajeto, ele deverá receber o auxílio-doença acidentário, pois sua lesão o incapacita de realizar sua atividade profissional e então ele terá provisoriamente a estabilidade assegurada pelos próximos doze meses assim que o fim do auxílio-doença acidentário chegar ao fim.

Resumindo…

Há dois tipos de auxílio-doença!

Comum (previdenciária):

  • • Ocorre quando o trabalhador está temporariamente incapacitado
  • • A doença não tem relação com a profissão do segurado
  • • É preciso ter pelo menos 12 meses de contribuição ao INSS

Por acidente de trabalho (acidentária):

  • • Ocorre quando o trabalhador sofre um acidente no emprego ou durante o trajeto entre casa-trabalho
  • • A doença tem relação com a profissão do segurado
  • • É preciso estar contribuindo, não há carência

O auxílio só pode ser requerido após 15 dias de afastamento de trabalho e o segurado será examinado por um médico do INSS. A perícia é sempre agendada pelo telefone 135, de segunda à sábado, das 7 às 22 horas, ou via internet no site do INSS. Para o valor do auxílio, o INSS pegará o menor valor de uma destas duas condições:

  • • 91% da média dos 80% maiores salários do trabalhador a partir de julho de 1994
  • • A média dos salários do trabalhador nos últimos 12 meses

Se for constatado que o auxílio-doença é acidentário, o funcionário terá estabilidade de 12 meses após o fim do auxílio. Caso a empresa decida por demitir o trabalhador que voltar do auxílio-doença acidentário, precisará pagar os meses de salário de todo o período da estabilidade.

Além disso, de forma alguma o salário pode ser reduzido no retorno à empresa, muito embora a sua função pode ser mudada, se não houver prejuízo salarial.

Por último, se o afastamento for inferior a seis meses, não há interferência do período aquisitivo de férias, mas caso ultrapasse um semestre, o período aquisitivo é completamente zerado na volta ao trabalho.

Fonte: Sage
Data: 05 de abril de 2017
Acesso: 07 de abril de 2017

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  123. With havin so much content and articles do you ever run into any issues of plagorism or copyright violation? My site has a lot of unique content I’ve either created myself or outsourced but it looks like a lot of it is popping it up all over the internet without my agreement. Do you know any ways to help reduce content from being stolen? I’d certainly appreciate it.|

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  129. When I initially commented I seem to have clicked the -Notify me when new comments are added- checkbox and from now on every time a comment is added I receive 4 emails with the same comment. Perhaps there is a way you are able to remove me from that service? Thank you!|

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  133. Today, I went to the beachfront with my kids. I found a sea shell and gave it to my 4 year old daughter and said “You can hear the ocean if you put this to your ear.” She put the shell to her ear and screamed. There was a hermit crab inside and it pinched her ear. She never wants to go back! LoL I know this is totally off topic but I had to tell someone!

  134. An impressive share, I just given this onto a colleague who was doing somewhat evaluation on this. And he in actual fact purchased me breakfast as a result of I discovered it for him.. smile. So let me reword that: Thnx for the deal with! But yeah Thnkx for spending the time to discuss this, I really feel strongly about it and love studying more on this topic. If potential, as you become expertise, would you mind updating your weblog with extra particulars? It is highly helpful for me. Huge thumb up for this weblog submit!

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