You have been given the alta médica (medical discharge) and you cannot work. It hurts, you have not recovered, and the notice says you must be at your post tomorrow. This is a common situation, and the law has procedures to dispute it, but the deadlines are measured in days and the consequences differ depending on who signs the discharge. This guide is ordered so that, with the discharge paper in front of you, you know what to do today.
Notice. The deadlines and effects of these procedures are strict and change from case to case. This article is a general guide; it does not replace reading your own resolution or the advice of an employment lawyer or your union.
First, check who has discharged you
There is no single route. The first thing is to identify who issued the discharge and for what type of cause (contingencia) you are on leave. You will find it in the notice or in the communication you were handed.
| Who discharges | Situation | Route to dispute it | Deadline |
|---|---|---|---|
| Mutua | Work accident or occupational illness | Administrative review before the INSS | 10 working days from notification |
| Public health service or INSS | Ordinary leave, first 365 days | Prior claim (reclamación previa) | 11 working days |
| INSS | After 365 days of leave | Objection (disconformidad) before the medical inspectorate | 4 calendar days |
| INSS | After 365 days, ordinary route | Prior claim | 11 working days |
Deadlines run from when you are notified or from the date the discharge takes effect, depending on the case. Write the date down the same day you read it.
Discharge by the mutua: review before the INSS
If you are on leave because of a work accident or occupational illness and the mutua (the mutual insurance body that manages these cases) discharges you, you can ask the National Social Security Institute (INSS) for a review within 10 working days. The INSS decides within 15 working days. While the case is processed, the discharge is suspended and the leave is extended, so you do not have to go back to work. If the discharge is finally confirmed, the mutua can claim back what it paid after that discharge.
Discharge by the health service or the INSS in an ordinary leave
If the leave is for common illness or a non-work accident, and the discharge is given by the public health service doctor or the INSS, the usual route is the prior claim, within 11 working days from the date the discharge takes effect. The body has 7 days to reply. The most important point: this claim does not suspend the discharge. You have to go back to work even though you have claimed, unless you agree something else with the company.
If it is rejected or they do not reply, you can sue before the Juzgado de lo Social (labour court). The deadline for the lawsuit is 20 working days from the express resolution or from when the period expires without an answer.
Discharge by the INSS after 365 days of leave
When you have been on temporary incapacity for almost a year, the INSS takes control of the discharge. If you disagree, you have 4 calendar days from notification to state your objection before the medical inspectorate. That procedure suspends the discharge: the leave is extended while it is resolved, and the INSS replies within a short period. If the discharge is confirmed, you have 20 working days to sue.
It is the shortest deadline and the one most often missed. If you receive a discharge from the INSS after a year of leave, act the same day.
Do I have to go back to work?
This is the underlying question. The answer depends on the procedure:
- If the procedure suspends the discharge (mutua review, objection after 365 days): you do not have to return while it is processed.
- If it does not (ordinary prior claim): the discharge takes effect and you must report for work, unless you agree with the company on leave, holiday or an adaptation.
If you do not return and have agreed nothing, the company can treat your absences as unjustified. Every case has exceptions: a medical condition that prevents you from attending can justify the absence, but it should be documented and communicated.
An example with deadlines
On Monday 5 October the health service discharges you for a lower-back problem you have had since August. You are still in pain. It is an ordinary leave and the route is the prior claim.
- Day 0: Monday 5 October, the date the discharge takes effect.
- 11 working-day deadline: from Tuesday the 6th; the last day would be Wednesday 21 October (not counting Saturdays, Sundays and excluding the 12 October holiday).
- The INSS has 7 days to reply; if it does not, the claim is deemed rejected.
- From the reply or the silence, 20 working days to sue.
Meanwhile, on 6 October you should be back at work, unless you agree otherwise. If you cannot, tell the company and attach the medical report that supports your situation.
What to do in the first 24 hours
- Read the resolution or the discharge notice. Identify who signs it, the effective date and the appeals it mentions.
- Write down the deadlines from the table and mark them on your calendar.
- Ask for your medical history and a report from your doctor or specialist describing your current condition and your inability to work, if that is the case.
- File the claim or objection within the deadline, by the right route: normally through the INSS registry or its electronic office. Keep the receipt.
- Tell the company what you are going to do. A short email: “I received the discharge dated X and challenged it on day Y. My medical situation is as follows. Please let me know how to proceed.”
- Talk to a union or an employment lawyer. This is an area where a mistake with a deadline cannot be fixed.
What happens to your benefit
While the leave is in force, you receive the temporary incapacity benefit. How much it is and how it is calculated is explained in how much you are paid on sick leave in Spain. When the discharge takes effect, the benefit stops. If a judge later finds that the discharge was not justified, you are paid what you did not receive. In situations where the leave is extended, you keep being paid while it is resolved, and there is a possibility that you will be asked to repay what you received if the discharge is finally confirmed.
When you return after the discharge and cannot do your job
Sometimes the discharge comes with a limitation: the doctor says you can work, but with restrictions. The company has a duty to protect your health and, if the prevention service says you are not fit, or fit with limitations, it must adapt the post. Only as a last resort could a dismissal for supervening unfitness (ineptitud sobrevenida) follow, with its own requirements.
It is also worth knowing that dismissing someone who is on sick leave has its own rules, and that during the leave the company can check your situation within certain limits.
Common cases
I have been on leave for three months and the discharge arrives. Check who signs it and the type of cause. If the leave is ordinary and the discharge is from the health service, the 11 working-day prior claim is the route and it does not suspend the discharge. If you feel very unwell, ask your doctor for a report describing why you cannot work, and file the claim anyway.
The mutua has discharged me after a work accident. Here you have 10 working days to ask the INSS for a review, and processing it suspends the discharge. It is one of the most favourable routes for someone in this situation, but also the most technical: the INSS weighs medical reports and can confirm the discharge.
My company demands that I report back now. If the route you have chosen does not suspend the discharge, the company can require you to show up. If you cannot, say in writing that you have challenged it, attach the medical report and propose a solution: holiday, unpaid leave or an adapted post. Avoid simply not turning up.
I am discharged with limitations. If the doctor says you can work with restrictions, inform the company’s prevention service. The company must adapt the post or relocate you if possible. Returning to tasks that contradict the limitations can be a risk to your health and to your claim.
I have been on leave for more than 365 days. Control passes to the INSS and the deadlines are the shortest. If you receive a communication from the INSS, open the envelope the same day and check the four calendar-day deadline for the objection. If it is a proposal for permanent incapacity, the procedure is different.
Model letter to the company after challenging
Subject: Challenge to medical discharge and work situation
Good morning. On [date] I received the medical discharge issued by [body], with which I do not agree. On [date] I filed [prior claim / request for review / objection] with the INSS. My medical situation, according to the attached report, currently prevents me from doing my job. Please let me know how to proceed during the processing period; I remain at your disposal to agree the best solution. Kind regards.
Keep the proof of sending. It is your best protection against a possible disciplinary file for absences.
Questions that come up often
- Should I keep going to my GP? Yes. Keep up the visits and reports: your medical history is the basis of the claim.
- What happens if the judge rules in my favour? It is recognised that you should have stayed on temporary incapacity, and the benefit is paid for the corresponding period.
- Can I claim unemployment benefit if I am discharged and do not go back? If you do not return without justification, the company could consider that you have resigned or abandoned the post. If you are dismissed, you would be in a legal situation of unemployment. Take advice before acting.
- How much does it cost to claim? The prior claim is free. A lawyer or a union can advise you, and a lawsuit over temporary incapacity does not require a procurador (court representative).
What I would do
With the discharge in my hand, the first thing would be to check who signs it and which deadline applies to me. Then, the same day, I would draft the claim or objection and file it with a receipt. I would ask my doctor for an updated report, and I would write to the company explaining that I have challenged and why I cannot return yet, if that is the case. And I would call a union: in discharge matters, whoever arrives on the last day is usually too late.
Where to go next
If what worries you is your relationship with the company during the leave, see dismissal while on sick leave. If you want to understand how long it lasts and how much you are paid, the guide on sick leave pay.
If your contract has also been terminated and you want to challenge that decision, check the deadline to challenge dismissal in Spain separately from other claims.