Rights and Duties

Patient’s Labor Rights

Patients with cancer have a number of rights guaranteed by law from diagnosis to the end of treatment. There are services in relation not only to health but also to labor benefits.
Patient’s Labor Rights

Cancer is a disease that, depending on the stage at which it is diagnosed and the treatment options available, can keep workers away from their jobs, imposing a loss of income. Surgeries, chemotherapy and/or radiotherapy sessions often debilitate the patient and prevent him from working. For these cases, the legislation establishes some benefits that help the cancer patient to cope with the disease.

Withdrawal of FGTS and PIS/Pasep

The cancer worker or the one who has a dependent with malignant neoplasia is entitled to withdraw the FGTS. It is not necessary to have a registered Employment Record Card at the moment of the diagnosis; all that is required is that the worker has a balance deposited in the Fund from other professional records. The amount received will be the balance of all the accounts belonging to the worker.

It is important for the worker to know that, even if he withdraws the FGTS balance when he gets cancer, there will be no losses in case of dismissal without cause by the company. The rescission fine to be paid by the employer will normally fall on the updated amount that should be in the linked account, and not on the existing balance at the moment of dismissal.

To request the release of the FGTS, the employee just needs to go to any branch of the Caixa Econômica Federal (CEF), with the following documents:

  • Identification document of the beneficiary and his dependent (if applicable);
  • Employment Record Card;
  • Proof of enrollment in PIS/PASEP;
  • Histopathological report (microscopic study of organic lesions) or anatomopathological report (study of the alterations in the body through pathology), as appropriate, and provided by the medical service;
  • Medical certificate valid for 30 days with the current clinical stage of the disease and of the patient; and
  • Proof of the dependency condition of the disease carrier, when applicable.

If the cancer patient is a dependent of the holder of the FGTS linked account, he must fit certain legal definitions.

Dependents are those who are registered as such in the Union, State or Municipal Social Security Institutes, as follows: spouse or partner, child under the age of 18 or handicapped, designated person under the age of 18, over the age of 60 or handicapped, equivalent to children (stepchild, minor under guardianship or legal custody who does not have sufficient assets to support himself/herself).

To prove this dependency relationship, documents such as: declaration issued by the INSS assuring the relationship, Employment Record Card with the dependency declaration, birth certificate (in case of children) or marriage certificate (in case of spouse), declaration made in any Civil Registry Office mentioning the state of companionship between the worker and his/her partner with cancer, and judicial document of custody or guardianship can be requested.

In the case of PIS/PASEP, the payment is also made for workers registered before 1988 with cancer in the symptomatic phase of the disease or who have a dependent with the cancer. He will receive the total balance of his quotas and income. In 1988 the deposits of PIS (Social Integration Program) were suspended, and today the worker receives only the earnings. The PASEP (Program of Assistance to Public Servants), on the other hand, is a monthly quota deposit made by issuing a register of workers’ data.

The PIS can be withdrawn by the cancer worker or dependent affected by the cancer, after proving this right at any Caixa branch. In the case of PASEP, the request must be made at Banco do Brasil (BB). The documents required are basically the same as those requested for withdrawing the FGTS, such as: employment record or PIS card, medical report, etc. The conditions for someone with cancer to be considered a dependent of the PIS/PASEP holder are the same as for FGTS mentioned above.

Retirement due to permanent incapacity (disability)

This is a benefit given to the worker and to the insured of the INSS who are permanently unable to work or carry out their usual activities. The worker receiving permanent disability retirement must be reevaluated by the INSS every two years, or when the INSS summons him/her, except in conditions such as being over 60 years of age or over 55 years of age and 15 years of receiving the benefit. Public employees have their own rules, and the cancer patient needs to check with the public office. The only person who is not entitled to permanent disability retirement is the patient who joined the INSS after the disease was diagnosed.

The first step to obtain the permanent incapacity retirement is the request for sick pay, which is temporary. Only the INSS’ expertise, performed by doctors, can evaluate if the patient is able to return to work, at which point the sick pay ceases, or is permanently incapacitated, when retirement is granted.

Until the social security reform went into effect in November 2019, disability retirement corresponded to 100% of the benefit wage. Now, the calculation formula foresees the average of all contribution salaries, starting in 1994 or from when the patient started contributing. From this amount, the patient will receive 60% + 2% per year that exceeds 20 years of contribution time for men, or that exceeds 15 years of contribution time for women. The amount received is exempt from Income Tax.

Although the most common is that the sick pay becomes retirement for permanent incapacity, there is also the possibility that the first INSS medical examination already proves the permanent incapacity to work.

In case the benefit is denied, the worker is entitled to request a new consultation with the INSS doctor within 30 days. If he still does not get the benefit, the patient can file a lawsuit in the Federal Court.

Sick pay

This is a benefit that allows the patient with cancer to stay away from work, doing his treatment and receiving it from the INSS. To be entitled to it, it is necessary to be contributing to social security, even if you are self-employed. If the affiliation to the INSS was made after the cancer was diagnosed, there is no right to the benefit. It is worth remembering that public employees have their own rules and must obtain information at their public offices.

Sick pay, for those who are registered with the social security, can be requested after 15 days away from work – the first 15 days of absence are paid by the company. The other insured members of the INSS, such as freelancers and domestic workers, must apply for the benefit as soon as the inability to work begins.

The application for sick pay can be made on the Social Security site (https://meu.inss.gov.br) or by telephone 135, as can the scheduling of the medical examination. If the cancer patient is hospitalized or unable to go to an INSS agency, it is possible to request a medical examination in the hospital or at home.

The documents required to apply for sick pay are:

  • ID, CPF, employment report card (if applicable), worker’s identification number (PIS/PASEP); and
  • Medical report that proves the illness, the indicated treatment, the suggested period of absence from work and the justification for the inability to work.

It is worth remembering that this benefit is exempt from Income Tax.

In case of an extension of the leave, determined by the doctor, it is necessary to prove the clinical condition and schedule a new medical report for 30 days before the end of the current medical report.

Medical report for work leave

To access all the benefits available to the worker with cancer, whether tax or social security, the main document required is the medical report for absence from work. According to article 3 of CFM Resolution 1851/2008, the doctor will specify the amount of time off work that is necessary for the patient’s recovery.

The report must contain, besides the signature, stamp, and CRM of the doctor, information about the disease or the International Classification of Diseases (ICD) and the necessary period of leave. The document is valid for up to three months.

Protection against discriminatory dismissal

Discrimination means any distinction or exclusion based on ethnicity, color, sex, religion, political opinion, nationality, or social origin, which has the effect of eliminating or reducing equality of opportunity or treatment in employment or occupation.

There is no law that guarantees the patient with cancer a job stability. However, dismissal cannot occur because the employee has a serious illness. If this is found to be the case, the Labor Courts can order the worker’s reinstatement and/or order the employer to pay damages.

According to the consolidated understanding of the Labor Courts, the dismissal of an employee with a serious illness, such as cancer, is also presumed to be discriminatory. Since it is presumed, it is up to the employer to prove that the dismissal is not related to the illness, but to other circumstances, such as economic ones.

A patient with cancer, fired without just cause and who considers to have been the victim of a discriminatory act can claim for reinstatement, as well as compensation for material and moral damages.

It is also possible that a collective labor agreement signed between the worker’s union and the company’s union guarantees some kind of stability in cases of serious illness. It is therefore necessary to consult the category’s conventions.

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