Alcances de la Estabilidad Ocupacional Reforzada Conforme al Fuero de Salud

Abstract

The constitutional foundation of reinforced labor or occupational stability encounters serious difficulties for its materialization, due to opposing positions, given that for the Supreme Court of Justice, not every disability is covered by the mantle of labor stability provided for in article 26. of Law 361 (1997), which is considered to be generally aimed at guaranteeing the necessary assistance and protection of people with severe and profound limitations, in such a way that it delimits the field of its application, only to those who suffer from a significant disability (Sentence Rad. 32532, 2008, p. 10). This reasoning involves a legal study, to know the regulations and an evidentiary effort, to demonstrate the degrees of severity of the limitation. On the contrary, the Constitutional Court has held that the right to enhanced occupational stability does not derive solely from Law 361 (1997), nor is it exclusive to those who have been classified as having moderate, severe or profound loss of work capacity (Sentence SU-049, 2017, p. 14). The discrepancies in the decisions of the High Courts require an analysis from the perspective of the scope of reinforced occupational stability, focused on the case of people or workers who suffer from a health problem that prevents them from continuing or fulfilling their duties. normal with their work obligations. Establishing a table for measuring the degree of health impact and establishing the payment of compensation or reimbursement if it occurs are not enough, since the true scope of the protective principle in favor of the worker requires adopting integration and inclusion policies and measures. that are related to the prevalence of the pro homine principle and human dignity.