Electronic notifications, medical discharge and failure to return to work: guidelines for businesses in light of Order ISM/541/2026

On 1 September 2026, Order ISM/541/2026 of 27 May came into force, amending the electronic notification and communications system within the Social Security Administration.

The main change is that individuals who apply for or receive temporary incapacity benefits will receive communications and notifications from the Social Security system electronically. This system also applies to communications and notifications relating to permanent incapacity benefits or permanent non-disabling injuries.

The measure extends the existing list, which included those who applied for or received benefits for childbirth and childcare, or for complications during pregnancy or breastfeeding.

Although notifications are addressed personally to the individuals concerned, their content may have direct consequences for businesses, particularly when a medical clearance is issued that requires the employee to return to work. Companies must therefore understand how the new system works and what steps they should take in the event of a worker failing to return to work.

How does the new system work?

The Social Security authorities will make the communication or notification available to the person concerned at its Online Portal (SEDESS) and will send a notification to the mobile phone number or email address provided by the recipient. It is important to distinguish between these two elements, as An SMS or email is merely a reminder that a notification is available, but does not constitute the notification itself nor does it replace access to its content.

To view the decision, the person concerned must log in to SEDESS and authenticate themselves using one of the accepted methods, such as a digital certificate, an electronic ID card or Cl@ve Permanente.

The notification shall be deemed to have been served when the recipient accesses its content. If this is not done within ten calendar days of it being made available, it will be deemed to have been rejected and the administrative procedure may continue. Therefore, failure to open the notification does not necessarily prevent it from taking effect.

This situation may give rise to a problem: the decision may have begun to take administrative effect, even though the worker claims not to have been made aware of its contents.

What information do companies receive?

The company does not receive the personalised electronic notification addressed to the employee. However, it has its own channels for finding out about changes to benefits that affect the employment relationship.

From 1 April 2023, workers They are no longer required to submit medical certificates of sick leave, confirmation of sick leave and return to work to the company, and so the INSS must communicate this information directly via the INSS Business Register (FIE) or the FIER service, which are accessible via the RED System.

Through these channels, the company can find out, amongst other things, whether an employee is on sick leave, the confirmation notices, the date of return to work and the date on which this takes effect, as well as certain decisions regarding benefits that may affect the employment contract.

Consequently, the company should not rely solely on the employee informing it of their situation. You should regularly review the information received via the RED system and cross-check it against any communications that the person concerned may provide.

How should the company proceed if the employee does not return to work?

As a general rule, a medical certificate of fit for work brings the period of temporary incapacity to an end and requires the employee to return to their post on the date on which the certificate takes effect. However, Absence following discharge should not automatically be regarded as unauthorised nor, on its own, give rise to a penalty.

Before taking any disciplinary action, the company must check whether there are any circumstances that justify the failure to return to work, such as the following:

• The company must have been notified of the registration via the FIE before the employee receives the notification.

• The fact that a new sick note has been issued.

• An issue with the electronic notification system.

• A hospital stay or a genuine inability to do so.

• Challenging a doctor’s certificate of fitness to return to work.

• Any other reason that may justify the absence.

The following guidelines

Therefore, in light of this situation, it is advisable for the company to follow the guidelines set out below:

1. Check the official information. The existence of the registration, its effective date and the details available in the FIE/FIER and the RED system must be verified.

1. Contact the employee. The company must inform you that it is aware of your registration and ask you why you have not returned to work.

1. Submit a written request. If the employee does not return to work, it is advisable to formally request that they return to their post or provide a reason for their absence within a reasonable period of time.

1. Check the relevant circumstances. Before imposing a penalty, it must be established that there is no new case of absence, no challenge affecting the status of incapacity, or any other reason that might justify the absence.

1. Assess the intervention by the health and safety service. If the employee states that they continue to face difficulties in carrying out their duties, it may be necessary to assess their suitability or to consider possible preventive measures, without requiring them to disclose their diagnosis.

1. Document all actions. The information received, attempts to contact the worker, the request and the worker’s response must be duly documented.

Can a person be disciplined for failing to return to work?

Repeated and unjustified absences may constitute a breach of employment obligations and justify a disciplinary sanction or even dismissal.

However, Failure to open the electronic notification does not in itself constitute a breach of employment law. In order to impose a disciplinary measure, the company must prove that the registration was valid, that there was an obligation to return to work, that the employee was informed or required to do so, and that they did not provide a valid justification.

Consideration must also be given to whether their conduct was deliberate and culpable, the duration of their absences, their personal circumstances, their previous record and the proportionality of the sanction.

Particular caution in cases of illness: protection under Act 15/2022

Illness and health status are grounds expressly protected against discrimination on the basis of Law 15/2022 of 12 July on comprehensive measures for equal treatment and non-discrimination. However, this does not mean that any disciplinary action or dismissal taken whilst an employee is on temporary sick leave or immediately after they return to work is automatically invalid. The employer may take action in response to a breach of employment obligations, provided that the breach is genuine, serious, attributable to the employee’s own fault, and sufficiently substantiated.

The key point is that there is no causal link between the disciplinary measure and the period of temporary incapacity, the employee’s illness or medical condition. Disciplinary action or dismissal must be based solely on specific conduct in the workplace, such as an unjustified failure to return to work following a valid discharge from sick leave or a breach of a company requirement, and not on the fact that the employee is ill, has been on sick leave or may face future limitations.

For this reason, before taking a decision, the company must verify the date and the effects of the employee’s return to work, request that the employee return to work or justify their absence, examine the explanations provided, and properly document all its actions. The letter of disciplinary action or dismissal must accurately describe the alleged facts, the dates of the absences, the requests made and the lack of justification, whilst avoiding any wording that might link the decision to the employee’s state of health.

If the employee provides evidence

If the employee provides evidence that the measure is linked to their illness (for example, due to the close timing between their sick leave or return to work and the dismissal), it will be up to the company to prove that its decision is based on a genuine reason entirely unrelated to that situation. A hasty, generic or insufficiently substantiated disciplinary measure increases the risk that the dismissal will be declared null and void on the grounds of discrimination.

A declaration of nullity would oblige the company to reinstate the employee immediately and to pay him the wages he has not received since the date of his dismissal. Furthermore, additional compensation may be awarded for non-pecuniary damage arising from the breach of the fundamental right to equality and non-discrimination.

Consequently, when disciplinary action is taken whilst an employee is on temporary sick leave or immediately after they have been medically cleared to return to work, the employer must exercise the utmost caution and ensure that the measure is based solely on a proven breach of employment obligations, imposing a proportionate sanction that is entirely unrelated to the employee’s illness or medical condition.

Prevention and business prudence

Here at Auris Legal, we recommend that companies inform your staff about how the new electronic notifications work, the need to keep their contact details up to date, and the importance of consulting the SEDESS within the specified timeframe.

It is also advisable for companies to regularly check the information available on the FIE/FIER and the RED system. It may be the case that a worker’s return to work takes effect before they have checked their notification or before the company has processed the information received in good time. This situation can lead to absences, delays in the employee’s return to work and other organisational or financial losses for the company.

If an employee fails to return to work, it is advisable to contact them and formally request that they return to work or provide a valid reason for their absence before taking any disciplinary action. This is a particularly sensitive matter for both parties, so each case must be assessed on its own merits and duly documented.

More on medical discharge, sick leave and workplace discipline

• Reform of the termination of the employment contract after Permanent Disability
• Royal Decree 1026/2024 on measures to promote equality and non-discrimination for LGBTI people
• The impact of Artificial Intelligence on employment relations: grounds for disciplinary action?

This article is for information purposes only and does not constitute legal advice. A case-by-case assessment is required to evaluate a specific case.