Supreme Court of Justice Clarifies the Scope of the Reinforced Employment Stability Protection (Fuero) on Health Grounds

Below, we outline the most relevant aspects of this decision.

Central jurisprudential rule

The Labor Cassation Chamber reaffirms that the protection arising from article 26 of Law 361 of 1997 is not contingent upon the existence of a formal rating of loss of work capacity nor upon proof of a minimum percentage of functional impairment. The establishment of reinforced stability requires verification of a medium- or long-term impairment that, when interacting with barriers in the work environment, generates a real restriction on the exercise of work on equal terms, provided that the employer has knowledge of such situation and has not implemented suitable and effective reasonable accommodations. Based on these premises, the presumption of discriminatory dismissal operates, shifting to the employer the burden of proving that the termination was due to an objective cause, unrelated to any discriminatory factor.

Duration of the impairment: Functional criterion

One of the most relevant contributions of the decision lies in the methodological clarification regarding the analysis of the duration of the impairment. The Court rejects purely chronological approaches and adopts a functional perspective, under which what is decisive is not the abstract duration of the condition, but its real and sustained impact on the worker’s work capacity. Thus, it distinguishes between short-term impairments — transitory in nature, with prompt recovery and without relevant functional sequelae — and those of medium or long duration, characterized by prolonged treatments, ongoing rehabilitation processes, persistent functional restrictions, or permanent sequelae.

The former do not trigger the reinforced stability regime; the latter, by contrast, may do so even when there is no formal declaration of disability, provided that the functional limitation goes beyond the episodic and has a demonstrable impact on job performance.

Barriers in the work environment

The decision reaffirms the social model of disability by stating that the medical condition, by itself, does not configure a protected situation. Disability arises when the impairment interacts with physical, organizational, or attitudinal barriers that prevent or hinder the exercise of work on equal terms. The assessment must be contextual and evidentiary, taking into account the structure of the position, the material demands of the work, the company’s internal organization, and the business practices adopted with respect to the worker’s functional situation. In this way, the Court consolidates a relational understanding of disability, shifting the strictly clinical approach toward a comprehensive analysis of the work environment.

General accessibility (ex ante obligation)

The judgment distinguishes between general accessibility and individualized reasonable accommodations. The former constitutes a structural and preventive obligation, enforceable ex ante — that is, prior to the existence of the barrier — aimed at ensuring that the work environment is designed under parameters of inclusion and non-discrimination. It is a systemic duty that does not depend on the request of a particular worker, but rather forms part of the employer’s responsibility in organizing its processes, infrastructure, and job design. The absence of general accessibility may become a structural barrier that influences the configuration of a legally relevant disability situation.

Reasonable accommodations (ex nunc obligation)

Reasonable accommodations, for their part, are individual in nature and reactive. They are triggered ex nunc — that is, when the barrier arises — in response to a specific need and must be evaluated under criteria of suitability, relevance, and effectiveness. The Court emphasizes that the adoption of formal or merely apparent measures is not sufficient; the accommodation must effectively remove or mitigate the identified barrier. Reasonableness is not exhausted by the initial economic consideration, but rather by its actual capacity to guarantee continued employment on equal terms. The implementation of ineffective measures is, in legal terms, equivalent to a denial of reasonable accommodations and may constitute a discriminatory act.

Only at a later stage is it appropriate to analyze whether the measure entails a disproportionate or undue burden for the employer.

Presumption and burden of proof

Once the existence of a medium or long-term impairment, the presence of barriers in the work environment, and the employer’s knowledge have been established, termination of the employment relationship, without compliance with the legal requirements, activates the presumption of discriminatory dismissal. In this scenario, the employer must demonstrate that the decision was based on an objective cause, sufficiently proven and unrelated to the worker’s functional condition, or that reasonable accommodations were implemented effectively. The evidentiary standard that emerges from the judgment is demanding and requires adequate documentation of the processes of occupational assessment, rehabilitation, and the adoption of adaptation measures.

Limits of the reinforced employment stability protection (fuero)

The Court also clearly delineates the scope of the protection. Reinforced stability does not constitute a guarantee of absolute or indefinite immovability; its effectiveness depends on the persistence of the impairment and of the barriers that give it legal relevance. If the factual assumptions supporting the protection disappear, the protection ceases. Likewise, when the implementation of reasonable accommodations is impossible or entails a disproportionate burden, the employer may proceed with termination of the employment relationship upon prior administrative authorization, provided that the employer proves compliance with the legal standard. Similarly, termination grounded on an objective cause unrelated to disability does not trigger the presumption of discrimination.

In sum, Judgment SL1749-2025 consolidates a functional, contextual, and evidentiary rigorous analytical standard regarding reinforced employment stability on disability grounds, strengthening the social model adopted by labor jurisprudence and raising the level of technical rigor required in the corporate management of situations involving functional limitations.

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