#CostaRica 🇨🇷 #BDS_Article: Can I Take Medical Leave to Avoid Attending a Court Hearing?

The Board of Directors of the Costa Rican Social Security Administration (Caja Costarricense de Seguro Social, or CCSS) recently approved an amendment to the Regulations on Statutory Leaves of Absence and Certified Medical Leaves. Although the reform has not yet been published in La Gaceta (the official government bulletin), it is already generating significant discussion due to its labor-related implications.

In this article, we will address the topic of certified medical leaves and their impact on attendance at judicial (before the Courts or Tribunals of the Republic), administrative (before the Ministry of Labor, CCSS, and other public institutions), or labor hearings. Although there are many types of hearings, they all share the characteristic that their date is scheduled in advance. If one of the parties cannot attend, they risk forfeiting their right to a defense, since the judicial or administrative authority in charge of the proceeding typically sets the hearing date without consulting the parties.

Historically, within the context of administrative or judicial proceedings, a certified medical leave (incapacidad) has been considered a valid justification for a party’s absence from a hearing, without the consequence of forfeiture. That is, the judicial or administrative authority conducting the hearing usually accepts one of the party’s duly certified medical leave as grounds to reschedule the hearing.

Undoubtedly, this has been one of several factors contributing to the delay of many judicial and administrative proceedings, particularly when the certified medical leaves are frequent or prolonged—such as those arising from serious or psychiatric conditions.

In some cases, obtaining certified medical leave may be perceived as an attractive option to avoid attending a hearing, especially when the individual is under investigation for a potential criminal offense, labor misconduct, or administrative penalty. In this context, a certified medical leave may be used as a tactic to delay or evade prosecution or the determination of liability.

Faced with this reality, the Constitutional Chamber of the Supreme Court, in repeated rulings (see, for example, Decisions No. 2017-3493 and 2006-16525), has held that a certified medical leave, on its own, does not necessarily preclude the exercise of the right to a defense.

The Constitutional Chamber also emphasized important considerations, such as the principle that only in serious or exceptional cases—where the illness genuinely prevents the affected party from exercising their right to a defense—should a judicial or administrative proceeding be suspended due to a certified medical leave. The Chamber has even addressed cases in which parties repeatedly request adjournments on the basis of successive medical leaves, stating that when such leaves become recurrent, there is an abuse of rights. In these scenarios, it is common for courts or investigative bodies to initially show leniency by granting postponements in some cases of certified medical leaves, but they typically go on to warn that further postponements will not be granted if the pattern continues.

Nevertheless, in our view, this issue has so far remained subject to the discretion and interpretation of courts and investigative bodies or committees. That will change with the reform to Article 14 of the CCSS’s Regulations on Statutory Leaves of Absence and Certified Medical Leaves. Currently, that provision prohibits any type of academic, physical, recreational, or remunerated activity—inside or outside the country—that may jeopardize the individual’s recovery. However, once the reform to Article 14 is published in La Gaceta, an exception will be introduced that explicitly authorizes individuals on certified medical leave to “attend judicial or labor hearings or investigations, provided the treating physician deems it appropriate.”

This could signal a paradigm shift in how certified medical leaves are treated in the context of judicial and administrative hearings. As mentioned earlier, the current tendency is for courts and investigative bodies to grant adjournments upon submission of a valid certified medical leave, and only after repeated requests do they begin to deny suspensions on the grounds that such leaves may be used to delay proceedings. However, with the aforementioned reform of the Regulation, courts or investigators may instead presume that a certified medical leave does allow attendance at hearings and other procedural actions, and reserve suspensions as an exception only for those cases in which the treating physician certifies that the individual is unable to participate.

Naturally, the interpretation of this new provision must be made in accordance with the aforementioned jurisprudence from the Constitutional Chamber, which is binding on all individuals and authorities in Costa Rica. That jurisprudence maintains that suspension of hearings due to certified medical leave must remain the exception, not the rule.

Undoubtedly, once in effect, this reform will provide greater legal certainty regarding a matter that arises daily in Costa Rica’s judicial and labor settings.

Isaac Quesada

 Attorney-at-law , BDS Asesores

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