El Trato no Igualitario de la Incapacidad Temporal en el Sistema de Seguridad Social Integral de Colombia. Una Aproximación desde los Derechos Humanos y la Teoría de la Discriminación Indirecta

Abstract

The main objective of the research was to establish the theoretical elements that justify the equal recognition of sick leave due to common and occupational illness in the Colombian Social Security System from the perspective of human rights. To this end, three specific objectives were established: the first, to determine the needs for reform in the current legislation on sick leave, within the framework of human rights and the principle of human dignity, based on the analysis of legal evolution and jurisprudential of sick leave in the Colombian regulatory system; Second, to identify a possible legal solution to unequal treatment in sick leave as a benefit of work origin versus that of general origin through comparative law applied to social security systems that govern the Ibero-American countries chosen for the study ; and, finally, propose theoretical guidelines to grant equal treatment of the disease and therefore the recognition of sick leave as a benefit in the Colombian Social Security System, from the application of the Theory of Indirect Discrimination. To meet these objectives, official sources of legal regulations from Colombia and Ibero-American countries were consulted. In this document the most significant results are presented and discussed, for which It has been divided into five chapters:

The first and second chapters correspond to the review of the literature and the identification of the theoretical referents, relevant for the understanding of the problem exposed around sick leave from the human rights approach, particularly in relation to the present discriminatory treatment. between the disability generated by the general illness versus that of common origin. It is important to note that, since health, work and social security are interdisciplinary fields, the articulation of the theoretical component became complex; however, the literature review allowed us to identify the fields of study from the legal perspective and allowed us to carry out conceptualizations about sick leave. Additionally, the second chapter explores the main theories associated with human rights, indirect discrimination and epistemological postulates that, together with the background, justify the need to carry out the study. The methodological framework that was used in the research is detailed in the third chapter. In this section, firstly, the methodological design is presented, where the different parts into which all the research was divided are identified, then the primary and secondary sources of information and the methods used for the qualitative analysis of the information. Finally, the applied analysis plan is explained. In the fourth chapter the results of the investigation are presented, which were divided into four parts. In the first, the analysis of the legal evolution of temporary disability in the context of Social Security in Colombia is carried out; followed by the comparative analysis of the figure of sick leave present in several Latin American countries. Thirdly, the analysis of the jurisprudence of the Constitutional Court of Colombia was carried out on the issues associated with sick leave and its unequal treatment, as well as the relationship with fundamental rights and finally theoretical guidelines for treatment are presented. equality of temporary disability from the application of the Theory of Indirect Discrimination. The main limitations of the study were the multiplicity and diversity of legal sources on the matter under study without the possibility, on occasions, of verifying its validity, as is the case of the regulations of other countries. In the multidimensional understanding of the phenomenon analyzed, one of the important aspects from the point of view of insurance is the financial perspective, an issue that was not addressed, because it is a social vision and from the guarantee of fundamental human rights. The conclusions of the study imply new problems that may be the subject of future studies, in particular, around equity and equality in labor and social security benefits.