Brazil’s workplaces now face a rising issue: mental health disorders have become the top reason for employee absences. In 2024, the country recorded 472,328 temporary disability benefits linked to mental and behavioral conditions. By 2025, that figure climbed to 546,254, marking a 15.7% increase from the previous year. These numbers raise critical legal questions for employers, especially whether they can lawfully dismiss an employee with a diagnosed mental health condition.
Employers can terminate such workers, but there are limits to this right. A mental health diagnosis alone does not automatically guarantee job protection or invalidate a dismissal. However, if the termination stems from the employee’s condition-particularly when stigma or societal prejudice plays a role-the action may be deemed discriminatory under Brazilian labor law.
The Employer’s Authority and Its Limits
Brazilian labor law grants employers the right to dismiss without cause, a power known as potestativo. This authority is not absolute, though. It must comply with constitutional principles, including protections for human dignity (Articles 1, III, and 3, IV of the Federal Constitution) and prohibitions against workplace discrimination (Article 7, XXX), among others. International labor standards, such as ILO Convention 111, further restrict how employers can exercise this right. Misusing it-such as firing an employee primarily due to a stigmatized health condition-may violate Article 187 of the Civil Code, which prohibits excessive or bad-faith use of legal rights.
When considering termination, employers should examine whether the employee’s mental health condition may trigger occupational stability protections and whether the dismissal may be considered discriminatory.
When Mental Health Activates Legal Protections
The first scenario arises when the mental health issue is work-related, such as burnout. In such cases, Law 8,213/1991 (Article 118) grants employees 12 months of job stability after returning from a temporary disability benefit tied to an occupational illness. The Supreme Labor Court (TST) has clarified this in Summaries 378, II, and Tema 125 of the IRR/TST, stating that stability may apply even without prolonged absence or benefit receipt if the condition is proven work-related.
The second scenario-discriminatory dismissal-applies regardless of whether the mental health issue originated at work. Legal protections here stem from Law 9,029/1995, which bans workplace discrimination based on factors like race, gender, age, disability, or health conditions. Courts have extended these protections to mental health diagnoses, as the law also applies to other situations.
This interpretation is supported by TST Summary 443, which establishes a presumption of discrimination when an employer fires an employee with a severe, stigmatized illness, such as HIV or a mental health disorder. The rule is not absolute, however. Courts examine whether the employer knew about the condition, whether the dismissal followed shortly after treatment or absence, and whether the company can prove legitimate, non-discriminatory reasons for termination.
In practice, employers must proceed with caution. A dismissal may still face legal challenges even if the condition is not work-related—as long as the termination appears connected to the diagnosis, the burden shifts to the employer to disprove discrimination.
The 2nd Chamber of the TST has ruled that conditions like bipolar disorder and depression can trigger this presumption, especially when the employer was aware of the employee’s clinical history.
Related Post: Supreme Court Limits Business Litigation Options
The 6th Chamber upheld discrimination findings in a case involving an employee with recurrent depressive disorder, noting the employer failed to demonstrate valid, health-unrelated reasons for the dismissal.
Timing between medical treatment and termination also strengthens discrimination claims. In one ruling, the 1st Chamber confirmed that an employee with severe depression, memory impairment, and suicidal ideation—dismissed just eight days after returning from disability leave—had a strong case for discriminatory treatment.
Not all cases follow this pattern. The 4th Chamber rejected a discrimination claim involving an employee with an anxiety disorder, stating the employer’s burden required clear evidence linking the dismissal to stigma or prejudice.
The 10th Regional Labor Court (TRT) reinforced this in a recent decision, emphasizing that while mental health conditions can trigger discrimination presumptions, the standard is relative.
No single factor, diagnosis type, employer awareness, or termination timing, decides a case alone. Courts weigh the totality of circumstances, including condition severity, societal stigma, employer knowledge, and alternative dismissal reasons.
Termination During Social Security Leave
Employers must exercise extreme caution when terminating an employee already on a Benefício por Incapacidade Temporária (temporary disability benefit) from the Instituto Nacional do Seguro Social (INSS). Under Article 476 of the Consolidation of Labor Laws (CLT), the employment contract is suspended, not terminated, during such leave. The employer retains the right to dismiss but faces stricter scrutiny. If the employer knew of the mental health condition, courts apply TST Summary 443, particularly if the termination occurred shortly after the leave began or resumed.
The worker had returned from disability leave and worked just eight days before dismissal. The court ruled the termination presumptively discriminatory, citing the employer’s prior awareness of the clinical history and the proximity of the dismissal to the return from leave. The decision highlighted that even nominal performance during that brief period, combined with timing and knowledge of the condition, favored a discrimination finding.
If the leave is classified as occupational, such as burnout linked to workplace stress, the employer must also consider Law 8,213/1991 (Article 118), which grants 12 months of job stability upon return. Dismissing such employees risks violating both anti-discrimination laws and occupational stability protections.
Consequences and Employer Responsibilities
If a court finds the dismissal discriminatory, the employee may choose between reintegration with back pay covering the entire termination period or double pay for the same duration, per Article 4 of Law 9,029/1995. Moral damages are also recoverable. For employers, financial risks extend beyond back pay: legal fees, prolonged litigation, and reputational harm can compound the burden. The TST’s 6th Chamber emphasized in a case that even if performance issues predated the diagnosis, the employer’s failure to document objective, pre-existing reasons for termination, especially with knowledge of the condition, strengthened the discrimination claim.
