I Was Fired While Sick: When Can a Dismissal Be Discriminatory in Brazil?

Being dismissed while you are being treated for an illness raises many questions. Can a company let go of a person with cancer? Does someone with depression, HIV, lupus, epilepsy, Parkinson’s disease or another serious illness have job security? Is it possible to ask to be reinstated?

The answer depends on the circumstances of each case.

Brazilian law does not establish a general list of illnesses that make any dismissal automatically prohibited. However, when a worker has a serious illness capable of causing stigma or prejudice, the Labor Courts may presume that the dismissal was discriminatory.

This protection comes from Precedent (Súmula) 443 of the Superior Labor Court (TST), an understanding that was reaffirmed by the TST’s Full Court in Theme 254 of the repetitive appeals, judged on August 22, 2025 and published on September 5, 2025.

According to the thesis set by the TST:

The dismissal of an employee who carries the HIV virus or another serious illness that gives rise to stigma or prejudice is presumed to be discriminatory. When the act is considered invalid, the employee has the right to be reinstated.

This does not mean that every sick person has job security or that every dismissal during treatment will be annulled. The illness, the employer’s knowledge, the closeness between the events and the justifications given by the company all have to be examined.

What is a discriminatory dismissal because of illness?

A discriminatory dismissal occurs when the worker’s illness improperly influences the company’s decision to end the contract.

In some situations, the company does not state that it is dismissing the person because they are sick. The discrimination may appear indirectly, for example:

• dismissal soon after medical tests or certificates were presented;
• dismissal after the diagnosis was communicated to a supervisor;
• termination during or shortly after treatment;
• dismissal on the eve of a surgery known to the company;
• criticism of the absences needed for treatment;
• a generic claim of low productivity, when the drop in performance results from the illness;
• different treatment after the company learns of the diagnosis;
• pressure on the employee to resign;
• replacement of the sick worker without concrete proof of a restructuring;
• use of the limitations caused by the illness as an informal justification for the termination.

Law 9,029/1995 prohibits discriminatory practices that hinder both access to employment and continuation in the employment relationship. The law does not present a completely closed list of discriminatory grounds, since it uses the expression “among others”.

What does TST Precedent 443 say?

Precedent 443 provides that the dismissal of the following is presumed discriminatory:

1. an employee who lives with HIV; or
2. an employee with another serious illness that causes stigma or prejudice.

The presumption matters because discrimination rarely appears in writing. Generally, the dismissal notice states only that the contract was ended without cause.

In cases where Precedent 443 applies, the company may have to show that the dismissal occurred for a real, legitimate reason independent of the illness. Justifications that may be examined include the closing of a unit, a proven restructuring, disciplinary reasons or objective criteria used in the termination of several employees.

A vague justification, one created after the dismissal or one inconsistent with the worker’s employment record may not be enough to overcome the presumption.

In July 2026, for example, the TST’s Fourth Panel recognized as discriminatory the dismissal of a driver who lived with HIV. According to the Court, in such cases it is up to the employer to show that the termination occurred for another reason.

Does every serious illness prevent dismissal?

No.

For Precedent 443 to apply, it is normally not enough to show that the employee had an illness. Case law considers two central elements:

• the seriousness of the illness; and
• the illness’s potential to cause stigma or prejudice.

In addition, aspects such as the company’s knowledge and the timing of the dismissal can be decisive.

For this reason, an illness may be disabling for a given person and still not automatically trigger the presumption of Precedent 443. In that case, the dismissal can still be challenged with other evidence of discrimination, work-injury job security or incapacity existing at the time of termination.

It is also important to distinguish two subjects:

Discriminatory dismissal

It relates to prejudice, stigma or the decision to remove the employee because of their health condition.

Job security for an occupational disease or work accident

It may apply when the illness is related to the work and the legal requirements for work-injury job security are present.

The same situation may involve both discussions, but they have different grounds and requirements.

Does the company need to know about the illness?

The employer’s knowledge of the illness is one of the most important elements of the analysis.

If the company was completely unaware of the diagnosis at the time of termination, it becomes harder to argue that the dismissal was motivated by that condition. There are labor rulings that rule out discrimination precisely because it was not shown that the employer knew of the illness.

On the other hand, the company’s awareness does not necessarily depend on the delivery of a full medical report with the name of the diagnosis and its ICD code. It can be shown by:

• medical certificates;
• communications to the human resources department;
• messages sent to a supervisor;
• requests for leave;
• referral to the INSS (Brazil’s social security institute);
• adaptations in duties;
• occupational health examinations;
• a request for surgery;
• witnesses who followed the communication;
• the company’s participation in the treatment or return-to-work process.

The analysis is always based on the evidence as a whole.

Which illnesses may be considered serious and stigmatizing?

There is no definitive legal list that applies to all cases. Case law has recognized protection in situations involving different illnesses, but the outcome depends on the circumstances of the case.

HIV and AIDS

The protection of people living with HIV is expressly covered by Precedent 443.

The worker does not need to be incapacitated or to show visible symptoms for the protection to be discussed. The basis lies in the history of prejudice and social exclusion associated with the condition.

When the company knows of the diagnosis and does not show a legitimate and independent reason for the dismissal, the presumption of discrimination may prevail. In a decision released in July 2026, the TST reaffirmed that it is up to the employer to overcome this presumption by showing another reason for the termination.

Information about living with HIV, chronic hepatitis, leprosy and tuberculosis is also subject to specific legal confidentiality protection.

Cancer

Cancer is frequently recognized by the Labor Courts as a serious illness capable of causing stigma.

See the specific article: Can a Worker With Cancer Be Dismissed in Brazil?

Although it is not a contagious disease, treatment may involve surgery, chemotherapy, radiotherapy, leave and temporary changes in performance. The company cannot use the difficulties arising from treatment as an indirect way of justifying the exclusion of the worker.

There are TST precedents involving breast cancer in which the following were considered relevant:

• the company’s knowledge of the illness;
• the closeness between the treatment and the dismissal;
• the weakness of the company’s justification;
• signs that the health condition played a part in the decision to terminate.

In one of these judgments, the TST recorded that breast cancer fell within the protection of Precedent 443 and upheld reinstatement and moral damages in light of the circumstances proven in the case.

This does not mean, however, that every person with cancer can never be dismissed. The company may still show that the termination resulted from a legitimate reason entirely independent of the illness.

Schizophrenia

Schizophrenia may be accompanied by strong social stigma, including in the workplace.

Prejudices related to supposed instability, unpredictability or permanent incapacity may improperly influence business decisions. When the dismissal takes place after the company learns of the diagnosis, it must be investigated whether there is a concrete and provable justification for the termination.

Bipolar disorder

Bipolar affective disorder also appears in labor rulings on discriminatory dismissal, especially when the employee is terminated during or shortly after leave for treatment.

The existence of the diagnosis alone does not resolve the case. The intensity of the condition, the history of leave, the company’s knowledge, the timing of the dismissal and the business reason given are all relevant.

Depression

Depression calls for an even more careful analysis because TST case law is not entirely uniform on the automatic application of Precedent 443.

There are decisions that recognize discriminatory dismissal in view of the seriousness of the condition and concrete signs of prejudice. There are also rulings holding that a diagnosis of depression, by itself, does not automatically create a presumption of stigma.

In one TST precedent, although depression was recognized as a serious illness capable of limiting physical, emotional and psychological conditions, the Court held that, in the circumstances examined, that diagnosis was not enough to presume prejudice without other evidence of discriminatory conduct.

For this reason, in cases of depression, elements such as the following are especially important:

• dismissal immediately after discharge from, or return from, leave;
• offensive or disparaging comments;
• pressure not to submit medical certificates;
• demands related to the treatment;
• a negative change of duties after the diagnosis;
• a history of positive evaluations before the illness;
• proof that the company knew how serious the condition was;
• evidence that the work caused or worsened the illness.

Anxiety, panic disorder and burnout

A diagnosis of anxiety, panic disorder or burnout also does not make a dismissal automatically discriminatory.

As a rule, it is necessary to assess the seriousness of the condition and to gather signs that the health condition actually influenced the termination. In certain cases, there may also be a discussion of occupational disease, particularly where there are abusive targets, harassment, excessive hours or other working conditions capable of causing or worsening the disorder.

The discussion of occupational origin is different from the application of Precedent 443. Even if the presumption of discrimination is not recognized, the worker may have other rights if the link between the illness and the work is shown.

Chronic alcoholism and chemical dependency

Chronic alcoholism and other forms of chemical dependency can be treated legally as illnesses, and not only as disciplinary problems.

This is especially relevant when absences, behavioral changes or professional difficulties are related to the dependency. Before applying a penalty or terminating the contract, it must be examined whether the company knew of the illness and whether there was a need for treatment or a social security referral.

Labor case law accepts, in certain circumstances, recognizing the discriminatory nature of the dismissal of a worker with a chemical dependency.

This does not mean that any consumption of alcohol or substances prevents disciplinary measures. It is necessary to distinguish isolated episodes, conscious conduct and situations characterized as clinical dependency.

Epilepsy

Epilepsy can still cause fear and prejudice in the workplace, especially when visible seizures occur.

Protection may be recognized when the company learns of the seizures and, instead of adopting safety measures or considering possible adaptations, terminates the employee without giving a legitimate reason.

The condition does not allow incapacity for any activity to be presumed. Limitations must be assessed individually, according to the work performed and medical guidance.

Lupus

Systemic lupus erythematosus is an autoimmune disease that may involve periods of flare-ups, fatigue, pain and impairment of different organs.

Case law has examined the dismissal of employees with lupus under Precedent 443, especially when the company knew of the diagnosis and the termination occurred close to flare-ups, treatments or leave.

Even so, recognition is not automatic. The employment record, the company’s knowledge and the justification for the dismissal remain essential.

Multiple sclerosis

Multiple sclerosis can produce periods of worsening, motor changes, fatigue and fluctuations in functional capacity.

When an alleged drop in performance is directly related to symptoms known to the company, that justification must be examined with caution. In certain circumstances, using the consequences of the illness as a reason for dismissal may amount to indirect discrimination.

Tuberculosis and leprosy

Despite medical advances, tuberculosis and leprosy can still carry strong social stigma.

Fear of contagion and misinformation can lead to improper removal from work, exposure of the diagnosis and dismissal. The existence of treatment or a cure does not automatically eliminate the possibility of discrimination.

In these cases, the confidentiality rules for the worker’s medical information must also be observed.

Parkinson’s disease

Parkinson’s can cause tremors, rigidity, slowness of movement and other progressive changes.

There are decisions recognizing the discriminatory dismissal of workers with Parkinson’s, mainly when the company knew of the symptoms or the diagnosis and did not give a convincing reason for the termination.

However, it should not be stated that every employee with Parkinson’s has automatic job security. The classification depends on the evidence in the case.

Fibromyalgia

Fibromyalgia can cause widespread pain, fatigue and limitations that are not always visible.

There are decisions by Regional Courts recognizing the discriminatory nature of the dismissal of people with fibromyalgia. However, the subject still requires individual analysis, since there is no general TST guidance establishing that every diagnosis of fibromyalgia automatically triggers the presumption of Precedent 443.

When discrimination is suspected, it is important to gather documents showing the seriousness of the condition, the treatment, the company’s knowledge and the context of the termination.

Endometriosis

Endometriosis can cause intense pain, bleeding, the need for surgery and leave.

In a case released by the TST, a workplace safety technician was dismissed days before surgery to treat endometriosis. The closeness between the notice of the procedure and the termination was relevant to recognizing the unlawfulness of the company’s conduct.

This precedent does not turn every case of endometriosis into an automatic case of Precedent 443. It shows, however, that a dismissal may be considered discriminatory even when the illness does not belong to the group traditionally associated with stigma, as long as the circumstances show that the person was discarded because of their health condition.

Serious heart disease

Serious heart conditions can cause limitations on exertion, the need for continuous treatment and unjustified apprehension in the professional environment.

The diagnosis alone does not guarantee reinstatement. The degree of impairment, the company’s knowledge, any medical restrictions and the actual reasons for the termination must be assessed.

Morbid obesity

Obesity may be associated with prejudice and exclusion in the labor market. However, its automatic inclusion in Precedent 443 is not settled.

In cases involving bariatric surgery, the TST has ruled out discrimination when the evidence did not show that the health condition had motivated the dismissal.

Thus, the worker needs to gather concrete elements, such as prejudiced remarks, unequal treatment, dismissal immediately after notifying the company of surgery or other evidence that obesity influenced the termination.

Diabetes

Diabetes is a chronic disease that requires monitoring, but the diagnosis alone is generally not enough to presume that a dismissal was discriminatory.

This does not prevent a court challenge where there is concrete evidence of prejudice or where the dismissal takes place during incapacity for work, social security leave or a situation related to an occupational disease.

Herniated disc, tendinitis, bursitis, RSI and WMSD

Orthopedic conditions and repetitive strain injuries are normally discussed in the field of occupational disease and work-injury job security, and not through the presumption of Precedent 443.

In these cases, the central question is usually the relationship between the illness and the professional activities.

If there is a link with the work, incapacity or social security leave, the employee may have specific rights. In addition, if there is evidence that the company dismissed the worker to avoid leave or the recognition of an occupational disease, the validity of the termination may also be challenged.

Psoriasis and vitiligo

Psoriasis and vitiligo can cause visible manifestations and emotional suffering. However, it is not safe to state that anyone with these conditions has job security or that discrimination will be automatically presumed.

Protection may be recognized when there is evidence of prejudiced comments, removal from customer-facing activities, unequal treatment or a direct association between the diagnosis and the dismissal.

Does the worker need to be on leave from the INSS?

Not necessarily.

Discriminatory dismissal and social security leave are different legal concepts. Depending on the case, protection may be recognized even if the worker:

• did not receive an INSS benefit;
• was not on leave for more than 15 days;
• was working normally;
• showed no visible symptoms;
• had only recently discovered the illness.

On the other hand, if the employee was actually unable to work on the date of dismissal, there may be a discussion about the validity of the dismissal medical examination, the need for referral to the INSS and the very regularity of the termination of the contract.

What rights may be recognized?

If the Labor Court concludes that the dismissal was discriminatory, the consequences will depend on the claims made and on the particulars of the case.

Reinstatement

The worker may return to the position, with the employment relationship restored.

The thesis set in TST Theme 254 recognizes the right to reinstatement when the dismissal of an employee with HIV or another serious illness that gives rise to stigma or prejudice is declared invalid.

Payment for the period of absence

Salaries and other amounts for the period between the dismissal and the actual reinstatement may be due, within the limits recognized by the court.

Double pay

Article 4 of Law 9,029/1995 allows the worker to choose between:

• reinstatement, with full reimbursement of the period of absence; or
• receiving, in double, the pay corresponding to the period of absence.

The choice and the calculation depend on how the claims are formulated and on the court’s decision.

Moral damages

Discriminatory dismissal may also give rise to compensation for moral damages, especially when it affects the worker’s dignity, honor, privacy and emotional security at a moment of vulnerability.

The amount is not predetermined. The judge considers factors such as the seriousness of the conduct, the extent of the harm, the repercussions of the dismissal, the economic capacity of the parties and the circumstances of the case.

Restoration of the health plan

In certain situations, the restoration of the health plan may be requested, especially when it is needed to continue treatment.

This request requires immediate attention, because an interruption of treatment may justify urgent court action.

What evidence should be kept?

Anyone who suspects a discriminatory dismissal should preserve, preferably from the moment of dismissal:

• medical tests and reports;
• certificates delivered to the company;
• human resources department records;
• emails and messages with supervisors;
• communications about surgery or treatment;
• INSS documents;
• hiring, periodic and dismissal medical examinations;
• proof that certificates were delivered;
• performance evaluations;
• warnings received after the diagnosis;
• messages with comments about the illness;
• names of colleagues who witnessed the facts;
• recordings made lawfully;
• the dismissal notice;
• the termination document;
• documents about the cancellation of the health plan;
• advertisements or documents showing that a replacement was hired;
• information about other employees dismissed in the same restructuring.

It can also be useful to organize a timeline containing:

1. the date of diagnosis;
2. the date the company was informed;
3. periods of leave;
4. the date surgery or treatment was requested;
5. changes that occurred after the communication;
6. the date and manner of dismissal;
7. the justification given by the company.

The closeness in time between these events does not prove discrimination on its own, but it can be an important sign.

What to do after being dismissed during an illness?

Some steps can help preserve rights:

1. Do not discard medical or employment documents.
2. Request a copy of the occupational examinations, including the dismissal examination.
3. Record important communications in writing.
4. Do not sign statements you do not understand.
5. Avoid posting unnecessary medical information on social media.
6. Note the names of people who witnessed relevant facts.
7. Seek medical care if you are still incapacitated.
8. Get legal guidance before the evidence is lost.

Signing the termination document does not, by itself, prevent a later challenge to the validity of the dismissal.

Is there a deadline to file a lawsuit?

As a rule, the worker has up to two years after the end of the contract to file a labor claim. Within the lawsuit, rights relating to the five years before filing can normally be discussed.

However, it is not advisable to wait until the end of the period. Requests for reinstatement, restoration of the health plan and continuity of treatment may require quick action. In addition, messages, internal documents and witnesses can be lost over time.

How can I tell whether my dismissal may have been discriminatory?

Some questions help with the initial assessment:

• Did the company know about the illness?
• How and when was it informed?
• Did the dismissal take place soon after the diagnosis, leave, discharge or notice of surgery?
• Did the treatment require absences that began to be criticized?
• Were there comments about costs, productivity or the health plan?
• Did the worker have good evaluations before the illness?
• Can the reason given for the dismissal be proven?
• Were other employees dismissed on the same criteria?
• Did the company immediately hire someone else for the position?
• Was there incapacity to work on the day of dismissal?
• Was the illness caused or worsened by the work?
• Did the dismissal examination find the worker fit despite medical reports to the contrary?

None of these questions decides the case on its own. Together, the answers make it possible to identify whether there are enough signs for a deeper legal analysis.

Conclusion

Being sick does not automatically make every employee secure in the job. On the other hand, the company’s right to end a contract without cause does not authorize excluding people because of prejudice, fear, the cost of treatment or a temporary drop in productivity.

Precedent 443 and TST Theme 254 protect workers who live with HIV or have a serious illness capable of causing stigma or prejudice. In those cases, the dismissal may be presumed discriminatory, and it is up to the company to show that it made the decision on a legitimate ground independent of the health condition.

Because there is no definitive list of illnesses and each diagnosis can manifest differently, the assessment must consider medical documents, the company’s knowledge, the timing of the dismissal, the work history and the justification given for the termination. This article refers to Brazilian law only.

Frequently asked questions

Sources

• Law 9,029/1995 (discriminatory practices in the employment relationship)
• TST: Precedent (Súmula) 443 (discriminatory dismissal, serious illness, stigma or prejudice)
• TST: Theme 254 of the repetitive appeals (RR-0011349-11.2022.5.15.0026), judged on August 22, 2025 and published on September 5, 2025
• TST: Dismissal of driver with HIV ruled discriminatory (news of July 21, 2026)
• TST: ruling on depression and application of Precedent 443 (TST-RR-1535-46.2015.5.02.0037)
• TST, Fifth Panel: ruling in Ag-AIRR-1001196-48.2016.5.02.0033 (breast cancer and Precedent 443), November 10, 2021

About the author

Alex Antonio Vilanova

• Lawyer registered with the Brazilian Bar Association, Paraná Section (OAB/PR No. 89.071)
• Professor of Business Law and Human Rights

Education

• Bachelor’s degree in Law, State University of Ponta Grossa (UEPG)
• Master’s degree in Economics, State University of Western Paraná (Unioeste)
• Postgraduate specialization in Contemporary Civil Law and Civil Procedure
• Postgraduate specialization in Constitutional Law

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Informational content, reviewed on October 18, 2026, based on the rules and case law in force on that date. It does not replace a lawyer’s analysis of your specific case, and it refers to Brazilian law only.