Discrimination in the granting of sick leave

In the context of the shortage of money in the Single National Health Insurance Fund (FNUASS) through Emergency Ordinance 10/2023, harsh and discriminatory changes have come into force concerning sick leave, including for pregnancy and childbirth and health insurance benefits.

So, by means of Emergency Ordinance No 10/2023, amendments were made to Emergency Ordinance No 158/2005 concerning, as a matter of priority, the capping of the basis for calculating leave allowances at three gross minimum wages strictly for persons who are not employees.

For the effective application of the new rules, the Norms implementing the provisions of Emergency Ordinance No 158/2005 were published in the Official Monitor of Romania.

The rules currently state that:

“For persons with an average monthly income entered in the tax return greater than or equal to the value of one minimum gross basic salary per country guaranteed in payment, the insured income entered in the insurance contract for holidays and health insurance benefits, to which the contribution is due, is that entered in the tax return and may not exceed the value of 3 minimum gross basic salaries per country guaranteed in payment”, the new rules state.

Therefore, we encounter the following two situations:

– That of employees who continue to receive holiday pay calculated at the ceiling of 12 gross minimum wages;

– Those who are not insured as employees, being self-employed and who can take out an insurance contract for holidays and sickness benefits, paying a fairly low contribution of 1%, which is completely different from the contribution paid as social health insurance (CASS) and who no longer receive a holiday allowance calculated at the ceiling of 12 gross minimum wages, but at the level of 3 gross minimum wages, which means a drastic and discriminatory reduction for the self-employed.

In practice, the limit has been lowered fourfold, which means a drastic reduction in the maximum amount of maternity leave benefits for non-salaried workers.

The initiators of the measure justified the need to adapt this ceiling for the self-employed in view of the financial pressures on the FNUASS budget caused by the increase in expenditure and in the number of recipients of social health insurance benefits, which is not matched by a proportionate increase in income from contributions to social health insurance benefits.

Another unfounded argument is that insured persons in employment pay both the health insurance contribution and the contribution for leave and health insurance benefits on their earned income and do not have the option to take out voluntary insurance on a higher income, which, in their view, leads to an inequality between the amount of maternity benefits enjoyed by the majority of insured persons in employment and the amount of benefits enjoyed by non-employed persons who can take out voluntary insurance on a freely chosen income.

However, in our opinion, the discrimination lies precisely in these new amendments to Emergency Ordinance No 158/2005 with regard to non-salaried persons, as long as this category is the only one to whom the basis for calculating leave benefits has been capped at three gross minimum wages compared to the twelve gross minimum wages corresponding to salaried employees, as we shall show below.

Generally speaking, at international level, the issue of non-discrimination has over time been the subject of several regulations which have taken account of the evolution of this concept. Article 2(1) of the Universal Declaration of Human Rights refers to the right of the individual to equality before the law and protection against discrimination.

Also Art. 23 para. (2) of the same Declaration states that all men, without any discrimination, have the right to equal pay for equal work.

The principle of equal treatment underpins the whole of European law and must of course be seen in a complex way.

Thus, Article 2 of the Treaty on European Union elevates non-discrimination to a common value of the Member States, while Article 3 states that the fight against discrimination is one of the tasks of the European Union.

Further, with regard to equality of rights, the Constitutional Court has consistently ruled in its case law that “the principle of equality and non-discrimination exists when differential treatment is applied to equal cases without objective and reasonable grounds, or if there is a disproportion between the aim pursued by the unequal treatment and the means used”.

Moreover, a protection measure cannot have the meaning either of a privilege or of discrimination, as it is designed precisely to ensure in certain specific situations the equality of citizens who would otherwise be affected.

With the adoption of the new amendments to Emergency Ordinance No 158/2005, a colossal difference in treatment between employees and self-employed persons is clearly created, given that in order to be in the presence of discrimination, according to Article 14 of the European Convention on Human Rights, there must be a difference in treatment between “persons in similar or comparable situations”.

However, whether we refer to employees or self-employed persons, no one can dispute that both categories make huge contributions to the Single National Health Insurance Fund (FNUASS), which is why there is no justification whatsoever for lowering the sick leave allowance ceiling only for the self-employed category.

Although in the preamble to Emergency Ordinance No 10/2023, the initiators of the measure strongly argued that it is necessary to implement a fair and uniform mechanism for determining social health insurance benefits, with the aim of effectively managing the Single National Health Insurance Fund, the amendments only establish the opposite.

The rationale for emergency and extraordinary legislative intervention should be justified by the need for a regulation to ensure equal treatment, with the consequence of spending public funds responsibly and efficiently, targeting all categories of taxpayers, without discriminating against any of them and taking into account the fact that failure to adopt immediate measures, addressed equally and uniformly to all, whether employees or self-employed, would lead to further burdening the budget of the Single National Health Insurance Fund and the interests of all insured.

In view of the above considerations, we are of the opinion that the amendments made by Emergency Ordinance No 10/2023, i.e. the reduction of the maximum level of sick leave benefits only for the category of self-employed persons who choose to take out voluntary insurance, flagrantly violate the principle of equal treatment which underpins all European law and leads to discrimination prohibited by Article 14 of the European Convention on Human Rights, which will undoubtedly give rise to numerous disputes before the courts.

This article was prepared for the blog of the law firm Costaș, Negru & Asociații by av. Diana Badiu and by av. Loredana Feier, both from the Cluj Bar Association.

Costaș, Negru & Asociații is a law firm with offices in Cluj-Napoca, Bucharest and Arad, which provides assistance, legal representation and advice in several practice areas through a team of 17 lawyers and consultants. Details of the legal services and the composition of the team can be found at https://www.costas-negru.ro.

All rights for materials published on the company’s website and via social media belong to Costaș, Negru & Asociații, reproduction is permitted for information purposes only and with full and correct citation of the source.

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