03
May2022

Perfect discrimination: the request for the reimbursement of maternal risk allowances

We propose hereinafter to point out a topical issue, generated by the actions of the Romanian Health Insurance Funds that seek to recover amounts of money from persons who benefited from maternal risk allowances prior to April 3, 2022.

In recent months, a significant number of women have received enforceable notifications from the Health Insurance Funds in the territory, imposing them to reimburse the amounts collected for maternal risk during their maternity leave.

These allowances represent the amounts granted as a result of the occurrence of complications or possible complications during pregnancy or childbirth.

The common denominator of the recipients of these notifications is that all these women were carrying out independent activities before entering maternity leave, so they were not part of a classic employment-type relationship (for example lawyers, who are in the category of persons who earns income on the basis of a special statute provided by law – Law No. 51/1995 and the Statute of the legal profession).

The triggering factor of these notifications lays in the misinterpretation given by the National Health Insurance Fund to the legislative amendments brought to GEO no. 96/2003, in the sense of excluding mothers carrying out independent activities from the category of beneficiaries of maternal risk allowances.

To outline the legal framework, we mention the fact that the legal framework of the matter is GEO no. 158/2005 regarding the holidays and the indemnities of social health insurances, respectively GEO no. 96/2003 on maternity protection in the workplace.

GEO no. 158/2005 provides in art. 31 para. (2) the fact that during the maternity leave, which is granted under the conditions provided by GEO no. 96/2003, a maternal risk indemnity is granted which is fully supported from the budget of the Single National Health Insurance Fund.

The modified form of GEO no. 96/2003, to which the GEO no. 158/2005 refers to, seems to limit the possibility of receiving maternity leave and allowance by individuals who are not employees. Therefore, in such an interpretation, the possibility for women carrying out independent activities to benefit from the payment of maternity risk allowance is removed.

However, in art. 1 of GEO no. 158/2005 it is provided that “Persons insured for leave and allowances of social health insurance in the system of social health insurance, hereinafter referred to as insured, have the right, under the conditions of this emergency ordinance, for the period in which they have their domicile or residence on the territory of Romania, on medical leave and social health insurance benefits, if: a) they earn income from carrying out an activity on the basis of an individual employment contract, a service report, a a special status provided by law, as well as other incomes assimilated to salaries, in compliance with the provisions of the applicable European legislation in the field of social security, as well as the agreements regarding the social security systems to which Romania is a party ”.

Therefore, in the conditions in which a person carrying out an independent activity proves the maternal risk by supporting medical documents (such as a medical report from the gynecologist and a report from Occupational Medicine) and insures voluntarily (concludes an insurance contract for maternity leave and allowances of social health insurance with the National Health Insurance Fund), we consider that it can benefit from leave and allowances of maternal risk, including by reference to the new form of GEO no. 158/2005.

In the current version, GEO no. 96/2003 provides in art. 1 that it regulates social protection measures for pregnant and lactating employees, mothers or nursing mothers, of Romanian citizenship or of a Member State of the European Union and of the European Economic Area, who have employment or service relations with an employer, and in art. 2 defines the pregnant employee as the woman who notifies the employer in writing of her physiological state of pregnancy and attaches a medical document issued by the family doctor or by the specialist doctor attesting to this condition, and the maternity risk leave as the leave from which the employees benefit.

The Pandora’s box consists in the interpretation of the notion of “employee”, which the National Health Insurance Fund interprets to the detriment of women who work but carry out an independent activity, and contrary to the interpretation given by the European case law.

As we mentioned, GEO no. 158/2005 does not distinguish between the two categories of insured persons benefiting from the right to sick leave and maternity risk allowances. The strict ad litteram interpretation given to the word “employee” in the sense of a person employed under an individual employment contract and not a person carrying out independent activities is incorrect, as the legislator’s purpose is to protect the maternity, health and safety of pregnant women/mothers at work, pregnant women / nursing mothers and their children and not to discriminate pregnant women / mothers who are carrying out an independent activity under the Labor Code.

At European level, according to art. 8 of Directive 2010/41 / EU on the application of the principle of equal treatment between self-employed men and women, Member States shall take the necessary measures to ensure that “women carrying out independent activities have access to any existing services offering temporary substitutions or any existing national social services”. Compared to the fact that Romania provides social protection to pregnant women in the form of maternity leave, this social protection must also benefit pregnant women who carry out independent activities, not just salaried pregnant women.

According to the case law of the Court of Justice of the European Union, the following is noted: “The Court has recognized that self-employed and self-employed persons are in a situation of comparable vulnerability when they are obliged to cease their activity. However, women who become pregnant are in a situation of comparable vulnerability, regardless of whether they are employed or self-employed ”.[1]

Thus, the interpretation used by CNAS is contrary to European Union law and the case-law of the Court of Justice of the European Union.

In addition, we consider the CNAS approach to the legal texts to be discriminatory, in the sense of eliminating a category from the benefits granted to them by law on the basis of a simply abusive interpretation, fact that was also confirmed by the National Council for Combating Discrimination[2].

In any case, accusing the beneficiaries for the amendment of the law that took place after the signing of the contracts with CNAS and after they proven of the maternal risk and collected the allowances, is deeply abusive.

Moreover, this has been the legal and regulated procedure for the last 15 years, on the basis of which all maternity leaves have been paid, which is currently abusively considered improperly paid, based on an discretionary and discriminatory interpretation of the law.

Pending the establishment of the legal situation by a court, we encourage the recipient of such notification to request, firstly, the suspension of the payment decisions received in view of their enforceability and, secondly, their annulment on grounds of illegality.

This article was prepared for the Blog of Costaș, Negru & Asociații by Ms. Clara Dohotar.

[1] In this respect, the Union legislator expressly acknowledged, in recital / explanatory memorandum no. (18) of Directive 2010/41, the state of economic and physical vulnerability during the pregnancy of self-employed workers, (Case C-544/18 Dakneviciute [2019] ECR I-0000, paragraph 35-37; Judgment of 20 December 2017, Gusa, C -442/16, paragraph 43). Thus, Article 8 (1) of that directive requires Member States to take the necessary measures to ensure that self-employed women are entitled to any existing national social services which enable them to cease their employment on the grounds of pregnancy or lauzie, in conditions similar to those provided for salaried workers.

[2] In the opinion issued on 8.12.2021, CNCD considered that the refusal of the National Health Insurance House to approve the petitioner granting the right to benefit from the social health insurance allowance for maternity leave constitutes discrimination and falls within the scope of the provisions of Government Ordinance no. 137/2000 on the prevention and sanctioning of all forms of discrimination, with subsequent amendments and completions, republished.

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