Law no. 268/2020 for the amendment and completion of Law no. 273/2004 on the adoption procedure, as well as for the abrogation of art. 5 paragraph (7) letters s) and cc) of GEO no. 11/2014 on the adoption of certain measures. of reorganization at the level of the central public administration and for the modification and completion of some normative acts was published in the Official Gazette no. 1140 of November 26, 2020.
We specify that through this document were brought a series of amendments and completions to the regulations on leave and accommodation allowance, provisions that came into force 120 days after the publication of Law no. 268/2020 in the Official Gazette, respectively from 26 March 2021.
Thus, the regulations regarding the leave and the accommodation allowance from Law 273/2004, amended and supplemented by Law no. 268/2020, provide for the following important aspects:
The adopter or, optionally, any of the spouses of the adoptive family, who realize incomes subject to income tax, according to the provisions of Law no. 227/2015 on the Fiscal Code, with subsequent amendments and completions, from salary activities and assimilated to them or, as the case may be, from activities independents, copyrights or agricultural activities, hereinafter referred to as the entitled person, may benefit from an accommodation leave with a maximum duration of one year, which also includes the period of entrusting the child for adoption, as well as a monthly allowance.
We specify that in the old regulations the copyrights were not mentioned, within the incomes included in the calculation base of the accommodation allowance.
The amount of the monthly allowance, according to the new provisions, is 85% of the average net income achieved in the last 12 months of the last 2 years prior to the date of issuing the court decision of entrustment for adoption.
The amount of the monthly allowance cannot be less than the amount resulting from the application of a multiplication coefficient of 3.4 to the value of the reference social indicator, and its maximum amount cannot exceed the value of 8,500 lei.
Provided that the person who benefited from leave and accommodation allowance adopts one or more children, within a period of up to 12 months from the end of the accommodation leave for the previously adopted child, if the calculation of the allowance results in an amount of allowance monthly for the accommodation leave lower than the amount of the previously due allowance, then the monthly allowance for the accommodation leave received for the previously adopted child is granted.
The leave and the accommodation allowance are granted based on the request of the entitled person, to which is attached the registry certificate based on which the court decision of entrustment for adoption or, as the case may be, of approval of the adoption is executed, the document attesting the child’s transfer to the adopter / the adoptive family, registered at the directorate in whose administrative-territorial area the child was protected, as well as the proof of the effective entry on leave or of the suspension of the activity.
The mentioned rights are established and granted starting with the day following the one in which the court decision of entrustment for adoption was executed.
The entitled persons whose rights regarding the leave and the accommodation allowance have been established cannot benefit, during the accommodation leave, from the rights granted based on art.2 and 7 of OUG no.111 / 2010 regarding the leave and the monthly allowance for raising children , approved with amendments by Law no. 132/2011, with subsequent amendments and completions.
It is important to mention the fact that, during the period in which he benefits from the accommodation allowance, the entitled person has the quality of insured in the social health insurance system, without paying the social health insurance contribution, under the conditions provided by art. 154 of Law no. 227/2015, with subsequent amendments and completions.
The budget of the Ministry of Labor and Social Justice is the one that ensures the necessary funds for the payment of the accommodation allowance, of the administrative expenses, as well as of those for the transmission of the rights is ensured from the state budget.
Thus, the application and the proving documents are submitted and registered at the Agency for Payments and County Social Inspection and of the Bucharest municipality in whose territorial area the entitled person has his domicile or residence.
The calculation and payment of the indemnity are made by the National Agency for Payments and Social Inspection, through the counting agencies for payments and social inspection of the county and of Bucharest, and are paid, depending on the option of the entitled person, in his bank account or at his domicile.
We emphasize that the procedure for paying the indemnity granted during the accommodation leave is approved by the methodological norms for the application of Law no. 268/2020.
The accommodation leave and the payment of the indemnity end starting with the day following the one in which one of the following situations occurs:
- a) at the expiration of the accommodation leave;
- b) at the request of the entitled person;
- c) the child has reached the age of 18;
- d) the death of the child has occurred;
- e) the entitled person who was to adopt as a single person has died;
- f) the court decision regarding the revocation of the entrustment for adoption remained final;
- g) the entitled person resumes his activity before the expiration of the accommodation leave.
During the accommodation leave, the entitled person may be in one of the following situations that does not affect the payment of the indemnity:
- a) realizes incomes based on the law, of the collective labor contract or of the individual labor contract, other than those resulting from the effective development of an activity during the leave period;
- b) receives allowances as a local or county councilor, regardless of their level;
- c) realizes, during the accommodation leave, incomes subject to tax through the effective development of an activity, other than the one suspended as a result of entering the accommodation leave, whose level does not exceed the level provided in art. 16 para. (3) lit. c) of the Government Emergency Ordinance no. 111/2010 on leave and monthly allowance for raising children, approved with amendments by Law no. 132/2011, with subsequent amendments and completions.
In the situation where the entitled person achieves incomes subject to income tax, under the conditions of letter c), it has the obligation to communicate this fact, in writing, to the county payment and social inspection agency and of the Bucharest municipality in whose territorial area it has its domicile or residence, within 30 days from the date of starting the activity.
The communication must contain the start date of the activity, the type of activity and the name of the employer, as the case may be.
The accommodation leave and the payment of the indemnity are suspended starting with the day following the one in which one of the following situations occurs:
- a) the placement of the child in emergency regime was ordered;
- b) the court decision regarding the revocation of the entrustment for adoption has been executed.
The suspension provided for shall end on the day following the final decision of the court ordering the return of the child to the person / family to whom it was entrusted for adoption or, as the case may be, on the day following the final decision of the court it was ordered to reject the revocation of the entrustment for adoption. (3)
The resumption of the accommodation leave and of the payment of the suspended suspended indemnity is made at the request of the entitled person, starting with the date of its submission, if no situations have occurred that would determine the cessation of the rights.
On the rights provided in art. 50 paragraph (1) – the accommodation allowance – no tax is due nor the obligatory social contributions established according to the law.
The period of the accommodation leave constitutes the period assimilated to the contribution period in order to establish the social health insurance indemnities provided by the Government Emergency Ordinance no. 158/2005 regarding the holidays and the indemnities of social health insurances, approved with modifications and completions by Law no. 396/2006, with the subsequent modifications and completions.
The period of the accommodation leave constitutes the period assimilated to the contribution period and is capitalized for obtaining the social insurance benefits, under the conditions provided by Law no. 263/2010 regarding the unitary system of public pensions, with the subsequent modifications and completions, and of the rights established by Law no. 76/2002 regarding the unemployment insurance system and the stimulation of employment, with the subsequent modifications and completions, as well as in order to establish the rights provided by the Government Emergency Ordinance no. 111/2010, approved with amendments by Law no. 132/2011, with subsequent amendments and completions.
For the assimilated periods, when determining the monthly score of the insured, for establishing the social insurance benefits from the public pension system, 25% of the average monthly gross salary from the respective periods is used.
The period of accommodation leave is seniority in work, service and specialty, which is taken into account in establishing the rights granted in relation to it in compliance with the provisions of Law no.200 / 2004 on the recognition of diplomas and professional qualifications for regulated professions in Romania, with subsequent amendments.
Employers have the obligation to grant to the employee or, as the case may be, to the employees who adopt free time for carrying out the evaluations required to obtain the certificate and achieve the practical adjustment, without diminishing the salary rights, within a maximum of 40 hours per year. Free time is granted on the basis of the applicant’s request, to which is attached the calendar of meetings or, as the case may be, the schedule of visits, drawn up by the competent directorate.
The non-observance by the employer of the previously mentioned rights constitutes a contravention and is sanctioned with a fine from 1,000 lei to 2,500 lei.
Legal basis:
– Law 273/2004 on the adoption procedure *) – Republishing;
– Law 268/2020 for the amendment and completion of Law no. 273/2004 on the adoption procedure, as well as for the abrogation of art. 5 paragraph (7) letters s) and cc) of the Government Emergency Ordinance no. 11/2014 on adoption of reorganization measures at the level of the central public administration and for the modification and completion of some normative acts;
– Fiscal Code (approved by Law no. 227/2015, published in the Official Gazette no. 688 of 10.09.2015), with subsequent amendments and completions;
– Methodological Norms for the application of the Fiscal Code (approved by HG no. 1/2016).