Situation: An employee has a suspended employment contract for parental leave and a death occurs in the family. Can the employer provide a funeral allowance during the CCC period?
Solution:
According to the republished Labor Code, art. 51, paragraph (1) letter a), the individual employment contract (CIM) may be suspended at the initiative of the employee, in case of leave for raising a child up to 2 years old or in the case of a disabled child, until the age of 3.
According to art.49 paragraphs (2) – (3) of the Labor Code, the suspension of the individual employment contract has the effect of suspending the performance of work by the employee and the payment of salary rights by the employer.
During the suspension, there may continue to be other rights and obligations of the parties than those provided above, if they are provided by special laws, by the applicable collective labor agreement, by individual employment contracts or by internal regulations.
On the other hand, OUG no. 111/2010 on leave and monthly allowance for raising children, with subsequent amendments and completions, provides in art. 16 paragraph (2) letter i) that the right to child raising allowances provided in art. 2 para. (1), respectively to art. 5 and art. 9 para. (4) and (5) of the Ordinance shall be suspended starting with the day following the day on which the beneficiary realizes income subject to tax and the child has not reached the age of 2 years, respectively 3 years, in the case of the disabled child.
In accordance with Article 16, paragraph (3), letter a), by exception from the provisions of paragraph (2) letter i), the payment of the child raising allowance is not suspended if the entitled person receives various amounts based on the law, the collective labor contract or the individual labor contract, granted during the parental leave, other than those resulting from the actual development of an activity during the leave period.
Regarding the funeral aid, according to art. 76 paragraph (4) letter a) of Law no. 227/2015 on the Fiscal Code, with subsequent amendments and completions, there are no taxable income within the meaning of income tax, funeral aid , aid for serious and incurable diseases, aid for medical devices, aid for birth / adoption, aid for losses incurred in one’s own household as a result of natural disasters, income representing gifts in cash and / or in kind, including gift vouchers, offered to employees, as well as those offered for their minor children, the value of transport to and from the employee’s place of work, the value of tourist and / or treatment services, including transport, during the leave, for their own employees and family members, granted by employer for its own employees or other persons, as provided in the employment contract or in the internal rules.
This type of aid is included neither in the calculation base of the social insurance contribution, of the social health insurance contribution nor in the monthly calculation base of the labor insurance contribution (art. 142 letter b), art. 157 par. (2) and art.220 ^ 4 paragraph (2) of the Fiscal Code).
We remind you that until the amendment of the Fiscal Code by GEO no. 13/2021, the Fiscal Code referred to the employment contract, not to the internal regulation, and by the employment contract we mean the individual labor contract or the collective labor contract. Starting with March 1, 2021, the Fiscal Code also refers to the internal regulations.
Therefore, the employer may grant funeral assistance to the employee who has a suspended employment contract if the granting of this right is provided by the applicable collective labor agreement, by the individual employment contract or by the internal regulations.
Legal basis:
– Fiscal Code (approved by Law no. 227/2015, published in the Official Gazette no. 688 of 10.09.2015), with subsequent amendments and completions;
– Fiscal Procedure Code (approved by Law no. 207/2015, published in the Official Gazette no. 547 of 23.07.2015), with subsequent amendments and completions;
– Methodological Norms for the application of the Fiscal Code (approved by OG no. 1/2016).