According to article 36 paragraph (1) of the EMERGENCY ORDINANCE no.158/2005 on social health insurance leave and allowances, the calculation and payment of the allowances provided for by this emergency ordinance shall be made on the basis of the sick leave certificate issued in accordance with the law, which constitutes a supporting document for payment.
In addition, in Article 36, paragraph 3, letter a), the payment of the allowances is made monthly by the employer, at the latest with the liquidation of the salary rights for that month.
The sick leave certificate shall be submitted to the payer no later than the 5th of the month following the month for which the leave was granted, with some exceptions when the sick leave certificate shall be submitted to the payer no later than the end of the month in which the sick leave certificate was issued, exceptions which we find in article 60 paragraph (2) of the Implementing Rules of the provisions of the EMERGENCY ORDINANCE no.158/2005, approved by Order no.15/2018/1311/2017.
According to the provisions of Article 36^1 of the EMERGENCY ORDINANCE no.158/2005, for the calculation and payment of allowances, the payers of allowances provided for in Article 36, including the employer, have the following obligations:
- to verify the elements that must be included on the sick leave certificate, as provided for in the Instructions on the use and completion of sick leave certificates, approved by order of the Minister of Health and the President of the CNAS;
- to manage the number of days of sick leave per insured person and per condition;
- to reject for payment the sick leave certificates filled in erroneously by the prescribing doctors.
Moreover, according to Article 71 of the Implementing Rules of the provisions of the EMERGENCY ORDINANCE no.158/2005, approved by Order no.15/2018/1311/2017, the following situations constitute justified refusals to pay allowances:
– no proof of insurance for social health insurance leave and benefits;
– failure to complete the full insurance period, with the exceptions provided for by law;
– failure to complete all the fields of the sick leave certificate by the doctor who issued/approved the certificate;
– failure to submit the sick leave certificate within the time limits laid down by law;
– retroactive granting of sick leave certificates outside the situations provided for by law;
– sick leave certificates that exceed the maximum periods stipulated in these rules.
The situations in which the employer notes unjustified issues of sick leave certificates and postpones payment for a maximum of 90 days following the referral to the control committees also constitute a justified refusal to pay benefits.
Moreover, according to Article 4 of Order No. 1192/745/2020 approving the single model of the sick leave certificate and the instructions on the use and completion of sick leave certificates on the basis of which benefits are granted to insured persons under the social health insurance system and the insurance system for accidents at work and occupational diseases, it is stipulated that the doctor who issues the sick leave certificate is responsible for the accuracy of the data entered in the completed fields.
Failure to fill in the fields according to the instructions approved by this order and/or filling them in incorrectly constitutes an offence and is punishable according to the provisions of EMERGENCY ORDER No. 158/2005. The procedure for filling in sick leave certificates is provided for in Chapter II of Annex No.2 – Instructions on the use and procedure for filling in sick leave certificates to Order No.1092/745/2020.
However, it is important to mention that the unjustified refusal to pay the allowances and/or the erroneous calculation and payment of the allowances by the employer, the violation by the employer of the obligation to pay the allowances on a monthly basis, at the latest with the liquidation of the salary rights for the respective month, as well as the violation of the obligation to manage the number of days of sick leave per insured person and per condition constitutes an offence and is punishable by a fine of 2500 to 5000 lei (according to Article 47 paragraph 2, Article 48 paragraph 1 letter a of the EMERGENCY ORDINANCE no. 158 /2005).
In conclusion, the employer has the obligation to verify the elements that must be included on the sick leave certificate, as provided for in the Instructions on the use and completion of sick leave certificates, approved by order of the Minister of Health and the President of CNAS (in force we have Order no.1192/745/2020), to manage the number of days of sick leave per insured and per condition, to reject for payment the sick leave certificates filled in error by the prescribing doctors.
In the case of sick leave certificates completed erroneously by prescribing doctors, it would be advisable for the employer to guide the employee to rectify the error.
Legal basis:
-EMERGENCY ORDINANCE 158/2005 on social health insurance leave and allowances, with subsequent amendments and additions;
-MS Order 15/2018 for the approval of the application rules of the provisions of Government Emergency Ordinance No. 158/2005 on social health insurance leave and allowances;
-CNAS Order 745/2020 for the approval of the single model of the sick leave certificate and the instructions on the use and the completion of sick leave certificates on the basis of which allowances are granted to insured persons in the social health insurance system and in the insurance system for accidents at work and occupational diseases.