Case:
- The employer’s head office is located in Bucharest.
- The employee works in Bucharest and from home.
- The employment contract provides for 3 days of teleworking and 2 days in the office 3
To what extent can the employee be granted a daily allowance for travelling from home (teleworking) to the company’s headquarters? Can accommodation be paid for?
Article 44(2) of Act 53/2003 – Labour Code, in conjunction with Article 43, provides that posted workers are entitled to payment of transport and accommodation costs and to a delegation allowance (daily allowance), whereby delegation means that the employee, at the employer’s request, temporarily performs certain work or tasks corresponding to the duties of the workplace outside the workplace.
According to Article 2(a) of Law 81/2018 regulating telework, telework is a form of work organisation in which the employee regularly and voluntarily performs the specific tasks of his or her function, profession or work in a place other than the workplace organised by the employer, using information and communication technology. Article 5, paragraph 2, letter b) of the Act stipulates that in the case of telework, the individual employment contract shall also specify the period and/or days on which the teleworker performs his/her work at a workplace organised by the employer.
It follows that employees have two places of work when teleworking, so that on the days they travel from home (the place of telework) to the company’s registered office (the place organised by the employer), they are not posted within the meaning of Article 43 of the Labour Code and therefore cannot receive daily allowances and accommodation costs under Article 44(1). (2) of the Labour Code. If they are granted to employees, they are treated as wage replacement benefits for tax purposes and are subject to the corresponding wage tax and mandatory social security contributions.
However, if teleworkers are posted on official business to a place other than their place of residence or the company’s registered office (places of employment under individual employment contracts), they can be considered as delegates and are therefore entitled to accommodation and daily allowances in accordance with Articles 43 and 44(2) of the Directive. (2) of the Labour Code.
With regard to the transport of employees, Article 76 of Law 227/2015 on Tax Legislation stipulates that:
76(4) The following income is not taxable for income tax purposes:
“(a) funeral allowances, allowances for serious and terminal illnesses, allowances for medical equipment, birth/adoption allowances, allowances for losses in one’s own household due to natural disasters, income in the form of gifts in cash and/or in kind, including gift vouchers, offered to employees, as well as those offered to their minor children, the cost of transport to and from the employee’s place of work, the cost of tourist and/or therapeutic services, including transport, during holidays for own employees and their family members, provided by the employer to own employees or other persons, as provided for in the employment contract or internal regulations. “
The costs of transport to and from the employee’s workplace are also not included in the basis for calculating social security contributions in accordance with Art. 142 (b), Art. 157 (2) and Art. 2204 (2) of Act 227/2015 on Tax Legislation. (2) of Law 227/2015 on Tax Legislation .
In summary, the amounts representing the costs of transport to and from the employee’s place of work, if provided for in the individual employment contract or internal regulations, do not constitute taxable income and are not included in the basis for calculating social security contributions (CAS, CASS, etc.).
Source: ANAF