Abuse of the Right to Temporary Incapacity for Work – Will the Law Amendments Prevent Such Practices?

According to the rationale provided in the proposal of these amendments, significant abuses have been observed in exercising the right to temporary incapacity for work. Specifically, personal doctors were establishing temporary incapacity for work for insured individuals beyond recommended durations based on diagnoses, often without appropriate accompanying documentation of additional diagnostic procedures and specialist examinations. Consequently, some insured individuals unjustifiably claimed salary compensation for an extended period during temporary incapacity, exceeding the prescribed 60 days. This placed an additional financial burden on both employers (as they provide compensation for the first 30 days) and the Health Insurance Fund (as, from the 31st day, the respective funds are paid by mandatory health insurance).

In response to these issues, the amendments introduce the following changes:

• If an insured person is temporarily incapacitated for work due to one illness or injury and, on the next day (without interruption), or at most within six days from the last day of the previous incapacity, becomes incapacitated for work due to the same or another illness or injury, the personal doctor must refer the insured person to the first instance medical commission after 30 days or 60 days of total incapacity for work.
• If an insured person is temporarily incapacitated for work due to the same or two different illnesses or injuries, with a break between incapacitations lasting more than six days from the last day of the previous incapacity, the personal doctor must refer the insured person to the first instance medical commission if the total duration of incapacity for work reaches 30 days within 45 days or 60 days within 90 days from the day preceding the temporary incapacity for work after the afore-mentioned break.
• If an insured person is temporarily incapacitated for work for reasons listed in the provision of Article 71, paragraph 3 of the Law (due to illness or injury outside of work, due to occupational illness or injury at work, due to illness or complications related to maintaining pregnancy, due to prescribed measures of mandatory isolation as a germ carrier or due to the appearance of infectious diseases in his environment, due to the care of a sick or injured member of the immediate family, under the conditions established by this law, due to the voluntary donation of organs, cells and tissues, with the exception of the voluntary donation of blood, in the case where it is determined for the companion of a sick insured person sent for treatment or medical examination to another place, i.e., while staying as a companion in a stationary health institution, in accordance with the regulation governing the manner and conditions for exercising rights from compulsory health insurance) and, subsequently, with or without interruption (the next day), becomes incapacitated for work for another reason listed in Article 71, paragraph 3 of the Law, the days of temporary incapacity for work shall not be linked in terms of the basis, amount, and payer of the salary compensation.
• In this case, the personal doctor must refer the insured person to the first instance medical commission after 45 days or 90 days of total incapacity for work, except in the case of severe health damage to a child under 18 years of age due to severe damage to brain structures, malignant disease, or other severe deterioration of the child’s health.
• Exceptionally, the personal doctor establishes temporary incapacity for work for up to 60 days for an insured person suffering from malignant disease, temporarily incapacitated for work due to illness or complications related to pregnancy, an insured person with a disability, and an insured person who has undergone immediate surgical intervention (except when the intervention was performed in a day hospital).

Additionally:

• The deadline for the competent branch of the Health Insurance Fund to calculate wage compensation, secured from mandatory health insurance funds, and transfer the corresponding amount to the employer’s special account has been reduced from 30 to 21 days from the day of receiving the payment request.
• The deadline for the employer to pay the funds to the insured person has also been reduced, from 30 to seven days from their receipt. If the payment is not made within this period, the employer must return the funds to the branch with interest, which increased while on the employer’s special account.
• The deadline for the employer to submit a request for salary compensation has been shortened from 30 to 15 days from the date of wage payment for the month to which the compensation relates.

Finally, it is stipulated that:

• A fine ranging from 300,000 to 1,000,000 dinars will be imposed on the employer as a legal entity for an offense if they fail to submit a payment request to the branch with all necessary evidence for employees whose salary compensation is secured from mandatory health insurance funds. Also, if the wage compensation from mandatory health insurance funds, transferred to the employer’s special account, is not paid to the insured person within seven days of receipt, the employer must return the funds to the branch with interest (in this case, an offense by a responsible person in the legal entity will be fined from 40,000 to 50,000 dinars); as well as that
• A fine ranging from 300,000 to 1,000,000 dinars will be imposed on the Health Insurance Fund for an offense if it fails to determine the right to salary compensation, the amount of salary compensation, or, within 21 days of receiving the payment request with all necessary evidence, does not calculate salary compensation or does not provide it to the employer or transfer the corresponding amount to the employer’s special account (in this case, an offense by a responsible person in the Health Insurance Fund will be fined from 40,000 to 50,000 dinars).

This article is to be considered as exclusively informative, with no intention to provide legal advice. If you should need additional information, please contact us directly.

By Ivana Ruzicic, Partner, and Lara Maksimovic, Senior Associate, PR Legal