On 1 January 2022, there will be a major change in the provisions of the Act of 25 June 1999 on cash benefits from social insurance in the event of sickness and maternity (i.e. Official Journal of 2020, item 870, as amended), hereinafter referred to as the Act. It was made by the Act of 3 September 2021 amending the Act on the social security system and certain other acts (OJ 2021, item 1621), hereinafter referred to as the amending Act. The new solutions aim to eliminate abuse and pathologies.
1. Old allowance periods counted in a new way
At the outset, it should be emphasised that there has been no interference in the length of benefit periods. As before, the duration of incapacity for work due to illness will be a maximum of 182 days, and in the event that this incapacity is caused by tuberculosis or occurs during pregnancy – no longer than 270 days. On the other hand, the method of calculating the duration of these periods will change. According to the new wording of Article 9(1) of the Act: The benefit period includes periods of previous incapacity for work in the event that the interval between the cessation of the previous incapacity and the emergence of the new one didn’t exceed 60 days. The benefit period doesn’t include periods of incapacity for work falling before an interval not longer than 60 days where, after the break, the incapacity for work took place during pregnancy.
Therefore, under a solution which was adopted periods of incapacity for work occurring before or after an interruption not longer than 60 days are to be included in the benefit period, in addition to periods of uninterrupted incapacity for work. This won’t apply in the event that the incapacity for work took place earlier than after 60 days and during pregnancy.
2. No more long sick leaves following one another
The new content of Article 9(2) of the Act will also have the effect of limiting the misuse of sick leave. Currently, a serious problem is that the insured persons start a new benefit period shortly after the end of the previous long (usually 182-day) benefit period. Consequently, there are cases where the insured person is permanently unable to work. Under the new legislation, an insured person will only be able to exercise his/her right to paid sickness absence again after a break of at least 60 days between sick leaves.
3. Sickness benefit after termination of sickness insurance
Another novelty is the addition of paragraph 2 to Article 8. It states that: For the period of incapacity for work or inability to perform work due to the reasons specified in Article 6(2), the sickness benefit payable after termination of the sickness insurance title is granted for no longer than 91 days. This doesn’t apply to incapacity for work referred to in Article 11(2)(2) and caused by tuberculosis or occurring during pregnancy.
Thus, the sickness benefit after the end of the right to sickness insurance will be available for a maximum of 91 days. The limitation won’t apply to incapacity for work resulting from undergoing the necessary medical examinations provided for candidates for donors of cells, tissues and organs and the procedure of collecting cells, tissues and organs, as well as incapacity for work caused by tuberculosis and occurring during pregnancy.
4. Sickness insurance benefits not for pensioners
A very important change is the extension of the principle according to which sickness insurance benefits aren’t available to persons having an established right to an old-age or disability pension also to persons who obtained the benefits in question on the basis of the provisions of the uniformed services pension system. This change has its source in the principle of equal treatment of beneficiaries. Indeed, as we read in the explanatory memorandum to the draft amending act: ” the proposed modifications are aimed at introducing a uniform rule to the abovementioned act, according to which the right to sickness benefit after termination of sickness insurance, the right to rehabilitation benefit and compensatory one isn’t granted to a person who has an established right to an old-age or disability pension regardless of the insurance/supply system under which the right to that pension was established. (…) According to the principle of equal treatment of beneficiaries, the right to the abovementioned benefits shouldn’t be granted in the case of an established right to an old-age or disability pension not only, as at present, from the general system, but also from the uniformed services pension system.”
5. Improvement of the situation of pregnant women
According to the previous wording of Article 30(1) of the Act, maternity allowance is also granted in the event of the birth of a child after the cessation of sickness insurance if this insurance ended during pregnancy:
- as a result of the declaration of bankruptcy or liquidation of the employer,
- in violation of the provisions of law, confirmed by a final judicial decision.
The amending act provides for the extension of the above catalogue. It also covered the case where the insurance ceased as a result of the death of the employer. Moreover, according to the new provisions, a pregnant worker whose employment contract has expired due to the employer’s death and who hasn’t been provided with other employment is to be entitled to an allowance in the amount of the maternity one until the day of delivery. Before the change, only pregnant women whose employment relationship was terminated due to the declaration of bankruptcy or liquidation of their employer could benefit from this entitlement. In the explanatory memorandum to the draft amending act, it’s explained that the modification in question: “will fill the current regulatory gap and equalise the situation of women who often have a long period of insurance and due to the termination of insurance for random reasons (death of the employer, declaration of bankruptcy, liquidation of the employer) in terms of the right to maternity allowance with persons who gave birth to a child during the period of insurance (even a very short one).”
6. New rules for determining the basis for allowances
There has also been a modification of the rules for determining the basis of calculation of sickness benefit. According to the new wording of Article 43 of the Act: The basis for calculation of the allowance isn’t re-determined in the event that there has been no break between the periods of receiving benefits of both the same type and of a different one or in the event that the interval was shorter than a calendar month.
Under the previous provisions, it wasn’t necessary to re-determine the basis of calculation of the allowance in the case of an interval between the periods of its receipt lasting shorter than 3 months. Therefore, the change consists in reducing the break time from 3 months to 1 month and is very drastic.
7. More information to ZUS
By the amending act, the legislator introduced to the Act Article 61a(2) with the following wording: The Social Insurance Institution (Zakład Ubezpieczeń Społecznych – ZUS), in order to determine the right to the allowance and its payment, can obtain data and information to the extent necessary to establish the right to benefits, their amount, basis of calculation and for their payment from the insured and contribution payers who are obliged to make them available free of charge.
Thus, the insured and contribution payers will be obliged to provide ZUS with information necessary to establish entitlements and payment of sickness insurance benefits. The purpose of the change in question is to support ZUS in obtaining information necessary for timely payment of benefits. However, it should be emphasised that according to the explanatory memorandum to the draft amending act, the modidication in question won’t result in increasing the obligations of contribution payers.
8. Date of entry into force of the changes
The amending act will enter into force within 14 days of the date of publication. However, there are exceptions from to this rule. Indeed, the entry into force of the amendments to the Act was postponed to 1 January 2022. Thus, the changes discussed in this article won’t take effect until the beginnign of the new year.
9. Legal notice
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