Control method of granting and taking medical leave in the Romanian legislation--between the French and the Italian solution.

Radu, Roxana Cristina ; Neamtu, Marius Cristian ; Belu, Marina Loredana 等

Leave and allowance for temporary work incapacity due to illness or accident outside the regular labour

Leave for temporary work incapacity is granted in the situation when temporary incapacity for work is caused by disease and accidents outside work (Cernat, 2012: 246). Allowance for temporary work incapacity caused by an accident at work or an occupational disease is payable on the basis of Law no. 346/2002 on insurance for accidents at work and occupational diseases.

In the public system, the insured persons receive medical leave and allowance for temporary work incapacity, if they prove temporary working inability on the basis of a medical certificate, issued in accordance with the regulations in force.

The right to temporary work incapacity leave and allowance belongs to the insured persons who have a contribution period of at least six months, carried out over the past 12 months preceding the month for which it is granted sick leave. The insured persons receive indemnities for temporary working incapacity, without conditions of contribution

period in case of medical-surgical emergency, tuberculosis and infectious contagious diseases in Group A, AIDS and malignancies.

With regard to duration of leave for temporary incapacity for work, the following situations may be encountered (Radu, 2009: 67-68; Ciochina-Barbu, 2012: 172):

a) duration is no more than 183 days within a period of 1 year starting from the first day of illness. From the 91-day, sick leave may be extended by the practitioner up to 183 days on the advice of the social insurance expert physician; for very serious diseases, the duration may be larger (typically 2 years);

b) If the patient was not recovered after the expiry of the period of granting allowance for temporary incapacity for work, the primary doctor or, where appropriate, the practitioner shall:

--propose temporary shifting to another work, reduction of working hours, resuming activity in the same profession or in another profession;

--propose disability retirement;

--whether, in cases duly justified by the possibility of recovery (in order to avoid disability retirement and maintain the activity of the insured), propose to extend the leave over 183 days (not with more than 90 days).

The period of granting allowance for temporary incapacity is greater in the case of certain diseases such as tuberculosis, cancer, AIDS and some of cardiovascular diseases (Radu, 2009: 68).

During the period of leave for temporary work incapacity, instead of the salary, the person concerned will receive an allowance from the health insurance house budget. The amount of allowance shall be determined by applying a percentage of 75% on the calculation basis. The amount of allowances for temporary incapacity for work caused by tuberculosis, AIDS, cancer, infectious disease in Group A and medico-surgical emergencies is 100% of calculation basis. The calculation basis of health insurance allowances shall be determined as an average monthly income of the last 6 months on the basis of which the individual social insurance contribution was established for the months in question (Radu, 2009: 69).

Leave and allowance for temporary work incapacity due to occupational diseases or accidents at work

Because the risks in the process of work is an integral part of working life of any employee, Law no. 346/2002 on insurance for accidents at work and occupational diseases introduced in Romania a specialized system which combines an active component, consisting of prevention of accidents at work and occupational diseases, with a passive component--rehabilitation and compensation for lost or reduced income (Radu, 2007: 429-446).

According to Law no. 346/2002, insurance for accidents at work and occupational diseases is part of the social security system, being guaranteed by the state. It comprises specific relations to ensure social protection against the following categories of occupational risks: loss, diminished work capacity and death as a result of accidents at work and occupational diseases (Ticlea, 2009: 75).

Allowance for temporary work incapacity is granted for 180 days within a period of one year, counted from the first day of sick leave. The amount of the allowance is 80% of the average gross wage income made in the last 6 months preceding the occurrence of the risk. In cases duly justified by the possibility of medical and occupational recovery of the insured, the treating physician may propose the extension of medical leave over 180 days, but with no more than 90 days, depending on the progress of the recovery operations, in accordance with procedures established by the National House of Pensions and Social Insurance. The amount of compensation for temporary work incapacity in medical-surgical emergency is 100% of the average monthly insured income of the last 6 months preceding the occurrence of the risk (Radu, 2009: 88).

Physicians' competence concerning the issuance and granting of sick leave certificates

The insured persons receive sick leave and allowances, on the basis of the medical certificate issued by the prescriber, according to the Government Emergency Ordinance (O.U.G. in Romanian) no. 158/2005 on health insurance leave and allowances.

The physician, through his legal representative, conclude a convention on the issue of medical leave certificates with health insurance house in whose territorial- administrative area the medical unit is established.

At the emergency room of the hospital, certificates for sick leave may be issued in the event of a medical-surgical emergency without patient's hospitalization, only by the specialist doctor.

Doctors are required to direct patients to the health unit that must be addressed in order to obtain further medical care and sick leave certificates. Certificates for sick leave shall be completed and granted to the pacients on the date of the medical visit during which the required number of days of sick leave is established.

Family physicians have the authority to issue sick leave certificates for temporary work incapacity lasting no more than 10 calendar days, in one or more stages. In the case temporary work incapacity is maintaining for the same illness, sick leave may be extended by the treating doctor in the specialty ambulatory or hospital in case of hospitalization, in successive stages of a maximum of 30 calendar days, up to 90 calendar days within one year, counted from the first day of illness. Cumulative period of medical leaves granted by family doctor for an insured in case of temporary work incapacity may not exceed 30 calendar days in the past year, counted from the first day of illness, regardless of its cause. After summing up to 30 calendar days granted by the family doctor, sick leave certificates will be issued only by the treating doctor in the specialty ambulatory or hospital in case of hospitalization, with the respect of maximum durations laid down by law.

Sick leave certificates for the duration of the hospitalization are granted by the treating doctor who cared and discharged the patient in the hospital.

At discharge from the hospital a sick leave from 1 to 7 days may be granted, and in special cases, with the approval of the physician-in-chief of section, up to a maximum of 21 calendar days. After the expiration of the medical leave granted at the exit of the hospital, where the patient's state of health does not permit his returning to work, the family doctor, on the basis of the letter issued by the treating physician of the hospital, may extend the sick leave by a maximum of 7 calendar days for the same medical condition, and, in the case that temporary work incapacity lasts, send the patient to the physician in the specialty ambulatory.

Treating doctors of health units with beds, caring for patients with tuberculosis, AIDS, cancer, issue medical leave certificates for the duration of hospitalization of the insured persons, and at the discharge from hospital may grant sick leave up to 30 calendar days.

Patients admitted in the hospital who have benefited over the past 12 months of 90 days cumulative of sick leave, counted from the first day of illness, will be sent to the offices of medical expertise of work capacity in whose territorial area the hospital is located. If patients can not move, the observation sheets, results of medical investigations and medical report will be send to medical expertise offices for the approval of medical leave extension.

In the event of a medical-surgical emergency, for which the severity of the disease does not require admission into hospital, the sick leave shall be granted by the doctor who assisted the emergency (family physician, the physician in the specialty ambulatory, emergency room, ambulance, emergency reception), for a maximum period of five calendar days. If the temporary work incapacity lasts, sick leave may be extended by the doctor for the same illness, according to the terms established by law.

Health insurance houses have the following obligations:

a) to control the manner of granting medical leave and of issuing medical certificates for sick leave;

b) to keep records, with the registration of sick leave certificates distributed to physicians as well as of sick leave certificates issued by them.

Obligations of doctors concerning the issuance of sick leave certificates

Doctors issuing sick leave certificates have the following obligations:

a) to issue certificates for sick leave in accordance with the provisions of the O.U.G. no. 158/2005;

b) to report monthly health insurance houses the data necessary for the pursuit of activities relating to the issuance of certificates for sick leave;

c) to respect the confidentiality of data and information relating to the certificates of medical leave issued to insured persons;

d) to announce the health insurance house about any changes regarding mandatory conditions which have led to the conclusion of the convention and to comply with these requirements at all times during the progress of the conventions;

e) to supply the control bodies of the health insurance house with primary health documents which formed the basis for issuance of sick leave certificates;

f) to direct patients to the health unit that must be addressed in order to obtain further medical care and medical leave certificates.

Obligations of insured persons and employers

The insured persons have the obligation to notify the payer of health insurance allowances about the emergence of temporary work incapacity and the identification data, i.e. the name of the prescriber physician and the health unit where the doctor is employed, within 24 hours from the date of issuing medical leave certificate. In the event that the emergence of temporary incapacity for work has been declared in a nonworking day, the insured persons are required to notify the payer of health insurance indemnity on the first working day. Compared with the Romanian law, Italian law stipulates that the period within which the employee is obliged to inform the employer about the issuance of the medical certificate is of 2 days from its date of issuing (D'Agostino & Loiacono, 2009: 315).

The insured persons are required to complete and submit to the prescriber physician a declaration on their own responsibility. On the other hand, employers have the obligation to transmit to the health insurance house, no later than 8 days from the date on which they were notified about the occurrence of temporary incapacity for work, the list of persons employed in temporary work incapacity, as well as the information concerning the identification of the prescriptor doctor and the unit which he belongs to.

The control on the method of issuing certificates of medical leave, according to O.U.G. no. 158/2005, approved with amendments and completions by Law no. 399/2006, is carried out on the basis of a methodology developed by the National House for Health Insurance (CNAS).

Thus, one of the conditions on which the insured must satisfy to qualify for sick leave and allowances for health insurance, is to be present at home or at the address indicated, where applicable, within the period and under the conditions laid down in the implementing rules of the O.U.G. no. 158/2005, to permit the representatives of payers of health insurance allowances to carry out the verification.

Sanctioning failure to comply with the legal conditions for the granting of medical leave and issuing sick leave certificates

Within the meaning of the provisions of the O.U.G. no. 158/2005 (article 88), the following situations constitute unjustified refusals to pay health indemnities:

a) the interested person is not able of making the proof of the quality of insured for sick leave and health insurance allowances;

b) the insured fails to complete the contribution payment period, with the exceptions provided for by law;

c) the physician who issued or certified the medical certificate has not completed all the sections of the certificate for sick leave;

d) the insured did not submit proof of sick leave within the time limits provided for by law;

e) the doctor granted sick leave certificates retrospectively in circumstances not provided for as exception by law;

f) certificates provide a period of sick leave which exceed the maximum durations laid down by law;

g) payment of health insurance allowance was delayed as a result of the referral of control commissions by the employer who finds unjustified motives of issuing of medical leave certificates;

[g.sup.1]) refusal of persons in temporary work incapacity to put themselves at the disposal of the persons authorized to carry out the verification of their presence at residence address;

h) other similar situations thoroughly substantiated.

The issuance of sick leave certificates by doctors prescribers, with failure to comply with the legal provisions constitutes contravention, being sanctioned with a fine between 5,000 and 10,000 lei. Fines may be imposed for improper completion of sick leave certificates, issuance of a disproportionate number of sick leave certificates in relation to the number of medical consultations, issuance of such documents for longer terms than those established by law, retroactively granting them outside exceptional situations provided by law, the disparity of data from medical records of the insured with the sick leave certificate, issuance of medical certificates without mentioning the diagnosis and recovery plan in the medical records. Also, the fines can be given for non-compliance with the legal provisions regarding the code of diagnostic, international classification of diseases, granting medical leaves in cases or for unjustified periods, wrongly framing medical leave under the category of "initial", "further" or in other duly justified cases (National House for Health Insurance Tulcea, 2006).

Control method of granting medical leave and issuing certificates for sick leave

Control method of granting medical leave and issuing certificates for sick leave shall be conducted by teams made up of staff from the specialist services of CNAS, or of health insurance houses.

In duly justified cases, CNAS and health insurance houses co-opt representatives of Ministry of Public Health or public health directorates and medical divisions or similar structures in the ministries and institutions of the central public administration with network health requirements.

Control is achieved as a result of the referral to the health insurance house by the payers, as well as on the initiative of the authorities competent to carry out control.

Checks on compliance with the obligations laid down in the conventions concluded by the doctors with health insurance houses are effected by the control bodies of CNAS, respectively of the health insurance houses.

The cases of breaking the legal provisions of O.U.G. no. 158/2005 should be raported to the discipline bodies within the College of physicians of each county, respectively, of the College of physicians in Bucharest or, where appropriate, of the College of dentist physicians from Romania, on the domain of competence, and to the units with which doctors are in contractual relationships, for taking legal measures that might be required.

Disciplinary Committee of the College of Physicians in Romania, the county councils of physicians and of the municipality of Bucharest will apply measures provided for in the legislation in force, in the event that establishes the breaking of the legal provisions concerning the issuance of medical certificates.

At the level of CNAS, respectively of health insurance houses, joint committees for the analysis of medical leave are set up, according to the protocol concluded between CNAS, the National House of Pensions and Social Insurance and expertise doctors.

Health insurance houses are required to keep separate records concerning the registration of sick leave certificates distributed to doctors, as well as with medical leave certificates issued by them.

Disputes which relate to the calculation and payment of the indemnities provided for in the O.U.G. no. 158/2005 shall be settled by the competent courts, according to the social insurance jurisdiction.

Verification of the presence of the insured persons in temporary work incapacity at home or at the residence indicated

One of the conditions to be satisfied by a person for the benefit of medical leave and allowances for temporary incapacity for work is to be present during the period of incapacity, at home or at the address indicated, where applicable, within the period and under the conditions laid down in the implementing rules of the O.U.G. no. 158/2005, to permit the representatives of payers of health insurance allowances to carry out the verification.

Specifically, when receiving the sick leave certificate issued by the prescriptor physician, the insured shall complete a declaration on his own liability announcing the residence address chosen during leave (it does not need to match with the address in the identity card) and agrees with the cessation of the payment of indemnities for temporary work incapacity if he does not comply with the conditions laid down by law.

Verification of the presence of the insured persons in temporary work incapacity at home or at the residence address indicated in the declaration is made by the payer of health insurance indemnities, accompanied, where appropriate, by a representative of the police, taking into account the individual program recovery recommended by the specialist doctor. The presence of the representative of the police and the conditions under which it may be required are regulated by the Order of Ministry of Health no. 429/2010 approving the rules for the implementation of the provisions of article 51 par. 31 of the O.U.G. no. 158/2005 on health insurance leave and allowances. Verification of the presence of the insured shall not affect the rights and freedoms of citizens guaranteed by the Romanian Constitution, republished.

In accordance with the provisions of art. 81 par.7 and 8 of the O.U.G. no. 158/2005, the presence of the insured persons in temporary work incapacity at home or at the residence indicated can be checked only between 8:00-11:00, 12:00-17:00, 18:00-20:00, when a report signed by members of the Commission and by the insured will be concluded. The report may be contested within 30 days from the date of communication, at the headquarters of the payer of health allowances, who has an obligation to respond within 30 days of the date of the appeal's registration.

In the case of persons in temporary incapacity of work who refuse the verification of their presence at residence adress in the conditions stipulated by law, the payment of allowances shall cease on the date of the refusal, under the conditions laid down in the detailed rules for the application of the O.U.G. no. 158/2005.

Failure to comply with the obligation to be present at home or at the residence adress in the intervals provided for by law attracts the non-payment of health insurance allowances starting from the date on which the absence was found.

Verification of the presence of the insured/employee at home or at the residence indicated during the temporary work incapacity is a measure introduced in our legislation through the adoption of the O.U.G. no. 36/2010 on modifying and completing O.U.G. no. 158/2005 on health insurance leave and allowances, control method copied after the Italian model, aiming at stopping the abuses on the issuance of medical certificates in order to spend the public money responsibly and increase the awareness of service providers and beneficiaries of medical leave and health insurance allowances. In Italian law, the employed persons in temporary incapacity for work must be present at home for the purposes of checks made by the competent bodies between the hours of 10:00-12:00, 17:00-19:00, inclusive on Sundays and public holidays (D'Agostino & Loiacono, 2009: 315). The Health Ministry has argued the need for such legal rules on statistical data, according to which in 2006, 3% of the funds were spent on medical leaves, sum doubled in 2009, fact which reduced the funding for treatments, medicines and hospitalisation. The trend has remained in growth in the first quarter of 2010 compared to 2009. If in the first quarter of 2009, 220 millions lei were spent for medical leaves, in the first quarter of 2010 the amount stood at 255 millions lei (Ministry of Health, 2010; National House for Health Insurance, 2010).

The College of Physicians in Romania, supported by the Coalition of Organizations of the Chronic Patients in Romania referred the matter to the Ombudsman regarding the unconstitutionality of the provisions of the O.U.G. no. 36/2010 on the basis that this police control of the presence of the insured in temporary work incapacity at home or at the residence indicated, made by the police, given that there is no legal guarantees ensuring the avoidance of abuse, prejudice the right to physical integrity of the person concerned, as well as the privacy, the freedom of movement and the dignity of the insured, by instituting a form of house arrest similar to preventive measures specific for criminal legislation, but not for people who have committed criminal offences, but for some sick persons (President of the The College of Physicians in Romania, 2012). This initiative was not successful, however, the provisions of the O.U.G. no. 36/2010 being applied starting from May 17, 2010.

The fact that the emergency ordinance does not provide situations in which refusal/absence of employee from checking is justified, and the lack of studies in the literature relating to this issue could lead to a series of controversial situations in the practice of labor relations concerning the verification of the employee's presence at home/residence. The only reference to such a possible situation is contained in the model of the insured statement, which constitutes Annex no. 16 to the application rules, by which the employee says that is required to be present at the address indicated during leave, except in cases justified with medical documents for carrying out of specialised treatments, laboratory tests or other medical procedures.

The payer of allowances (employers, the institution which administers the unemployment insurance fund and health insurance house, where appropriate) may refer the matter to the House of health insurance with respect to the issue of certificates for sick leave only for their own employees or insured persons. Notification shall be addressed to the health insurance house which has concluded conventions with the prescriptor physician for the issuance of sick leave certificates and the following shall be mandatory mentioned: name of employer, the identification data, a description of the medical case, copy of sick leave certificates to be controlled, the history of granting medical leaves to the same employee, the completion of the contribution period.

The project of the Order of the CNAS President for approving the methodology of controlling the issuance of sick leave certificates has stipulated, in the original form, the possibility that, in addition to making the visit at the domicile of the insured person and carrying out an investigation relating the patient's recovery plan during medical leave, the employer should be able to require, at its expense, confirmation of the diagnosis by another specialist. This possibility, which has not featured in the final order form, was adopted in the French legislation. It was originally laid down by the National Interprofessional Agreement of 10 December 1977 which was annexed to Law no. 78- 49 of January 19, 1978. As a result of the exercise of control of constitutionality, the French Constitutional Council has declared that the principle of medical supra- visit of sick employees, at the initiative of the employer, is not contrary to the Constitution.

But if the doctrinal controversies and those between employers' and workers' organizations for breaching the sick employee's privacy and breaking medical secrecy were long ago explained in French literature, the terms and the scope of medical control at the initiative of the employer were debated in relatively recent decisions of the French Court of Cassation who considered it necessary to specify the rights and obligations of the parties in the implementation of this control and its effects (Bourgeot, 1998). While the employer has considerable flexibility with respect to exercising its right of control over the sick employee (it has the freedom to choose the physician who performs the supra-visit, the date and time at which it will take place), the Social Chamber of the Court of Cassation shall verify the legality of the procedure for the implementation of this control. Thus, apart from the obligation to inform the employer about the residence address throughout the duration of work incapacity, the employee has no other obligation; including the fact that this residence is abroad is not sufficient to establish that the impossibility of control can be imputed to the employee. With regard to the legality of verification, French case-law has held that an inspection carried out by persons without any competence or mandate in this sense does not produce any effect in terms of termination of payment of temporary work incapacity indemnities. Even if the sick employee is absent from home or residence in the intervals provided for by law or by collective bargaining agreements, the Court of Cassation held that the priority is to protect the employee's right to private life and the inviolability of domicile. Cases of legitimate refusal are considered the situations justified by the necessity of following the prescribed medical treatment or going to another consultation.

In terms of the effects of medical supra-control required by the French employer, if the controller determines that the reasons for the suspension of the individual contract for temporary work incapacity are valid, the employee will continue to receive the allowance, as well as the additional indemnity provided for in the collective agreement; otherwise, if the employee's ability to return to work is proved, payment of these indemnities and compensations shall cease on the date of the medical supra-visit (Bourgeot, 1998).

In the Romanian system, verification of the sick employee's presence at his domicile/residence is of purely administrative nature, not medical, because it is only "aimed at verifying the presence of the insured persons in temporary incapacity for work at home or at the residence indicated" (so not the presence or absence of working capacity) and "is made by the payer of allowances, accompanied, where appropriate, by a representative of the police". It is worth noting that the procedure for monitoring and sanctioning is regulated in detail in the case of doctors who issue medical certificates, but extremely succinct in the case of employees who obtain such certificates through unlawful means. Although the stated aim of checking employee's presence at home in Romanian legislation is to reduce abuses on the issuance of medical certificates, the effectiveness of administrative control (Italian model) in order of reducing the number of certificates issued and the budgetary funds spent for allowances payment is doubtful as long as beneficiaries of health insurance leave and allowances are not subject to medical supra-visits (French model).

References

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Article Info

Received: April 24 2014

Accepted: May 15 2014

Roxana Cristina Radu, Associate professor, PhD, University of Craiova, Faculty of Law and Social Sciences, Phone: 0040721400359, E-mail: raduroxanacristina@yahoo.com.

Marius Cristian Neamtu, Lecturer, PhD, University of Medicine and Pharmacy Craiova, Phone: 0040757033888, E-mail: oanacristi_neamtu@yahoo.com.

Marina Loredana Belu, Lecturer, PhD, University of Craiova, Faculty of Law and Social Sciences, phone: 0040740300355, e-mail: loribelu@yahoo.com.

Oana Maria Neamtu, Teaching assistant, PhD candidate, University of Craiova, Faculty of Physical Education and Sport, E-mail: oanacristi_neamtu@yahoo.com.