Critical Analysis of Resolution 0750-2023/SEL on Bureaucratic Obstacles
Complaint and evaluation of illegal measures regarding employer contributions
By complaint, a supposedly illegal measure was notified to the first instance: The prohibition that employers failing to pay their workers’ contributions timely and completely (a condition for reimbursement to EsSalud) are entitled to a reimbursement of the temporary disability and maternity grants they have paid, according to the Regulations for the Economic Benefit Payment. By Resolution dated May 5, 2023, the commission declared such bureaucratic measure illegal due to the lack of a legal provision enabling the Ministry of Labor and Employment Promotion to impose it and EsSalud to apply it.
Illegality of the regulatory provision and analysis of the law for the Modernization of Health Security
On the other hand, the Law of Modernization of Social Security in Health, approved by Supreme Decree 013-2019-TR, stipulated that the employer entities failing to pay their workers’ contributions timely and completely would not be entitled to the reimbursement of the temporary disability or maternity grants they had paid to their workers. Consequently, those companies failing to pay the contributions completely on the dates established thereafter would not be able to request the Health Security to reimburse the grant payments.
Liability of employers and rights of affiliates under Law 26790
The Specialized Chamber on Elimination of Bureaucratic Obstacles confirmed the illegality of the bureaucratic obstacle denounced after evaluating the case. The collegiate court identified that, according to Law 26790, the Law of Modernization of the Health Security, EsSalud grants coverage to its insured through benefits, which can be of prevention, promotion, recovery, and grants for health care and social welfare, work, and illnesses.
Implications of the measure on access to EsSalud benefits and workers’ rights
Thus, the law establishes that the EsSalud contributory regime is mandatory, and the contributions are monthly and payable by the employer, who must declare and pay them within the month following the accrual of the affected remunerations. Conversely, as stated in the analyzed Resolution, EsSalud intends to provide coverage to the insured and their beneficiaries through granting prevention, promotion, recovery, rehabilitation, and economic and social benefits corresponding to the contributory regime of the Health Security.
The economic benefits include grants provided to workers in cases of maternity and temporary disability.
Initially, as developed by the chamber, the benefit payments are the responsibility of EsSalud and are complemented by the health plans and programs offered by the health care providers. Conversely, in order for regular affiliates and their beneficiaries to be entitled to the benefits granted by EsSalud, their employer must have declared and paid the contributions in charge. Thus, as identified by the chamber, among the obligations of the employing entities is not only to pay their workers’ contributions but also to directly pay the temporary disability and maternity grant, and regarding such payment, Article 27 of the Labor Law stipulates that EsSalud will reimburse the employer only if the latter has previously paid the contributions timely and completely; otherwise, this would lose its reimbursement right.
Concerning the above, the employer must have declared and paid or be in a current fractionation of the contributions as a condition for the regular affiliate (its worker) to be entitled to EsSalud benefits so that affiliates whose contributions were not paid by their employer would lose their coverage.
Conversely, the challenged measure refers to a different case: Employers complying with the contribution payments but late or untimely. Indeed, according to the Resolution, late or incomplete payment is different from total nonpayment; however, the law grants the same treatment to both cases, treating unequal cases equally (on the one hand, employers who paid late or partially the contributions of their workers and, on the other hand, employers who failed to pay the contributions of their workers at all).
Conclusion
In conclusion, from the performance of the collegiate court of Indecopi, EsSalud funds must be allocated to cover the contingencies of its affiliates. When the employer pays the employee in a temporary disability or maternity situation, this payment is not a grant due to the obligation assumed by the employer to pay with its own resources, regardless of being the real obligor of the benefit. Therefore, EsSalud reimburses the employer for such payments, in charge of the insurance fund, and the contingency (temporary disability or maternity) of the affiliate (worker) is only then covered with the public funds of the Health Security. Consequently, EsSalud’s denial to companies to reimburse them for the amounts actually paid to their employees, based on a measure imposed by regulation, implies denying the employee its right to the benefit granted by law and, in addition, affects the employer’s right to property.
Source: Indecopi