[Poland] Changes in L4 – draft amendment to the Act on the Social Insurance System

The Ministry of Family, Labour and Social Policy has presented a draft regulation that concerns, among other things, the possibility of combining sick leave with work in another company. Find out more about the details of the change and how it may affect the situation of employers. Will this be another revolution in labour law?

New regulations on sick leave. What will employers gain?

On the website of the Government Legislative Centre, the Ministry of Labour published draft amendment to the Act on the Social Insurance System. The new regulations have a broad scope, but for employers the change concerning the definition of gainful employment and performing gainful employment in the provisions on social insurance may be of particular importance.

In accordance with the latest case law of the Supreme Court – Labour and Social Insurance Chamber of 6 October 2022, III USK 18/22 – the legislator proposed in the draft amendment the following wording of the definition of gainful employment provided in Art. 17 of the Act of 25 June 1999 on cash benefits from social insurance in the event of sickness and maternity (Journal of Laws of 2023, item 2780):

Gainful work, as referred to in paragraph 1, point 1, is any activity that is of a gainful nature, regardless of the legal relationship that is the basis for its performance, excluding incidental activities that must be undertaken during the period of release from work due to significant circumstances.

Whereas:

Activities that are incompatible with the purpose of the leave from work referred to in paragraph 1 point 2 include any activities that hinder or prolong the treatment or convalescence process, excluding ordinary everyday activities or incidental activities that must be undertaken during the period of leave from work due to significant circumstances.

In addition,

If the conditions for being covered by social insurance under at least two titles of such insurance are met, incapacity for work due to illness applies to each of these titles, unless the person issuing the sick leave indicates in the decision that gainful employment under a specific title can be performed due to the type of such work.

The above-quoted fragments of the draft act presented by the Ministry of Labour show that:

• professional activity during the stay on sick leave will be permissible, provided that it is sporadic and incidental activity, forced by circumstances, i.e. e.g. activity that is important for the employer, such as signing an invoice or a bill of lading, and failure to undertake these professional activities could lead to financial losses,
• other professional activity will be permitted if the doctor indicates in the content of the sick leave certificate that the patient can perform other work than the one for which he/she is unable (e.g. hoarseness prevents a journalist from conducting a programme, but does not constitute an obstacle to work in an editorial office),
• it will be permissible to undertake everyday activities while on sick leave, such as shopping for medicines or going to the doctor, without losing the right to sickness benefit.

New regulations – better functioning of enterprises?

From the point of view of employers, the planned changes should be assessed positively. An employee on sick leave will be able to perform the necessary formal activities, such as accepting invoices or performing other tasks in accordance with the indications in the decision on temporary incapacity for work.

The new regulations are beneficial for companies, they can help:

• reduce the negative effects of employee absenteeism,
• provide greater flexibility in working time management,
• positively influence the reduction of costs.

To sum up, the proposed regulations may have a real impact on the better functioning of companies.

Do you run a business? See what changes the government is preparing in health insurance contributions for entrepreneurs, read the article: Health contribution for entrepreneurs. Government draft amendment bill

L4 checks – what changes?

The above-mentioned changes to the regulations will also translate into a new approach to monitoring the insured and the correct use of sick leave in accordance with its purpose.

Failure to attend an inspection does not always result in loss of benefits

ZUS has the right to carry out an inspection at a place indicated by the patient. But what if the employee is not at the indicated place during the inspection visit? Does this mean that the employee loses the right to sickness benefit for the entire period of sick leave?

According to the new regulations, absence from the place indicated in the sick leave certificate will not always equate to withdrawal of the right to benefits. The exceptions are absences justified by the need to undertake incidental activities or ordinary everyday activities.

This refers to an absence that was justified by health reasons (e.g. a visit to a doctor, rehabilitation) or the need to take necessary actions related to treatment (e.g. purchasing medicines). However, it is important that these activities are directly related to the treatment and are documented.

The proposed regulations are to enter into force on 1 January 2025. Public consultations on the draft act are currently underway.

Temporary incapacity for work – what do the statistics say?

As can be seen from the statistical information on the results of inspections of the correctness of rulings on temporary incapacity for work in the third quarter of 2024 and in the period I-IX 2024, inspections of sick leave are becoming more and more effective.

According to ZUS, in the third quarter of 2024, 115.4 thousand inspections of people with a certificate of temporary incapacity for work were carried out, which resulted in the issuance of 9.2 thousand decisions suspending further payment of sickness benefits. For comparison, in the second quarter of 2024, 8.9 thousand decisions were issued suspending further payment of sickness benefits.

Let us recall that the Act on cash benefits from social insurance in the event of sickness and maternity also grants the payers who register more than 20 insured persons for sickness insurance, the right to control the insured persons as to whether they are using sick leave from work correctly and in accordance with its purpose.

Meanwhile, more effective inspections mean tangible benefits for employers, including:

• lower financial risk associated with the payment of unjustified benefits, and
• greater employee awareness of the consequences of improper use of sick leave.

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