EsSalud cannot demand timely payment to provide subsidies

The Specialized Chamber for the Elimination of Bureaucratic Barriers of the Indecopi has resolved to declare as a barrier of this type the reimbursement required for EsSalud medical care in the event the employer is not up to date with its contributions. A decision that, if not accompanied by more exhaustive Social Security oversight work, could become a perverse incentive for bad employers.

Companies pay 9% of the worker’s salary to Social Security every month so that they can enjoy benefits such as subsidies when they get sick, give birth, have medical expenses, outpatient care, among others, in accordance with Law 26790, Law on the Modernization of Social Security in Health. However, it did not establish that, if a company did not pay its contributions in a timely and complete manner, it did not have the right to collect medical costs or request reimbursement of the subsidy, a requirement that was established by the Ministry of Labor.

For labor lawyer Jorge Toyama, the court’s decision tips the balance for bad employers. For this reason, he believes that EsSalud must distinguish between companies that do not pay for administrative errors and those that never pay and only regularize when the worker gets sick.

If it is proven that the worker had not contributed and has just contributed because he has been attended to since yesterday, there was abuse and simulation. “What there cannot be are affiliations to take advantage of the system only when the worker gets sick; That figure is illegal and that must continue to be fought.“, he says.

“Bad faith, in any administration, has to be controlled, but you cannot go to the other extreme that, if I paid S/19,000 in taxes, but I forgot to register a worker or register his vacations, which represent S/9, “They don’t know everything about me, that is also unreasonable,” declares the lawyer.

For his part, Ricardo Herrera, an expert in labor law, states that these situations could be objectively verified, since, as a result of the Indecopi decision, the MTPE should issue a new regulation specifying that the pay partial or late will mean that the subsidy is recognized, but in a manner directly proportional to what the employer has paid.

“If the employer paid 50% of the contribution, then I will only recognize half of the subsidy. It could be a formula,” he noted.

In this way, Herrera points out that With partial payment there will be less impact on workerswho were often burdened with this responsibility, although they always have the option of reporting the case to Sunafil.

Reactions

Jorge Toyama, labor lawyer

“It must be separated between those living employers who are behind with payments and, when there is an accident, they only seek medical attention, and those cases when, due to error or lack of liquidity, they pay incomplete.”

Ricardo Herrera, labor lawyer

“When EsSalud The subsidy was not recognized, the companies told the worker ‘since I already paid, I am going to deduct it from your salary.’ So, the worker ended up paying for the harshness of this measure.”

Data

• Deception. There are companies that rent their RUC to recruit workers who have permanent medical care, but who never work, according to Toyama.
• Sanction. If EsSalud discovers these cases of fraud, the sanctions range from disaffiliation to fines of between 20 and 50 UIT.