Tacit application for voluntary sickness insurance
People running a business, as well as people cooperating with them, can voluntarily join the sickness insurance. Taking advantage of this option to secure yourself in the event of illness requires you to submit an application for voluntary sickness insurance and the obligation to pay the premium in a timely manner.
Problems and disputes with ZUS arise in situations where there has been a delay in the payment of contributions. In the light of Art. 14 sec. 2 point 2 of the Act on the Social Insurance System of October 13, 1998, the voluntary sickness insurance ceases from the first day of the calendar month for which the premium due for this insurance has not been paid on time.
Often, in practice, an entrepreneur who was late in paying contributions and then, for the period required by law (the so-called waiting period), who paid the premium on time, may presume that he is subject to voluntary sickness insurance and will be able to take advantage of it.
However, ZUS may refuse to pay the benefit due to a break in insurance, if the entrepreneur has not re-applied for voluntary sickness insurance. A way out of this situation may be an attempt to rely on the so-called implicit accession to insurance - more on this later in the article!
You are not entitled to sickness benefit in the so-called the waiting period. Therefore, effective coverage by voluntary sickness insurance requires “waiting” 90 days in order to acquire the right to unemployment benefit in the event of sickness or maternity.Only in cases specified by the act the insured person becomes entitled to the unemployment benefit from the very first day.
Implied application for voluntary sickness insurance - a concept functioning in practice, but not in the act
Entrepreneurs who paid their ZUS contributions in a timely manner may be in a disadvantageous situation, but in the past they were even on a one-off and unintentionally late payment of contributions for voluntary sickness insurance. If you submit an application for sickness benefit in such a situation, it may be rejected by the Social Insurance Institution due to the literal content of the provisions of the Act on the social insurance system. In art. 14 sec. 1 of the aforementioned Act, it was stated that voluntary sickness insurance coverage takes place from the date indicated in the application for such insurance, but not earlier than from the date on which the application was submitted. Therefore, in a situation where the contribution for voluntary sickness insurance was paid after the deadline, which in the light of Art. 14 sec. 2 of this Act will be treated as the termination of voluntary sickness insurance, re-joining it requires submitting another application for this insurance.
However, you can find judgments that, on a par with submitting an application for joining the voluntary health insurance, treat the timely payment of the premium, i.e. the so-called implicit submission of an application for voluntary sickness insurance. An example here may be the judgment of the Supreme Court of August 16, 2005, file ref. I UK 376/04 and the judgment of the Supreme Court of February 3, 1989, file ref. II URN 299/88 (not published).
In the light of more recent judgments, obtaining a favorable position in a similar case may not be realistic. And so, for example, the District Court in Szczecin in the judgment of March 10, 2016, file ref. VI U 103/16, stated that "although there are views in the jurisprudence that submitting an application for social insurance is not a condition for entering into a social insurance relationship, if the will to be subject to voluntary insurance on account of running a business has been expressly expressed (here, the Supreme Court indicated, inter alia, two of its own judgments, from 1989 and 2005), but found them unconvincing. He pointed out that both Art. 11 sec. 2 and art. 14 sec. 1 and 1a of the system act expressly make the voluntary social insurance coverage conditional on submitting an application, which should clearly confirm the intention to be subject to such insurance. In his opinion, the content of the provision of Art. 36 sec. 3 of the System Act indicates that the application is in the form of a notification, which must be in writing ”.
Implicit accession to sickness insurance, consisting in the timely payment of the premium (without re-applying for insurance), in the light of the current views of the courts and the Social Insurance Institution, may turn out to be insufficient grounds for recognizing that a person is subject to voluntary sickness insurance, and thus, can successfully apply for an allowance.
There are many more unfavorable judgments for entrepreneurs (e.g. the judgment of the Court of Appeal in Gdańsk of August 10, 2017, file no. III AUa 391/17). Start a free 30-day trial period with no strings attached!
Unfavorable case law can be turned against ZUS
Very often, the entrepreneur is under the erroneous belief that he is covered by voluntary health insurance, while a one-off and unconscious delay in paying contributions resulted in the termination of the health insurance.
The payment of subsequent contributions in full and on time is also an inseparable situation. It happens that ZUS does not question this state of affairs even for years, until, for example, the insured person applies for the payment of sickness benefit.
Using the literal wording of the provisions cited in this article, the insured may apply for a decision on the course of insurance (Article 83 (1) (2) of the Act on the Social Insurance System) and, on its basis, apply for the reimbursement of overpaid contributions for voluntary sickness insurance. If the decision turns out to be unsatisfactory due to the fact that ZUS finds that the sickness insurance has not been terminated despite the untimely payment of contributions in the past, then the decision may be appealed against. If the Institute deems the appeal to be correct, it changes or revokes the decision immediately, no later than within 30 days from the date of the appeal. If the appeal is not fully or partially admitted, ZUS shall immediately, no later than within 30 days from the date of filing the appeal, refer the case to the court together with the justification (Article 83 (6) and (7) of the discussed Act).
The purpose of this procedure is to obtain a document in the form of a decision not to be covered by voluntary health insurance, and then "recover" unduly paid contributions for this insurance, although this issue often required a court dispute. ZUS may argue that the timely payment of contributions for voluntary sickness insurance is itself an application for coverage with this insurance, and thus the overpayment is unjustified. However, such an interpretation of the pension authority was questioned, inter alia, by by the Court of Appeal in Gdańsk in the judgment of 8 August 2013, file ref. III AUa 2186/12, in which we can read that: "The pension authority also incorrectly assumed that an application for voluntary sickness insurance is considered to be such behavior of the insured as a clear expression of the will to join voluntary insurance".
Unduly paid contributions become time-barred after 5 years from the date of payment of contributions or from the date of receipt of a notification from ZUS about the amount of unduly paid contributions (Article 24 (6b and 6g) of the Act on the Social Insurance System). The above means that you can apply for a refund of overpaid contributions in the last 5 years.
Therefore, if the authority does not approve the implied accession to the insurance in connection with the payment of the premium on time without re-submitting the application, then the payer may claim the reimbursement of unduly paid premiums.
ZUS may consent to late payment of the contribution
Termination of voluntary sickness insurance due to late payment of the premium will, as a rule, require submitting an application for re-coverage with this insurance. However, if ZUS refuses to pay the benefit due to late payment of the contribution, the payer may apply for consent to pay the contribution for voluntary sickness insurance after the deadline.
Positive consideration of such an application, which consists in consenting by ZUS to paying the contribution for voluntary sickness insurance after the deadline, allows you to maintain continuity in this insurance and the possibility of applying for the payment of sickness benefit and reducing the current ZUS contributions for the period of inability to work (except health premium, which is always paid in full). It should be emphasized, however, that ZUS will judge the payer's application discretionary, although the authority should do so objectively and each time analyze the actual state of affairs presented in the application. The jurisprudence emphasizes that ZUS should not automatically negatively consider the application or be guided by excessive rigor.
More on the application for consent to pay the premium for voluntary sickness insurance after the deadline and an example of its formulation in one of the previous articles of the Entrepreneur's Guide: Voluntary sickness insurance - extension of the premium payment deadline.
Summarizing the above considerations, it should be stated that the provisions of the Act on the social insurance system in the field of voluntary sickness insurance are extremely restrictive. A one-time delay in the payment of contributions and failure to reapply for insurance coverage may result in the refusal to pay the benefit, even in the event of timely payment of contributions in a long time horizon. In such a case, the entrepreneur may:
refer to implicit accession to voluntary sickness insurance, which is unlikely to be approved by the authority due to the latest rulings in similar cases;
apply for late payment of the contribution for voluntary sickness insurance, however the consent of the Social Insurance Institution is discretionary in such cases;
demand the return of unduly paid contributions, which will allow you to compensate, for example, for sickness benefits not received.