This requirement is contained in the Regulations for the Payment of Economic Benefits, approved by Supreme Decree No. 013-2019-TR ("Regulations"). Based on this provision, ESSALUD has been rejecting requests for subsidy reimbursements if it detected that workers' contributions were paid incompletely or late, even if the incomplete payment did not refer to subsidized workers or the late payment included the payment of interest or penalties.
In these circumstances, the Commission for the Elimination of Bureaucratic Barriers of INDECOPI ("Commission") determined that such provision was illegal, since Law No. 26790 states that, to access subsidy reimbursement, the employer must only declare and pay the contributions, but it does not specify that such payments must be made in full and on time.
Based on this, the Commission determined the following:
1. The provisions of the Regulations exceeded the provisions of the law.
2. These provisions allowed ESSALUD to treat in the same way a total payment default and a late or incomplete payment, which is incorrect.
If any official disregards this decision and denies the reimbursement of a temporary incapacity for work or a maternity subsidy because the contributions of the worker to whom the subsidy was granted (or of other employees) were paid late or incompletely, a complaint may be filed before the Commission, which may impose fines of up to 20 tax units (UIT) to the corresponding official.
It should be highlighted that this is the second restrictive provision of ESSALUD that has been declared an illegal bureaucratic barrier in the last few months. In August 2023, the Commission declared ESSALUD's application of a shorter term than the one established in the Tax Code for admitting rectifications to the electronic payroll to be an illegal bureaucratic barrier.
Both decisions should make it easier for employers to obtain subsidy reimbursements in a greater number of cases, limiting the financial losses that companies have been suffering for years.
We hope this information will be of interest to you and your company. If you have any questions or concerns, please contact us.
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