Labor Alert – August 2023

INDECOPI declares illegal bureaucratic barrier the deadline for the rectification of the electronic payroll for EsSalud to assume the payment of workers’ recovery benefits

Today, 10 August 2023, Resolution Nº 0383-2023/SEL-INDECOPI was published in the Official Gazette “El Peruano”, ruling that Article 36 of Supreme Decree Nº 009-97-SA, Regulation of the Law of Modernization of Social Security in Health, contains an illegal bureaucratic barrier.

The Specialized Chamber for the Elimination of Bureaucratic Barriers of INDECOPI stated the following:

1. Contributions to EsSalud are subject to the provisions of the Tax Code. Therefore, once the deadline for filing tax returns has expired, they can be validly rectified within a period of four years (statute of limitations), in accordance with the Tax Code.

2. Article 36 of Supreme Decree Nº 009-97-SA contravenes the aforementioned legal provision, because it only admits as valid the rectifications of the electronic returns (i.e. of the tax returns of the EsSalud contributions) that are made until the last day of the month in which each return is due.

3. The clear contravention of the Tax Code by Article 36 of Supreme Decree Nº 009-97-SA justifies its declaration as an illegal bureaucratic barrier.

Consequently, as of 11 August 2023, EsSalud will no longer be able to apply the deadline for the rectification of the electronic payroll foreseen in Article 36 of Supreme Decree Nº 009-97-SA, as a requirement to assume the payment of workers’ recovery benefits. Instead, it must consider the rectifications made valid, in accordance with the parameters of the Tax Code.

This has a direct impact on claims for reimbursement of the disability or maternity allowance to EsSalud, and collection actions for medical care provided by EsSalud to workers and their beneficiaries.

For further information, please contact our partners José Balta, Mario Pasco and/or Ernesto Cárdenas.