The National Health Insurance House intends to introduce a calculation example that explicitly states that the first working day of sick leave is deducted, a draft to this effect being published on the institution's website.
“This approach changes the legal effect of GEO No. 91/2025 and leads, in practice, to the introduction of an additional unpaid day, which is not provided for by the ordinance. The methodological norms cannot modify or complete the normative act of higher rank, but have the exclusive role of explaining and applying the existing legal provisions”said Luminița Obaciu, member of the Fiscal Committee of the Chamber of Fiscal Consultants.
It is well known that the doctor grants medical leave over a calendar period, so the first day of medical leave can be a non-working day. In this hypothesis, the application of the example from the draft rules would lead to unjustified situations in which people who enter sick leave on a non-working day would be disadvantaged by subtracting the first working day, although the law does not provide for such a financial penalty.
Such an interpretation is likely to generate non-uniform application in practice, confusion for employers and insured persons and, ultimately, potential litigation.
Practically, the analysis of the content of the project reveals a major problem of legality, since the calculation example included in the rules contradicts the provisions of the basic normative act.
“According to the legislation in force, namely Emergency Ordinance No. 158/2005, medical leave is granted on calendar days, but the related allowance is paid exclusively for the working days of the leave period. This rule is essential for the correct understanding of the payment mechanism and must be taken into account when interpreting any subsequent change”says Luminița Obaciu.
Emergency ordinance no. 91/2025 provides that, between February 2026 and December 2027, medical leave is paid starting with two days of sick leave. Thus, the text of the ordinance refers to the first day of sick leave, without distinguishing between working and non-working days, and this provision must be interpreted compulsorily in correlation with the general rules of GEO no. 158/2005 regarding payment exclusively for working days.
In this context, if the first day of sick leave is a non-working day such as a Saturday, Sunday or public holiday, there cannot be an unpaid day from an allowance perspective, as those days would not have been paid anyway. In such a situation, the payment of the allowance will start with the first working day of the sick leave, without being able to retain the existence of an unpaid working day.
Unfortunately, the new CNAS draft comes with an impermissible addition to the primary law in the sense that a sick leave is paid starting from the next day WORKING of sick leave, compared to the legal text that speaks of the second day of sick leave, without the phrase “working”, and this leads to the anomaly described above.
This approach not only changes the legal effect of GEO no. 91/2025, but also generates an obvious technical inconsistency in terms of bearing the allowance between the employer and the budget of the Single National Health Social Insurance Fund (FNUASS).
According to the current legislation, the sick leave allowance is borne from the employer's salary fund starting from the second calendar day of sick leave and up to and including the sixth calendar day, and starting from the seventh calendar day, the allowance is borne from the FNUASS.
However, in the example from the proposed rules, in which one working day is deducted, it is no longer clear how many days are borne by the employer and how many by FNUASS, in relation to the calendar days of leave.
By removing a working day from the calculation, without correlating this decrease with the calendar intervals established by law for bearing the allowance, the example in the rules cannot be applied.
Practically, situations are reached where the number of paid days no longer corresponds either to the support period from the employer's salary fund or from the FNUASS, which makes a correct and coherent application of the legal rules impossible.
