Sports subscriptions as part of the workplace health program.
The classification of the cost of sports subscriptions—intended for practicing sports and physical exercise for maintenance, prophylactic, or therapeutic purposes—granted by the employer to employees, within the category of expenses representing the value of other rights related to health and safety at work, as provided in Article 76 (4) (f) of the Fiscal Code, largely depends on the conditions under which these subscriptions may be excluded from the category of benefits received by employees as a result of performing their activity under an individual employment contract, as regulated, from the perspective of the applicable fiscal regime, by Article 76 (4¹) (h) of the Fiscal Code.
In the following, we will analyze under what conditions these sports subscriptions lose their nature as benefits granted to employees and become workplace protection measures—measures which, as is well known, “must under no circumstances entail financial obligations for workers” (Article 7 (6) of Law no. 319/2006 on occupational safety and health).
According to Article 6 (1) of Law no. 319/2006 on occupational safety and health, “the employer has the obligation to ensure the safety and health of workers in all aspects related to work,” through a set of institutionalized activities aimed at ensuring the best possible working conditions, protecting life, physical and mental integrity, and workers’ health.
Even from the design phase of this set of activities, the employer must be guided by the principle that workplace risks must be avoided, and when they cannot be eliminated, they must be assessed, tackled at the source, or removed. Where the elimination of risks is not possible, the employer must adapt the work to the individual (through job design, equipment selection, establishment of work methods, etc.) or develop a coherent prevention policy that includes technologies, work organization, working conditions, social relations, and the influence of environmental factors.
Within this general policy, the employer promotes workplace health through a dedicated program consisting of activities and actions aimed at actively monitoring workers’ health in relation to the characteristics of the workplace and, in particular, to occupational risk factors (Article 26 of Government Decision no. 355/2007 on the health surveillance of workers).
The workplace health program is established by the employer, subject to review by employees and/or their representatives or the occupational safety and health committee, with the guidance of the occupational medicine physician (Article 12 of Law no. 418/2004 regarding the professional status of occupational medicine physicians). The program is based on the prior identification of workplace risk factors encountered by a specific worker.
There are numerous categories of workers who perform their activities predominantly and for extended periods in a seated position (for example: drivers, office staff), thus being exposed to physical/biomechanical, organizational, or psychosocial risk factors (especially if the activity is also performed remotely). These factors often contribute to the development of musculoskeletal disorders or sociorelational issues.
It is important to note that the legislator considered the existence of such risks when regulating telework activities under Law no. 81/2018.
If collective protection measures cannot be efficiently organized and implemented within the workplace health program (which have priority under Article 7 (3) (h) of Law no. 319/2006), as is often the case with telework due to the occasional presence of teleworkers at the employer’s premises, the adoption of individual protection measures becomes necessary. Among these, the employer may provide services intended for practicing sports and physical exercise for maintenance, prophylactic, or therapeutic purposes, including by contracting sports subscriptions with intermediaries, authorized providers of such services, or by directly reimbursing these services initially paid by the worker.
In any case, the concrete program of sports activities must be directly oriented toward counteracting the risk factors identified and assessed by the employer in the prevention and protection plan, after excluding the possibility of organizing and implementing other collective protection measures (related to organization, work environment, etc.).
These measures (collective or individual) will be included in the workplace health program, whose implementation will be monitored by the occupational medicine physician (Articles 27–29 of Government Decision no. 355/2007 on the health surveillance of workers).
Furthermore, the method, conditions, and, in general, all rights and obligations of the parties regarding occupational safety and health that exceed the minimal level established by law are regulated through the collective labor agreement (Article 229 of the Labor Code) and/or the internal regulations (Article 242 (a) of the Labor Code).
Only under these conditions can such expenses borne by the employer be classified as expenses representing the value of other rights related to health and safety at work, non-taxable under Article 76 (4) (f) of the Fiscal Code.
