124.60C3/210
The Secretary of State to the Ambassador in Poland (Cudahy)
Sir: There has been received your despatch No. 470 of October 19, 1934, with which you transmit a copy of a circular note of October 3, 1934, from the Ministry of Foreign Affairs of the Republic of Poland,37 calling attention to obligatory social insurance legislation of the Republic, annexed to which is a translation in French of the text of “legal regulations” purporting to hold as subject to those phases of the compulsory insurance laws which deal with illness, maternity, physical disability arid death, Polish nationals employed by legations and consulates or by individual members thereof. The “legal regulations” provide for the exemption of the diplomatic and consular employees from the application of insurance providing for old-age pensions or unemployment benefits.
It is stated by the Foreign Office that social insurance in Poland is based upon the general principle of the payment of insurance premiums by the employee and the employer with the reservation that insurance against accidents is exclusively for the account of the employer. The employer is obligated to pay to the insurance institution the full amount of his own and the employee’s contribution, but has the right to deduct the employee’s share of the contribution at the time of payment of salary.
The employer of the Polish employees in the American diplomatic and consular offices in Poland is the Government of the United States. The Polish Government cannot of course impose upon the Government of another sovereign State any obligations with respect to the payment of social insurance premiums of the nature indicated either on its own account or on behalf of its Polish employees.
The question of whether the Department was authorized, with respect to the Czechoslovak employees in its Legation and Consulates in Czechoslovakia, to pay social insurance premiums of a similar nature stipulated in the laws of Czechoslovakia, was taken up with [Page 659] the Comptroller General, who in reply stated in part that the appropriations under the Department’s control are not available for such expenditure. A copy of the Comptroller General’s letter is enclosed for your information.38
In the circumstances the Department would not be in a position even voluntarily to observe the provisions of the Polish laws in question regarding the payment of social insurance premiums. Not only would it not be in a position to make payment for the share attributed to employers, but it would be unable to make payment on behalf of the Polish employees. There would be no objection, however, to the making of arrangements for the employees themselves voluntarily contributing directly to the insurance institution not only their own share of the premiums but also, should they feel that by so doing they would gain a benefit, the share attributed under Polish law to the employer.
The Department would have no objection to American diplomatic and consular officers voluntarily furnishing from time to time, upon request from the competent Polish authorities, information regarding changes in personnel and the amount of salaries paid. However, no obligation should be undertaken in this connection since American diplomatic and consular officers cannot appropriately be made agents of the Polish Government and be required to assume affirmative duties to that Government.
With regard to that phase of the Polish compulsory insurance which is wholly for the account of the employer, that is, insurance against personal injuries, it may be pointed out that under the Federal Compensation Act of the United States, this Government already provides for its civil employees, both American and foreign, without cost to them, benefits payable in cases of disability or death resulting from injuries sustained in the performance of duty. It is apparent, therefore, that Polish employees enjoy under American law the benefit of insurance covering accidents sustained in the performance of their duties, and hence, were the provisions of the Polish law regarding employees’ accident insurance applicable to this Government as an employer of Polish nationals, there would be to a considerable extent a duplication in the protection accorded them in this connection.
There is attached a leaflet issued by the United States Employees’ Compensation Commission38 showing briefly the scope of the protective legislation under reference. This has already been transmitted to the field as an accompaniment to Diplomatic Serial No. 620 of June 27, 1927.38
The substance of the foregoing may be transmitted to the Foreign [Page 660] Office in response to its circular note transmitted with your despatch under acknowledgment.
In view of the extraterritorial status of the American diplomatic officers in Warsaw the Polish Government cannot under established rules of international law impose upon them with respect to the personal Polish employees, the obligation to contribute a portion of the cost of the insurance nor can it require them to pay the portion allotted to the employee.
Of course, if American diplomatic officers desire, with respect to the Polish nationals personally employed by them, voluntarily to contribute the employers’ share in the cost of the insurance, no objection is perceived by the Department to such a course.
Insofar as American consular officers in Poland are concerned, they would be exempt from the obligation of the laws in question only if their share in the payments could be considered as a tax levied upon their persons or property and hence, as coming within the scope of Article XVIII of the Treaty of Friendship, Commerce and Consular Rights between the United States and Poland, signed June 15, 1931.40 From the information in the Department’s possession it is doubtful that the payments could be regarded as such a tax. Of course, should consular officers of any other country be exempted from the payment of such insurance premiums, American consular officers could claim a similar exemption under Article XV of the aforesaid treaty.
In conclusion it may be stated that while this Government does not have entirely analogous legislation, there do exist certain provisions of law with respect to the compensation of employees for injuries received in the course of their service. (See 44 Stat., p, 1424, and 45 Stat., Ch. 612, p. 600.)
It has been held by the appropriate authorities that foreign governments or their diplomatic representatives at Washington are not subject to these provisions of law and do not have to secure under them the payment of compensation to their employees, whether American or foreign, by taking out insurance or qualifying as self-insurers.
Very truly yours,