Is it possible to quit while on sick leave? This topic is on this moment interests both employers and, accordingly, employees. Severance of labor relations during a period of sick leave is possible only on the basis of the employee’s initiative. This situation may have different variants. For example, an employee initially wrote a statement about ending his employment contract with the employer, and then fell ill, or got sick and, while on sick leave, decided to quit. Or, going on sick leave occurred on the very day when the application for termination of the employment relationship was submitted. Taking into account all these options, the employer is obliged to properly dismiss the employee according to at will during sick leave. In addition, the initiative of the institution employee in this case also includes the agreement of the parties.

Dismissal of an employee during illness at his own request

An employee can resign at his own request while on sick leave by notifying the employer 2 weeks in advance. It may happen that he falls ill during these two weeks, then the sick leave does not interrupt the specified period and there is no need to re-apply for dismissal.

Also, the employer has the right to terminate the contract with the employee based on his application if the deadline that was specified has arrived and the employee of the company is still ill. Then the dismissed person must provide a closed medical certificate of incapacity for work for calculation.

In practice, quite often a situation arises where an employee of an organization does not want to work the two weeks allotted to him before dismissal, so he submits a letter of resignation and goes on sick leave due to illness. In such cases, the manager sometimes demands that you work for the required period after recovery.

Regarding this issue, a detailed explanation was given by Rostrud, which believes that the employer’s demands are unreasonable - if the employee warned about this 14 days before dismissal, then the date of dismissal professional activity In no case can it be postponed to another day at the initiative of the employer. The department also indicates that the date of dismissal may well coincide with a period of vacation or release from work due to illness.

Dismissal on sick leave at one's own request occurs after the employee has recovered and returned to the enterprise. The manager must immediately fill out a sick leave form and only then formalize the dismissal.

Dismissal of one's own free will during sick leave must be accompanied by the issuance of a work book. It does not need to be sent by mail immediately, but it must be sent mandatory send a notification that the dismissed employee needs to pick it up or give his consent to send it by mail. The employer is released from liability regarding the untimely issuance of the work book from the very day he sent the specified notice.

Dismissal of an employee of an institution on sick leave based on the initiative of the employer

Is it possible to fire an employee who is on sick leave? The answer to this question is Art. 81 of the Labor Code of the Russian Federation - dismissal of an employee of an institution based on the initiative of the employer during the period of his incapacity for work or vacation is not allowed. Even if the employee fell ill on the day on which he was supposed to be fired, then this procedure will have to be postponed until he recovers.

If it happens that an employee does not show up for a long time at his legal workplace, but reports by phone that he is ill and is taking sick leave, then until the final reasons for his absence are clarified, the manager cannot remove him. In case of such dismissal from the place of professional activity, any court will take the side of the employee and reinstate him, and the employer will pay for the forced absence. What should an employer do in a situation where there is no one to work? You can hire another person to replace a sick mercenary before the main employee joins the company, concluding a fixed-term employment contract or agreement.

Art. 81 of the Labor Code of the Russian Federation states that it is possible to dismiss an employee who is on sick leave at the initiative of the employer only upon liquidation of the enterprise or upon termination of activities by the entrepreneur.

Calculation upon termination of employment during sick leave

According to Art. 140 of the Labor Code of the Russian Federation, on the day of termination of the employment contract (agreement), the manager is obliged to make a payment upon dismissal at his own request, if there is sick leave, and is also required to pay compensation (reimbursement) for unused vacation (part one of Article 127 of the Labor Code of the Russian Federation). If an employee of an institution is ill on the day of his dismissal and cannot come for payment, then the amount due to him must be paid no later than the next day after he submits a request for payment.

Since the insured event (illness) occurred during the period of work under an employment agreement, the employee of the enterprise has a legal right to temporary disability benefits. Exist general rules, according to which, in case of injuries and illnesses, temporary disability benefits are paid for the entire period of short-term disability until the end of the sick leave. In Part 1 of Art. 9 of Law N 255-FZ specifies the periods for which short-term disability benefits cannot be awarded. The benefit is paid for the entire period until the closure of the ballot, including the days after the date of dismissal.

Part 2 Art. 7 of Law N 255-FZ describes that benefits for short-term inability to work due to injury or illness are paid in the amount of 60% of average earnings if a person has been ill for 30 calendar days after completion of work under the employment agreement. Due to the fact that in this situation the insured event occurred before the termination of the employment relationship, the benefit is paid in the usual amount, since it depends on the insurance period.

To assign and then pay benefits for short-term inability to work, the insured person must provide a sick leave certificate, which must be issued by a medical institution. Part 1 art. 15 of Law N 255-FZ clearly establishes that the insurer must assign temporary disability benefits within 10 calendar days from the date the insured person applies for it from the necessary documents. The policyholder makes the payment of benefits on the nearest day after the assignment of benefits, which is set for the payment of wages.

Summarizing all of the above, we can come to the following conclusion: if an employee provides sick leave at the time of termination of the employment contract, then the employer undertakes to pay the benefit on the day of his departure. But if an employee of an enterprise does not provide a sick leave certificate at the time of dismissal, then the employer undertakes to pay the benefit on the next day that is set for the employer to pay wages.

So, the answer to such a pressing question for today: “What to do with the calculation when leaving at your own request if you have sick leave?” may be as follows: in accordance with the Federal Law “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Maternity,” sick leave, which is open to an employee of the company, is paid to him on a general basis. And this does not depend on whether the employment relationship was preserved at the time of its closure or not.

2018-11-29T19:54:51+00:00

In what cases does an employer have the right to dismiss an employee at his own request during sick leave? Is it possible to terminate the employment relationship with an employee during illness on the initiative of the employer. How to write a letter of resignation if a certificate of incapacity for work has been opened, the procedure for dismissing an employee under labor law who is on sick leave

The Labor Code does not prohibit the dismissal of a person during sick leave, provided that this is the desire of the employee himself.
What should an employer do if an employee submitted a resignation letter of his own free will and went on sick leave?

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If there is a voluntary dismissal during sick leave, then the main task of the organization is to prepare all the documents correctly. In addition, you need to make sure that termination of the contract will be legal. Dismissal of a person in his absence from the workplace is possible only in certain cases.

General provisions

Termination of labor relations at the request of the worker is regulated by Article 80 of the Labor Code of the Russian Federation. It says the following:

• Any worker has the opportunity to terminate his employment relationship with the organization unilaterally.
• You must notify your intention to terminate your employment relationship no later than 14 days in advance. In separately specified cases, this period can be reduced to three days, or it may be absent altogether.
• If management does not insist on working off the job, then the person can leave work on the day the application is submitted.
• A resigning person has the right to change his decision at any time, before the termination of his employment obligations, even on the last day of going to work. An exception will be the case when another person has already been invited to the position by way of transfer.
• Even if the dismissal documents are not completed on the last day of the employment contract, the person has the right to stop execution labor functions, starting from the day following the one indicated in his application.
• On the last day of work former employee You need to give your work book and make a full payment.

Neither in this article of the Labor Code of the Russian Federation, nor in other acts labor legislation There are no instructions that you cannot dismiss a person at your own request if he is not present at the workplace. Accordingly, it is possible to resign on sick leave at your own request.

When can you quit?

Let's consider a situation: a person filed a resignation letter of his own free will. But a few days before the day of dismissal, he went on sick leave. And on the last day on your own workplace he didn't come out.

What should a manager do, does he have the right to dismiss an employee on sick leave? Yes, if the employee has not expressed a desire to cancel his application. Being on sick leave will in no way affect voluntary dismissal. After all, this is the personal initiative of the employee himself. And the Labor Code of the Russian Federation prohibits dismissing an absent person if the initiative comes from the management of the enterprise.

Therefore, a sick person has the right to expect that he will be fired on the day specified in his application. They will also transfer the final payment (excluding payment for temporary disability) and issue a work book filled out in the prescribed manner.

Dismissal during illness

Let's consider the question - is it possible to resign during sick leave at your own request? Another nuance that may raise questions is a situation when a person falls ill and only then brings his application. Should the employer accept such a statement? How to resign correctly in this case? Labor legislation does not regulate this situation in any way. Accordingly, a person has every right to submit an application while on sick leave.

In this case, the processing time will remain unchanged. The application must be submitted no later than 14 days before the expected date of termination of the employment relationship. This period can be reduced in the following cases:

• The person leaving is on probationary period or a fixed-term employment contract has been concluded with him. In this case, the warning period is reduced to three days.
• A person has the right to resign on the day the application is written. This is possible if a person has entered full-time study, is drafted into the armed forces, retires, etc.
• The head of the organization agrees to shorten the warning period.

These rules apply in any situation.

Refusal to accept resignation letter

What to do if the employer refuses to accept an application from a sick employee, citing the fact that the person is not currently performing his job duties and should not be at work.

In this case, you need to do the following:

1. Draw up the document in two copies.
2. Register it with the secretary.
3. The employee must keep one copy and there must be a mark on it that the document has been accepted and the date of acceptance.

If a company representative refuses to register a document, you can send an application by mail. It is better to do this not just by registered mail, but by sending it with an inventory. In this case, the sender will have in his hands a document confirming that the envelope actually contained an application for dismissal at the initiative of the employee.

Otherwise, the employer may claim that the letter did not contain any document, or that it was a paper containing other information and not a letter of resignation. It must be borne in mind that this method extends the working period. The regulated 14 days will begin to count only from the moment the employer receives the letter.

Working off

In the Labor Code of the Russian Federation, the notice period for dismissal is set in calendar days.

Fact

The working period begins to count the next day after submitting the application. The fourteenth day is also the day the work ends.

But at the same time, not a single regulatory act states that during the warning period the employee must fulfill his work duties. Accordingly, if an employee is dismissed while on sick leave, the employer does not have the right to demand an extension of the notice period. As, for example, this happens with a probationary period.

This means that the manager’s demand for work after the end of the illness is unlawful. This is true for a situation where the day of dismissal falls during a period of illness.

If a person who has expressed a desire to resign during illness ends up with a certificate of incapacity for work before the date of dismissal, he is obliged to return to the workplace.

This rule can create unpleasant situations for the employer. If an employee is on sick leave, the employer cannot force him to come to work to hand over official documentation. Even if there are shortcomings in the documents. An exception is the situation when the employee is a financially responsible person or especially important documents are handed over to him for signature (strict reporting forms, originals statutory documents etc.).

The procedure for dismissing an absent employee at his request

Dismissal of an employee on sick leave in 2018 will occur as follows:

1. The employer is preparing a dismissal order. The order is issued in the usual manner. As a rule, the T-8 or T-8a form is used. But you can also draw up a document on a form developed by the company. There is no need to note in the order that the termination of the employment relationship occurs during a period of incapacity for work and the employee is absent from the workplace. The reason is stated in paragraph 3 of Article 77 of the Labor Code of the Russian Federation.
2. The final payment is made. Days when the employee is sick will not be included in this calculation. The employer will pay for them after the employee brings him a certificate of incapacity for work.
3. A work book is drawn up. Termination of the contract occurs while the employee is on sick leave, which means he will not be able to receive it on time. In order to protect yourself from possible claims from the dismissed person, the personnel officer needs to send the sick employee an information letter about the need to come for a work book.

Sick leave benefits are issued to a dismissed employee in the usual manner. Accrual occurs within three days from the date of receipt of the slip, and payment is made on the next salary date.

Payment of sick leave to a dismissed employee

The employer pays sick leave in the usual manner:

• The amount of the benefit will depend on the length of service.
• To calculate the base for sick leave, the two previous calendar years are taken.
• The employer pays for three days of sickness, the rest of the benefit comes from the Social Insurance Fund.

All sick days are subject to payment: both those that occur before the date of dismissal, and those that occur during the period when the person is no longer an employee of the company.

Is it necessary to confirm that the employee is actually sick?

The manager cannot demand confirmation from a person that he is sick until the certificate of incapacity for work is closed. Moreover, the legislation does not oblige the sick person to report that he is sick. This responsibility can be reflected in the company’s local documents.

To make sure that the dismissed employee is actually sick, you can contact a medical institution.

Additional grounds for dismissal

On what other grounds is dismissal possible during sick leave? As noted above, the legislator establishes a ban on the dismissal of a worker who is on the ballot only if the initiative comes from the company’s management.

This means that a sick person can be fired not only at his request, but also for reasons beyond the control of the parties. Or, on the contrary, on the basis that is possible if both parties come to an agreement.

This includes cases:

1. End of the employment relationship.
2. Death of an employee or employer classified as an individual entrepreneur.
3. Prohibition for medical or other reasons from holding a position and lack of possibility of transfer.
4. Agreement between the parties.

Let's take a closer look various situations dismissals in the absence of a person at the workplace:

• The employee's initiative, that is, his own desire. In this case, the procedure for terminating the contract is carried out as usual. The employee is fired on the date specified in his application, even if he is absent on that day.
• Long-term disability. Labor legislation preserves a sick person’s job. Therefore, a long-term illness cannot become a basis for terminating the employment relationship. Accordingly, if an employee does not express a desire to leave on his own initiative during a long illness (or did not express it before its onset), he cannot be fired. The only thing an employer can do if an employee is often sick or his sick leave lasts long enough is to send the person for a medical examination in order to determine the employee’s suitability for the position held.
• Liquidation of the enterprise. This is an exceptional case when a sick person can be fired in his absence from the workplace. In this case, he will receive temporary disability benefits from the Social Insurance Fund.
• Staff reduction. In this case, dismissal of the absent person is impossible. If the employer has carried out the entire layoff procedure and the last day of work falls during the person’s absence, then the dismissal is postponed to the first day the person returns to work.
• For absenteeism. The law does not allow dismissing people at the initiative of the employer if they are absent from the workplace (except for liquidation). Moreover, the employer does not have the right to classify an employee’s absence as absenteeism until this is established by an internal audit. Before this, the code “nn” is entered on the report card - failure to appear for unknown reasons.

Employer's liability

The legislator prohibits the dismissal of a person on sick leave at the initiative of the employer. If the latter violates this rule of law, the employee can challenge the termination of the employment contract. This is especially true when staffing is reduced.

In addition to reinstating the person to the workplace and paying for forced absences, the employer is subject to a fine. Fine for legal entity varies between 30,000 - 50,000 rubles. If punished executive or employer - individual entrepreneur, the amount of the fine is much less, 1000 - 5000 rubles.

FAQ

What is the date to dismiss a sick employee?

The order to terminate the contract will contain the date that the person indicated in his application. That is, this date will not shift by the number of days on the ballot, even if it falls during a period of incapacity.

Is the employer required to pay for a ballot that began after the employee left?

According to current legislation, a person has the right to receive benefits from a former employer if the period of incapacity for work began within 30 days from the date of termination of contractual obligations.

What will be the entry in the work book if a person was fired during his absence?

When filling out a work book, there is no need to note that the termination of the contract occurred during the person’s absence. The grounds for dismissal are entered in accordance with the Labor Code of the Russian Federation (own desire, agreement of the parties, etc.).

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Almost every organization has employees who are often on sick leave for a long time. Not every employer will be loyal to the fact that his employee is sick or is on sick leave for quite some time. long time and it is unknown when he will begin his work duties. As a result, there are conflict situations between employee and employer.

If we talk about how long you can be on sick leave, it should be noted that the periods of temporary disability are determined in accordance with the Procedure for issuing certificates of incapacity for work, approved by Order of the Ministry of Health and Social Development of Russia dated June 29, 2011 No. 624n “On approval of the Procedure for issuing certificates of incapacity for work.” In accordance with clause 11 of the Procedure for outpatient treatment of diseases (injuries) associated with temporary loss of working capacity of citizens, the medical worker alone issues a certificate of incapacity for work at a time for a period of up to 10 calendar days (until the next examination of the citizen medical worker) and unilaterally extends it for up to 30 calendar days. For periods of temporary incapacity for work exceeding 30 calendar days, a certificate of incapacity for work is issued by decision of the medical commission. According to paragraph 2 of paragraph 13, by decision of the medical commission, with a favorable clinical and work prognosis, a certificate of incapacity for work can be issued in the prescribed manner before the day of restoration of working capacity, but for a period of no more than 10 months, and in some cases (injuries, conditions after reconstructive operations, tuberculosis) - for a period of no more than 12 months with a frequency of extension by decision of the medical commission at least every 30 calendar days. There are no restrictions on the number of certificates of incapacity for work issued to an employee during a year or another period of time.

By conducting a medical and social examination (MSE), a citizen can be recognized as disabled (clause 2 of the Rules for recognizing a person as disabled, approved by Decree of the Government of the Russian Federation of February 20, 2006 N 95; hereinafter referred to as the Rules). Citizens who have persistent limitations in their ability to live and work and who are in need of social protection based on the conclusion of a medical commission are referred to MSE for:

Obvious unfavorable clinical and labor prognosis, regardless of the duration of temporary disability, but no later than 4 months from the date of its start;

Favorable clinical and work prognosis for temporary disability lasting over 10 months (in some cases: conditions after injuries and reconstructive operations, in the treatment of tuberculosis - over 12 months);

The need to change the professional rehabilitation program for working disabled people in the event of a worsening clinical and work prognosis, regardless of the disability group and the duration of temporary disability (clause 28 of the Procedure).

Thus, the maximum duration of the period of sick leave is not established by law. A sick leave certificate is issued for the entire period of treatment until recovery or until disability is established.

The question arises: is it possible to fire an employee who has been on sick leave for an excessively long time? Previously, the Labor Code of the Russian Federation provided for dismissal if an employee is on sick leave for more than four months in a row (Clause 5, Article 33 of the Labor Code of the Russian Federation). Now among the grounds for termination of an employment contract long illness not mentioned (Article 77 of the Labor Code of the Russian Federation). Accordingly, an employee who is often or long sick cannot be fired due to this circumstance at the initiative of the employer. Moreover, in Art. 81 of the Labor Code of the Russian Federation states that the dismissal of an employee at the initiative of the employer is not allowed (except in the case of liquidation of the organization or termination of activities individual entrepreneur) during the period of his temporary incapacity for work and while on vacation. Thus, the Labor Code of the Russian Federation guarantees the employee the preservation of his job for a period of long-term temporary disability.

However, the employer may offer the employee to resign of his own free will (Article 80 of the Labor Code of the Russian Federation) Let’s consider ruling of the St. Petersburg City Court dated September 20, 2011 in case No. 33-14267/2011.

The employee went to court to challenge his voluntary dismissal, considering it illegal, since he did not write a letter of resignation and was on sick leave at the time of his dismissal, which was confirmed by a certificate from the district clinic. The court heard testimony from a witness that the head of the personnel department asked the plaintiff to write a letter of resignation of his own free will, but he refused. However, the court found no violations during the dismissal. He indicated that the witness's testimony does not affect the court's conclusions. The fact that the employee was on sick leave does not affect the legality of termination of the employment contract, since the initiator of the dismissal was the employee, not the employer.

Thus, we can conclude that it will be quite difficult for an employee to prove in court the fact that the dismissal of his own free will was carried out under the coercion of the employer.

The employer can also offer the employee dismissal by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation). With the consent of the employee, the employment contract is terminated at any time by agreement of the parties (Article 78 of the Labor Code of the Russian Federation). In this case, we can give an example of a dismissed employee successfully challenging his dismissal. Let's consider the appeal ruling Supreme Court Republic of Buryatia dated June 18, 2012 in case No. 33-156). The court carefully examined the agreement drawn up by the employee and the employer and came to the conclusion that there was no real will of the employee to terminate the employment relationship. The agreement contained the employer's obligation to rehire the employee in the future. In this connection, the court came to the conclusion that the dismissal was illegal under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation (by agreement of the parties).

Established part 6 of Art. 81 of the Labor Code of the Russian Federation, the ban on dismissal during a period of temporary incapacity for work of an employee applies only to cases of termination of an employment contract at the initiative of the employer. Dismissal due to the expiration of the employment contract does not apply to such cases. The Sverdlovsk Regional Court came to this conclusion. The employee was dismissed due to the expiration of the employment contract on the basis of clause 2, part 1, art. 77 Labor Code of the Russian Federation. At the time of dismissal, she was temporarily disabled. The plaintiff demanded that the dismissal order be declared illegal and reinstated at work. But the court concluded that the dismissal was lawful. The worker's demands were denied. The decision of the court of first instance was upheld (appeal ruling of the Sverdlovsk Regional Court dated December 24, 2013 No. 33-15642/2013).

As for employees who are sick for a long time and are on a probationary period. In this case, it is necessary to take into account that the employment contract can be terminated on the grounds provided for in Part 1 of Art. 71 of the Labor Code of the Russian Federation during the period established for testing, if the employment contract contains a condition on testing, because according to Art. 70 of the Labor Code of the Russian Federation, the purpose of the hiring test is to check the employee’s suitability for the work assigned to him.

Sick leave is not an obstacle to termination of an employment contract due to circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation), for example, in case of deprivation special law for a period of more than 2 months, if this entails the impossibility of work. For example, a driver of an organization who has been temporarily deprived of his license for violating the Rules traffic, was fired during a period of incapacity ( Definition St. Petersburg City Court dated July 26, 2011 N 33-11291/2011).

It should be noted that the Labor Code of the Russian Federation gives the employer the right, during the period of temporary incapacity for work of an employee, to hire a new one in his place on an urgent basis. employment contract before the previous one returns to work (Part 1, Article 59 of the Labor Code of the Russian Federation) or entrust the performance of the duties of an absent employee to another with his written consent during the working hours established for him (Article 60.2 of the Labor Code of the Russian Federation), or temporarily transfer another employee to the employee’s place who has been on sick leave for a long time (Part 1 of Article 72.2 of the Labor Code of the Russian Federation). In the latter case, the transfer is carried out only by agreement of the employer and the transferred employee, concluded in writing.

In some cases, an employee’s illness gives the employer the right to terminate the employment relationship with him, but this requires an appropriate medical report, and not a certificate of incapacity for work. According to Art. 73 of the Labor Code of the Russian Federation of an employee who needs to be transferred to another job in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts Russian Federation, with his written consent, the employer is obliged to transfer him to another job available to the employer that is not contraindicated for the employee due to health reasons.

If an employee who, in accordance with a medical report, needs a temporary transfer to another job for a period of up to four months, refuses the transfer or the employer does not have the corresponding job, then the employer is obliged to suspend the employee from work for the entire period specified in the medical report while maintaining his job ( positions). During the period of suspension from work, the employee’s wages are not accrued, except in cases provided for by this Code, other federal laws, collective agreement, agreements, employment contracts.

If, in accordance with a medical report, an employee needs a temporary transfer to another job for a period of more than four months or a permanent transfer, then if he refuses the transfer or the employer does not have the corresponding job, the employment contract is terminated in accordance with paragraph 8 of part one of Article 77 of this Code .

Supreme Court of the Russian Federation in definition dated November 25, 2011 No. 19-B11-19 calls such a case of an employee’s refusal to transfer to another job, necessary for him in accordance with a medical report, a circumstance of an objective nature, that is, independent of the will of the parties to the employment contract and, in particular, the will of the employer.

Really, Art. 81 The Labor Code of the Russian Federation does not contain as a basis for dismissal an employee’s refusal to be transferred to another job in accordance with a medical report. However, if there are medical indications, the employer is obliged to dismiss the employee so as not to risk his health when he performs labor responsibilities and thereby not cause even more harm to his health.

In judicial practice, there are examples when an employee tries to appeal such an employer’s decision in court, there are even successful examples of appeal.

For example, the Sovetsky District Court of Vladivostok declared the dismissal due to illegal clause 8 Part 1 Art. 77 of the Labor Code of the Russian Federation, since the employee was temporarily disabled at the time of dismissal. (Case No. 2-1537/11 dated 04/21/2011).

But it would still be more correct to adhere to the position of the Supreme Court of the Russian Federation on this issue.

If, during a medical and social examination, the employee is found to be completely disabled, then the employment contract with him is terminated on the basis of clause 5 of Part 1 of Art. 83 Labor Code of the Russian Federation.

There are known cases when a medical report is issued to an employee in violation of Order of the Ministry of Health of Russia dated March 14, 1996 N 90 “On the procedure for conducting preliminary and periodic medical examinations and medical regulations for admission to the profession.”

The Sovetsky District Court of Krasnoyarsk, by its decision dated February 27, 2008, reinstated the plaintiff, who was dismissed by the employer in accordance with a medical report due to the employer’s lack of relevant work, in her position. The court came to the conclusion that the medical report was taken in violation of Order of the Ministry of Health of Russia dated March 14, 1996 N 90 “On the procedure for conducting preliminary and periodic medical examinations and medical regulations for admission to the profession.”

The violation was that, in accordance with the requirements established by the said Order, the number of medical commissions must be at least seven doctors of the clinic according to their profile. The commission that issued the medical report to the plaintiff included only three doctors, and one of them was not a member of the commission. The doctor whose profile includes making diagnoses of diseases similar to the plaintiff’s was not present at the commission either. In addition, when making the conclusion, the necessary medical documents of the plaintiff were not examined. The conclusion of the medical commission was signed only by its chairman, which also contradicts the requirements of the Order. Such a conclusion cannot give rise to any legal consequences.

In practice, there are cases when the employer was aware of the employee’s disability even when he was hired.

Considering the dismissal under clause 5, part 1, art. 83 of the Labor Code of the Russian Federation (in connection with the recognition of the employee as completely disabled in accordance with a medical report), the plaintiff filed a claim in court for reinstatement at work. In support of the stated requirements, the plaintiff indicated that the employer was aware of his disability even when he was hired (the plaintiff provided the employer with a certificate from a medical and social examination recognizing him as completely disabled). This fact did not prevent the employer from hiring the plaintiff. The plaintiff carried out his official duties for 10 years in special conditions with a reduced working day, and the plaintiff’s disability, in his opinion, does not prevent him from coping with his official duties, which was confirmed in court. The court found that the basis for the plaintiff’s dismissal was precisely the ITU certificate that he presented to the employer when he was hired.

The court refused to satisfy the plaintiff’s claims, but, taking into account the lack of concealment of the fact of total disability by the employee, the court changed the wording of the dismissal to “the employment contract was terminated due to a violation established rules concluding an employment contract excluding the continuation of work, clause 11, part 1, art. 77 Labor Code of the Russian Federation." In accordance with clause 11, part 1, art. 77, part 3 art. 84 of the Labor Code of the Russian Federation, the court recovered from the employer in favor of the employee severance pay(decision of the Kamensky District Court of the Rostov Region dated September 28, 2012; appeal ruling of the Rostov Regional Court dated November 29, 2012 in case No. 33-13961).

Thus, having studied the legislation of the Russian Federation and judicial practice on the issue outlined in the topic of this article, we can conclude that, in accordance with Part 6 of Art. 81 of the Labor Code of the Russian Federation, the dismissal of an employee at the initiative of the employer during the period of his temporary incapacity for work is not allowed. Clause 5 of Part 1 of Article 83 of the Labor Code of the Russian Federation can be applied only if there is a medical report, according to which the employee is declared completely incapacitated, and not on the basis of sick leave, including long-term leave. It should also be noted that, on the one hand, the Labor Code of the Russian Federation guarantees the employee the preservation of his job during a period of long-term temporary disability, but there are enough mechanisms that allow the employer to get rid of a long-term ill employee.

Is it possible to fire a person who is on sick leave - a question that worries many employees of companies, agencies, enterprises, and government agencies. Dismissal during the period of sick leave is well established in the Labor Code of the Russian Federation, but even here there are a number of individual nuances that will also need to be taken into account.

The dismissal situation can be assessed from two sides: the employer and the employee. Quite often it happens when an employee, in order to avoid disciplinary punishment in the form of dismissal, goes on sick leave. What are the nuances of dismissal during sick leave?

Dismissal of an employee on sick leave

Let's consider several nuances that provide for the possibility of dismissing an employee who is on sick leave. All of them are relevant for 2016.

It is possible to lay off an employee who is on sick leave if:

• the employee does not appear at the company or enterprise for four months in a row due to temporary incapacity for work
• layoff of an employee on sick leave, dismissal while on sick leave is associated with the complete liquidation of the enterprise itself
• a previously concluded fixed-term employment contract is coming to an end at the time the employee falls ill
• on the day of dismissal, the employee went on sick leave, he is still considered dismissed

Is it possible to dismiss an employee on sick leave for other reasons? The legislator answers this question in the negative. Of course, there are exceptions, but they can expose a company to labor disputes and litigation.

Is the employee obliged to inform the employer about sick leave - here the answer to the question is obvious. The employee must provide a sick leave certificate, which contains information about the person’s temporary incapacity for work. A sick leave certificate is an important confirmation that a person is absent from work for a specific valid reason.

A separate topic for discussion is payment of sick leave. If it is opened for an employee who was not fired, his payment occurs on a general basis. Even for an employee dismissed during illness, the company undertakes to pay for the period of incapacity for work, as stated in labor law norms with a number of restrictions.

Dismissal of an employee on sick leave is possible only if there is mutual agreement. Each employee must familiarize himself in detail with the “ Labor Code", which describes in detail the issues of whether it is possible to be fired while on sick leave. Information from legal norms will allow you to protect your interests as much as possible and retain your job even during illness.

Knowing the legal system and having an extract from labor legislation, you will definitely be able to defend your rights before the company’s management. Sometimes more qualified legal assistance is required. As a rule, in many cities there are specialized social services that can also provide all the necessary consultations.

Another aspect that needs to be remembered when difficulties arise in communication is the dismissal of a person of his own free will. Termination of an employment contract here occurs by agreement of two parties: the employer and the employee. An employee comes to the office after illness with a sick leave certificate in hand, at this stage the employer fills out a sick leave certificate, then the dismissal procedure is drawn up and benefits are issued.

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Dismissal while on sick leave at the initiative of the company is impossible. However, there are certain nuances in this issue that you need to be aware of. We will tell you about them in this publication.

Dismissal of an employee on sick leave at the initiative of the employer

Often employees worry that during frequent periods of incapacity, the employer may decide to terminate the employment contract. These fears are groundless - according to Part 6 of Art. 81 of the Labor Code of the Russian Federation, a company cannot fire an employee during his vacation or illness. Violation of this norm of labor legislation is fraught for the company with a fine of 30,000 to 50,000 rubles, and an official or businessman will pay 1,000-5,000 rubles for violation. (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

It should be borne in mind: if an employee decides to quit and falls ill on the same day, the employer cannot require the employee to work for two weeks after recovery. In this case, the employer is obliged to pay the employee sick leave, because the law does not provide for the suspension of a two-week period for the period of illness. Since the disability occurred while the employee was working for the company, the company must pay benefits depending on the employee’s insurance coverage.

Employees often take advantage of this by obtaining a certificate of incapacity for work from the doctor so as not to work the required two weeks. There is a precedent when the court considered such behavior of an employee to be an abuse of his rights and protected the employer by canceling the fine for dismissal while on sick leave(resolution of the Plenum of the Supreme Court dated March 17, 2004 No. 2).

At the same time, the law establishes that upon liquidation of a company or individual entrepreneur, all employees: both healthy and sick, lose their place of work (Clause 1, Part 1, Article 81 of the Labor Code of the Russian Federation). In this case, the employer is obliged to issue an order and, against signature, familiarize all employees with the upcoming closure of the company at least 2 months in advance (Part 2 of Article 180 of the Labor Code of the Russian Federation). If the company was liquidated and the employee did not manage to receive benefits from the employer, then he needs to apply to the Social Insurance Fund for payment (Clause 4, Article 13 of Law No. 255-FZ). Within 10 days after the application, the fund will pay for sick leave.

The material will tell you more about what other personnel procedures need to be carried out when liquidating a company. .

Another situation in which dismissing an employee on sick leave is legal is if a fixed-term employment contract was concluded and the employer warned the employee three calendar days in advance that he was not going to renew it (Article 58, Article 79 of the Labor Code of the Russian Federation). In this case, the employer will fully pay the employee for sick leave in accordance with the insurance period and dismiss him on the day the fixed-term employment contract ends. Moreover, if the contract was concluded for a period of less than six months, then the employee can be paid for a maximum of 75 calendar days of incapacity for work. If the term of the employment contract was more than 6 months, then the entire period of illness is subject to payment (Article 6 of the Law of December 29, 2006 No. 255-FZ “On Compulsory Social Insurance”).

Important ! If you do not notify the employee three days before terminating a fixed-term employment contract, then the contract is considered unlimited. Then it will not be possible to fire a sick employee, and the court will side with the employee in the event of a conflict (Resolution of the Federal Antimonopoly Service of the North Caucasus District dated August 23, 2011 No. A32-6455/2010).

Dismissal during sick leave at your own request

An employee can resign at will, even while on sick leave. If he is still ill on the day of dismissal, the employer should not postpone the dismissal date and wait until the employee recovers. On the date of dismissal, the employer is obliged to issue the employee a work book and a certificate of the amount of earnings in the form of Order of the Ministry of Labor dated April 30, 2013 No. 182n, pay wages and compensation for unused vacation.

If the employee cannot appear and pick up the documents, then he is sent a registered letter asking him to come to the enterprise. But the company will pay for the certificate of incapacity for work after the employee gets it from the doctor and brings it to the company. The benefit is paid in full for all days of illness in accordance with the insurance period (Clause 2, Article 5 of Law No. 255-FZ of December 29, 2006).

Important ! There are situations when an employee is seriously ill and his relatives, on their own behalf, but with a power of attorney from the employee, demand termination of the employment contract. It is impossible to dismiss an ill employee at your own request on the basis of an application signed by a person authorized to do so by a power of attorney - the court will recognize such dismissal as illegal and will oblige you to reinstate the employee in his position and pay wages for the period of forced absence (rulings of the Moscow City Court dated August 13, 2010 No. 4g /3-7015/10, dated 02.14.2013 No. 4g/5-595/13, St. Petersburg City Court dated 02.11.2011 No. 33-16328/2011).

We would like to draw your attention to the dismissal of an employee who was injured at work while on sick leave. Such an employee can also resign of his own free will at any time during illness, but the company must pay him benefits for the entire period of temporary disability in the amount of 100% of average earnings. The upper limit of the benefit amount for a calendar month is limited by social insurance and cannot be higher maximum size monthly insurance payment established for the current year, multiplied by 4: in 2016, from February, this amount will be 69,150 rubles. × 4 = 278,040 rub. (clause 2 of article 9 of the law dated July 24, 1998 No. 125-FZ “On compulsory social insurance against accidents”, clause 1 of article 6 of the law dated December 1, 2014 No. 386-FZ “On the budget of the Social Insurance Fund of the Russian Federation”, taking into account indexation on the basis of clause 1 of the Decree of the Government of the Russian Federation dated January 28, 2016 No. 42).

An employee has the right to payment for sick leave within six months after the doctor closes the sick leave. The accounting department is obliged to calculate the amount of benefits payable within 10 calendar days from the date of receipt of the sick leave. Pay - on the next payday after the benefits are accrued.

The employer withholds personal income tax from the benefit amounts and transfers it to the budget as the employee’s tax agent. Only the first three days of the employee’s illness are paid at the employer’s expense; the payment for subsequent days is reimbursed by social insurance.

To dismiss an employee while on sick leave at his own request, the following documents must be completed:

• statement from the employee;
• manager's order of dismissal;
• certificate of calculation of temporary disability benefits;
• order for payment of benefits;
• certificate of the amount of earnings in the form of order of the Ministry of Labor dated April 30, 2013 No. 182n;
• if an employee decides to receive a work book by mail, then he must submit an application to the company;
• if benefits are paid from the cash register, then an order is drawn up to deposit the benefit amounts, as well as other payments due to the employee - until he is able to come for the money.

An example of calculating payment for a certificate of incapacity for work

Employee Potashev caught a cold in March 2015. During an examination in the hospital, the doctor discovered a formation in Potashev that required immediate surgical intervention and further lasting solution. Potashev decided to quit to focus on his health. On March 11, he went to the hospital for treatment, and on March 16, Potashev handed over to the manager a handwritten letter of resignation. Potashev was discharged from the hospital on March 26, 2015 with a closed certificate of incapacity for work. The number of days of Potashev’s illness is 16. Potashev earned 356,000 rubles in 2013, and 384,000 rubles in 2014. Potashev's insurance experience is 25 years. He did not work in other places, he worked full time in this company, and has no excluded periods from the calculation.

The employer is obliged to pay Potashev benefits for all days of illness in accordance with the insurance period, since Potashev was not fired at the time of the onset of incapacity. The benefit amount will be:

(356,000 + 384,000) / 730 days × 100% (since the experience is more than 8 years) × 16 days = 16,219.20 rubles.

Of this, the employer will pay for the first three days of illness - 3,041.10 rubles.

Don’t forget - you need to withhold income tax from sick leave amounts; more about this in the article .

Personal income tax from sick leave amounted to 2,108.5 rubles.

In total, Potashev will receive 14,110.7 rubles on a certificate of incapacity for work.

In Potashev's work book, the employer made an entry about the employee's dismissal on March 30 - two weeks after receiving the application. Since Potashev came for the documents on his own, the accounting department gave him a work book and a certificate of the amount of earnings. allowance, wages and compensation unused vacation transferred to the employee’s bank card.

Results

No matter how many days you are sick, the employer cannot fire you, unless, of course, you are working under a fixed-term employment contract or your company is closing. The materials in our section will help you understand your rights as an employee and responsibilities as an employer in different situations.