It is not uncommon for an employee to work on sick leave - at his own request or at the insistence of his boss. In any case, both parties want to know whether such a situation is acceptable, what the consequences may be and how to pay for such work.
From a legal point of view, a person cannot be sick and work at the same time. Sick leave means the employee’s temporary incapacity for work, so calling him to work is a gross violation of his rights.
If we consider the situation outside the official regulations, then it is quite possible. For example, an employee is at work, but on some days one of his relatives sits with him, which gives him the opportunity to work. This is illegal, but is possible with the agreement of management. The issue of payment remains to be resolved.
If the manager is not interested in a sick employee coming to work, and this happened, then he informs the doctor about the violated treatment regimen with relevant evidence. A special mark appears in the document, and the benefit is paid in a smaller amount.
It is illegal to pay sick leave for one period and at the same time pay wages. The employer does not have such a right.
There is one loophole for remuneration on sick leave - a bonus. An employer can reward a hardworking employee for the amount that he actually earned. In this case, everything is official, if no one reports the current state of affairs.
In practice, things are different. Many organizations adhere to a gray salary policy, so the employee officially receives accruals during illness, and receives remuneration for work during this time in an envelope. The employer does not have to look for a replacement, and the employee remains in the black.
If an employee does not comply with the sick leave regime, then possible unpleasant consequences:
Unfortunately, workers' rights are often violated. It is not uncommon for an employee to be called back to work while on sick leave.
Every employee should know that sick leave is an important document. This is confirmation of temporary disability. During this period, exemption from labor duties is fixed by law.
If you are forced to work while on sick leave, you should know what to do:
It is not always possible to defend your rights. An employer may find or invent work violations that could cause an employee to be fired. The employee should protect himself - any modern telephone has a voice recorder, so the resolution of controversial issues should be recorded. Words alone are not enough to prove that you are right, but recording a conversation is an undeniable argument.
By law, if an employee decides to go to work on sick leave, the employer must inform the doctor. In this case, the hospital regime is violated. The violation is noted on the sick leave certificate, and the disability benefit is reduced.
In practice, if both parties are interested in the employee going to work, then all that remains is to agree on the details. Such work cannot be officially celebrated - it is a violation of the law. Thus, the fact of an employee working on sick leave cannot appear in any documents.
Employers should remember that it is illegal for an employee to work on sick leave. This may result in a fine. In addition, an employee’s unhealthy condition can worsen his health - in this case, a work-related injury or worse consequences are quite possible.
If both parties have agreed that the employee will work during sick leave, then the question of remuneration arises - it cannot be officially fulfilled. In this case, there are several options:
Working while on sick leave is possible, but it is illegal for both parties. In this case, you also have to decide the issue of payment. In practice, such situations occur often, but not always by agreement of both parties: in this case, one of the opponents will definitely face punishment.
The article talks about if an employee wrote a letter of resignation and fell ill, when to fire, and explains other subtleties of the law.
The entire range of labor relations is regulated by the Labor Code. If a person starts to get sick and takes sick leave, then you cannot fire him. Even if a person worked poorly and committed violations of labor discipline, termination of the contract is prohibited.
Sick leave and simultaneous dismissal are incompatible. The rule is established by Art. 81 Labor Code.
Important! It is permissible to terminate a contract during a period of incapacity if the enterprise is liquidated or a private entrepreneur ceases its activities.
The situation regarding dismissal due to at will.
It happens that a person writes a letter of resignation, and then begins to get sick. Then the contract is terminated according to the usual procedure. The contract was terminated on the date indicated in the application. There will be no delays.
The issue is resolved in a similar way if an employee writes a letter of resignation and falls ill. When to fire if the contract is terminated by agreement of the parties?
The boss will have to wait until he is discharged from the hospital if he wants to fire his subordinate. Termination of the contract is possible, but only after the ballot ends.
When the specialist closes the bulletin, the HR employee will write in it all necessary information. Then an order is issued and an entry is made in the work book.
On the day of dismissal and not a day later, a full settlement must be made with the person; no debts should remain. If the funds are not transferred on the day of dismissal, the employee will have the right to receive wages and penalties for each day of delay.
It happens that a person falls ill and submits a letter of resignation. In such a situation, managers are often interested in extending the working period. But management has no right to force a person to work extra days. Two weeks may pass while a person is sick, and there will be no need to work extra time.
You can also safely terminate your contract while on vacation. The time spent in the office will not be extended.
Read also The procedure for dismissal for non-compliance with the position held
2 possible situations upon dismissal:
You need to give your work book and make payments on the last working day. The law makes no exceptions. It does not matter under what circumstances the decision was made to write a letter of resignation. When a person is absent from the office, this does not mean that there is no need to submit documents. The employee is notified in writing that he should come to the office to receive documents or give the go-ahead for the document to be sent by mail. A work book is a valuable document. It can only be sent by registered mail if the person cannot receive the form himself.
Even if there are no questions about paperwork, then a financial question often arises: how is dismissal on sick leave paid?
Sometimes the following situation arises: an employee decided to quit and then went on sick leave. What will be the payment procedure in this case?
The employer will have to pay for the ballot if the employee was working for the company when it was opened. Moreover, payment is made for the entire time of illness. Former employees also have to pay. Payment is made if the illness begins within thirty days after dismissal.
Sick leave is paid in the amount of sixty percent of wages.
3 design examples:
Example 1. Kuznetsov N.A. worked as a manager of the Cheap Windows company. Quit. Fifteen days later I fell ill with a sore throat. I contacted my local doctor and drew up a document about incapacity for work. The employer will have to pay. Money is transferred over a period not exceeding thirty days. If the illness continues beyond this period, there will be no payment.
Demands for payment are legal if the employee makes them no later than six months from the date of termination of the contract.
Example 2. Ledentsova I.S. worked as a secretary of the Moscow District Court. The girl resigned from her position. Two weeks after the contract was terminated, I fell ill. I created a newsletter. She brought the document to the personnel service only four months after her dismissal.
Read also Features and procedure for paying severance pay upon dismissal of an employee
Question: Do I need to pay for sick leave for a former employee?
Answer. Yes, it is necessary, despite the fact that before her dismissal, her sick leave was not received by the personnel department. A resigning specialist has the right to present a document for payment no later than six months after his departure. In our example, the deadlines were met.
So, questions about whether it is possible to receive payment for sick time after dismissal are resolved in favor of the employee, the main thing is to comply with the deadlines for the application.
Example 3. Sergeev N.S. works as a mechanic for the Tekhmontazh company. The boss doesn’t like how the specialist performs his duties, and he decided to say goodbye to the unwanted employee. Sergeev fell ill, the doctor opened a document on his incapacity for work. Termination of the contract will be possible when the sick leave is closed. In this case, the procedure established by labor legislation must be followed.
Liability for violations is established by the Code of Administrative Offences. An employee can seek protection of his rights from labor inspectors, the prosecutor's office and the court.
If the court confirms that there were violations, the employee will be reinstated, and the company will compensate for lost earnings.
Social guarantees are provided by the Labor Code of the Russian Federation. A person can exercise their right to rest and submit a resignation letter at the same time. The rule also applies to cases when a woman takes sick leave to care for a child. In any case, the contract is terminated on the date specified in the application.
Social guarantees do not depend on the reason for registering a ballot. A person can be fired both during his illness and while caring for a sick family member.
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.
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).
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 size for all days of illness in accordance with the insurance period (clause 2 of article 5 of the law of December 29, 2006 No. 255-FZ).
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 for employee's sick leave injured at work. 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:
Employee Potashev caught a cold in March 2015. During an examination at the hospital, the doctor discovered a formation on Potashev that required immediate surgical intervention and further long-term 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 for unused vacation was transferred to the employee’s bank card.
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.
The Labor Code (LC) of the Russian Federation is a set of laws designed to protect the rights of working citizens. Dismissal is one of the inevitable aspects labor activity. The Labor Code of the Russian Federation clearly regulates situations in which an employer is allowed to fire its employees. Let's consider important point: is it possible to quit while on sick leave on your own initiative, and can the employer do this?
In addition to the interests of the employee himself, who wants to maintain his working position and not be subject to disciplinary action, registration of sick leave also affects the financial performance of the organization. Let's find out.
Labor legislation clearly interprets that the dismissal of an employee on sick leave at the initiative of the employer is illegal (Article 81 of the Labor Code of the Russian Federation). When an employee applies to the courts regarding wrongful dismissal, the court, as a rule, takes the side of the applicant.
Employer in in this case will be obliged to reinstate the employee at his previous place of work and pay him wages during forced absences.
There are several situations that allow the dismissal of a sick employee on legal grounds.
This is only possible in the following cases:
Dismissal at one's own request is initiated by the employee himself, therefore, even while he is on sick leave, dismissal occurs on a general basis.
It is worth noting that the employer does not have the right to refuse to dismiss an employee at his own request. The Constitution of the Russian Federation guarantees every citizen the right to freedom of choice of type of work activity (Article 37). Article 80 of the Labor Code of the Russian Federation regulates the procedure for terminating an employment contract: the employee must notify the employer of his desire to resign 2 weeks before the expected date of dismissal.
Despite the fact that the listed options for dismissal on sick leave are legal, there are some nuances that must be observed.
Additional Information
Special attention should be paid to dismissal during the probationary period. After all, it can cause a lot of problems. In practice, termination of employment during the period of sick leave at one’s own request probationary period happens very rarely. In this case, the organization must be notified three days before the proposed dismissal and then by writing a statement in the established form.
The table shows the procedure for terminating an employment relationship while on sick leave.
| Actions | Details |
|---|---|
| 1. A citizen writes an application for leave on sick leave. Together with it (or after) a letter of resignation is drawn up. | It must be written there “at your own request”. |
| 2.The employer studies the submitted documents. | From this moment the countdown of 2 weeks begins. |
| 3.After 14 days from the date of notification of dismissal, the boss draws up an order to terminate the employment relationship. | It is presented to the person being dismissed for review. The corresponding entry is made in a special accounting journal. If the employee cannot personally come to the employer, he must send a copy of the order by registered mail. |
| 4. A record of dismissal is made in the work book. | It is necessary to indicate Article 80 of the Labor Code of the Russian Federation. This means that the employee himself decided to terminate the relationship. |
| 5. As soon as the order comes into force, the employee receives a work book and pay slip. | An act is drawn up about this. |
| 6. The person being dismissed contacts the accounting department for payment. | After this, you can sign in the accounting journals for receiving funds in full, as well as for issuing a work book to a subordinate. |
| 7.If the employee refuses to sign, a special act is drawn up in which all actions are recorded. | If it is not possible to make a personal visit to obtain a “labor” document, you will have to send a notification of the need to make a payment by registered mail. Then a trusted person can receive the money and work book. |
An application for resignation of one's own free will, including while on sick leave, is written by the employee in any form.
The application must contain the following points:
It is important to know that if an employee is on sick leave, he also has the right to withdraw his resignation even on the last day of the employment contract with the company. And if at that time a new employee had not been hired by the company, then after the permanent employee leaves the sick leave, the employer must continue to work with him.
The voluntary dismissal process begins with the employee submitting a resignation letter to the employer. This must happen at least 14 calendar days before the expected date of termination of the employment contract. After submitting the application to the employee responsible for personnel matters, a 2-week period begins, otherwise called working off. The term “working out” does not appear in the Labor Code of the Russian Federation. 2 weeks is only the period during which the employer must find a replacement for the resigning employee.
After 14 days, the organization issues an order stating that the employee is fired. This document is given to the resigning employee for review under a personal signature, or, in the case of a territorial remoteness of the citizen, is sent to him by mail with acknowledgment of delivery.
Then the personnel employee (accountant, employer) makes an entry in the employee’s work book about dismissal at his own request, indicating Article 80 of the Labor Code of the Russian Federation and hands over the work record. After which the citizen is given a payslip indicating the payments due to him. Final stage– receiving calculations from the accounting department.
We are ready to answer any questions you may have - ask them in the comments
A period of temporary incapacity for work, or sick leave (common name) is a period of time during which an employee is not at work because he has health problems.
According to current legislation, while an employee is sick, he retains his average salary, but not in full: if the length of service is less than six months, then based on the minimum wage, if less than 5 years - 60% of earnings, from 5 to 8 - 80%, and one hundred percent he can calculate his average earnings after 8 years of work ( seniority is considered cumulatively, not for a specific employer).
The first three days of illness are paid by the employer, the rest by the Social Insurance Fund (with the exception of sick leave for pregnancy and childbirth, the social insurance pays entirely). In practice, management often faces the question: is it possible to fire an employee during his illness?
Many employees are afraid that management will fire them due to prolonged illness. Fears are in vain - a company cannot lay off an employee who is on sick leave.
Moreover, if a person wrote a letter of resignation and fell ill on the same day, the employer’s right to two weeks of work is not extended - even if he was ill for the entire two weeks.
Article 81 of the Labor Code of the Russian Federation prohibits an employer from dismissing people during their vacation or illness.
If an organization violates the provisions of the code, the court will recognize the employee as a victim, reinstate him at work, and the company will face a fine (for an official - at least 2 thousand rubles, and for the company as a whole - at least 50 thousand rubles) and payment to the person for forced absence.
However, there is a situation in which an ill employee may lose his job, even if he is against it. When or occurs, all employees, both healthy and on sick leave, lose their place of work. In this case, you need to contact the Social Insurance Fund to pay for the certificate of incapacity for work.
If the parties decide to separate, then this can be formalized either as dismissal by agreement of the parties, or at their own request. What rights does the employee have and what responsibilities does the employer have in this case?
An employee who decides to resign while temporarily disabled should not wait until the end of his sick leave to write a letter of resignation. By mutual desire, the employer and employee can sign an agreement - in this case, the employer is protected from possible accusations that he forced the subordinate to write.
The worker warns the manager two weeks before the date of departure of his desire to leave his job. However, the final settlement with him is made only after recovery and the provision of a closed certificate of incapacity for work. The company's accounting calculates sick leave payments and...
The organization must pay for sick leave for the entire period of illness, including after the person’s dismissal.
Moreover, if a healthy resigned employee gets sick within 30 days after leaving the company, she must pay him sick leave based on 60% of average earnings(Part 2 of Article 7 of Federal Law-255 “On Temporary Disability”), provided that during this time he did not find a new place of work. The employee has the right to payment within 6 months after the end of the period of illness (according to the certificate of temporary incapacity for work).
If the company does not want to part with a valuable employee, then during his temporary disability you can hire another worker, stipulating this fact in the employment contract. This is not prohibited by law - provided that both parties to the employment contract are happy with it.
You can learn some of the nuances of this process from the following video:
Let's look at this procedure with an example. Employee Smirnov went on vacation for 28 calendar days in August 2015 and fell ill on the first day. During an examination at the hospital, it turned out that he had a serious illness that required surgical intervention. Deciding that he would not be able to work, he handed over to his place of work a letter of resignation of his own free will as of September 1, 2015.
Smirnov was discharged from the hospital after the operation on September 15, and his sick leave was opened on August 29. For 2013-2014, Smirnov earned 378,000 and 402,000 rubles from this employer, respectively. Insurance experience – 2 years. He did not work in other places in 2013-2014; he worked full-time for the company.
So, the number of days of incapacity for work is 18. Despite the fact that Smirnov decided to quit on September 1, the employer is obliged to pay him benefits after this date.
The benefit amount will be:
Of this, the FSS will reimburse the company 9616.44 rubles, and 1923.28 rubles will be paid at the expense of the company itself.
Don’t forget to withhold personal income tax from the employee on the amount of sick pay - in this case, the tax will be 1,500.16 rubles.
Thus, if Smirnov provides the company with sick leave on September 16, then no later than September 26, the accounting department is obliged to calculate his benefits and pay him on the next day on which the organization pays wages.
He does not have to come for the work book, having submitted a request that the document be sent to him by post with acknowledgment of receipt. And the company can transfer the payments to his bank card, or Smirnov will come for the money when he feels better - then the company will deposit his payments.
The dismissal must be documented at the enterprise with the following documents:
Smirnov has the right to demand payment for his sick leave within six months after the certificate of incapacity for work is closed.
