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 the situations in which the employer is allowed to dismiss his employees. Voluntary dismissal during sick leave has certain nuances.
In addition to the interests of the employee himself, who wants to keep his working position and not be brought to disciplinary responsibility, sick leave also affects financial indicators organizations. We find out whether it is possible to issue sick leave retroactively and how it is carried out dismissal on sick leave .
The legislative framework
Can I quit my job while on sick leave? The issue is regulated by several articles of the Labor Code Russian Federation – – .
Based on them, you can decide everything contentious issues dismissal of an employee who is on sick leave.
Is it possible to be dismissed on sick leave at will?
Dismissal on sick leave is possible if:
- labor Relations terminated by agreement of the parties;
- the employment contract is terminated at the initiative of the employee.
At the same time, in the second case, the days the employee is on sick leave are included in the period compulsory working off between the dates of drawing up the application for dismissal and the actual dismissal. Unless otherwise provided by a separate agreement, the relevant period is 2 weeks. So if an employee has been treated for more than 2 weeks since the application was submitted, then after recovery he does not need to go to work.
An employee may withdraw his resignation letter at his own request on sick leave until the working period has ended or before the date specified in a separate agreement between him and the employer. In this case, he will be able to continue working after the completion of treatment, if at the time of withdrawal of the application the company did not undertake to hire another employee (and did not fix this obligation in writing).
Procedure
There is a certain procedure for processing the dismissal of a person on sick leave.
If you comply with all the requirements, then you can circumvent the law and correctly quit with the payment of all the money earned.
They also have to pay sick leave.
Applying
The application is submitted before leaving for sick leave or during its period.
An application is written in the name of the authorities, the position, structure, department, name of the applicant are also written there.
And then a request for dismissal with a reason for leaving is prescribed. Then the date of working off and the last day of going to work are put down. It is on this day that all dues must be paid. cash and issue a workbook.
Making an order
The order is issued on the day of the last day after working off.
If there is a sick leave, then registration is carried out either according to it, or according to the date of the application.
The order also prescribes the position of the employed, structural subdivision, the last day of work.
The date of drawing up the order is also affixed here, the person leaving to get acquainted with him and, with consent, signs.
Entry in the work book
In the work book, an entry is made in the form of dismissal of one's own free will. The date, the signature of the familiarized citizen is affixed here.
After that, the employer's company seal is affixed. The final calculation is being made.
How does an employer accept a letter of resignation during sick leave?
An employee who is on sick leave can submit a letter of resignation to the employer in person or by sending a document to the company by mail. At the same time, the employee can inform the employer of his consent to accept the work book upon the fact that the employer has issued an order to terminate employment contract with a postal worker.
At the same time, the dismissal order indicates that the employer does not have the opportunity to hand this document personally to the employee.
If an employee who is on sick leave has not informed the employer of his consent to receive documents by mail, the employer himself must notify this employee:
- about the need to appear for workbook;
- in case of impossibility of attendance - about informing the company of its consent to receive a work book (and an order to dismiss) by mail.
Sick leave on the day of dismissal at the initiative of the employee: legal consequences for the employer
In the general case, the fact that an employee goes on sick leave on the day of dismissal (or any other day while he is officially registered with the company) at his own request does not prevent the further implementation of the dismissal mechanism. That is, in this case, having gone on sick leave, the next day a person ceases to be an employee of the company.
Having cured and received compensation on a sick leave (provided within the framework of the mechanisms we have discussed above), the citizen ceases to be an authorized or obligated party in legal relations with the company in which he worked at the time of going on sick leave.
It is worth noting that an employee who is on sick leave, even on the last day of the employment contract with the company, can withdraw his letter of resignation. If the employer by that time did not undertake to hire another person, then after the cured employee returns to work, he will have to continue the employment relationship with him.
Documents for dismissal on sick leave
If the employee is nevertheless fired, then he should draw up a number of documents:
- A letter of resignation, which is registered with the secretary and then signed by the employer;
- An order stating that the employee has been fired, which indicates the fact that the final payment has been paid;
- The sick list itself.
These documents are sent to the accounting department, where disability benefits are calculated and the final payment is made.
Social guarantees upon dismissal of an employee on sick leave
If an employee falls ill within thirty calendar days after dismissal, he is entitled to receive temporary disability benefits from his former employer. The employee has the right to pay sick leave even after official dismissal. The payout will be 60% of wages at the time of dismissal (Part 2 of the Federal Law “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood”). An application for the payment of benefits is submitted within 6 months from the date of dismissal.
Is sick leave included in working out
An employee may fall ill during mandatory work. The employer does not have the right to force the employee to work, motivating his actions by the fact that the latter was on sick leave during working off.
The sick leave is counted in the period of mandatory two-week working off, even if it is closed after the dismissal of the employee. In addition, sick leave will be fully paid.
Calculation of hospital benefits
Sickness benefit is calculated according to the following algorithm:
Step 1: A sample of wages for the previous two years is made. If the employee did not work in this organization for these two years, then he had to provide a certificate 182n when applying for a job, which indicates the amount of salary in the previous place.
Step 2: The amounts of earnings for two years are added up, then divided by 730 or 731 days (the number of days for two years), we get the average daily earnings to calculate the benefit itself.
Step 3: Next, you need to know the worked insurance experience. It lets us know whether sick leave will be fully accrued, that is, 100%, 80% or 60%. We multiply the average daily earnings by the percentage received and get the amount with which the allowance itself will be calculated. For example, the salary for two years was 200,000 rubles / 730 days. = 273.97 rubles. If the experience is less than five years, then the percentage will be 60%, from five to eight - 80%, if more than eight years, then 100%.
Step 4: Further, 273.97 rubles * 80% \u003d 219.18 rubles, then we multiply this amount by the number of days on the disability sheet and get the amount of the benefit. Moreover, the first three days of sick leave are paid at the expense of the employer, and the rest at the expense of the social insurance fund. The employee will receive a sick leave calculation minus income tax. If, for example, an employee was ill for 10 days, then in our case the amount of the accrued benefit will be 2190.18 rubles. In his hands, he will receive, minus income tax, 285 rubles. - 1905.18 rubles.
Step 5: When an employee is dismissed in accordance with all the rules, in the accounting department he must receive a salary certificate in the form 182n, in order to provide it to the next job. He also receives a work book. If the retired person is not able to come, due to illness, for her, then he leaves a written permission to send the book by mail. The final payment is transferred to the card within three days from the date of signing the dismissal order, and the allowance will be paid after the direct calculation of the sick leave itself. Art. 80 of the Labor Code of the Russian Federation). The two-week period begins to run from the day following the notification of the employer.
A registered letter can take up to a week, so to speed up the process, a copy of the application can be sent to e-mail with the obligatory sending of the original. While the original application is in progress, the personnel officer will prepare Required documents and the accountant will calculate the salary. It is also necessary to do this if the employee wants to quit faster.
However, this period may not be respected under the following conditions:
- coordination with the employer of an earlier date of dismissal (paragraph 2 of article 80 of the Labor Code of the Russian Federation);
- the impossibility of carrying out labor activity (paragraph 3 of article 80 of the Labor Code of the Russian Federation).
Illness is one of the reasons for the impossibility of continuing work, so there is no need to wait for a period of 14 days in this case. In the letter of resignation, you can emphasize this by referring to par. 3 art. 80 of the Labor Code of the Russian Federation.
Deadlines for sick leave
The terms for the sick leave are different, determined depending on the cause. This may be caring for a child, for a sick family member, for a disabled person. The general disease is extended by the attending physician for 15 days, then the period is extended medical commission. There are a number of diseases when sick leave is extended for a longer time.
Results
One of many legal ways termination of the employment contract while the employee is on sick leave - filing a statement of intent to terminate the employment relationship with the company at his own request. In addition, when an employee submits this application and subsequently leaves for a sick leave, his employment contract is nevertheless terminated upon the expiration of the working period or the date specified in the agreement between the employee and the employer.
Payment for sick leave upon dismissal of one's own free will occurs in the same way as in the case of compensation for a treated employee who has not declared a desire to quit.
Dismissal of an employee at the initiative of the employer while he is on sick leave is not allowed. Another thing is if a person leaves of his own free will.
The company cannot fire an employee who is on sick leave on its own initiative. This is clearly stated in the last paragraph of Article 81 of the Labor Code: “It is not allowed to dismiss an employee at the initiative of the employer<...>during the period of his temporary incapacity for work and during his stay on vacation. An exception is made only for the situation when the employer organization is liquidated (an individual entrepreneur ceases to operate).
Therefore, when an employee is dismissed during a period of illness, the main thing is to determine who exactly is the initiator of the dismissal *.
In practice, the following situation often occurs: an employee submits a letter of resignation of his own free will and at the same time undertakes to work, say, for two weeks, but during this period he suddenly falls ill and takes a sick leave. The main question that arises in this case is: can he be fired while on sick leave or is it necessary to wait for his recovery?
On your own, any day
In a situation where a letter of resignation is written of one's own free will, the initiative to terminate the employment contract does not come from the employer, but from the employee himself.
Therefore, his dismissal while on sick leave is possible. This also includes such a development of events when the termination of the employment contract occurs by agreement of the parties. If the dismissal occurs at the initiative of the employer, and the employee falls ill on the day of the planned dismissal, then you will have to wait for him to leave the hospital.
When an employee leaves after an illness, the employer fills out a sick leave and only then carries out the dismissal procedure in accordance with the established procedure (depending on the reason for dismissal), that is, draws up a justification for dismissal, issues a dismissal order based on the documents, makes settlements with the employee and on the last day work gives him a work book.
But sometimes you may encounter a situation where an employer requires an employee to increase the period of work before dismissal for a period equal to the duration of the illness.
Clarifications regarding this situation are given in the letter Federal Service on labor and employment 1 . It says that a person can warn the employer about dismissal not only during the period of work, but also while on vacation or during a period of temporary disability. In this case, the date of dismissal can also fall on the specified periods.
Thus, if an employee notified the employer of his dismissal 14 days before it, then the latter is obliged to dismiss him on the day specified in the resignation letter.
If an employee continues to be ill
So, let's say an employee wrote a letter of resignation of his own free will, as required by law, two weeks before the desired date of dismissal. But here's the problem - a week passed and he fell ill. What are the options for the development of the situation?
Option one, the simplest: the employee manages to recover before the date of dismissal. Everything is simple here: a person is fired according to his statement.
Option two: the sick leave lasted more than seven days left before the dismissal. In this case, the employee is fired on the day specified in the resignation letter. After all, it is impossible to change the date of dismissal recorded in the application without the consent of the employee. In such cases, the employment contract is terminated earlier than a certain date, and sick leave, opened during the period of the employment contract, is paid upon the termination of temporary disability.
The law obliges the employer to dismiss the employee, pay him money and issue a work book on the last working day indicated in the letter of resignation. Accordingly, if a person, after submitting a letter of resignation, fell ill and at the same time did not officially withdraw his application, then he must be given all the money and documents by the date that the employee indicated in the application. If on the day of dismissal a person did not come for work book and calculation, it is necessary to send him a written notice that he must appear for a work book or agree to send it by mail 2.
After sending such a notification, it remains only to wait for the employee to leave after the sick leave and formalize his dismissal by issuing all the documents and money. At the same time, the accountant may have a question: should the company pay the employee a sick leave that is closed after the date of his dismissal?
How sick leave is paid
If the sick leave was opened for a still working employee, then it is paid on a general basis, even though by the time it was closed, the employee no longer had an employment relationship with the employer 3. In addition, do not forget that by dismissing an employee, the company does not get rid of the need to pay him sick leave for a certain period of time. The organization is obliged to pay the sick leave issued to the former employee within 30 calendar days after his dismissal. However, in this case it is paid in the amount of 60 percent of the average earnings 4 .
In other words, if an employee quit and after some time brought a sick leave, the start date of which does not go beyond 30 calendar days after the date of dismissal, the employer is obliged to pay this sick leave.
The deadline for submitting claims for payment of sick leave is six months from the date of restoration of working capacity 5 . For example, if a dismissed employee fell ill a week later, and six months later came for disability benefits, the company will have to pay if the deadlines are not missed. And although in practice such situations are extremely rare, it is necessary to know about them in order not to break the law.
Often, employees after dismissal bring sick leave to their former employer. He refuses to pay for the period of temporary disability, referring to the fact that the employee no longer works for him. However, is the position of the employer justified? Not always. Yes, with sick leave after dismissal, situations sometimes arise when it is not entirely clear how many days to pay. Maybe you should refuse altogether? In the consultation, we will consider the most common mistakes of employers who are faced with the issue of sick leave pay.
Main regulations, regulating legal relations in the system of compulsory social insurance in case of temporary disability and in connection with motherhood, are federal laws:
– Federal Law No. 165-FZ of July 16, 1999 “On the Fundamentals of Compulsory Social Insurance”;
– Federal Law No. 255-FZ of December 29, 2006 “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood” (hereinafter referred to as Law No. 255-FZ).
These and other normative acts in this area define the circle of persons subject to mandatory social insurance, and the types of compulsory insurance coverage provided by them, as well as the rights and obligations of subjects of compulsory social insurance and the conditions, amounts and procedure for providing benefits for temporary disability, pregnancy and childbirth, a monthly allowance for caring for a child of citizens subject to compulsory social insurance for case of temporary disability and in connection with motherhood.
The temporary disability benefit is paid to the insured persons upon the occurrence of the following cases during the period of work under an employment contract, performance of official or other activities:
loss of ability to work due to illness or injury, including in connection with an abortion or in vitro fertilization;
the need to care for a sick family member;
quarantine of the insured person, as well as the quarantine of a child under the age of 7 attending a preschool educational organization, or another family member recognized in in due course incompetent;
implementation of prosthetics medical indications in a stationary specialized institution;
aftercare in the prescribed manner in sanatorium organizations located on the territory of the Russian Federation, immediately after the provision medical care in stationary conditions.
Part 2 of Art. 5 of Law No. 255-FZ, it is determined that temporary disability benefits are paid to insured persons in cases where illness or injury occurred within 30 calendar days from the date of termination of work or activity or in the period from the day the employment contract was concluded until the day it was canceled.
The appointment and payment of temporary disability benefits are carried out by the insured at the place of work (service, other activity) of the insured person (part 1 of article 13 of Law No. 255-FZ).
By virtue of h. 3 Article. 13 of Law No. 255-FZ, to an insured person who has lost his ability to work due to illness or injury within 30 calendar days from the date of termination of work under an employment contract, official or other activity, temporary disability benefits are assigned and paid by the insured according to his last place work (service, other activity) or territorial body insurer in the cases specified in Part 4 of Art. 13 of Law No. 255-FZ.
Do I need to pay sick leave?
As is clear from the previous section, the employer is obliged to pay a temporary disability certificate to the former employee if the disease or injury occurred within 30 calendar days from the date of termination of work or from the date of conclusion of the employment contract until its cancellation.
Moreover, the need for payment does not depend on the basis for the dismissal of an employee: both those who resigned of their own free will and those dismissed for a disciplinary offense have the right to count on benefits.
The fact that the employer has an obligation to pay sick leave confirms and arbitrage practice. For example, the Moscow City Court considered an employee's appeal against the decision of the district court that refused to collect temporary disability benefits. The court substantiated its decision by the fact that the employee did not provide evidence of the transfer of sick leave to the employer, as well as his refusal to pay sick leave. However, when considering the case by the appellate instance, it was found that the employee quit on April 30, 2015, and handed over the certificates of incapacity for work from May 2, 2015 to August 10, 2015 to the employer’s chief accountant, about which there is a certificate signed by her. But the employer did not provide evidence of payment for these sheets before the trial. Since the temporary disability allowance was never paid, the city court granted the employee’s claims and collected the unpaid allowance (Appeal ruling of the Moscow City Court dated July 28, 2016 in case No. 33-22374/16).
How is sick leave paid before dismissal?
Imagine a situation: an employee quit by agreement of the parties on February 13th. On March 15 (the 30th day after her dismissal), a sick leave for 5 days was opened for her, with which she came to her former employer. How to pay sick leave? In this case, many employers pay only on March 15 - the last day of the period established by Law No. 255-FZ. But this is the wrong approach and all 5 days of temporary disability are subject to payment.
That is, you need to understand that a temporary disability certificate must be paid in full, even if the employee brought a sick leave, opened on the 30th day after dismissal.
Another common mistake of employers paying sick leave for laid-off workers: if the sick leave is open before dismissal, the period of incapacity for work is paid depending on the length of service of the employee, but as soon as the sick leave goes beyond 30 days, the benefit is calculated based on 60% of average earnings.
By general rule allowance in case of disability due to illness or injury, with the exception of cases specified in Part 2 of Art. 7 of Law No. 255-FZ, during quarantine, prosthetics for medical reasons and aftercare in sanatorium and resort organizations immediately after the provision of medical care in a hospital, it is paid in the amounts presented in the table.
If the employee opened a sick leave before dismissal, payment for the time of incapacity for work is carried out at the rate of the named percentages. If the sick leave is open within 30 days from the date of dismissal, the allowance is paid in the amount of 60% of the average earnings.
We conclude: it is impossible to accrue different benefits for sick days before and after dismissal. For example, an employee with 15 years of insurance experience quit of his own free will on March 22. On the same day, it was opened to him. All days of temporary disability must be paid based on 100% of average earnings. It would be a mistake to pay the last working day in the amount of 100% of the average earnings, and the subsequent ones - 60%.
Note: the employer is not obliged to pay sick leave if the employee has applied to him with a corresponding request six months after the sheet was closed (part 1 of article 12 of Law No. 255-FZ). For example, an employee dismissed on 12/20/2016 fell ill on 01/10/2017 and was issued a temporary disability certificate for 3 days. For the payment of benefits, the former employee has the right to apply until 07/13/2017. If he presents the sheet later than this date, you can safely refuse to pay benefits. This position is supported judicial practice(See, for example, appeal rulings of the Moscow City Court dated December 6, 2016 in case No. 33-49232/2016, Novosibirsk Regional Court dated June 28, 2016 No. 33-6004/2016).
Do I need to pay sick leave issued during a vacation with subsequent dismissal?
This question arises due to the fact that when granting leave with subsequent dismissal the date of dismissal and the last working day do not match.
According to Art. 84.1 of the Labor Code of the Russian Federation, the day of termination of the employment contract in all cases is the last day of work, except for cases when the employee did not actually work, but the place of work (position) was retained for him.
On the last day of work, the employer is obliged to issue a work book to the dismissed person, other documents related to work, at his written request and make the final settlement with him (Article 80 of the Labor Code of the Russian Federation).
By virtue of Art. 127 of the Labor Code of the Russian Federation at the written request of the employee unused vacations may be granted to him with subsequent dismissal (with the exception of cases of dismissal for guilty actions). Then the last day of vacation is considered the day of dismissal. However, in this case, the employer is obliged to issue and issue the final settlement on the last working day before the vacation.
According to Rostrud, expressed in Letter No. 5277-6-1 dated December 24, 2007, when using leave with subsequent dismissal, the actual employment relationship with the employee is terminated from the moment the leave begins. At the same time, the department explained that during the period of illness during the vacation period with subsequent dismissal, the employee is paid temporary disability benefits, however, unlike the general rules (Article 124 of the Labor Code), the vacation is not extended by the number of days of illness.
Thus, two situations are possible:
1. The employee will open sick leave before the date of dismissal, that is, the last day of vacation. In this case, the employer is obliged to pay a temporary disability certificate in general order- depending on the insurance period of the employee, for all calendar days of illness.
2. The employee becomes ill or injured within 30 days of the end of the holiday. In this case, the employer is also obliged to pay benefits, but it must be calculated based on 60% of average earnings.
Let us give an example from judicial practice.
The essence of the matter.
The employee was on vacation with subsequent dismissal from July 21 to September 23. On August 23, 2014, during her vacation, she was injured, which is confirmed by disability certificates. The employee applied to the employer with a request to pay sick leave, but was refused.
position of the employer.
The refusal to pay sick leave is justified by the fact that the employee received them after 30 days from the date of dismissal: the last working day is July 18, and the sick leave is dated August 23.
The position of the court.
The district court satisfied the requirements and collected from the employer payment for temporary disability leaves. However, the appellate instance overturned this decision, indicating that since the last day of work is not the day of dismissal (the last day of vacation), but the day preceding the first day of vacation - July 18, it is from this day that the period of part 2 of Art. 5 of Law No. 255-FZ, the deadline for presenting a certificate of incapacity for work for payment by the employer.
The Supreme Court of the Russian Federation, considering the complaint filed by the employee, pointed out the erroneous conclusions of the appellate instance and canceled its decision, substantiating it as follows. From the provisions of Law No. 255-FZ, part 1 of Art. 84, part 2 of Art. 127, 183 of the Labor Code of the Russian Federation it follows that an employee who is in an employment relationship under an employment contract, for the entire period of work until the day of dismissal, is an insured person under compulsory social insurance in case of temporary disability. By virtue of h. 2 Article. 127 of the Labor Code of the Russian Federation, when using leave with subsequent dismissal, the last day of leave is considered the day of dismissal of the employee. So, it is also the day of termination of labor relations. That is, the moment of their termination and the beginning of the 30-day period, during which the employer is obliged to pay for the disability certificate of the dismissed person, is the last day of the employee's vacation. Therefore, the sick leave is payable (Determination of the Armed Forces of the Russian Federation of November 23, 2015 No. 34-KG15-13).
Can unpaid benefits be counted towards personal income tax withholding?
According to Art. 183 of the Labor Code of the Russian Federation, the employer pays the employee an allowance in case of his temporary disability in accordance with federal laws.
That is, temporary disability benefits and personal income tax are two different amounts calculated and paid (transferred) to different recipients. But sometimes employers believe that some amounts can be set off against others. There are many such cases in the jurisprudence.
The essence of the matter.
The employee resigned voluntarily due to retirement. Upon dismissal, he was paid a salary, and a temporary disability certificate was not paid. The employee went to court.
The position of the court.
The district court, refusing to satisfy the claim for payment of sick leave, proceeded from the fact that personal income tax was not withheld from the plaintiff in the final settlement and the amount of sick leave payment was credited as personal income tax. However, the appellate court did not agree with this decision: the amount payable as a temporary disability benefit was withheld from the plaintiff on account of personal income tax, and this is contrary to the provisions of Art. 137 of the Labor Code of the Russian Federation. It was impossible to do so (Appeal ruling of the Moscow City Court dated August 20, 2015 in case No. 33-29619/2015).
Do I need to pay sick leave to care for a family member?
It is not uncommon for employees to take sick leave after being fired to care for children or sick family members. Is such sick leave payable, presented within 30 days from the date of dismissal?
Here the opinions of experts differ.
Some believe that such a hospital employer is not required to pay. They substantiate their position in paragraph 2 of Art. 5 of Law No. 255-FZ, according to which, during labor or other activities, temporary disability benefits are guaranteed in the event of the occurrence of the cases specified in part 1 of this article (illness or injury of an employee, the need to care for a sick family member, aftercare, etc.). ). But after dismissal - only in cases where the disease or injury occurred at the very former employee. This position is also confirmed in judicial practice. Thus, the Moscow City Court, in its Ruling dated April 16, 2012 in case No. 33-10259, noted that the law separates benefits paid in connection with the loss of ability to work by the employee himself (clause 1, part 1, article 5 of Law No. 255-FZ), and other benefits referred to in this rule of law. Therefore, after the termination of the employment contract, the payment of benefits is allowed only if the employee himself has an illness or injury that occurred within 30 calendar days from the date of termination of work.
Other experts believe that if an employee, after dismissal, presents a sick leave within 30 days, for example, to care for a child, the benefit is payable. They also substantiate their position in paragraph 2 of Art. 5 of Law No. 255-FZ: it says that an employee can apply for benefits both during work and within 30 days from the date of dismissal. And this point of view also has confirmation in judicial practice. In particular, Tomsk regional court in the Ruling dated September 21, 2012 in case No. 33-2420/2014, he stated that it follows from Law No. 255-FZ that a retired employee had the right to demand payment of a sick leave from the employer upon the occurrence of an insured event, including in connection with the need to care for sick family member, within 30 days from the date of dismissal.
Unfortunately, the jurisprudence is not very extensive. But we still tend to the first position and, based on the literal interpretation of paragraph 2 of Art. 5 of Law No. 255-FZ, we believe that only the sick leave issued in respect of the dismissed person is subject to payment.
As you can see, there are a lot of questions in the situation with sick leave workers. Moreover, Law No. 255-FZ uses phrases that allow different interpretations of its norms (as in the case of clause 2, article 5). However, there are three things to remember. First: the dismissed person has the right to receive temporary disability benefits, the sick leave for which is issued within the 30-day period after the dismissal. Second: such sick leave is paid in the amount of 60% of average earnings. But if the sick leave is open on the day of dismissal or a little earlier and lasted after the termination of the employment contract, it must be paid depending on the length of service of the former employee. Well, the third: the employer must pay benefits only when the dismissed person is disabled, sick leave for child care and other reasons for issuing sick leave do not have the same meaning.
The dismissal of an employee during a period of temporary disability at the initiative of the employer is illegal. An exception is the case of voluntary dismissal or liquidation of the enterprise.
If an employee is ill, his dismissal during sick leave at the initiative of the company cannot be made. This provision is enshrined in the norm of Article 81 Labor Code, the last paragraph of which says: “It is not allowed to dismiss an employee at the initiative of the employer (except in the case of liquidation of the organization or termination of activity individual entrepreneur) during the period of his temporary incapacity for work and during his stay on vacation. Thus, only the termination of the employer's activities can become a legal basis for the dismissal of an employee during his illness at the initiative of the employer.
Therefore, in order to answer the question: “can they be fired on sick leave”, it is necessary to determine from whom the dismissal initiative comes. In the practice of many companies, a situation often arises when an employee applies for dismissal on own initiative, but during the two-week notice period prescribed by law, he suddenly falls ill and goes on sick leave. In such cases, the question of whether the legal dismissal employee during his temporary disability or not?
On your own initiative - dismissal without obstacles
If an employee submits a statement in which he expresses a desire to terminate the employment relationship, then his dismissal during sick leave is possible, since the employment contract is terminated at the initiative of the employee, and not the employer. A similar solution to the problem also applies to the termination of the employment contract by agreement of the parties. However, if the dismissal initiative comes from the employer and the employee falls ill on the day when the dismissal was planned, it can only be carried out upon his recovery, since in such a situation it is illegal to dismiss an employee who is on sick leave. After the employee leaves the hospital, the employer is initially required to fill out a temporary disability certificate and only after that begin the dismissal procedure in accordance with the procedure established by law, that is:
- provide a reason for dismissal;
- issue a dismissal order;
- make a settlement with the employee;
- issue a work book on the last day of work.
However, there are situations when the employer requires the employee to work before dismissal for a period equal to the time during which he was on sick leave. On this occasion, there is an explanation of the Federal Service for Labor and Employment. The letter explains that the employee has the right to warn the employer about the upcoming dismissal, both during the period of work and during his stay on vacation or during illness. The day of dismissal can also fall on any of the indicated periods, including the possibility of dismissal on the last day of the sick leave. Therefore, in the event that the term of notice of dismissal is 14 days, the employer must make the dismissal on the day indicated in the letter of resignation at his own request.
What to do in the event of a prolonged illness of an employee
In practice, a situation may arise when an employee submitted a letter of resignation on his own initiative, but fell ill within a two-week notice period for dismissal. In the event that he leaves the sick leave before the expected day of dismissal, no problems will arise and the dismissal will be made on the day indicated in the application. But the situation can develop in another way, when a person does not have time to recover before the end of the indicated two weeks. Under such circumstances, the dismissal of an employee on sick leave is made on the date indicated in the application, since the employer does not have the right to change it without the consent of the employee. The sick leave in this case is paid after the restoration of working capacity.
According to the law, when an employee is dismissed, the employer must make a settlement with him and issue a work book on the last day of work according to the application. Thus, in a situation where an employee fell ill after he submitted a letter of resignation, but did not withdraw it, the organization must make a settlement with him on the day indicated in the application. If, on the due date, the employee did not come to receive the work book and wages, he must be notified in writing of the need to appear for the work book or give permission to send it by mail. Having sent a notification, it is necessary to wait for the employee to recover and dismiss him officially, having made a calculation and issuing documents. At the same time, the accountant needs to know whether it is necessary to pay sick leave, closed after the dismissal of the employee.
sick leave payment
If at the time of opening the sick leave, the person was officially an employee of the organization, then his payment should be made in the general manner, even if the closure of the sick leave falls on the period when the employment relationship with the employee has already been terminated. Another important point is that, by law, the employer is obliged to pay sick leave to a dismissed employee within a certain period of time. A former employee has the right to pay a sick leave if it was issued within 30 calendar days after the termination of the employment contract. However, in this case, he can only count on receiving 60 percent of the average earnings.
Therefore, if a retired employee after some time provided a sick leave opened within a 30-day period from the date of dismissal, the organization cannot refuse to pay it. An employee has the right to present a sick leave within six months from the date of recovery. Accordingly, even if the employee fell ill a week after the dismissal, and months later came to receive benefits, the company will be required to pay if the payment has not expired. statutory six month period. In order to avoid breaking the law, every company should know how to behave in such situations, despite the fact that this happens quite rarely.
The dismissal of an employee is a simple and fairly quick process if the employer and employee comply with all norms and do not violate the law.
However, the dismissal of a subordinate during sick leave has a number of nuances.
In practice, there are cases when an employee quits, but is forced to work for two weeks stipulated by the contract, however, if the employee takes a vacation or sick leave at that time, he does not work, and the dismissal, in turn, takes place according to the usual mechanism.
Refusal to dismiss by the employer may incur both administrative responsibility and up to the liquidation of the enterprise by the Labor Commission in some cases.
When is it allowed to dismiss an employee who is on sick leave?
Dismissal is permissible in three cases:
- By my own will. Dismissal from the initiative of the employee is allowed at any time according to the usual mechanism.
- If the employee continues to get sick, but previously wrote.
- Dismissal upon liquidation of the enterprise. If the organization is liquidated, the employer is forced to notify the trade union 3 months in advance, and 2 months before the liquidation of all employees. This is done so that the liquidation of the enterprise does not take employees by surprise. In this case, the dismissal occurs according to a different procedure, a person who is temporarily unable to work is transferred to another enterprise or employed again, the employer does it himself.
Dismissal during sick leave at the initiative of the employee
Since the employee himself is the initiator of the termination of the employment contract, dismissal during sick leave is permissible under current legislation. A similar dismissal mechanism is also applied in the case.
During the dismissal of an employee while on sick leave, the procedure itself takes place within the framework of the established Labor Code of the Russian Federation: 
- filing a letter of resignation two weeks before leaving the company,
- preparation by the employer of all necessary documents,
- settlement with the employee (including the payment of sick leave and vacation pay).
Violation by the employer of the norms of the Labor Code of the Russian Federation is strictly punished by the Labor Commission, therefore, dismissal often takes place calmly and within the established limits, because it is more expensive for the employer to break the law.
Planning to fire your co-worker? Detailed procedure for dismissal of an external and internal part-time described in .
What should an employer do if the illness of his employee dragged on?
Sometimes situations arise when an employee has filed a letter of resignation, but falls ill and is on sick leave for a two-week period prescribed by the Labor Code of the Russian Federation.
If the sick employee leaves by the date of dismissal from the hospital, the dismissal occurs according to the usual procedure, then the employee is also billed.
However, if the employee is on sick leave, and the date of dismissal has come to an end, the dismissal still occurs.
Since the employer or employer himself does not have the right to change the date of dismissal without the knowledge and consent of the sick employee.