Payment of sick leave in case of violation of the regime in 2021

Sick leave

Alexey Borisov

Leading expert on labor relations

Current as of November 13, 2020

The Labor Code of the Russian Federation guarantees working people payment of benefits during illness. To receive benefits, you need to see a doctor, fill out a sick leave certificate and follow the instructions. However, not everyone follows them. From the article you will learn about the features of calculating benefits for sick leave in case of violation of the regime in 2021.

What are the types of sick leave violations?

The answer to this question is contained in Article 8 of the Law “On Compulsory Insurance” dated 2912.2006 No. 255-FZ. Violations of the sick leave regime that have consequences at work include:

Failure of the sick person to comply with the disease and treatment regimen prescribed by the doctor. There is an important “without reasonable cause” clause in the law;
Failure of a sick person to attend a scheduled medical examination or medical examination;
The illness (or injury) being treated occurred as a result of the sick person being drunk. Intoxication can be of any kind - alcohol, drugs, etc.

With the last two points everything is more or less clear. At the moment when the employee submits sick leave for payment, the document will already have the corresponding marks and the accountant will only have to recalculate the sick leave benefit according to the minimum wage (clause 2 of Article 8 of Law No. 255-FZ).

It becomes more difficult when the regimen is not followed due to reasons that may be assessed differently by the employee’s management and his attending physician. For example, when a patient is prescribed bed rest and goes to work. For the employer, the reason may be valid. And for a doctor? As we can see from the table, most likely not. For going to work, the doctor will mark you for violating the regime. And this means that the benefit for such sick leave will be reduced.

New position

However, now FSS specialists have reconsidered their position and withdrawn the June letter No. 14-15/7710-2216l. The new letter dated 01.09.20 No. 14-15/7710-2216l states that sick leave benefits should be calculated as follows:

for the period from April 17 to April 20 - according to the general rules, that is, based on average earnings.
for April 21 - based on the minimum wage;

Calculate your salary and benefits taking into account the increase in the minimum wage from 2021 Calculate for free

But for the period from April 22 to April 24, benefits are not provided at all. The fund department believes that the days following the date when the employee was supposed to see a doctor (that is, from April 22 to April 24) can be considered:

or absenteeism (subparagraph “a”, paragraph 6, part 1, article of the Labor Code of the Russian Federation), if the reason for failure to appear was considered disrespectful;
or absence from the workplace for a good reason (if the explanations and supporting documents provided by the employee prove, in the opinion of the head of the organization, the presence of a good reason for absence from work).

Therefore, the days following the date when the employee was supposed to appear for an appointment with a doctor do not apply to the period of temporary incapacity for work and are not subject to payment, according to the Social Insurance Fund department.

The procedure for paying sick leave in violation of the regime

The first document that needs to be issued for sick leave with a note about violation of the regime is an explanatory letter from the employee regarding the violation of the regime. It is not difficult.

The second document is the minutes of the meeting of the employer’s social insurance commission with a decision on whether the reasons for violating the regime are valid or not. The creation of the commission is provided for by the regulations of the FSS (regulations on the commission approved by the FSS on July 15, 1994 No. 556a). In practice, such commissions are rarely created. However, their absence is not penalized in any way.

If there is no commission, it is still recommended to record in writing the employer’s opinion on whether the reason for violating the sick leave regime is valid. For example, an order from the director: “the reason is disrespectful, pay benefits according to the minimum wage.” As practice shows, for the FSS, a selection from the explanatory note and such a second document is often sufficient.

For violations related to non-compliance with the prescribed treatment regimen and examinations, the minimum wage benefit is calculated from the date of such violation (will be indicated on the sick leave).

For being on sick leave as a result of intoxication, the entire period indicated on the sick leave should be calculated according to the minimum wage.

Features of accounting for the regional coefficient

A subordinate can work in a region where the regional coefficient applies. If he violated the regime established by the doctor, then from the moment of violation, the amount of the benefit per calendar month should not be more than the minimum wage, taking into account the regional coefficient. This coefficient varies depending on the specific region.

Expert commentary

Kamensky Yuri

Lawyer

When calculating it, questions and difficulties may arise. For example, if a person is registered in the capital, where there are no such coefficients, but works under an employment contract and lives in a region where a coefficient of 1.15 is used. At the same time, he additionally goes on shift to an area where the coefficient is 1.6.

If a subordinate fell ill while working on a rotational basis, then difficulties may arise in establishing the size of the regional coefficient.

Experts say that it is always necessary to adhere to the coefficient that is valid at the employer’s location. Thus, the “shift” factor of 1.6 is not used.

In this matter, legal norms and requirements are not clearly stated. The only provision is that in those regions where a regional coefficient is established, this indicator is used when calculating benefits.

The employer is responsible for assigning and calculating temporary disability benefits. For this reason, there is no reason to use the coefficient established in the region where the subordinate works on a rotational basis.

Payment of sick leave in violation of the regime for reasons valid for the employer

The most common question that arises when paying for sick leave is what to do if an employee violates the regime by going to work at the request of management? Read about whether this is permissible from the point of view of labor legislation here

Should sick leave benefits be reduced for such a responsible employee? There are certain difficulties here.

In the event of a return to work agreed upon with management, the employee may not notify the doctor about this and will bring a certificate of incapacity for work, in which there will be no notes on violation of the regime. But the accountant will know for sure that going to work without an extract is a violation. And the employee definitely came out (documents are available). And the FSS needs to be notified that during the period of incapacity there were working days that were not included in the calculation of benefits.

What should an accountant do? The existing judicial practice does not provide a clear answer to the question of what to do in such a situation. There are both decisions in favor of the Social Insurance Fund, which refused to reimburse benefits not in accordance with the minimum wage, paid in case of violation of the sick leave regime, and decisions in favor of workers who did not agree with the payment of sick leave with violations of the minimum wage.

Therefore, in practice, an accountant, with the participation of a manager, most often makes a compromise decision. The benefit will still be reduced, and the employee’s conscientiousness will be encouraged in other ways.

Is it paid if the doctor’s orders are violated for an unjustifiable reason?

If an employee violates the sick leave regime for an unexcused reason, then the amount of payments is reduced to an amount not exceeding the minimum wage. If the doctor's instructions are constantly not followed, the employee may be completely deprived of sick pay (we talked more about what consequences can be expected at work if sick leave is violated in a separate article).

Grounds for reducing the amount of compensation

Depending on the type of violation, the amount of benefit may be reduced in whole or in part from the moment of non-compliance with the regime. Decrease since violation:

violation of medical regulations;
being late or not showing up for a doctor's appointment.

Reduction for the entire period of sick leave: if an employee is injured or sick due to alcohol, drug, or toxic intoxication. In order to note in the BC that the employee was drunk, the doctor underlines the word “injury” in the line about the cause of incapacity and then signs “intoxicated.”

Is the regional coefficient considered?

Regional coefficient is an indicator by which the salary of a person working in regions with difficult climatic and environmental conditions is multiplied.

When a sick leave is issued without violations, the regional coefficient is not calculated, since the benefit is calculated from actual earnings, which already take into account additional allowances.

If an employee violates sick leave or receives temporary disability due to intoxication, then the amount of benefits is calculated using the formula:

Days of illness * (minimum wage * 24/730 * regional coefficient) * percentage by length of service = amount of sick leave.

The procedure and example for calculating benefits (subject to a reduction in the amount from the day of non-compliance with the doctor’s instructions)

Benefit payments, subject to a reduction in the amount from the date of violation, are calculated as follows:

From the date of opening of the BC until the day of the violation, sick leave is paid in the usual manner.
From the moment of the violation until the closure of the certificate of incapacity for work, the amount is calculated based on the minimum wage. From May 1, 2021, this amount is equal to 11,163 rubles.

Example: Sick leave opened on March 10. The employee was supposed to come for an appointment on the 15th, but for an unexcused reason he came a day later. The certificate of incapacity for work was extended and closed on the 18th.

Let's say the average salary per day is 25,000*24/730=822 rubles.

From July 10 to July 14, the employee is credited 822*5=4110 rubles.

From July 15 to 18, the minimum wage (11,163 rubles) *24/730= 367 rubles per day, which means 367*4=1468 rubles from the moment of non-compliance.

1468+4110 = 5578 rubles for the entire sick leave.

The procedure and example of calculating benefits, which requires a reduction of the entire compensation

In cases of severe violation of the disability regime, the employer has the right to reduce the entire amount of payments to the minimum wage.

Typically, the underlying cause is injury or illness sustained while intoxicated. In the BC this is marked with code 21.

Example: An employee was unable to work from July 10 to July 15. The BC has code 21. Work experience – 4 years. Regional coefficient – 1.3.

11163 * 24/730 = 367 rubles - the minimum wage per day.

367* (60%/100%)*1.3 = 286 – daily payment to an employee according to the minimum wage.

286 * 10 (sick days) = 2860 the entire amount of sick leave.

Calculation of minimum wage benefits if the period of illness moves to another year and the size of the minimum wage has changed

If the sick leave transfers to the next year and the minimum wage changes, or it changes several times during the year, as happened in 2021, then benefit payments are calculated based on the “old” minimum wage at the time of which the sick leave was opened.

Example: An employee’s work experience is 20 years. He was on sick leave from April 25 to May 20, 2021. The certificate of incapacity for work indicates violations, according to which benefits are calculated according to the minimum wage. From January 1 to April 30, the minimum wage was 9,489 rubles. And from May 1, 2021, the amount increased to 11,163 rubles.

When calculating, you should take the amount current at the time of opening the sick leave, that is:

312 (average daily “old” minimum wage) * 26 (sick days) * 100% (according to length of service) = 8111 rubles - the full amount of the benefit.

The employee was very late in going to the doctor for closure (counted as absenteeism/vacation)

If an employee missed an appointment with a doctor and came back later, already healthy, then code 36 is entered in the “other” column - appeared healthy.

The doctor will not determine the moment of onset of working ability and will simply mark the day of absence as the day the sick leave ends.

Thus, the days from the missed appointment to the actual appearance are considered absenteeism and may result in a fine or dismissal from the workplace. In rare cases, the employer may treat missed days as unpaid leave.

Example: BC is open from June 1. The doctor's appointment was scheduled for June 4, but the employee only arrived on the 6th. His work experience is 8 years, the average daily salary is 822 rubles. The daily minimum wage is 367 rubles.

From 1 to 3 payments are accrued as usual: 822 * 3 * 100% = 2466 rubles.

For the 4th day, the employee will receive 367*1*100%=367 rubles.

The 5th and 6th are not subject to payment and are considered absenteeism.

It was a fact, but it was not reflected in the BL

If the employer or social insurance commission has identified violations of the employee’s hospital regime, but this is not indicated in the BC, you can submit an official request to the medical institution with documents or other evidence that confirms the fact of non-compliance with the regime.

Important: the organization does not have the right to independently make changes to the certificate of incapacity for work.

Noted in BC for care or BC

If an employee issues a BC to care for a relative, he is responsible for visiting a doctor and complying with medical instructions. In cases of non-compliance with the regime, the corresponding codes are entered on the certificate of incapacity for work. The amount of payments will be calculated in the same way as for sick leave payments due to the illness of the employee himself.

When registering sick leave for pregnancy and childbirth, the legislation of the Russian Federation does not provide codes for violation of the regime. Problems with receiving payments can only arise if there are errors or inaccuracies when filling out the document.

Payments for temporary disability are due to all officially employed citizens. If you strictly follow the medical requirements and visit the doctor in a timely manner, there will be no problems with the calculation of benefits. In cases where a violation of the regime occurred for a good reason, try to prepare documents confirming this and provide them, along with an explanatory note at the place of work, so that this has less impact on the payment of sick leave.

How can I pay for violation of the sick leave regime?

If an employee returned to work from sick leave at the request of management, then management’s task is, at a minimum, not to worsen the employee’s situation.

An economical option that can satisfy both the employee and the employer is this: when leaving an open sick leave, the employee is paid the salary for the days of leave. The sick leave benefit for the Social Insurance Fund is reduced from the date of the “violation” (date of withdrawal). At the same time, the benefit that would have been paid without violations is calculated and the difference between the second and first is paid to the employee by the organization. Remember that insurance premiums must be calculated from such additional payments, because it will be considered payment within the framework of the employment relationship.

Material aid. Instead of additional payment for sick leave, the employee can be paid financial assistance due to illness (very appropriate). In this case, the amount of assistance may even exceed the amount of benefits that would be received on sick leave.

Prize. This is also an option when benefits for the Social Insurance Fund are reduced due to violations of sick leave, but the employee’s work zeal must be encouraged. It should be remembered that you should not assign a bonus immediately after starting work. This will raise questions among various inspectors. It is better, in agreement with the employee, to pay him a bonus a little later. For example, at the end of the quarter in which he was sick.

What fields are indicated to the employer?

In addition to the information fields where the place of work and other data is indicated, the employer fills out coded fields. This is the line “Calculation conditions”. Two-digit codes fit into it:

43 – if the employee was exposed to radioactive radiation;
44 – work is performed in the Far North;
45 – the employee has an established disability group;
46 – the employment contract was concluded for a period of up to six months;
47 – the insured event occurred within 30 days from the date of dismissal;
48 – the employee violated the treatment regimen for a valid reason;
49 – if the disease lasts more than 16 weeks;
50 – if the disease lasts more than 20 weeks;
51 – the employee did not have time to earn enough to pay for the insurance premium or the amount of earnings is less than the minimum wage.

Codes 46, 49 and 50 are not indicated if the cause of the illness is code 11. In addition, codes 49 and 50 are indicated only for persons with disabilities. It often happens that an employee is subject to several codes. For this purpose, additional fields are provided in the “Calculation Conditions” column.

Results

Violation of sick leave entails recalculation of benefits not according to average earnings, but according to the minimum wage.
If an employee violated the regime in favor of the employer, for example, went to work on sick days, the violation remains a violation. To avoid problems with the Social Insurance Fund, it is better to recalculate the benefit. And in order to maintain a good relationship with the responsible employee, you can find a way to compensate him for lost benefits and provide additional incentives. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Rights of a subordinate on sick leave

During the illness, the subordinate retains his job. However, the employer may hire another person on a temporary basis on a fixed-term contract or invite the sick colleague to take on more responsibilities. But as soon as the sick person recovers and comes to work, all his duties will be returned to him in full.

If an employee is on sick leave, the employer has no legal grounds for dismissing him. The exception is the liquidation of the organization - in such a situation, the subordinate will not be able to keep his job, and the Social Insurance Fund will assume responsibility for paying benefits.

A sick subordinate is prohibited from being laid off or dismissed on grounds such as loss of trust due to his commission of any actions or violation of labor discipline. Even if the employer is forced to lay off the entire department, the sick subordinate will remain on staff at least until he recovers and returns to the office.

conclusions

In principle, it is not necessary to know the sick leave codes, but quite often controversial cases arise and then you can check that the attending physician has filled out the form correctly.

Other codes on the sick leave certificate You can also see encoded information in the following cells on the sick leave certificate:

"Additional code." For example, if these cells contain code 021 (illness or injury resulting from alcohol/drug/toxic intoxication), then the benefit may be paid in a smaller amount;
Relationship code. This code is filled in if sick leave was issued in connection with caring for a sick family member. For example, code “38” (“Mother”) means that the employee-parent was caring for her sick child. In this case, it will be indicated that the cause of disability is 09 on the sick leave;
Code indicating violation of the regime. Let’s say the code “24” may be indicated on the sick leave.