Is sick leave included in the pay off upon dismissal? What does the law say?

The employee has the right to terminate the employment agreement at any time convenient for him at his own request. This right is reserved for every person in accordance with Article 80 of the Labor Code. Such a separation does not always happen on a happy note; most often, employees break off their relationship with the employer if there is a conflict or bad relationships in the team. By law, management can force an employee to work 2 weeks before leaving the position. Let's try to figure out whether sick leave is included during working hours during the dismissal process?

Is sick leave considered work upon dismissal?

To the question of whether sick leave is included in working off, the legislation gives an unequivocal answer - yes, it is. It should be borne in mind that the law does not enshrine such a term at all - working off. Rather, this concept already refers to work ethics, to the category of agreements between a boss and a subordinate. The law does not prohibit termination of cooperation. It obliges the citizen to notify the boss about this in a statement no later than two weeks before the date of the planned departure. This is exactly what the director needs to find a new candidate for the vacant position and prevent downtime in the business, and for the outgoing director to make a decision.

Sick leave is included in work upon dismissal

Important! Throughout this entire period of time, the subordinate retains the right to change his mind and withdraw the application. If the boss has not yet selected a new applicant, he has no right to refuse.

Application for withdrawal of resignation letter

Thus, the two-week period of time from the submission of the application and the moment the entry appears in the work book about the termination of cooperation is not increased under any circumstances. Even if a person fell ill the very next day after the decision to leave was made and recovered only by the end of the fourteen-day period, the date of termination of the contract remains the same. It is illegal for your boss to demand that you work off missed days. Refusal to pay for a ballot, too. The period of illness is subject to payment in full, even if at the time of closure the two-week period has expired and the employee has transferred to the former category.

The period of illness must be paid in full

Important! However, all these rules apply if the cooperation took place precisely under an employment contract. The contract for paid services relates to the civil law sphere and does not provide any guarantees of the Labor Code. But even in this case, the general director does not have the right to detain the departing person or not issue documents to him.

Extension of the term by the employer

Let's return to what was discussed at the beginning of the article:

1. There is no talk of any development in the Labor Code of the Russian Federation.
2. The law only says that the employee must warn his management in advance that he is going to quit.

In general, these 14 days are given to the employer to find a new employee for the vacant position in order to. This is a very correct requirement.

But it can be argued that if a resigning person goes on sick leave, then this will also affect the performance of the organization, its productivity, etc. Yes, this is true, however, the right of a company employee to carry out his own treatment is placed by law higher than the interests companies _ And this is also fair.

After all, any employee can go on sick leave: both those resigning and those who plan to continue working in the organization. This is, of course, a force majeure circumstance. But the problem with its occurrence needs to be solved in some special way. For example, by preparing universal workers capable of performing different functions and combining positions within the same company.

Let us add that in 2006, Rostrud gave its clarifications on the stated issue. The opinion is similar to that stated above: if 14 days have passed since the employee submitted the application, then he should be released . It doesn't matter whether he was sick or not.

Our experts have prepared interesting publications on the topic of paying sick leave after an employee’s dismissal. From them you will learn:

• Will the ballot be paid if a person gets sick after dismissal, as well as the rules and procedure for such payment.
• How long after dismissal can a certificate of incapacity for work be paid, what documents will be required and what to do if you are denied such payment?
• Can an employer refuse to pay sick leave to a former employee after dismissal?

Decor

Terminating cooperation with a sick employee is no different from the standard procedure and includes the following steps:

• filing an application;
• provision of a correctly executed document on incapacity for work at the end of the illness;
• issuance of an order by the director;
• calculation, issuance of documents.

The documentation also indicates the passport details of the participants in the relationship, the basis for termination of work (Article 77 of the Labor Code) and the date. The fact of illness is not emphasized. The same basis as in the order is entered in the work book.

General grounds for termination of an employment contract

Working off rules

According to the Labor Code of the Russian Federation (Article 80), an employee can terminate the employment relationship at his own request.

This article stipulates that for this the employee must notify the employing organization in advance. To maintain relations with the employer, of course, the employee is recommended to notify the employer as much as possible in advance of his plans to terminate the employment relationship.

The legislator has determined the minimum notice period to be two weeks. This period of time, at the discretion of the parties, can be longer or shorter, the only condition for this is the existence of an agreement between the parties to the rental agreement.

When urgent events occur for the employee, for example: admission to an educational institution, long-term academic trip abroad, conscription into the army, etc.

the employer terminates the employment relationship within the period indicated in the employee’s application, without the so-called “work off” provided for by law.

At the same time, Rostrud, in its letter dated September 5, 2006. No. 1551-6 clarified that the right of an employee to terminate the contract of employment is absolute and universal, i.e. valid while the employee is on vacation or sick leave, etc.

The above are theoretical and declarative provisions. Sometimes reality differs from the letter and spirit of the law, and the employer inexorably demands two weeks of actual work instead of or after sick leave, guided by petty interests, especially if the employee is a valuable personnel.

In this case, the employee needs to firmly know his rights, study in detail the above article and the explanation of Rostrud.

In addition, the employee needs to know that the employer's threat not to accept or sign the application has no legal consequences for the employee.

The only thing an employee needs to do in the event of such behavior by the employer is to send a letter of resignation by mail with notification of receipt of the message by the addressee. The notice and receipt for payment of postage must be retained for possible further proceedings of the labor dispute in the appropriate authorities.

The application must indicate the delivery time of the postal item and add two weeks to it as the date of termination of the employment contract. The statement can be completed with a small threat, expressed in the form of a request, which consists of terminating the contract and issuing a work book on time in accordance with the law and notifying the employer of possible appeals to supervisory authorities and the labor inspectorate otherwise.

The application can be completed with a request to send the work book and payment record by mail to the employee’s address, but this is from the category of theoretical advice, since the employee will still have to come to work and sign for receipt of the calculation and work book, financially responsible persons will also have to draw up acts of acceptance and transfer of goods and materials etc.

Features of Bulletin Compensation

The head of the enterprise is obliged to pay sick leave in any case, but in different situations the rules for calculating compensation differ.

So, as a general rule, if a person gets sick and then leaves the company at the agreed time, 60% of the average income is paid for the period of illness (Federal Law No. 255-FZ, Article 7). If a subordinate submitted a written application to terminate cooperation during illness or fell ill in the last two weeks before dismissal, compensation is calculated based on the insurance record.

Sick leave calculation

In a situation where the head of the organization insisted on terminating cooperation, and a subordinate brings in sick leave, opened on the day of official dismissal, such a note is also paid for, and the date of dismissal is shifted. But the ex-subordinate will not be reinstated in his position (Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004 “On the application by courts of the Labor Code of the Russian Federation”).

Sick leave payment calculator

Go to calculations

Payment refusals: how to protect your interests in this difficult situation

There are several legal grounds for which sick leave is not paid:

1. Forgery or incorrect execution of a sick leave certificate. In this case, it is necessary to contact the police and further investigate the incident.
2. A sick leave certificate is issued by a specialist who does not have the right to do so.
3. Due to some circumstances, the sick employee violated the regimen prescribed by the doctor; information about this should be contained in the sick leave certificate.

If a dispute arises about the authenticity of a document, at the first stage of resolving this issue, you just need to talk with your superiors and find out the main reasons why the sick leave was declared invalid. You should also submit a request to the organization’s accounting department to provide a photocopy of your personal file, as well as a copy of the refusal to pay. At the final stage, experts recommend contacting the labor dispute commission or appearing in court.

Grounds for dismissal

Any sick leave is paid after closing, no matter whether the person was fired during this time or not and on what grounds - it could be the subordinate’s own initiative, or an agreement of the parties, or a reduction in staff.

Attention! If a company is reducing staff, then the person subject to this measure receives:

• salary, including bonuses;
• payment of severance pay;
• average earnings at the time of employment (you will have to provide documents confirming the fact of registration with the employment center);
• sick leave payments.

Application for termination of employment contract

However, this is only possible if the official reason for leaving is layoff. In this case, the person is informed about the termination of the contract in writing no later than two months before the date of his planned departure. Sometimes employers, in order to save themselves from hassle and extra costs, offer to “save each other’s time and nerves,” that is, to arrange everything by agreement of the parties. However, in this case, the dismissed person is only entitled to payment of bonuses and sick leave. There is no talk of any compensation for loss of work, which is provided for by labor legislation for those laid off. The agreement of the parties is considered by law as their own initiative.

So before agreeing to something like this, you should weigh all the possible consequences.

Responsibilities of employee and employer

Early termination of a concluded employment contract is also possible. For example, if the organization’s staff was laid off. Even before the date after which the employment contract is considered terminated, the employee has every right to withdraw his application for dismissal back. However, if his place is already taken by a new specialist, this cannot be done. Also, the date of dismissal of a person may be a date before the expiration of the two-week period; this must be agreed with the employer.

If an employee wants to go on sick leave, the employer cannot increase the time allotted by the legislator for working. Sick leave that falls during work is fully payable upon dismissal. If the employment contract was terminated before the sick leave actually ended, the employer must still make payments to the person who resigned.

The employer’s responsibilities, according to the law, include mandatory payment to the employee of funds during the first 3 days of sick leave. After this period, payments become the responsibility of the Social Insurance Fund. The size of payments and their quantity will be directly dependent on the reasons for which the ability to work was lost. However, the maximum amount of payments cannot exceed 270,000 rubles per year.

In order to more accurately find out the specific reimbursement figure, it is necessary to calculate the sick leave. As a rule, when a person goes on sick leave, he hopes to receive a certain amount of money from the state or employer. You can calculate what this payment will be yourself using a specially designed algorithm. It takes into account the following factors:

1. At the first stage, the accountant calculates the entire amount of payments that were accrued to the employee during the last two years of his work.
2. At the next stage, the resulting amount is divided by the number of days worked by the employee. The average is usually about 300 days per year.
3. Using this method, we calculate the average person's earnings per day. Then you just need to multiply the number of days of sick leave and the average daily wage.
4. The resulting figure must be multiplied by the work experience coefficient.

An employee has the right to a certain number of days on sick leave, and this number is determined by the specific type of leave. For example, if a person has a disease or injury, then the specialist can enter a maximum period of 15 calendar days and no more into the sheet. Medical professionals such as paramedics and dentists can issue sick leave only for 10 calendar days.

In cases where the periods indicated on the sick leave were exceeded for some reason, it can be extended for another 15 days.

If an employee takes sick leave due to pregnancy and childbirth, then the main period that can be counted on is 140 calendar days. The first half is allocated for the period before childbirth, the second, respectively, for the time after the birth of the child. If two or more children are born, the period increases significantly to 194 days. In this case, the period before birth will be 84 days.

If an employee decides to adopt a child under 3 months old, then he also has the right to legal sick leave, the period of which is seventy calendar days. The sick leave period begins to be counted from the moment the adopted child is born. If a family decides to take several children at once, the period will be increased to 110 days.

Also, a person working in an organization has the right to subsequent sick leave to care for a child:

1. If a preschool-age child is sick, the sick leave will include the entire duration of his illness.
2. Children from 7 to 15 years old are sick - the period of temporary incapacity for work can include up to 15 days for any disease. From this we can conclude that such leave can be granted more than once.
3. For caring for a sick child over 15 years of age, the maximum period will be 3 days.

Dismissal at your own request on sick leave

The law does not prohibit dismissing a person who is on sick leave; the whole question is only in the grounds. At the request of the director, such a measure is unacceptable (Article 81 of the Labor Code). But if the sick person decides to leave, he cannot be refused. Here the emphasis is placed precisely on the “paper” side of the issue:

Thus, the difference is precisely in the calculation of compensation and in what date to put in the documents.

Own wish

There are many reasons that can provoke an employee to leave the company, ranging from low wages to poor relations with the team. Regardless of the reasons, type of actions performed, as well as length of service, an employee has the right at any time during his working life to submit a petition for dismissal from work at his own request.

The employer cannot refuse this desire. The director retains the right to refrain from drawing up dismissal documents for two weeks, during which the resigning employee is obliged to fulfill his job duties.

Sometimes there are cases when an employee goes on sick leave during the period of work before dismissal. Since it is impossible to foresee the occurrence of an illness, as well as to calculate the duration of treatment, the legislator has developed a formula for calculating working time in this case.

According to the general rule, the period of sick leave when working two weeks upon dismissal is fully counted towards the specified period.

While undergoing outpatient or inpatient treatment while working out upon dismissal, the employee can be calm, since each working day is counted in the allotted two-week period. Regardless of when the sick leave is terminated, the employer is obliged to issue a dismissal order within a strictly prescribed period.

If the application for settlement was submitted on July 1, then on July 16 all relevant papers (order, work book, confirmation of all financial compensation) must be ready. Even if the treatment is delayed (after the 16th), the documents must be ready on time.

The employee, in turn, can, after leaving the hospital, come to the institution to pick up a package of documents or apply for the remote sending of papers to their home address. This appeal is formalized by telegram and sent to the enterprise. After recovery, you won’t have to knock on doorsteps to pick up personal papers.

Sick leave before dismissal due to reduction

Notice of upcoming dismissal

As already mentioned, the reduction is warned at least two months before the date of the planned termination of the contract (Article 81, clause 1 of the Labor Code, Article 180, part 2 of the Labor Code). But even during this two-month period, the subordinate may get sick. If this is exactly what happened, that is, the date of departure is shifted, it is impossible to dismiss as previously planned - this is a violation of the law. Illness before layoff does not in itself constitute a reason for prolonging this two-month period, but only in the event of liquidation of the company, that is, the company completely ceases to exist.

In other cases, it is not allowed to dismiss a subordinate until he returns from sick leave.

How is sick leave paid?

The period of temporary disability of any employee, including an external part-time employee, after dismissal is paid within thirty days, and this rule applies in the case of the initiative of the person resigning, and at the initiative of the employer.

The situation is similar in other cases in accordance with current legislation: upon dismissal due to staff reduction, inability to continue working due to a disease acquired for any reason, etc.

What you need to know:

1. The basis for payment after termination of the contract is solely a certificate of incapacity for work, a work book, and in the regions where the FSS “Direct Payments” pilot project is being implemented, also an application from the sick person.
2. The opening date of the sick leave must be during the period of work or no later than 30 calendar days after dismissal.
3. An employee has 6 months to present sick leave, but if he fell ill before the date of dismissal and does not present sick leave upon dismissal, then this period will not be taken into account in his final payments until he documents this.

As a general rule, the first three days of sick leave are paid at the expense of the employer, the rest at the expense of the Social Insurance Fund. As a rule, the organization pays for the entire sick leave, and then the Social Insurance Fund reimburses it for these funds, with the exception of payments for the first three days. In the regions participating in the pilot project, payment occurs in two stages: first, payment comes from the employer, and then within 10 days from the submission of information to the Social Insurance Fund by the employer.

You should not think that legislation only protects the rights of employees; the rights of the employer are also legally protected from unscrupulous employees who want to abuse their rights.

Payment after dismissal

When the cooperation has already been terminated, different rules apply - the employer is, as it were, partially responsible for the fact that the person got sick and is obliged to compensate him for this. The payment is calculated based on 60% of the average earnings of the ex-subordinate (Part 2 of Article 7 of Federal Law No. 255-FZ).

The notice after dismissal is paid in case of illness or injury - a month is allotted for this from the date of termination of cooperation (Order of the Ministry of Health and Social Development No. 624n).

Post-dismissal ballot paid in case of illness or injury

Important! At the same time, it is not necessary that the person be sick for exactly the indicated thirty days and no more; all days will be paid for.

Thus, the answer to the question: whether to pay for correctly issued sick leave to a dismissed person is one - yes, pay. Compensation can be calculated according to different rules, depending on the circumstances, but what is important is that it should be there. And if a person fell ill during the last fifteen days after submitting a letter of resignation, it is unacceptable to move the date of termination of cooperation and demand to work out the missed days.

Is it possible to take out a certificate of incapacity for work and resign?

An employee has the right to leave work at any time, even while on sick leave. The main thing is to submit your application two weeks before the expected date of dismissal. So you don’t have to worry about whether you’ll be forced to work 2 weeks if a person goes to BC. If all of these two weeks fall on sick leave, he does not have to work additional time.

According to Part 1 of Art. 80 of the Labor Code of the Russian Federation, an employee can leave his position at any time at his own discretion. He must notify management of this fact and submit an application in advance so that the employer can find a replacement for him. With the consent of the management, dismissal is allowed earlier than 14 days. Therefore, if management does not object, you can leave your job after a few days of work, or immediately after submitting your application.

An employee may become ill after he submits his resignation. This will not affect the term of service in any way, since the employee’s being on sick leave does not prevent the employer from looking for a new candidate for the vacated position. Even if the employee is temporarily disabled for the entire 14-day period, he will not have to go to work after the sick leave is closed for another two weeks.

If a former employee takes sick leave within 1 month from the date of dismissal, then the employer will have to pay him sick leave after the position is vacated.

Read about how to quit without working while on sick leave here.