Dismissal of an employee while on sick leave. Is it possible to?

An illness or injury does not ask when it will happen, and especially does not take into account the plans of the employer or employees. How to properly combine sick leave and dismissal? Who will pay for sick leave if illness strikes soon after dismissal? What do employers have the right to do if their subordinates take sick leave too often or for long periods of time? Who should work in place of sick employees? We try to clarify all questions in this article.

What is the procedure for voluntary dismissal during sick leave and payment for employee days of incapacity?

At the initiative of the employee

Dismissal during sick leave at one's own request begins with a personal statement. The employee notifies in writing of his intention to resign at least two weeks in advance. He has the right to do this both during work and during absence, that is, when he is officially on sick leave or on vacation. The employer is obliged to dismiss him a maximum of two weeks after the warning.

The Labor Code of the Russian Federation does not prevent filing an application in any way; you can send it by mail, for example, by registered mail. In this case, the countdown of work time will begin when the employer receives the letter, and not when it is sent.

When leaving on sick leave at his own request, the employee is not required to work two weeks after the certificate of incapacity for work is closed. The period starts counting from the day following the day on which the employer received the letter of resignation. If a person has written a statement due to the inability to continue working (pension, enrollment in an educational institution), the employer is obliged to part with him on the day specified in the statement.

When sick days are endless

Weak health or malingering workers, or perhaps a mother with a frequently ill baby, are too often and for long periods of time unable to work? This situation is extremely unprofitable for the employer, despite the fact that sick leave is not paid out of his pocket. The Labor Code does not allow dismissal due to frequent sick leave, but employers in practice create such conditions for such employees upon returning to work that it is easier for someone who takes sick leave to resign at their own request or by agreement of the parties. You can understand them: they need employees, not sick leave.

What can an employer do legally if an employee is absent for too long and often due to illness?

1. If continuous sick leave lasts 3 months, then on the basis of clause 3 of Art. 81 of the Labor Code this means the employee’s professional incompetence, unless there is a different conclusion from the medical commission, which must be passed to extend sick leave for more than 1 month. In this case, the employer must offer the employee another position that is more suitable for his health. If there is no vacant position with the proper qualifications or the employee does not agree to it, dismissal will be absolutely lawful.
2. You need to pay attention to the institution that issued the certificates of incapacity for work. It may not have such rights. An employee cannot provide sick leave issued:
   sanatoriums;
3. mud baths;
4. donor center;
5. emergency care;
6. medical examiner's office.
7. You can check whether the employee provided real sick leave. To do this, you need to send a request to the medical institution about the officialness of the issued sick leave. The information is not a secret, and the answer will be received. If sick leave was not issued to this person within the specified period, there is absenteeism and a peremptory reason for dismissal. If the sick leave is legal, you can offer the employee to undergo an extraordinary medical examination to determine further professional suitability.

Thus, if the initiative to quit comes from the employee, then there are no obstacles preventing him from ending his career in this company. If the employer is not satisfied with the quality of the work being performed, he will have to find arguments and evidence to vacate the workplace. Most often, the Labor Code of the Russian Federation is on the side of the employee rather than the employer.

Upon expiration of the contract

The dismissal of an employee due to the end of the period of validity of the employment agreement is formalized as follows:

1. Send the employee a notice that the contract is expiring and invite him to dismiss him and present him with a work book. If the employee wishes, send it by mail.
2. Issue a dismissal order and inform the employee in writing.
3. Make an entry about the dismissal in the work book and personal card (clause 2 of article 77 of the Labor Code of the Russian Federation).
4. List the payments required upon dismissal.
5. Pay for sick leave provided by the resigned employee (carried out in full upon the onset of illness before the end of the contract).

How long can sick leave last?

The duration of the temporary disability certificate depends on the reason for taking sick leave. In addition to illnesses and injuries of the employee himself, it is allowed to take sick leave to care for sick family members, a child or a relative with a disability.

As a rule, the standard duration of sick leave due to illness is about two weeks. In order to renew the ballot, the patient must undergo a medical examination. It should also be noted that there are certain diseases for which the recovery period can be several months.

By agreement of the parties

This is the only opportunity to part with an employee at the request of the employer when he is on sick leave. But a compromise will have to be found. If an employee refuses to agree to a settlement, he cannot be forced. To dismiss, the employer will have to wait until the employee has fully recovered and the sick leave period ends. The accounting department will calculate and pay the necessary amounts for sick leave.

If the period of illness and sick leave extends beyond the total period of service, the person can be fired on the day specified by him at his request in the resignation letter.

On the day of dismissal, the employee receives the payments and wages due for the period of work. When a certificate of incapacity for work is issued no later than 30 days after dismissal, the employer pays compensation in the amount of 60% of average income.

Is sick leave included in working off?

An employee may fall ill during compulsory work. An employer does not have the right to force an employee to work, motivating his actions by the fact that the latter was on sick leave while working.

This is also important to know:
Dismissal due to the death of an employee: step-by-step instructions for registration

Sick leave counts toward the mandatory two-week period of work, even if it is closed after the employee’s dismissal. In addition, sick leave will be fully paid.

Who can't be fired while on sick leave?

An employer does not have the legal ability to fire those who are officially on sick leave or on vacation. This can only be done when the employee returns to the workplace.

You can't fire a pregnant woman.

On its own initiative, the employer can formalize dismissal on sick leave only upon liquidation of the enterprise (Part 6, Article 81 of the Labor Code of the Russian Federation). You can part with an employee who is sick only in the following cases:

• upon liquidation of an enterprise;
• at the employee’s own request;
• by agreement of the parties;
• upon expiration of the period of validity of the fixed-term employment agreement.

Other dismissal options will be illegal. The employee may go to court, and he will have to be reinstated in his position and paid wages for the time he was listed as dismissed.

Dismissal if an employee is pregnant

Also very important is the issue of dismissing a pregnant woman, since she is also issued a certificate of temporary incapacity for work indicating the cause of illness number 5. Often the employer does not know about the pregnancy of the employee, and for a number of reasons her dismissal occurs, then by court the pregnant employee must be reinstated to work place.

If the end date of cooperation specified in the contract and signed by both parties has reached, the employee cannot be dismissed, as, for example, in the case of a common illness, such a contract is extended until the end of the pregnancy. But a pregnant woman works instead of someone until a certain date, after which it is not possible to offer the employee another place, then dismissal is allowed.

In the case where a contract was concluded with a woman expecting a child before a certain period, it must be postponed until the pregnancy ends (birth of a child, miscarriage or medical abortion). Upon the birth of a child, dismissal occurs on the day the maternity and pregnancy leave ends. If an accident occurs and the child is no longer alive, the employee can be fired only seven days after the employer finds out about it.

Do I need to work 14 days?

As with any dismissal, this depends on the agreement with the employer. But it is important to remember that the employee is not required to work for two weeks upon the closure of the certificate of incapacity for work. The countdown of the period begins on the day following the day the employer receives the notice of dismissal.

If a person quits and falls ill during a two-week work period, then this period cannot be extended by the number of days of illness, like a vacation. You can’t force someone to “work” after an illness. For example, an employee was sick for 10 days, upon recovery he will work only 4 days: the period of 14 days for working off includes the period of sick leave, without extending this period.

IMPORTANT!

It is impossible to force an employee to work all 14 days after the end of sick leave!

Legal deadlines

An employee may bring sick leave for payment not immediately, but within six months from the date of recovery. It does not matter in what period he was fired: before the illness, during it or after it. Even if the sheet was opened some time after dismissal (up to 30 days), then within 6 months after recovery the former employee has the right to apply for temporary disability benefits (Part 1, Article 12 of the Federal Law of December 29, 2006)

IMPORTANT INFORMATION! Since 2015, disability benefits for more than 3 days have been paid from the Social Insurance Fund, so employers have fewer and fewer reasons to evade legal payments.

Benefit payments must be scheduled no later than 10 days upon presentation of the slip, and payment for them will be made on the next payday.

A regular sick leave certificate is issued for up to 30 days. If you fail to recover during this time, an extension is possible based on the results of a special medical commission. If there is no conclusion about professional incompetence (that is, after recovery it will be possible to return to your previous job), sick leave can be extended to a maximum of 10 months.

How to properly file a dismissal while on sick leave

Termination of an employment contract during sick leave is carried out according to the algorithm provided for by the Labor Code of the Russian Federation (Article 80, 84.1):

1. The employee sends the application to the employer in person or by mail.
2. The employer issues an order indicating the date. Remember that the employee has the right to withdraw the application. In this case, dismissal is not formalized. There is only one exception - a written invitation to replace the dismissed person with another person, whose employment is impossible to refuse due to the norms provided for by labor legislation.
3. The employer familiarizes the employee with the administrative document in writing. If the person resigning is absent on this day, the employer records in the order the impossibility of informing him in writing “due to absence from the workplace.”
4. On the last day of work, the employer issues the employee a work book and finally pays him off. If the employee is not present, the employer sends him a notice to appear for a work book or invites him to agree to send it by mail. If there is no consent to send the work book by mail, the employer is obliged to keep the document and issue it after a written request.

If you plan to be dismissed by agreement of the parties while on sick leave, proceed as follows:

1. Make a decision and come to an agreement on the terms of termination of the contract.
2. Draw up an agreement. The form of the document has not been established. The agreement is drawn up in two copies, which are signed by both parties. One copy is kept by the employer, the second by the employee.
3. Issue an order to terminate labor duties on the basis of “agreement of the parties” with reference to clause 1, part 1, art. 77 Labor Code of the Russian Federation.
4. On the last day of work, issue a work book and money (salary, sick leave, vacation pay, compensation, etc.).

Responsibility of the employer for illegal termination of the contract?

An employer who illegally fired an employee who is on sick leave will bear financial, administrative, and in some cases criminal liability:

• administrative (Article 5.27 of the Code of Administrative Offenses of the Russian Federation) - fines are provided (up to 50 thousand rubles for an enterprise, up to 5 thousand for individual entrepreneurs).
• criminal (Article 145 of the Criminal Code of the Russian Federation) - involving a fine of up to 120 thousand rubles, or withholding the defendant’s salary for a year, or forced labor for 2 years, or a prison term of up to 1 year.
• payment to the employee of compensation for forced absence (Article 394 of the Labor Code of the Russian Federation);
• compensation for moral damage (Article 237 of the Labor Code of the Russian Federation) - in this case, you will need to prove the severity of the consequences of losing your job.

Also, an illegally dismissed employee will need to be reinstated (Article 394 of the Labor Code of the Russian Federation).

An example of a court decision on the issue of moral compensation.

The Supreme Court of the Republic of Sakha (Yakutia), having considered case No. 33-2525/2017 about the illegal dismissal of an employee, confirmed the existence of a connection between the progress of his disease and the loss of his job. The amount of compensation for moral damage was 50 thousand rubles.

Where to go to protect your rights?

You can challenge illegal dismissal when you are fired while on sick leave within 1 month from the date of termination of the employment contract.

To appeal, you can contact:

• with a written complaint to the employer;
• to a trade union organization, if the employee was a member of it;
• to the Labor Inspectorate;
• to the prosecutor's office;
• to court.

Read more about where an employee who has been illegally fired can turn to here.

It is recommended to send complaints immediately after dismissal to several authorities so as not to waste time. However, the court may extend the period for filing a claim if there are compelling reasons (for example, illness).

Example.

Ivanov V.A., who was on sick leave, was forced to write a letter of resignation at his own request. At the same time, the employer came to his home for an application and immediately gave him his work book.

Ivanov recorded the conversation on a voice recorder and saved the correspondence in the messenger. Now it will be easy for him to send a complaint to the labor inspectorate, the prosecutor's office or the court, attaching the relevant facts of coercion, and restore the violated rights.

Read about how to correctly draw up a statement of claim for unlawful dismissal here.

How does reinstatement work?

If a decision is made in favor of an employee who was illegally fired while on sick leave, the employer is obliged to reinstate him at work on the same day and under the same conditions . That is, the employee can go to work the very next day.

Restoration is carried out in several stages:

• the manager accepts an order for reinstatement by a court decision, which cancels the previous order of dismissal,
• The employee must familiarize himself with the order against signature,
• amendments are made to the working time sheet - a “forced absenteeism” code is entered for the period of absence of the employee,
• changes are made to the employee’s personal card and work book.

Compensation for forced absence is calculated using the formula:

Compensation = Average daily earnings × Number of days of forced absence

Average daily earnings are calculated for the year preceding the illegal dismissal. The payment is calculated together with wages.

Example.

By the decision of the court Popova I.S. was reinstated. Her average daily earnings for the past year were 1,500 rubles. The number of days missed due to the employer’s fault is 23.

The compensation will be: 1500 × 23 = 34500 rubles.

How to write a statement

The dismissal of an employee on sick leave is carried out at his own request. It must be written and handed over to the boss at least 14 days before the date of dismissal (Part 1 of Article 80 of the Labor Code of the Russian Federation). In some cases, the notice period may be different.

The employee fills out an application in free form. You can write it by hand or type it on your computer and then print it out. The document must include the following information:

• FULL NAME. and employee position;
• the name of the institution in which the person works;
• the date on which termination of the contract is planned;
• date of compilation.

The statement must include the words “at your own request.” The employee signs the paper.

An application for voluntary resignation is sent to the employer before going on sick leave or while on sick leave.

Having received a voluntary resignation letter from an employee, you need to check that it contains three main points:

• the desire to terminate the contract at one’s own request (that is, the phrase “please fire me at one’s own request” is present);
• date of voluntary dismissal;
• employee signature.

Procedure

There is a certain procedure for registering the dismissal of a person on sick leave.

If you comply with all the requirements, you can circumvent the law and correctly resign with the payment of all the money earned.

They must also pay for sick leave.

Submitting an application

The application must be submitted before or during sick leave.

An application is written addressed to the authorities, and the position, structure, department, and full name of the applicant are also written there.

And only then a request for dismissal is written down with the reason for leaving. Then the date of work and the last day of return to work are entered. It is on this day that all funds due must be paid and a work book issued.

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Making an order

The order is issued on the last day after work.

If there is a sick leave certificate, then registration is made either according to it or according to the date of the application.

The order also specifies the position of the employed person, the structural unit, and the last day of work.

The date of drawing up the order is also indicated here; the person resigning gets acquainted with it and signs it if he agrees.

Entry in the work book

An entry in the form of dismissal at will is made in the work book. The date and signature of the citizen who has read it is entered here.

After this, the employer's company seal is affixed. The final payment is made.

How to place an order

The employer issues a notice of dismissal on the employee's last day of work. If there is a certificate of incapacity for work, the order is issued according to the data of the sick leave certificate or according to the date of the application.

The dismissal order includes information about the position of the person leaving and the department in which he works. The date on which the employee quits is indicated, that is, the last working day, and the date of publication is indicated. The person leaving must be familiarized with the dismissal order in writing.

A dismissal document can be drawn up using (at the employer’s request):

• forms T-8 (Decree of the State Statistics Committee No. 1 of 01/05/2004);
• independently developed format.

If the employer uses the T-8 form, the basis for dismissal must be reflected using the wording of clause 3, part 1, art. 77 of the Labor Code of the Russian Federation: “Termination of an employment contract at the initiative of the employee, paragraph 3, part 1, art. 77 of the Labor Code of the Russian Federation.”

An employee is sick, who should work?

If the business suffers significantly from the absence of an employee, then someone must perform the functions of the absentee. What is it permissible for an employer to do, since it is not yet possible to fire an employee:

• temporarily assign the sick person’s responsibilities to other employees with appropriate qualifications (through external part-time work or combination of positions, with the drawing up of an additional agreement to the employment contract);
• hire another employee by concluding a fixed-term employment contract with him, in which the wording “until the permanent employee leaves sick leave” must be entered.

What entry should be made in the labor report?

The employer makes an entry in the work book about dismissal at his own request. The document indicates the date of termination of the contract and the signature of the resigning employee.

The employer stamps the book.

The entry reflecting the fact of termination of the contract is formulated indicating the grounds for dismissal from clause 3, part 1, art. 77 of the Labor Code of the Russian Federation: “The employment contract was terminated at the initiative of the employee, clause 3, part 1, art. 77 of the Labor Code of the Russian Federation.”

Terms and payment procedure

The employer finally pays the quitter on the last day of work. Absence on a certificate of incapacity for work must be paid on a general basis.

If on the last day of work the employee is not on site, payments are made no later than the day following the day when the employee made a request for payment (Article 140 of the Labor Code of the Russian Federation). The employer pays him benefits for the entire period of illness until the day he is restored to work.

There is a limit on payment of benefits. It is established by the employer with whom the employee terminated the employment contract. The limit is 60% of average earnings. The benefit is paid if the employee falls ill no later than 30 calendar days after dismissal. If he fell ill during work and did not go to work until the day of dismissal, sick leave is paid according to the general rules.

What to do in case of long-term sick leave if the contract term is coming to an end

Standard practice allows you to fire an employee whose employment contract has expired with minimal effort on the part of the employer. The latter only needs to send notice to the dismissed employee no later than three calendar days in advance (Article 79 of the Labor Code of the Russian Federation). In the event that an employee falls ill and does not show up for work by the end of the employment contract, the procedure changes slightly. The expiration of the employment contract serves as an independent basis for the dismissal of an employee. Even judicial practice confirms (see Determination of the St. Petersburg City Court dated October 18, 2010 No. 33–14178/2010) that in this case the organization has the legal right to terminate the relationship with the employee, despite his being on sick leave.

However, there is a nuance here too. It is critically important to comply with the deadlines for notifying the employee of his upcoming separation from the employing company (see Article 79 of the Labor Code of the Russian Federation). Otherwise, a situation may arise when the employment contract expires and the employee is never fired. In this situation, a fixed-term employment contract ceases to be fixed-term and becomes indefinite (see Article 58 of the Labor Code of the Russian Federation and the Determination of the Moscow City Court dated September 14, 2010 No. 33–28629), so that dismissal of an employee due to the expiration of the contract becomes impossible.

Video: what to do if an employer threatens to fire you for sick leave

How to calculate sick leave upon dismissal

To calculate the amount of payment for a certificate of incapacity for work, you can use the following algorithm:

1. Make a sample of salaries for the 2 years preceding the desire to quit (if such a period has not been worked out at the institution, when applying for a job, the applicant provides certificate 182n, which contains information about his salary at the previous place).
2. Sum up your earnings for 2 years, divide it by 730 (or 731) - the number of days for 2 years - and in this way get the average daily salary.
3. Information about the existing insurance experience will provide information on the volume (100% (experience more than 8 years), 80% (experience 5-8 years), 60% (experience up to 5 years)) the payment should be accrued.
4. The average daily amount must be multiplied by the available % and get the sick leave calculation amount.
5. Upon dismissal, an employee must receive a certificate 182n from the accounting department. It must be given to the next employer.

IMPORTANT!

Calculations upon dismissal will be simplified by the average earnings calculator.