Termination of the employment relationship between employer and employee is common, but dismissal of an employee due to illness must be justified and legal. This situation is resolved by paragraph 6 of Article 42. Labor Code of the Russian Federation, which states that the basis for dismissal of an employee of an enterprise may be incapacity for work, the period of which exceeds 4 months.
There are exceptions to this rule. This applies to the period of maternity leave, as well as some serious illnesses that require long-term treatment. In this case, the job must be retained by the employee for more than four months. For example, if an employee is sick with tuberculosis, he can return to work after 12 months.
Procedure and features of the dismissal procedure
In the labor legislation of the Russian Federation, there is a procedure for dismissing an employee due to the presence of physical limitations. The main basis is a medical report. This is where the process of severing labor relations begins. Such a document must be issued by a clinical expert or medical-social commission, which indicates the reason for the disability: the name of the disease, injury or mutilation.
Only a clinical expert or medical-social commission can accurately show how possible it is for the employee to continue to fulfill his duties.
This document is the basis for issuing a disability rehabilitation card. It is the MSEC that makes a decision on the extent to which the employee’s further work is possible, in particular, the disability group is established.
Disability has three degrees:
- Third disability group (working).
- Second disability group (total disability).
- The first group (loss of ability to work and need for care).
As for the procedure for dismissal due to health conditions, the Labor Code of the Russian Federation states that it can only be carried out if, for medical reasons, this work activity is contraindicated due to the probable danger to the health of the employee and surrounding people.
The procedure for terminating an employment contract for medical reasons is based on the following reasons:
- Employee refusal to change position.
- The company does not have a suitable vacancy that matches the physical condition of the employee.
- Determination of total disability by the relevant medical commission.
An exception (the case when it is impossible to fire) is when the employee is on sick leave. However, the employment relationship can also be terminated in this case if the enterprise is subject to liquidation.
This is interesting! Find out about the peculiarities of dismissing pregnant women from our article - “Is a pregnant employee an untouchable figure or an employee with whom you can negotiate?”
Can they be fired without the employee’s consent?
To fire a person who has medical contraindications, it is not necessary to have the consent of the person being fired.
However, in some situations, a dissenting employee may refuse to sign a notice of termination of employment and the corresponding order, which may slow down the personnel registration process. However, in this case, the administration of the institution draws up a report indicating that the employee has read the documents, but refuses to put his signature on them . The act is certified by the manager and several employees confirming what is stated in it.
Rules for registration and sample documents
In order to strictly follow the letter of the law, to terminate employment obligations, the employee must provide the following documents:
- A health document issued by a health care institution.
- Written refusal of an employee to be transferred to another workplace.
- A document confirming the absence or presence of a vacancy suitable for transfer.
- Employee resignation letter.
- Original employee notice of dismissal with the obligatory signature of the employee.
Sample notice of dismissal due to health reasons - An order from the enterprise regarding dismissal indicating the reason related to the employee’s health.
Typical order form for a private or public enterprise
In this case, the corresponding entry is entered into the work book, where the reason for dismissal is “health status”.
In order to prevent problematic issues that may arise due to an employee’s reluctance to admit to health problems, the administration of the enterprise must ensure that employees undergo regular medical examinations.
List and calculation of payments upon dismissal for health reasons
The employer is obliged to make a full settlement with the employee.
If the dismissal of an employee is carried out solely at his request, he receives only compensation for unused vacation, i.e. on a general basis.
As a result of dismissal carried out under Art. 83 of the Labor Code of the Russian Federation, part 1, clause 5, or according to Article 77 of the Labor Code of the Russian Federation, part 1, clause 8, a disabled person is paid a two-week severance pay.
Example of calculating severance pay
First you need to calculate the average daily earnings: all payments issued in hand over the last year must be added up, the resulting amount divided by 365. Now this number is multiplied by 14 days. If an employee agrees to transfer to another position and it is less paid, he is paid the previous salary in the next month.
Let's say our employee quits due to health reasons, and he managed to work 11 days this month, plus he also has unused 28 days of vacation. The total salary for the past year, taking into account allowances and bonuses, is 540,000 rubles, and the number of working days is 245.
- 540,000 rubles / 245 days = 2,204 rubles per day worked.
- 11 days worked + 14 days (average earnings for the next two weeks) + 28 days (unused vacation) = 53 days.
- 53 days * 2204 rubles = 116,812 - final payment amount.
The deadline for completing the calculation is no later than the day of payment of wages for this month.
Do you want to know what the consequences of illegally dismissing employees will be for an employer? Read our article “Unlawful dismissal: what is considered such and what does it mean for the employer?”
Employer's liability
According to Art. 236 of the Labor Code of the Russian Federation, the employer must pay 1/150 percent of the key rate of the Central Bank of the Russian Federation for each day of delay for each day of delay. As mentioned, there are criminal and administrative liability. According to the Code of Administrative Offenses of the Russian Federation, you can receive a maximum fine of 50,000 rubles.
The Criminal Code of the Russian Federation is more strict; if payment is not made intentionally for several months, then the head of the company can receive up to 5 years in prison. This is also the maximum sanction.
Thus, a person fired due to deteriorating health may qualify for a number of payments. Some of them are typical for all categories of dismissed workers. But not everyone is paid severance pay.
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HR records management
The basis for filling out the work book of a dismissed employee due to loss of ability to work is the corresponding instructions. The entry in the document must correspond to the contents of the order and the employment agreement. The reason for dismissal is filled in the column “Information on hiring, transfer” with reference to a medical report and an article of the Labor Code of the Russian Federation. The date and order number are indicated in the “Name” column. The record is certified by the seal of the enterprise, as required by the Rules approved by the Government of the Russian Federation.
An example of filling out a work book in case of transfer of an employee to another position
Why should the manager and personnel officer of an enterprise be as prudent and scrupulous as possible regarding labor legislation? Because any step that is not verified with the law can lead to a conflict situation, and the dismissed employee can make legal claims. Particularly difficult is the moment when dismissal occurs due to limitations in work capacity. In this case, the employer must offer the employee another job (light work). If he refuses this position, he must do so in writing.
Each step must be supported by appropriate documentation, otherwise both parties may suffer. For example, if you make an unforgivable mistake in recording a work record (incorrectly indicate a link to an article of the Labor Code of the Russian Federation, which will lead to data inconsistency), and the person may face a lot of problems in the future. On the other hand, such a mistake can turn into a huge problem for the company if, after litigation, it has to pay a fine for violating labor laws.
It is worth noting that there is often confusion in the concepts of health status and professional incompetence. Professional unsuitability is a discrepancy between the professional qualities of an employee and the position held. Therefore, in the case of dismissal for health reasons, this formulation is unacceptable.
Features of dismissal due to disability
Unconditional dismissal can be made only in case of complete loss of ability to work, when neither party can object to such a decision. In other cases, the administration must require from the employee a document indicating the degree of disability received due to illness.
If this is, for example, the third group of disability, such a case provides for the restoration of health. Each individual situation is considered individually. It may well be that even with a disability, an employee can perform his or her duties. Within the framework of Russian labor legislation, this means that the employer does not have the right to fire him. Dismissal of a disabled person at the initiative of the employer is unacceptable; it is considered a violation of the law, for which he can be held accountable.
An employer can fire an employee with a disability only in certain cases, for example, if the employee himself wants to leave
If an employee with a disability has contraindications to this type of activity, it is advisable to transfer him to another, more suitable position, if such a vacancy exists. If an employee submits a written refusal, only then can he be dismissed in accordance with clause 8 of Part 1 of Art. 77 Labor Code of the Russian Federation.
So, there are the following reasons for dismissing disabled or incapacitated employees:
- If the state of health is such that a person cannot fully or partially perform his job duties, or working conditions directly harm his health and aggravate his physical condition.
- Lack of vacancies with appropriate working conditions for a disabled person.
- A written refusal of an employee with a disability or an incapacitated employee from a position offered by management or the human resources department.
- The employee expressed a desire to resign or change his current place of work of his own free will.
In relation to a disabled person, the wording can be used by mutual consent of the parties, which is used in cases of dismissal of ordinary employees.
Is work needed?
“Working off” refers to the employee’s obligation to notify his employer of his impending dismissal. In accordance with the Labor Code, this must be done in advance - 2 weeks.
However, this rule applies only if the reason for terminating the contract is the desire of the employee himself. Medical contraindications are circumstances that do not depend on the will of the parties, so there is no need to notify management in advance in this case. In other words, no rehearsal is needed.
