Dismissal of an employee on sick leave. Sick leave after dismissal

Last modified: January 2020

It would seem that the procedure for terminating an employment contract at the initiative of the worker is simple, however, HR officers often have difficulties if they are to be dismissed at their own request on sick leave. Indeed, there are some subtleties that should be taken into account.

If a worker asks to be released due to an event tied to a specific date, an application should be submitted in advance. The employer has the right to demand two weeks of work (Article 80 of the Labor Code of the Russian Federation). Two weeks are counted from the date of application (not including it). A worker may be dismissed earlier with the consent of the administration.

A citizen hired for a period of up to two months must submit an application three days before termination of the employment relationship.

Is it possible to fire an employee who is sick?

The worker has the right to submit an application for dismissal, and sick leave may be opened during this interval.

The legislation allows termination of relations with a sick employee on his initiative, by agreement of the parties. The same rules apply if a fixed-term contract is concluded.

The legislator prohibits the dismissal of a sick person on the initiative of the administration. If an employee went on sick leave on the day of dismissal, he should wait until he leaves before leaving. The exception is the case of liquidation of the organization.

Is sick leave included in working off?

1. If the person resigning does not return to work before two weeks have passed, he or she will be dismissed on sick leave. The employee is fired on the date of termination of the contract established upon application.
2. If the resigning employee closes his sick leave during dismissal work, before its expiration, the employer dismisses the employee on the set day.

How is sick leave paid upon dismissal?

Sick leave upon voluntary dismissal is paid for all days when the employee was sick, including weekends and holidays.

If an employee left the organization during a period of illness, the amount of compensation is calculated in the general manner (Federal Law of December 29, 2006 No. 255-FZ, Part 1, Article 6).

Dismissed on August 28, 2018, Kozhevnikov A.R., was ill from September 5, 2018 to September 20, 2018. He has the right to compensation for temporary disability: the onset of the illness falls within a thirty-day interval. Kozhevnikov has the right to demand payment of the amount until March 21, 2019.

Insurance experience

The time when insurance amounts were transferred for a citizen to extra-budgetary funds (Federal Law -165 of July 16, 1999). If a citizen was engaged in individual entrepreneurial activity, contributions to the funds were made, the period is considered an insurance period.

30 days constitute a month, 12 months constitute a year interval.

It is counted on the day preceding the onset of disability.

Intervals included:

• work under an employment contract;
• civil services, municipal services;
• military service;
• other cases.

Amount of compensation for temporary disability

If the newly hired employee’s work experience is less than six months, the calculation is based on the minimum wage (from 01/01/2018 – 9489 rubles).

If a person had no income, it is below the minimum wage, the calculation is carried out based on the established minimum wage.

B = Dbol.*Zav.

Dbol. – the number of days when the worker was sick;

Zsr. – average daily earnings.

Zsr. = (H1+H2)/730*K

N1, N2 – accruals from all organizations for the first, second year preceding the year of illness;

K – coefficient taking into account experience.

The amount of accruals for 2016 is limited to 718,000 rubles, for 2017 – 755,000.

Example

Regulator of radio-electronic equipment and devices of the 6th category of Energostan LLC, Skovorodnikov Y.T. went on sick leave before dismissal from September 4 to 12, 2018 (9 days). The insurance period is 6 years. Salary for 2016: 587,544 rubles. For 2017: 76225.

1. Salary for two years:

The amount of accruals in 2017 is limited to the amount of 755,000 rubles, we take it for calculation.

587544 + 755000 = 1342544.

1. Average daily earnings:

1342544/730 = 1839,10.

1. Temporary disability benefit:

1839,10*9*0,8 = 13241,53.

Due date

On the last day of work, the administration pays sickness benefits to the recovered person simultaneously with the issuance (transfer) of settlement funds and the issuance of a work book (Article 140 of the Labor Code of the Russian Federation).

What to do if a person is fired, but the open sick leave during voluntary dismissal continues? The accounting department will calculate the benefit ten days from the date of submission of documents, and will pay it on the closest date established for calculating wages.

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There are often cases when, for one reason or another, it is necessary to terminate the employment relationship with a worker, and this can also happen while the employee is on sick leave. In such a situation, how can one properly dismiss a worker and accrue the required compensation payments?

Resigning during sick leave at our own request

An employee may terminate his employment relationship with the employer on his own initiative by notifying him of this in writing at least 2 weeks before the day of dismissal. This period begins to count from the next day after the employer is notified of dismissal (Article 80 of the Labor Code of the Russian Federation). If an employee goes on sick leave during this two-week period, then his illness does not act as an obstacle to dismissal. The same applies to termination of employment relationships by agreement of the parties.

Important! During illness, the employee will be dismissed on the day specified in his application without additional work (letter of Rostrud No. 1551-6 dated 09/05/2006) and the employer cannot independently make changes to the date of dismissal. The employee himself has the right to do this - he can cancel the application or write another date while on sick leave.

This procedure is carried out by mail, for example, if an employee cannot come to work due to illness. When the employee recovers before the date of dismissal, then it occurs in accordance with the application.

If on the day of dismissal the employee is on sick leave:

1. the employer indicates that he cannot inform the employee of the contents of the document and record his signature, because he is on sick leave;
2. the employer must send the employee a notice of the need to receive funds (salary, required compensation, allowances, additional payments), as well as a work book or obtain permission to send it by mail (Article 84.1 of the Labor Code of the Russian Federation). Starting from the day of sending such notice, the employer is not responsible for the late receipt of the work book by the employee.

Important! The work record book must be received by the employee on the day of dismissal specified earlier in the application. If he is temporarily disabled, then paragraph 2 above applies.

An employee may resign on his own initiative while on sick leave. He has the right to send the application to work by mail or take it himself if his health condition allows.

Thus, the 14 days that the employee must work in connection with dismissal will pass during his sick leave, if the period of illness exceeds these two weeks, otherwise the employee will spend the rest of the work period at work. The employee must immediately and can bring the certificate of incapacity for work (sick leave) issued by the medical institution to work after dismissal in order to receive temporary disability benefits.

Dismissal on sick leave at the initiative of the employer

Following Art. 81 of the Labor Code of the Russian Federation, the employer does not have the right to terminate the employment relationship with an employee on his own initiative when he is on sick leave or on vacation.

This can only be done under the following exceptions:

• at ;
• when closing the IP.

When the termination of an employment contract is carried out at the request of the employer and the employee is on sick leave that day, then it will be necessary to wait until he returns from sick leave to formalize the dismissal. Dismissal may occur on the first day of release. This also applies to dismissal as a result of staff reduction.

Important! If an employee is on sick leave for a long period and there is no one to work with, then the employer can register another person according to (Article 59 of the Labor Code of the Russian Federation), maintaining the wording “until the main employee leaves.”

Payments for temporary sick leave (sick leave)

Sick leave benefits are accrued to employees both during the employment relationship and when this relationship is terminated (Article 5 of Law No. 255-FZ of December 29, 2006).

1) If sick leave (sick leave) was opened after dismissal. This means that the person fell ill after his dismissal. For example, the date of dismissal is April 15, and the certificate of incapacity for work says “I was in the hospital from April 18 to May 3 inclusive,” i.e., April 18 is the opening day of sick leave, and May 3 is the day it closes:

The employer under such sick leave is obliged to pay the resigned employee if he fell ill within 30 calendar days from the date of dismissal - in this case, he fell ill on the 3rd day after dismissal, and the duration of the illness and the reason for leaving do not play a role.

Payment is made at the last place of work for the entire period of illness from the first to the last day (exceptions - part 3, part 4, article 6 of Law No. 255-FZ) and amounts to 60% of average earnings (part 2, article 5, part 2, article 7 of Law No. 255 -FZ). The initial 3 days are paid by the insurer (i.e. the employer), the rest - by the Social Insurance Fund.

The benefit is assigned if the employee applied for it no later than 6 months from the date of restoration of working capacity (Part 1, Article 12 of Law No. 255-FZ). In the case described above, the day of restoration of working capacity is considered to be May 4, we count 6 months from May 4 - November 4 is the last day on which the employee can apply for benefits.

If this period was missed by the employee for valid reasons that have evidence, then the decision to accrue benefits rests with the territorial body of the insurer (FSS) - Order No. 74 of January 31, 2007 of the Ministry of Health and Social Development of Russia. The same body pays benefits in case of closure of an enterprise or lack of money in its current accounts. Working part-time, the employee will receive benefits for each place of work or for the last of them (Article 13 of Law No. 255-FZ).

Important! When will the employee receive benefits? The employee will receive the sick leave benefit accrued by the accounting department on the day the salary is issued - this is either the day of full payment of the salary, or the day of the advance payment in the organization (IP), so on the nearest of these days the employee will receive the money minus income tax.

2) Sick leave was opened before the termination of the employment contract:

In this situation, the benefit is calculated and paid from the beginning of the sick leave to the day it ends, inclusive, in the same amount as if there had been no termination of the employment contract, i.e. full. The basis for accrual and payment is a correctly executed sick leave certificate.

Important! Payment for sick leave opened during the period of the employment contract is made on a general basis even when the worker quits by the date of its closure.

When calculating benefits, the employee’s insurance length is taken into account (Clause 1, Article 7 of Law No. 255-FZ)

A period of temporary incapacity for work, or sick leave (common name) is a period of time during which an employee is not at work because he has health problems.

According to current legislation, while an employee is sick, he retains his average salary, but not in full: if the length of service is less than six months, then based on the minimum wage, if less than 5 years - 60% of earnings, from 5 to 8 - 80%, and one hundred percent he can calculate his average earnings after 8 years of work (work experience is calculated in total, and not with a specific employer).

The first three days of illness are paid by the employer, the rest by the Social Insurance Fund (with the exception of sick leave for pregnancy and childbirth, the social insurance pays entirely). In practice, management often faces the question: is it possible to fire an employee during his illness?

At the initiative of the employer

Many employees are afraid that management will fire them due to prolonged illness. Fears are in vain - a company cannot lay off an employee who is on sick leave.

Moreover, if a person wrote a letter of resignation and fell ill on the same day, the employer’s right to two weeks of work is not extended - even if he was ill for the entire two weeks.

Article 81 of the Labor Code of the Russian Federation prohibits an employer from dismissing people during their vacation or illness.

If an organization violates the provisions of the code, the court will recognize the employee as a victim, reinstate him at work, and the company will face a fine (for an official - at least 2 thousand rubles, and for the company as a whole - at least 50 thousand rubles) and payment to the person for forced absence.

However, there is a situation in which an ill employee may lose his job, even if he is against it. When or occurs, all employees, both healthy and on sick leave, lose their place of work. In this case, you need to contact the Social Insurance Fund to pay for the certificate of incapacity for work.

At the request of the employee

If the parties decide to separate, then this can be formalized either as dismissal by agreement of the parties, or at their own request. What rights does the employee have and what responsibilities does the employer have in this case?

An employee who decides to resign while temporarily disabled should not wait until the end of his sick leave to write a letter of resignation. By mutual desire, the employer and employee can sign an agreement - in this case, the employer is protected from possible accusations that he forced the subordinate to write.

The worker warns the manager two weeks before the date of departure of his desire to leave his job. However, the final settlement with him is made only after recovery and the provision of a closed certificate of incapacity for work. The company's accounting calculates sick leave payments and...

The organization must pay for sick leave for the entire period of illness, including after the person’s dismissal.

Moreover, if a healthy resigned employee gets sick within 30 days after leaving the company, she must pay him sick leave based on 60% of average earnings(Part 2 of Article 7 of Federal Law-255 “On Temporary Disability”), provided that during this time he did not find a new place of work. The employee has the right to payment within 6 months after the end of the period of illness (according to the certificate of temporary incapacity for work).

If the company does not want to part with a valuable employee, then during his temporary disability you can hire another worker, stipulating this fact in the employment contract. This is not prohibited by law - provided that both parties to the employment contract are happy with it.

You can learn some of the nuances of this process from the following video:

Calculation of benefits and registration of procedures

Let's look at this procedure with an example. Employee Smirnov went on vacation for 28 calendar days in August 2015 and fell ill on the first day. During an examination at the hospital, it turned out that he had a serious illness that required surgical intervention. Deciding that he would not be able to work, he handed over to his place of work a letter of resignation of his own free will as of September 1, 2015.

Smirnov was discharged from the hospital after the operation on September 15, and his sick leave was opened on August 29. For 2013-2014, Smirnov earned 378,000 and 402,000 rubles from this employer, respectively. Insurance experience – 2 years. He did not work in other places in 2013-2014; he worked full-time for the company.

So, the number of days of incapacity for work is 18. Despite the fact that Smirnov decided to quit on September 1, the employer is obliged to pay him benefits after this date.

The benefit amount will be:

• (378000 + 402000) / 730 days * 60% (less than 5 years of experience) * 18 days = 11,539.72 rubles.

Of this, the FSS will reimburse the company 9616.44 rubles, and 1923.28 rubles will be paid at the expense of the company itself.

Don’t forget to withhold personal income tax from the employee on the amount of sick pay - in this case, the tax will be 1,500.16 rubles.

Thus, if Smirnov provides the company with sick leave on September 16, then no later than September 26, the accounting department is obliged to calculate his benefits and pay him on the next day on which the organization pays wages.

He does not have to come for the work book, having submitted a request that the document be sent to him by post with acknowledgment of receipt. And the company can transfer the payments to his bank card, or Smirnov will come for the money when he feels better - then the company will deposit his payments.

The dismissal must be documented at the enterprise with the following documents:

• an application for voluntary resignation from Smirnov with a permitting resolution from his superiors;
• certificate calculating the amount of sick leave benefits;
• order for payment of benefits;
• if necessary, Smirnov’s application for sending the work report by mail and an order for depositing payments.

Smirnov has the right to demand payment for his sick leave within six months after the certificate of incapacity for work is closed.

Often, after dismissal, employees bring sick leaves to their previous employer. He refuses to pay for the period of temporary disability, citing the fact that the employee no longer works for him. However, is the employer’s position justified? Not always. Yes, with sick leave after dismissal, situations sometimes arise when it is not entirely clear how many days to pay. Maybe we should refuse it altogether? In the consultation, we will look at the most common mistakes of employers who are faced with the issue of sick pay for dismissed workers.

The main regulations governing legal relations in the system of compulsory social insurance in case of temporary disability and in connection with maternity are federal laws:

– Federal Law of July 16, 1999 No. 165-FZ “On the Basics 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 maternity” (hereinafter referred to as Law No. 255-FZ).

These and other regulations in this area define the circle of persons subject to compulsory social insurance and the types of compulsory insurance coverage provided to them, as well as establish the rights and obligations of subjects of compulsory social insurance and determine the conditions, amounts and procedure for providing benefits for temporary disability and pregnancy and childbirth, monthly child care benefits for citizens subject to compulsory social insurance in case of temporary disability and in connection with maternity.

Temporary disability benefits are paid to insured persons when the following cases occur 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 abortion surgery or in vitro fertilization;

the need to care for a sick family member;

quarantine of the insured person, as well as quarantine of a child under 7 years of age attending a preschool educational organization, or another family member recognized as legally incompetent in accordance with the established procedure;

implementation of prosthetics for medical reasons in a hospital specialized institution;

follow-up treatment in accordance with the established procedure in sanatorium-resort organizations located on the territory of the Russian Federation, immediately after the provision of medical care in an inpatient setting.

Part 2 of Art. 5 of Law No. 255-FZ determines that temporary disability benefits are paid to insured persons in cases where the illness or injury occurred within 30 calendar days from the date of termination of work or activity or in the period from the date of conclusion of the employment contract until the day of its cancellation.

The appointment and payment of temporary disability benefits are carried out by the policyholder at the place of work (service, other activity) of the insured person (Part 1, Article 13 of Law No. 255-FZ).

By virtue of Part 3 of Art. 13 of Law No. 255-FZ, for 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 insurer at his last place of work (service, other activities) or the territorial body of the insurer in the cases specified in Part 4 of Art. 13 of Law No. 255-FZ.

Do I need to pay sick leave to a fired person?

As is clear from the previous section, the employer is obliged to pay a temporary disability certificate to a former employee if the illness or injury occurred within 30 calendar days from the date of termination of work or in the period from the date of conclusion of the employment contract until its cancellation.

Moreover, the need for payment does not depend on the reason for the employee’s dismissal: both those who quit voluntarily and those dismissed for a disciplinary offense have the right to count on benefits.

Judicial practice also confirms that the employer has an obligation to pay sick leave. For example, the Moscow City Court considered an employee’s appeal against a decision of a district court that refused to collect temporary disability benefits. The court justified its decision by the fact that the employee did not provide evidence of transfer of sick leave to the employer, as well as his refusal to pay sick leave. However, when considering the case by the appellate authority, it was established that the employee resigned on 04/30/2015, and handed over the certificates of incapacity for work from 05/02/2015 to 08/10/2015 in August 2015 to the chief accountant of the employer, about which there is a certificate signed by her. But the employer did not provide evidence of payment for these slips before the trial. Since the temporary disability benefit was never paid, the city court satisfied the employee’s demands and recovered the unpaid benefit (Appeal ruling of the Moscow City Court dated July 28, 2016 in case No. 33-22374/16).

How is sick leave opened before dismissal paid?

Let's imagine a situation: an employee quit by agreement of the parties on February 13. On March 15 (30th day after dismissal) she was given sick leave for 5 days, with which she came to her former employer. How to pay for sick leave? In this case, many employers pay only March 15 - the last day of the deadline 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 the temporary disability certificate must be paid in full, even if the employee brought sick leave, opened on the 30th day after dismissal.

Another common mistake made by employers paying sick leave for dismissed employees: if sick leave is open before dismissal, the period of incapacity for work is paid depending on the employee’s length of service, but as soon as the sick leave goes beyond 30 days, the benefit is calculated based on 60% of average earnings.

As a general rule, benefits for loss of ability to work due to illness or injury, except for the cases specified in Part 2 of Art. 7 of Law No. 255-FZ, during quarantine, prosthetics for medical reasons and after-care in sanatorium-resort organizations immediately after the provision of medical care in a hospital setting, it is paid in the amounts presented in the table.

If the employee took sick leave before dismissal, payment for the time of incapacity for work is carried out based on the stated percentage. If sick leave is opened within 30 days from the date of dismissal, the benefit is paid in the amount of 60% of average earnings.

Let us 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 resigned 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 average earnings, and the subsequent ones - 60%.

Note: the employer is not obliged to pay for sick leave if the employee contacts him with a corresponding request six months after the closure of the sheet (Part 1, Article 12 of Law No. 255-FZ). For example, an employee dismissed on December 20, 2016 fell ill on January 10, 2017 and was issued a certificate of temporary incapacity for work for 3 days. A former employee has the right to apply for payment of benefits until July 13, 2017. If he presents the slip later than this date, you can safely refuse to pay the benefit. This position is also supported by judicial practice (see, for example, the 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 for sick leave issued during vacation followed by dismissal?

This question arises due to the fact that when granting leave followed by dismissal, the date of dismissal and the last working day do not coincide.

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, with the exception of cases where the employee did not actually work, but retained his place of work (position).

On the last day of work, the employer is obliged to issue the dismissed person with a work book and other documents related to work, upon his written application, and make a 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, upon a written application from an employee, unused vacations may be granted to him with subsequent dismissal (except for cases of dismissal for guilty actions). Then the day of dismissal is considered the last day of vacation. However, in this case, the employer is obliged to process and issue the final payment on the last working day before the vacation.

According to Rostrud, expressed in Letter No. 5277-6-1 dated December 24, 2007, when vacation is used followed by dismissal, the employment relationship with the employee is actually terminated from the moment the vacation begins. At the same time, the department explained that during illness during the period of leave followed by dismissal, the employee is paid temporary disability benefits, however, unlike the general rules (Article 124 of the Labor Code), leave 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 for temporary sick leave in the general manner - depending on the employee’s insurance length, for all calendar days of illness.

2. The employee becomes ill or injured within 30 days after the end of the leave. 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 crux of the matter.

The employee was on leave followed by dismissal from July 21 to September 23. On August 23, 2014, while on vacation, she was injured, which is confirmed by certificates of incapacity for work. The employee asked her employer to pay for sick leave, but was refused.

Employer's position.

The refusal to pay for sick leave is justified by the fact that the employee received it after 30 days from the date of dismissal: the last working day was July 18, and the sick leave dated August 23.

The court's position.

The district court satisfied the demands and ordered the employer to pay for temporary disability certificates. However, the appellate court overturned this decision, pointing out 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 provided for in Part 2 of Art. 5 of Law No. 255-FZ, the deadline for presenting a certificate of incapacity for payment by the employer.

The Supreme Court of the Russian Federation, considering the complaint filed by the employee, pointed out that the conclusions of the appellate court were erroneous and overturned its decision, justifying it as follows. From the provisions of Law No. 255-FZ, Part 1 of Art. 84, part 2 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 is an insured person under compulsory social insurance in case of temporary disability for the entire period of work until the day of dismissal. By virtue of Part 2 of Art. 127 of the Labor Code of the Russian Federation, when using vacation with subsequent dismissal, the day of dismissal of the employee is considered the last day of vacation. This means that 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 sick leave certificate of the dismissed person, is the last day of the employee’s vacation. Therefore, sick leave is subject to payment (Definition of the Armed Forces of the Russian Federation dated November 23, 2015 No. 34-KG15-13).

Is it possible to count unpaid benefits against personal income tax withholding?

According to Art. 183 of the Labor Code of the Russian Federation, the employer pays benefits to the employee in case of 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 they can offset some amounts against others. Many such situations have been considered in judicial practice.

The crux of the matter.

The employee resigned voluntarily due to retirement. Upon dismissal, he was paid a salary, but the temporary disability certificate was not paid. The employee went to court.

The court's position.

The district court, refusing to satisfy the claim for payment of sick leave, proceeded from the fact that in the final settlement the personal income tax was not withheld from the plaintiff and the amount of payment for the certificate of incapacity for work was counted as personal income tax. However, the appellate court did not agree with this decision: the amount to be paid as temporary disability benefits was withheld from the plaintiff for personal income tax, and this contradicts the provisions of Art. 137 Labor Code of the Russian Federation. It was impossible to do this (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?

Often, after dismissal, employees take sick leave to care for children or sick family members. Is such sick leave payable if submitted within 30 days from the date of dismissal?

Here the opinions of experts differ.

Some believe that the employer is not obliged to pay for such sick leave. They justify their position on clause 2 of Art. 5 of Law No. 255-FZ, according to which, during work 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, after-care, etc. ). But after dismissal - only in cases where illness or injury occurred to the former employee himself. 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 specified in this rule of law. Therefore, after termination of the employment contract, payment of benefits is allowed only if the employee himself has an illness or injury that occurs within 30 calendar days from the date of termination of work.

Other experts believe that if an employee submits sick leave within 30 days after dismissal, for example, for child care, the benefit must be paid. They also justify their position on paragraph 2 of Art. 5 of Law No. 255-FZ: it states that an employee can apply for payment of 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, the Tomsk Regional Court, in its Ruling dated September 21, 2012 in case No. 33-2420/2014, indicated: from Law No. 255-FZ it follows that a resigned employee had the right to demand payment of a certificate of incapacity from the employer upon the occurrence of an insured event, including due to the need to care for a sick family member, within 30 days from the date of dismissal.

Unfortunately, judicial practice is not very extensive. But we are still inclined 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 sick leave issued in relation to the dismissed person is subject to payment.

As you can see, there are many questions in the situation with sick leave for dismissed workers. Moreover, Law No. 255-FZ uses phrases that allow its provisions to be interpreted differently (as is the case with paragraph 2 of Article 5). However, there are three things to remember. First: the dismissed person has the right to receive temporary disability benefits, sick leave for which is issued within a 30-day period after dismissal. Second: such sick leave is paid in the amount of 60% of average earnings. But if sick leave was opened 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 insurance length of the former employee. Well, third: the employer must pay benefits only if the dismissed person is incapacitated; sick leave for child care and other reasons for issuing sick leave do not have the same meaning.

Almost every organization has employees who are often on sick leave for a long time. Not every employer will take kindly to the fact that his employee is sick, is on sick leave for quite a long time and does not know when he will begin his work duties. As a result, conflict situations arise between the employee and the employer regarding this matter.

If we talk about how long you can be on sick leave, it should be noted that the periods of temporary disability are determined in accordance with the Procedure for issuing certificates of incapacity for work, approved by Order of the Ministry of Health and Social Development of Russia dated June 29, 2011 No. 624n “On approval of the Procedure for issuing certificates of incapacity for work.” In accordance with clause 11 of the Procedure for outpatient treatment of diseases (injuries) associated with temporary loss of working capacity of citizens, a medical worker single-handedly issues a certificate of incapacity for work at a time for up to 10 calendar days (until the next examination of the citizen by a medical worker) and single-handedly extends it for a period of up to 30 calendar days. For periods of temporary incapacity for work exceeding 30 calendar days, a certificate of incapacity for work is issued by decision of the medical commission. According to paragraph 2 of paragraph 13, by decision of the medical commission, with a favorable clinical and work prognosis, a certificate of incapacity for work can be issued in the prescribed manner before the day of restoration of working capacity, but for a period of no more than 10 months, and in some cases (injuries, conditions after reconstructive operations, tuberculosis) - for a period of no more than 12 months with a frequency of extension by decision of the medical commission at least every 30 calendar days. There are no restrictions on the number of certificates of incapacity for work issued to an employee during a year or another period of time.

By conducting a medical and social examination (MSE), a citizen can be recognized as disabled (clause 2 of the Rules for recognizing a person as disabled, approved by Decree of the Government of the Russian Federation of February 20, 2006 N 95; hereinafter referred to as the Rules). Citizens who have persistent limitations in their ability to live and work and who are in need of social protection based on the conclusion of a medical commission are referred to MSE for:

Obvious unfavorable clinical and labor prognosis, regardless of the duration of temporary disability, but no later than 4 months from the date of its start;

Favorable clinical and work prognosis for temporary disability lasting over 10 months (in some cases: conditions after injuries and reconstructive operations, in the treatment of tuberculosis - over 12 months);

The need to change the professional rehabilitation program for working disabled people in the event of a worsening clinical and work prognosis, regardless of the disability group and the duration of temporary disability (clause 28 of the Procedure).

Thus, the maximum duration of the period of sick leave is not established by law. A sick leave certificate is issued for the entire period of treatment until recovery or until disability is established.

The question arises: is it possible to fire an employee who has been on sick leave for an excessively long time? Previously, the Labor Code of the Russian Federation provided for dismissal if an employee is on sick leave for more than four months in a row (Clause 5, Article 33 of the Labor Code of the Russian Federation). Currently, long-term illness is not mentioned among the grounds for termination of an employment contract (Article 77 of the Labor Code of the Russian Federation). Accordingly, an employee who is often or long sick cannot be fired due to this circumstance at the initiative of the employer. Moreover, in Art. 81 of the Labor Code of the Russian Federation states that the dismissal of an employee at the initiative of the employer is not allowed (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur) during the period of his temporary disability and while on vacation. Thus, the Labor Code of the Russian Federation guarantees the employee the preservation of his job for a period of long-term temporary disability.

However, the employer may offer the employee to resign of his own free will (Article 80 of the Labor Code of the Russian Federation) Let’s consider ruling of the St. Petersburg City Court dated September 20, 2011 in case No. 33-14267/2011.

The employee went to court to challenge his voluntary dismissal, considering it illegal, since he did not write a letter of resignation and was on sick leave at the time of his dismissal, which was confirmed by a certificate from the district clinic. The court heard testimony from a witness that the head of the personnel department asked the plaintiff to write a letter of resignation of his own free will, but he refused. However, the court found no violations during the dismissal. He indicated that the witness's testimony does not affect the court's conclusions. The fact that the employee was on sick leave does not affect the legality of termination of the employment contract, since the initiator of the dismissal was the employee, not the employer.

Thus, we can conclude that it will be quite difficult for an employee to prove in court the fact that the dismissal of his own free will was carried out under the coercion of the employer.

The employer can also offer the employee dismissal by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation). With the consent of the employee, the employment contract is terminated at any time by agreement of the parties (Article 78 of the Labor Code of the Russian Federation). In this case, we can give an example of a dismissed employee successfully challenging his dismissal. Let's consider the appeal ruling of the Supreme Court of the Republic of Buryatia dated June 18, 2012 in case No. 33-156). The court carefully examined the agreement drawn up by the employee and the employer and came to the conclusion that there was no real will of the employee to terminate the employment relationship. The agreement contained the employer's obligation to rehire the employee in the future. In this connection, the court came to the conclusion that the dismissal was illegal under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation (by agreement of the parties).

Established part 6 of Art. 81 of the Labor Code of the Russian Federation, the ban on dismissal during a period of temporary incapacity for work of an employee applies only to cases of termination of an employment contract at the initiative of the employer. Dismissal due to the expiration of the employment contract does not apply to such cases. The Sverdlovsk Regional Court came to this conclusion. The employee was dismissed due to the expiration of the employment contract on the basis of clause 2, part 1, art. 77 Labor Code of the Russian Federation. At the time of dismissal, she was temporarily disabled. The plaintiff demanded that the dismissal order be declared illegal and reinstated at work. But the court concluded that the dismissal was lawful. The worker's demands were denied. The decision of the court of first instance was upheld (appeal ruling of the Sverdlovsk Regional Court dated December 24, 2013 No. 33-15642/2013).

As for employees who are sick for a long time and are on a probationary period. In this case, it is necessary to take into account that the employment contract can be terminated on the grounds provided for in Part 1 of Art. 71 of the Labor Code of the Russian Federation during the period established for testing, if the employment contract contains a condition on testing, because according to Art. 70 of the Labor Code of the Russian Federation, the purpose of the hiring test is to check the employee’s suitability for the work assigned to him.

Sick leave is not an obstacle to terminating an employment contract due to circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation), for example, when depriving a special right for a period of more than 2 months, if this entails the impossibility of work. For example, a driver of an organization, temporarily deprived of his license for violating traffic rules, was fired during a period of incapacity ( Definition St. Petersburg City Court dated July 26, 2011 N 33-11291/2011).

It should be noted that the Labor Code of the Russian Federation gives the employer the right, during the period of temporary incapacity of an employee, to accept a new one in his place under a fixed-term employment contract until the previous one returns to work (Part 1 of Article 59 of the Labor Code of the Russian Federation) or to entrust the performance of the duties of an absent employee to another with his written consent in during the working hours established for him (Article 60.2 of the Labor Code of the Russian Federation), or to temporarily transfer another employee to the place of an employee who has been on sick leave for a long time (Part 1 of Article 72.2 of the Labor Code of the Russian Federation). In the latter case, the transfer is carried out only by agreement of the employer and the transferred employee, concluded in writing.

In some cases, an employee’s illness gives the employer the right to terminate the employment relationship with him, but this requires an appropriate medical report, and not a certificate of incapacity for work. According to Art. 73 of the Labor Code of the Russian Federation, an employee who needs to be transferred to another job in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, with his written consent, the employer is obliged to transfer to another job available to the employer that is not contraindicated for the employee state of health.

If an employee who, in accordance with a medical report, needs a temporary transfer to another job for a period of up to four months, refuses the transfer or the employer does not have the corresponding job, then the employer is obliged to suspend the employee from work for the entire period specified in the medical report while maintaining his job ( positions). During the period of suspension from work, wages are not accrued to the employee, except in cases provided for by this Code, other federal laws, collective agreements, agreements, and employment contracts.

If, in accordance with a medical report, an employee needs a temporary transfer to another job for a period of more than four months or a permanent transfer, then if he refuses the transfer or the employer does not have the corresponding job, the employment contract is terminated in accordance with paragraph 8 of part one of Article 77 of this Code .

Supreme Court of the Russian Federation in definition dated November 25, 2011 No. 19-B11-19 calls such a case of an employee’s refusal to transfer to another job, necessary for him in accordance with a medical report, a circumstance of an objective nature, that is, independent of the will of the parties to the employment contract and, in particular, the will of the employer.

Really, Art. 81 The Labor Code of the Russian Federation does not contain as a basis for dismissal an employee’s refusal to be transferred to another job in accordance with a medical report. However, if there are medical indications, the employer is obliged to dismiss the employee so as not to risk his health when performing his job duties and thereby not cause even greater harm to his health.

In judicial practice, there are examples when an employee tries to appeal such an employer’s decision in court, there are even successful examples of appeal.

For example, the Sovetsky District Court of Vladivostok declared the dismissal due to illegal clause 8 Part 1 Art. 77 of the Labor Code of the Russian Federation, since the employee was temporarily disabled at the time of dismissal. (Case No. 2-1537/11 dated 04/21/2011).

But it would still be more correct to adhere to the position of the Supreme Court of the Russian Federation on this issue.

If, during a medical and social examination, the employee is found to be completely disabled, then the employment contract with him is terminated on the basis of clause 5 of Part 1 of Art. 83 Labor Code of the Russian Federation.

There are known cases when a medical report is issued to an employee in violation of Order of the Ministry of Health of Russia dated March 14, 1996 N 90 “On the procedure for conducting preliminary and periodic medical examinations and medical regulations for admission to the profession.”

The Sovetsky District Court of Krasnoyarsk, by its decision dated February 27, 2008, reinstated the plaintiff, who was dismissed by the employer in accordance with a medical report due to the employer’s lack of relevant work, in her position. The court came to the conclusion that the medical report was taken in violation of Order of the Ministry of Health of Russia dated March 14, 1996 N 90 “On the procedure for conducting preliminary and periodic medical examinations and medical regulations for admission to the profession.”

The violation was that, in accordance with the requirements established by the said Order, the number of medical commissions must be at least seven doctors of the clinic according to their profile. The commission that issued the medical report to the plaintiff included only three doctors, and one of them was not a member of the commission. The doctor whose profile includes making diagnoses of diseases similar to the plaintiff’s was not present at the commission either. In addition, when making the conclusion, the necessary medical documents of the plaintiff were not examined. The conclusion of the medical commission was signed only by its chairman, which also contradicts the requirements of the Order. Such a conclusion cannot give rise to any legal consequences.

In practice, there are cases when the employer was aware of the employee’s disability even when he was hired.

Considering the dismissal under clause 5, part 1, art. 83 of the Labor Code of the Russian Federation (in connection with the recognition of the employee as completely disabled in accordance with a medical report), the plaintiff filed a claim in court for reinstatement at work. In support of the stated requirements, the plaintiff indicated that the employer was aware of his disability even when he was hired (the plaintiff provided the employer with a certificate from a medical and social examination recognizing him as completely disabled). This fact did not prevent the employer from hiring the plaintiff. The plaintiff carried out his official duties for 10 years in special conditions with a reduced working day, and the plaintiff’s disability, in his opinion, does not prevent him from carrying out his official duties, which was confirmed in court. The court found that the basis for the plaintiff’s dismissal was precisely the ITU certificate that he presented to the employer when he was hired.

The court refused to satisfy the plaintiff's claims, but, taking into account the lack of concealment of the fact of total disability by the employee, the court changed the wording of the dismissal to “the employment contract was terminated due to a violation of the established rules for concluding an employment contract, which precludes continuation of work, clause 11, part 1 Art. 77 Labor Code of the Russian Federation." In accordance with clause 11, part 1, art. 77, part 3 art. 84 of the Labor Code of the Russian Federation, the court recovered severance pay from the employer in favor of the employee (decision of the Kamensky District Court of the Rostov Region dated September 28, 2012; appeal ruling of the Rostov Regional Court dated November 29, 2012 in case No. 33-13961).

Thus, having studied the legislation of the Russian Federation and judicial practice on the issue outlined in the topic of this article, we can conclude that, according to Part 6 of Art. 81 of the Labor Code of the Russian Federation, the dismissal of an employee at the initiative of the employer during the period of his temporary incapacity for work is not allowed. Clause 5 of Part 1 of Article 83 of the Labor Code of the Russian Federation can be applied only if there is a medical report, according to which the employee is declared completely incapacitated, and not on the basis of sick leave, including long-term leave. It should also be noted that, on the one hand, the Labor Code of the Russian Federation guarantees the employee the preservation of his job during a period of long-term temporary disability, but there are enough mechanisms that allow the employer to get rid of a long-term ill employee.