While the employee is on sick leave. When an employee falls ill after dismissal. Dismissal while an employee is on sick leave: judicial practice

ON THE. Martynyuk, tax expert

Working on sick leave: what to pay and how much

A person is on sick leave due to temporary disability or to care for a child, but he goes back to work: he works for a day or two - and then goes back to home. If the sick leave is long, there may be several such exits and they may be longer.

And it happens that, having started to get sick and opened a sick leave “just in case,” a person still finds the strength to work for a day or several days, but then he still “collapses” and continues to sit at home on the basis of an already opened certificate of incapacity for work.

And finally, one more case: after receiving treatment, a person goes to work even before the doctor closes his sick leave.

As a result, the accounting department receives a certificate of incapacity for work, several days of which - at the beginning, at the end and/or in the middle - were worked out. We figure out what to do with it and tell the manager what difficulties the organization may encounter due to people going to work while on sick leave.

What to accrue for sick days worked - salary or benefits

Both cannot be accrued for each such day, since the benefit is compensation for lost for the period of incapacity earnings part 1, clause 1, part 2, art. 1.3, clause 1, part 1, art. 2, part 1, 2 art. 3, part 1 art. 5 of the Law of December 29, 2006 No. 255-FZ (hereinafter referred to as Law No. 255-FZ);. subp. 2 clause 1, clause 1.1 art. 7 of the Law of July 16, 1999 No. 165-FZ

What is an employee entitled to for days worked on sick leave?

• Many are convinced that benefits are due because: the employer is obliged to pay him for the entire period of incapacity and Art. 183 Labor Code of the Russian Federation . And this is the entire period indicated in the sick leave preamble to the Order of the Ministry of Health and Social Development dated June 29, 2011 No. 624n . Only a doctor determines whether a person is able to work or not pp. 1, 2 tbsp. 59 of the Law of November 21, 2011 No. 323-FZ (hereinafter referred to as Law No. 323-FZ)
• . Therefore, the fact that the employee went to work does not cancel his incapacity for work on these days; clause 5 of the Procedure for issuing certificates of incapacity for work, approved. Order of the Ministry of Health and Social Development dated June 29, 2011 No. 624n (hereinafter referred to as the Procedure); clause 17 Letter of the FSS dated October 28, 2011 No. 14-03-18/15-12956. That is, there was no obligation to work on the days indicated on the sick leave. The employer is not required to pay for voluntary work during free time. After all, for example, if someone works on their day off or during vacation own initiative, then there is no salary for this.

However, wages must be accrued for days worked on sick leave, because:

• in our situation, a person worked at a time that is considered working time for him according to internal rules labor regulations(PVTR) or according to an employment contract Art. 100 Labor Code of the Russian Federation- as opposed to voluntary work during rest (on vacation or on a day off). Open sick leave, of course, confirms release from work, But ban to work is not clause 3 art. 5 of Law No. 323-FZ; Art. 3 Labor Code of the Russian Federation. Everyone decides for himself whether to take advantage of this exemption or not and to what extent - in whole or in part;
• labor must be paid clause 3 art. 37 of the Constitution; Art. 56 Labor Code of the Russian Federation. Therefore, the worker who in his work time was at his workplace and performed his work, has the right to remuneration for work, that is, to timely and full payment wages for days worked Articles 2, 129 of the Labor Code of the Russian Federation.

Is it necessary to accrue double salary or provide time off for days worked on sick leave? The time of release from work due to incapacity for work does not apply to rest time. Therefore, working on sick leave is not working on a day off and is not paid double. Articles 107, 152, 153 of the Labor Code of the Russian Federation.

And since wages are accrued for the days worked, then benefits for these days are not due. answers to questions on the website of the regional branch of the FSS for the Chukotka Autonomous Okrug and failure to pay it will not be a violation of the Labor Code of the Russian Federation.

What happens if you still pay benefits instead of wages?

It would seem that nothing will happen - it’s enough not to show on the report card that some days were spent on sick leave. However, an employee who received for days worked small allowance instead of a big salary, he can file a complaint with the labor inspectorate.

How can the inspection make sure that a person worked? Surely there will be witnesses or some traces of his presence at work: perhaps on that day he corresponded, signed documents, received materials from the warehouse or money on account, returned unspent accountable money to the cashier, processed waybill, interacted with representatives of the company’s business partners, signed in the security register for the keys to the office, etc. Particularly prudent employees even make screen copies of email correspondence.

Administrative fines are provided for non-payment of wages Art. 5.27 Code of Administrative Offenses of the Russian Federation. In addition, if after an employee’s complaint you are forced to accrue his salary, you will have to recalculate the benefit, reducing it taking into account the days worked. If it was offset against the payment of insurance premiums, arrears, penalties and a fine will arise.

How to feel about working while on sick leave

During sick leave, people work both at the request of management and on their own initiative. In the latter case, everyone has their own motive, but most often it is monetary. For days worked, people expect to receive a salary instead of benefits (sometimes significantly less), they strive to earn a bonus, which depends on the results of work by a certain date, etc. At the same time, in some organizations, working on sick leave is strongly encouraged by management, in others it is very undesirable . In this regard, the following questions arise.

Is it possible to call workers from sick leave “due to production necessity”

Of course not. An employee has the right not to work during the period for which a sick leave confirming his temporary incapacity for work has been issued. Attracting to work during release from work due to temporary disability is a violation for which a fine is imposed. Art. 5.27 Code of Administrative Offenses of the Russian Federation. Forced labor is prohibited Art. 4 Labor Code of the Russian Federation.

WE TELL THE MANAGER

Anything can happen to a sick person at work, and it will already happen. work injury. And if, as a result of being called to work, an employee on sick leave occurs complication of the disease, he can try to get compensation from the organization for damage to his health Articles 22, 232, 233, 220 of the Labor Code of the Russian Federation.

However, few managers think of issuing an order to call someone out from sick leave. More often, management understands that hiring someone to work while on sick leave is illegal, and we're talking about about an informal challenge. For going to work while on sick leave, management promises a reward in addition to the benefits for the days when the employee was sick at home, and to the salary for the days on which he will work, despite open sick leave. And it’s up to the accounting department to figure out how to arrange such a reward. Typically, as compensation for working on sick leave, an employee receives:

• <или> material assistance. It does not raise any questions - the person is sick, we need to help him. Can be issued at any time, even before presentation of a closed sick leave, and in any amount. Within 4000 rubles. per year per person is not subject to personal income tax and contributions and clause 28 art. 217 Tax Code of the Russian Federation; clause 11, part 1, art. 9 of Law No. 212-FZ of July 24, 2009 (hereinafter referred to as Law No. 212-FZ); subp. 12 clause 1 art. 20.2 of the Law of July 24, 1998 No. 125-FZ; Letter of the Ministry of Finance dated October 22, 2013 No. 03-03-06/4/44144 . “Profitable” expenses are not included;
• <или> clause 23 art. 270, paragraph 2 of Art. 346.16 Tax Code of the Russian Federation bonus.

If you have only worked a few days on long-term sick leave, then it is better to award a bonus for the period of time following the sick leave or for some previous “work successes”. Otherwise, it may turn out that the bonus was issued for a period in which the person was primarily absent from work, which casts doubt on its validity as a tax expense. Also, the bonus must comply with the bonus regulations. If it does not contain suitable grounds, it will have to be supplemented and observed in the future.

It also happens that management negotiates with an employee who agreed to come to work while on sick leave about “informal” time off in the future. After closing the sheet (immediately or after a while - by agreement with the employee), attendance is entered on the report card for the number of days worked on sick leave, and wages are calculated for these days, and the employee rests on these days.

They also often do this: they return sick leave to the employee, do not show absences due to illness on the report card, and pay wages for the entire period of sick leave - even though this is costly for the organization if the sick leave is long and only a few days have been worked.

Is it possible to exclude employees who are on sick leave from working?

This question arises if employees themselves want to work while on sick leave, but the company’s management does not like this for some reason.

WE TELL THE EMPLOYEE To undergo some complex medical examinations and procedures, the medical commission may prescribe “discrete” sick leave - only for the days of the procedure. And sick leave for care can be closed before the child recovers, if another relative continues to care for him (usually the clinic asks you to write a statement about this).

Some companies believe that it is enough to establish in labor or collective agreements, as well as in the PVTR or other LNAs, the provision that employees with an open sick leave must fulfill labor responsibilities not allowed. And provide for violation disciplinary action, premium reduction. This is justified by Articles 76 and 212 of the Labor Code of the Russian Federation, according to which the employer is obliged not to allow an employee to work if, in accordance with a medical report, contraindications for performing his job duties are identified. Is it possible? There are two approaches.

APPROACH 1. You can't do that. This provision will not be valid as it worsens the employee’s situation compared to what is established by law. Art. 8 Labor Code of the Russian Federation. After all, the employer is obliged to provide work stipulated by the employment contract. Art. 22 Labor Code of the Russian Federation. The list of grounds on which an employer should not allow an employee to work is given in the Labor Code of the Russian Federation Art. 76 Labor Code of the Russian Federation. And the presence of unclosed sick leave does not appear there.

Sick leave is not the medical report referred to in Art. 76 of the Labor Code of the Russian Federation as a basis for not allowing to work (such a conclusion is a separate document pp. 2, , 12, 13 of the Order, approved. By Order of the Ministry of Health and Social Development dated May 2, 2012 No. 441n). And until the sheet is closed and presented, you know about it only from the words of the employee, you have no documentary evidence. And the employer does not have the right to demand a medical examination (if it is not required by law) or to present documents on the state of health. Art. 88 Labor Code of the Russian Federation; Appeal ruling of the Vladimir Regional Court dated 09/06/2012 No. 33-2581/2012.

If an employee is unlawfully deprived of the opportunity to work, the employer is obliged to compensate him for the wages he did not receive by Articles 234, 139 of the Labor Code of the Russian Federation.

APPROACH 2. An employee with open sick leave may not be allowed to work. Such explanations were given to us by Rostrud.

FROM AUTHENTIC SOURCES

Deputy Head Federal service on labor and employment

“When an employee himself, and not under duress from the employer, wants to work during a period of temporary disability, one should not be guided by the principle “everything is permitted that is not prohibited or prescribed by law.” How can an employer know what an employee is sick with? What if, for example, he has a viral disease and infects half of his team?

It is necessary to convince the employee not to go to work, explaining that:

• if open sick leave, wages for work during illness will not be accrued or paid;
• going to work on sick leave means the employee’s violation of the treatment regimen, which may result in incomplete payment of sick leave.

Also, if an employee, having missed one or more working days, went to work and did not present a sick leave certificate, the employer has the right to begin the procedure to determine the reasons for the employee’s absence from work. After all, the reason for no-show on previous days has not been confirmed (the report card shows no-shows for unknown reasons). This gives grounds to require the employee to provide written explanations for absence from work. Art. 193 Labor Code of the Russian Federation. After the employee writes that he has been granted sick leave, he must be given a written notice against signature that he must comply with the sick leave regime and is not allowed to perform work duties.

If no measures apply to the employee and he insists on being allowed to work, his return to work should be recorded in a free-form act and a copy of the act should be sent to the medical institution to notify the employee of the violation of the treatment regimen.

According to Art. 22 of the Labor Code of the Russian Federation, the employer is obliged to provide work stipulated by the employment contract, that is, on the conditions stipulated by the employment contract. However, according to the conditions employment contract the employer undertakes to implement compulsory social insurance in accordance with the legislation Art. 57 Labor Code of the Russian Federation. Thus, the employer not only has the right, but also the obligation to prevent the employee from going to work during his illness.

Only this should be done in ways that do not give the employee the opportunity to accuse the employer of violating his other rights. For example, you should not give security orders to take an employee out of the enterprise. It is recommended that internal local regulations provide for the impossibility (prohibition) of employees going to work during a period of illness confirmed by a sick leave certificate. This can also be provided for in the internal labor regulations. This will make it possible to raise the issue of bringing such employees to disciplinary liability.

If it turns out that the employee was brought to work while ill, the labor inspectorate will fine the employer.”

Alternatively, you can ask an employee who is determined to work on sick leave to go to the clinic and close the sheet. Moreover, the employee has the right to refuse. If he suddenly needs to “get sick” later, he will have to apply for a new sheet.

We prepare documents

Whether an employee on sick leave is allowed to work or not is decided by management, not accounting. The accounting department is left to formalize the fait accompli. And if it turns out that the employee worked while ill, the question arises of how to show this in the documents.

Often, employees write a statement with something like this: “Due to illness, I was issued sick leave No.... for 12 calendar days from 10/05/2015 to 10/16/2015. But in fact, I worked on October 8, 9, 15, 16, 2015. I ask you to consider these 4 days as working days and pay me for them based on my salary, and consider the remaining 8 days as sick days and pay a disability benefit for them.”

It won't be superfluous, but it's not necessary either. The very fact of working these days is already a sufficient basis for calculating wages.

We enter attendance on the report card for each day of sick leave worked. The remaining days after presentation of the sheet are noted as days on sick leave. Both cannot be indicated in one day. The timesheet keeps records of actually worked and unworked hours and Art. 91 Labor Code of the Russian Federation; Instructions (form No. T-13), approved. Resolution of the State Statistics Committee dated January 5, 2004 No. 1.

On sick leave, in the column “Benefits are due for the period: from... to...” you need to indicate only the period of incapacity for work during which the person did not go to work. This is not a problem if you work several days in a row at the end or beginning of sick leave. What if some days were worked in the middle? Then:

• indicate in this column the entire period of sick leave from the first unworked day until returning to work, after which the sheet was closed; in our example, this is the period from October 5 to October 14;
• In the benefit calculation attached to the sheet, make an explanation that the benefit is not due for all these days. For the example above it would be like this:

From the period indicated in the column “Benefits are due for the period: from... to...”, for the purpose of calculating benefits, October 8, 9, 15, 16, 2015 should be excluded, since these days were worked. The benefit is due for next days: 5, 6, 7, 10, 11, 12, 13, 14 October 2015

Do not forget that benefits for the first 3 days of temporary disability are paid at the expense of the employer part 1 clause 2 art. 3 of Law No. 255-FZ. How to determine these days in our situation? We count the first 3 days in which the employee was sick at home. For example, an employee worked on the first and third days of sick leave. Then the organization pays benefits for the second, fourth and fifth days at its own expense, and the subsequent unworked days come from the Social Insurance Fund.

Problems with including wages for days worked on sick leave in tax expenses there shouldn’t be any on OSNO and SYNNO. These are reasonable expenses clause 1 art. 252, paragraph 2 of Art. 346.16 Tax Code of the Russian Federation for wages and Art. 255 Tax Code of the Russian Federation, since you are obliged to accrue this salary.

Should benefits be reduced for days after returning to work?

If an employee, without a good reason, violates the regime prescribed by the attending physician, the employer is obliged to reduce his benefits from the date of the violation. That is, calculate it based on the minimum wage for a full calendar month (taking into account the regional coefficient a) clause 1 part 1, part 2 art. 8 of Law No. 255-FZ.

In the form of a certificate of incapacity for work there is a column “Notes on violation of the regime”, and among the codes provided for it there is code 25 “Return to work without statements” Information, approved By Order of the Ministry of Health and Social Development dated April 26, 2011 No. 347n; clause 58 of the Order. Most likely, the employee will bring you a piece of paper without code 25 in this column. And it is not surprising - doctors indicate this code in other cases: when a patient, before recovery, demands to be given a formal sick leave to present to the employer, citing the intention to go to work. Then the doctor cannot fill out the “Start work” column. since it does not have the right to recognize an unhealthy person as able to work. He enters code 31 “Continues to be ill,” but does not issue a continuation of sick leave, but instead indicates code 25 “Returning to work without being discharged.”

To indicate non-compliance with the regimen prescribed by the attending physician, there is code 23. But it is unlikely to be on the sheet, even if the doctor believes that going to work for a day or several days is a failure to comply with the regimen prescribed by him. After all, the doctor does not know, cannot find out and is not obliged to check or find out in any way whether his patient was sitting at home or going to work during the hospital stay.

But you know for sure that there was a return to work, and there is documentary evidence - a time sheet and payroll for the days worked. Should you reduce your benefits? This question arises when days were worked at the beginning or in the middle of sick leave.

Social insurance may insist on reducing benefits

There is a possibility that when checking, social insurance will assume that benefits in this situation should be reduced. There are even judgment on a dispute between the organization and the Foundation in support of the latter. But, as we see, it is quite old - adopted in 2011.

Workers successfully challenge benefits reduction by employer

The courts of general jurisdiction have a different position, to which employees filed claims against employers who reduced their benefits in similar situations. The courts believe that without a doctor’s note about a violation of the regime, the employer does not have the right to reduce benefits, even if he knows about the violation and see, for example, Appeal rulings of the Court of the Yamalo-Nenets Autonomous District dated 02/10/2014 No. 33-242/2014; Supreme Court of the Republic of Khakassia dated May 10, 2012 No. 33-8482012; Murmansk Regional Court dated 08/07/2013 No. 33-2640-2013; Decisions of the Zheleznodorozhny District Court of Ulyanovsk dated January 23, 2015 No. 2-47/2015(2-2811/2014;)~M- 2733/2014; Lomonosovsky District Court of Arkhangelsk dated January 22, 2015 No. 2-142/2015(2-4475/2014;)~M- 4441/2014 .

And it is right. The benefit is calculated based on the certificate of incapacity for work and Part 5 Art. 13 of Law No. 255-FZ. Therefore, the basis for a reduction is not the report card, but the presence of a note on the sheet about violation of the regime. The box for marking is located in the part of the sheet that the doctor fills out - only he has the right to put any code there clause 58 of the Order; pp. 1, 2 tbsp. 59 of Law No. 323-FZ, the employer does not have the authority to do this.

If the doctor has not recorded a violation of the regime, then this column remains empty clause 58 of the Order, and then the slip gives the employee the right to receive full benefits from you.

We evaluate the possible consequences and choose an option

The director must decide whether to reduce benefits or not. Your job is to describe to him different variants and them possible consequences.

OPTION 1. The allowance should not be reduced because for this no legal grounds(we just gave the arguments).

Consequences. There is a risk that social insurance will recalculate the benefit during an inspection, reducing it independently. If you apply to the Fund for reimbursement of this benefit, then the matter will be limited to a refusal to reimburse the difference. If you have previously credited the benefit towards the payment of current contributions, the Fund will accrue the arrears of insurance premiums in the amount not accepted for offset, the penalties and fines that have accrued since then. subp. 3 p. 1 art. 11 of the Law of July 16, 1999 No. 165-FZ; Part 4 Art. 4.7, part 1, 2 art. 4.6 of Law No. 255-FZ; Part 2 Art. 15 ; Part 1 Art. 25, part 1 art. 47 of Law No. 212-FZ.

Will it be possible, based on the decision of the Social Insurance Fund, to withhold from the employee the amount not credited by the Fund? The law allows you to do this only if the employee has provided you with documents containing deliberately false information and Part 4 Art. 15 ,. That is, if the employee knew that the information in the sheet was not true, and still submitted it. However, a sheet without a note indicating a violation of the regime (even if we assume that it should be there) cannot be considered as knowingly unreliable. After all, the procedure for filling out sheets is addressed to medical organizations and the employee has every right do not know what codes and in what cases are entered in the part of the sheet filled out by the doctor.

Therefore, the amount not credited to the Social Insurance Fund will remain with the employee. And the Fund will regard it as paid under the employment contract, add additional contributions to it and calculate penalties Part 1 Art. 7 of Law No. 212-FZ; Letter of the Ministry of Health and Social Development dated August 30, 2011 No. 3035-19. True, it was possible to challenge this in court. The argument is that such an amount, although not credited to the Social Insurance Fund, still remains a payment in connection with an insured event under compulsory social insurance (and not a payment under labor relations) and should not be subject to contributions and Art. 9 of Law No. 212-FZ; Resolution of the AS UO dated September 29, 2015 No. F09-6879/15.

Thus, you need to be prepared for the fact that when checking, the Fund may count you arrears and you will either have to pay it with penalties and fines, or challenge the Fund’s decision in court.

OPTION 2. Agree that there was a violation of the regime, But allowance doesn't matter do not reduce, because the reason violations I'm respectful clause 1 part 1, part 2 art. 8 of Law No. 255-FZ. After all, even if there is a mark on the sheet, the employer is obliged to reduce the benefit only if the reason for the violation is not valid.

Respect is determined not by the Social Insurance Fund, but by the manager based on the conclusion of the social insurance commission created in the organization or, if the company is small, individually pp. 1.1- 1.3 of the Standard Regulations, approved. FSS 07/15/94 No. 556a; clause 10 of the Regulations, approved. Government Decree No. 101 dated 12.02.94 (hereinafter referred to as Decree No. 101). The commission must obtain written explanations from the employee for going to work during sick leave, consider them and draw up a protocol with its conclusion. Based on it, the director issues an order to pay the benefit in full. pp. 10, 11 Regulations, approved. Resolution No. 101; pp. 1.1, 2.2 of the Standard Regulations, approved. FSS 15.07.94 No. 556a.

What can be considered good reason? For our situation, there are no guidelines in regulations No. It may well be, for example, a complex financial situation employee, the presence of supported children and the fact that sick leave benefits are lower than wages.

Consequences. The FSS does not have the right to review the employer’s decision clause 10 of the Regulations, approved. Resolution No. 101. However, it still happens that the Foundation does not agree, and then you have to argue with it in court Resolution of the Presidium of the Supreme Arbitration Court of February 14, 2012 No. 14379/11.

As you can see, this option will not completely insure you from a dispute with the Fund, but it may reduce its likelihood by providing an additional reason not to reduce the benefit. And if a dispute does arise, you can always use the arguments from option 1.

OPTION 3. Reduce benefits to Not had to argue with the Foundation. To do this, you need to draw up the same documents as in option 2, as well as an order from management that the reason for violating the regime is unjustified and the benefit is subject to reduction.

The Law says nothing about how many days of sick leave the benefit should be reduced. clause 1 part 1, part 2 art. 8 of Law No. 255-FZ. Does this mean that you need to reduce it for the entire time after your first start at work? And if the first few days of sick leave have been worked, should the entire benefit be recalculated based on the minimum wage?

For example, a sheet is opened on November 1, its first continuation is from November 16 to 30, the second is from December 1 to 12, and it starts working on December 13. The employee worked on November 12 and 13.

If we calculate, based on the minimum wage, the benefit for most of the sick leave (for November 14, 15 according to the original sheet, for November 16-30 according to the first continuation and for December 1-12 according to the second continuation), then this, of course, is completely will exclude any disputes with the Fund.

However, this will not correspond to the position formulated by YOU. He pointed out that it is impossible to automatically reduce the benefit for the entire period until the end of the sick leave - one should proceed from the proportionality of the violation of the regime and the amount by which the benefit is reduced. Resolution of the Presidium of the Supreme Arbitration Court of February 14, 2012 No. 14379/11.

How to maintain proportionality? For example, reduce the benefit for the same number of days that were worked on sick leave (in our example - for 2 days). Another option tested in court is for the period from the date of the violation to the end of the month in which it was committed Decision of the Khabarovsk Territory AS dated May 12, 2009 No. A73-4225/2009 (Attention! PDF format) , in our example - from November 14 to November 30.

The fact that you act in accordance with the position of YOU reduces the likelihood of a dispute with the Fund, but does not completely exclude it. You are guaranteed to avoid a dispute only if you ignore YOU’s position and reduce benefits for all days from the moment of the violation until the end of the sick leave.

Consequences. In any case, an employee who does not agree with the reduction can complain:

• to the labor inspectorate Part 1 Art. 4.3 of Law No. 255-FZ. She will not accrue additional benefits, but uses the complaint as a reason for verification;
• in the FSS. The Fund will most likely agree with the reduction in benefits. But, like the labor inspectorate, it can take advantage of the fact that, according to the Law, an employee’s complaint is the basis for conducting an unscheduled on-site inspection of the employer and clause 4, part 1, art. 4.3, part 3 art. 4.7 Law No. 255-FZ.

The employee has the right to go to court. As we have already said, the courts support workers whose benefits have been reduced without a note on the sheet.

In some companies, the sheet is immediately returned to the employee without a note about the violation of the regime as containing false information clause 1 part 2 art. 4.3 of Law No. 255-FZ- for the employee to contact the medical organization for it. However, the doctor is not obliged to make such a note on the instructions of the employer. And the employee has the right to refuse. After all, in order to assign and pay benefits by the employer, it is enough to present a sheet issued by a medical organization in the prescribed form and in the prescribed manner. ; clause 12 of the Guidelines, approved. By Resolution of the FSS dated May 21, 2008 No. 110. In general, it would be correct to argue with the Foundation, since in similar cases he should not refuse credit (reimbursement) to the employer, but deal with the medical organization Resolution of the Presidium of the Supreme Arbitration Court of December 11, 2012 No. 10605/12.

The employee can also challenge the employer’s decision that the reason is not valid. There were cases when the employer regarded the reason for violating the regime as disrespectful, and the court did not agree with him Decision of the Kirov District Court of Yekaterinburg dated June 17, 2015 No. 2-4630/2015~M-3590/2015; Decision of the Oktyabrsky District Court of Penza dated May 27, 2015 No. 2-1112/2015~M-1374/2015.

OPTION 4. Reduce the allowance for offset (reimbursement) from the Social Insurance Fund, and give the employee full benefits, paying the difference from the organization's funds. No disputes are expected here: both the employee and the Fund are happy.

Consequences. The amount of the “addition” will have to be charged insurance premiums- how to pay an employee within the framework of employment relations Part 1 Art. 7 of Law No. 212-FZ.

If your employment contracts (collective agreement) provide for additional payments to benefits up to average earnings, then this amount is taken into account in “profitable” and “simplified” expenses x clause 25 art. 255, sub. 6 p. 1,

Another option is to transfer all days worked at the beginning and in the middle of the sick leave in the report card to the end of the sick leave. Then the question of reducing the benefit will disappear, since the entire period for which it is due will fall during the period before the violation of the regime. This will only work if:

• the sheet is closed and presented until the end of the month in which the sick days were worked. Otherwise, you will not be able to accrue and pay wages for them on time;
• from the documents that the labor inspectorate and the Fund look at during inspections, it is not clear that the employee actually went to work on other days (there was no issuance of money on account, advance reports, etc.).

As we see, in almost every option, someone is dissatisfied: either the employee, or the Fund, or the employer, who has to pay part of the benefit at his own expense. Because of this, many simply do not show on their timesheets that they go to work during sick leave, they pay benefits in full for all the days indicated on the sheet, and the days worked, by verbal agreement with the employee, are compensated in some other way (for example, financial assistance, bonus). Keep in mind: in such cases we are talking about illegal spending of FSS funds on benefits for days worked on sick leave. For these days you are entitled to a salary, not an allowance. In addition, subsequently, in the event of a conflict, the offended employee may try to prove through the labor inspectorate or court that he worked on sick leave and demand repayment for the days worked.

Special situation: you will learn from the Social Insurance Fund about an external part-time worker going to work during sick leave.

It happens that employees - external part-time workers They take sick leave for one job and continue to work at another. And often there is no dishonesty in this. For example, a mother takes sick leave for her main job to care for her child and looks after him during the day. And when dad comes home from work, he goes to work part-time. Or a broken arm precludes working as a driver at your main job, but in no way prevents you from working as a part-time watchman.

This question arises if employees themselves want to work while on sick leave, but the company’s management does not like this for some reason.

If you contact a doctor after working a shift at the patient’s request, a sheet can be issued from the day following the day of admission clause 15 of the Order.

When checking a company that paid for sick leave, the FSS compares its report card with the report card of the second employer and comes to the conclusion that the regime prescribed by the attending physician was violated. Therefore, he reduces the benefit to the one calculated based on the minimum wage clause 1 part 1 art. 8 of Law No. 255-FZ, cancels the difference, charges penalties for the arrears that have arisen and, possibly, a fine.

This is, of course, unfair. The employer does not know that the employee is working somewhere else while on sick leave, and he does not have the authority to obtain this information. And he is obliged to pay the sick leave presented to him clause 5 art. 13, paragraph 3, part 2, art. 4.1 of Law No. 255-FZ. Despite this, there is an old court decision, which, having considered a similar case, agreed with a reduction in benefits in such a situation and with the refusal of the employer to offset the difference Resolution of the Federal Antimonopoly Service of Ukraine dated April 20, 2011 No. Ф09-1302/11-С2.

If you find yourself in this situation, you can try to challenge the denial of benefits. One argument is given above: without a doctor’s note, benefits cannot be reduced. Here's another one. When presenting sick leave, the employee is obliged to notify the employer about the circumstances affecting the terms of provision and the amount of benefits. pp. 1, 2 hours 2 tbsp. 4.3 of Law No. 255-FZ. If the employee has not fulfilled this obligation, then the Social Insurance Fund has the right to recover the damage caused to him by the payment of benefits from the employee and Part 3 Art. 4.3 of Law No. 255-FZ. At the time the sheet was presented to you, you did not know and could not know about those facts that the Foundation subsequently regarded as a violation of the regime.

The only case of working on sick leave that does not entail problems is if only the first of the days indicated on the certificate of incapacity for work has been worked. Everyone understands that an employee could feel unwell and consult a doctor after finishing his working day. Then the benefit is due for the period starting from the second day of sick leave.

Dismissal and sick leave

According to Part 1 of Art. 80 of the Labor Code of the Russian Federation, an employee has the right to dismissal at any time convenient for him. By general rule he should notify the organization's administration about this 2 weeks before the date of dismissal.

Moreover, if an agreement is reached between the employee and the administration of the organization, then the employee can resign without prior notice or before the expiration of his term.

In practice, there are often cases when the date of dismissal falls during the period of illness or pregnancy of the employee. In this case, the right to dismissal cannot be limited due to the requirements of the same part 1 of Art. 80 Labor Code of the Russian Federation.

NOTE! It is impossible to dismiss an employee while on sick leave at the initiative of the organization’s administration for disciplinary violations or for other reasons (Part 5 of Article 81 of the Labor Code of the Russian Federation).

Also in practice, questions arise regarding the possibility of including a period of sick leave in the period allotted for notifying the administration of the organization. Analysis of the norms of Part 5 of Art. 81, art. 183 of the Labor Code of the Russian Federation gives a positive answer to this question. That is, within 2 weeks from the date of filing the application until the moment of actual dismissal, the employee can be not only at work, but also on vacation or on sick leave.

Guarantees for the employee and sick leave upon dismissal

According to Art. 183 of the Labor Code of the Russian Federation, in the event of illness or pregnancy, the employee is entitled to a cash benefit, the obligation to pay which rests with the organization.

The fact of dismissal does not relieve the organization of the obligation to pay the employee sick leave, which is expressly stated in paragraph 1 of Art. 6 of the Law “On Mandatory social insurance..." dated December 29, 2006 No. 255-FZ. That is, the organization must continue to pay sick leave until the ability to work fully is restored, even if the person is no longer an employee of this organization.

When an employee’s ability to work cannot be restored (for example, when he is recognized as disabled), the organization is obliged to pay him sick leave for 4 consecutive months, which may fall both before and after the date of dismissal, as indicated by clause 3 of Art. 6 of Law No. 255-FZ.

NOTE! When undergoing further treatment in a sanatorium, the total period of payment for sick leave should not exceed 24 days; Moreover, the fact of dismissal given period does not increase or interrupt, as indicated by clause 2 of Art. 6 No. 255-FZ.

If the employee works on the basis fixed-term contract, the period of which is less than 6 months, he can only claim payment for 75 days of sick leave, the duration of which is not increased or interrupted due to dismissal in accordance with clause 4 of Art. 3 of the specified Federal Law.

Sick leave pay after dismissal

Both current employees and those already dismissed from the organization can receive benefits while on sick leave. There is only one limitation: employees who fall ill within 1 month from the date of dismissal can count on receiving such benefits (Clause 2, Article 5 of Law No. 255-FZ).

IMPORTANT! In this case, the basis for dismissal does not matter for calculating benefits. This may be the desire of the employee, the initiative of the organization’s administration, etc.

The duration of sick pay for a dismissed or employed employee is the same. That is, an already unemployed employee of the organization who falls ill within 1 month after dismissal will also have to pay benefits until his health is restored. Exceptions to this rule provided for in paragraphs. 2-4 tbsp. 6 of Law No. 255, for workers who have become disabled, undergoing follow-up treatment in a sanatorium or who worked under fixed-term employment contracts for up to 6 months, are also preserved.

Amounts of payments to working and dismissed employees

The amount of benefits when on sick leave for working and dismissed employees who fall ill within 1 month from the date of dismissal is determined by Art. 7 of Law No. 255-FZ.

According to paragraph 1 of this article, employees who quit while on sick leave are entitled to a benefit calculated based on the amount of insurance coverage within the following limits:

According to paragraph 2 of this article, employees who are fired and go on sick leave within 30 days from the date of dismissal and whose length of service is more than 6 months are paid a benefit in the amount of 60 percent of average earnings. The limitation on the amount of benefits paid to dismissed employees with less than 6 months of service also remains within the limits of 1 minimum wage per month in terms of the number of days of sick leave.

Thus, even if you have sick leave, the law provides for the possibility of resigning on at will and receive benefits.

Dismissal on sick leave possible only on the initiative of the employee, i.e. at your own request. If you fired while on sick leave at the initiative of the employer during sick leave, dismissal due to staff reduction during sick leave, etc.), then contact a labor dispute lawyer (tel. 987-60-94 ). With our help, the court will reinstate you at work.

Dismissal of an employee on sick leave It is also possible upon liquidation of an organization or termination of activities by an individual entrepreneur. This is permitted by Art. 81 Labor Code of the Russian Federation.

When terminating an employment contract by agreement of the parties, dismissal during sick leave is also possible, since there is no initiative of the employer.

Dismissal at will and sick leave.

An employee can resign at his own request by notifying the employer at least 2 weeks in advance. If you fall ill during these two weeks, the sick leave does not interrupt the specified period and there is no need to re-submit your resignation letter.

The employer has the right to terminate the contract with you based on your application if the period specified in the application has expired and you continue to be ill. You can provide closed sick leave for payment after dismissal.

Work book at dismissal of an employee on sick leave you do not need to send it by mail, but you must send a notice of the need to receive it or agree to send it by mail in order to avoid liability for its delay. You can read more about issuing a work book upon dismissal in a separate article.

It's also possible quit while on sick leave. Let's say you're already sick and want to quit. You can apply for dismissal while on sick leave. The required 2 weeks will begin to run from the day following the day the application is submitted. Time flies, and you are on sick leave.

Dismissal during sick leave at the initiative of the employer.

It is impossible to dismiss an employee who is on sick leave at the initiative of the employer. This is prohibited by Art. 81 Labor Code of the Russian Federation. Even if the deadline for layoff due to staff reduction has approached. Only when the employee returns to work can he be fired on the first day of his return.

If the employee for a long time does not show up at work and answers on the phone that he is on sick leave; until the reasons for his absence are clarified, he cannot be fired. What if he really is on sick leave? In case of such dismissal, any court will reinstate the employee, and the employer will pay for the forced absence.

What should an employer do in this case if there is no one to work? You can take the place of an absent employee by another person by concluding a fixed-term employment contract with him with the wording “until the main employee leaves.”

How to get maternity benefits if?

and don’t run into scammers.

and received severance pay?

How is it produced?

Is it possible?

Employer's responsibility for.

Is it possible to fire an employee while on sick leave, Art. 81 TK. It is prohibited to dismiss an employee who is on sick leave, the legality of which is confirmed by a timely submitted official document - a certificate of incapacity for work. And the duration of the pass, be it even four months, even six months, cannot serve as a sufficient basis for the use of this last resort. In other words, it would be unlawful to fire an employee for being absent from work for too long, as well as for frequent sick leave.

There are also cases of dismissal of an employee for absenteeism if he did not notify management in advance of illness or other cause of disability. Such precedents also contradict the legislation, which does not mention the essential need to bring this information to the attention of superiors. This position it is all the more justified since the employee simply might not have had such an opportunity. For example, if he was in in serious condition due to sharp deterioration health or serious injury.

Sometimes management is confused as to whether it is possible to fire an employee who is on sick leave in the event of a staff reduction. If a position occupied by a temporarily disabled employee is laid off, the manager must wait for him to return to work and only then fire him. However, the Labor Code provides for some situations in which dismissal on sick leave is acceptable.

At the initiative of the employee

An employee, while on sick leave, has the right to terminate the employment contract on his own initiative (Article 80 of the Labor Code). There are three possible scenarios when an employee:

1. First, he submits a letter of resignation, after which, before the end of fourteen days, he unexpectedly goes on sick leave. However, upon receipt of confirmation, the contract is terminated at the scheduled time, even if it falls directly on the day the certificate of incapacity is opened.
2. Expresses his desire to quit while already on sick leave.
3. Writes an application for sick leave followed by dismissal.

Interesting information

In practice, it is not uncommon for employees to be on sick leave for a long time due to the fact that, due to their health, they cannot work as before. However, the company cannot legally terminate the employment relationship with such an employee on this basis. However, many HR specialists are concerned about the question of whether it is possible to fire an employee who has been disabled for more than 6 months. In Art. 81 of the Labor Code of the Russian Federation states that termination of employment relations with an employee who is on sick leave is prohibited. And the period of incapacity for work is absolutely not important here.

Start of two week period

The employee’s intention is implemented in the standard manner, by filing an application addressed to the director. If this action was carried out by sending a registered letter, the date of its receipt will be considered the day the application was submitted. The notorious two weeks necessary to find a replacement and receive written confirmation, which can also be sent by mail, are counted from the next day.

date of dismissal

As can be seen from Rostrud Letter No. 1551-6 dated September 5, 2006, termination of an employment contract occurs:

1. After the two-week period.
2. Another later date specified by the employee in the application.

However, the employer will have to pay for the entire sick leave period, even if some of it continued after the termination of the contract. Sick days are included in the two-week confirmation period, so the employee does not have to make up the missing portion after the bulletin closes.

Calculation

Upon the date of dismissal, the manager issues a corresponding order. If the employee is still on sick leave, the work book is sent to him by mail with notification. All due payments are transferred to a card or bank account. If the employee combined job responsibilities in two or more organizations, sick leave benefits are paid at the main place of work.

Cancellation of application

The resignation letter is canceled if the employee:

1. Withdrew it, which is possible at any time before the expiration of the confirmation period.
2. Didn't confirm his intention at the end of two weeks.

However, even in the presence of these situations, dismissal may still take place. Namely, if another employee was found who received a written invitation to the vacated position and was included in the list of persons who cannot be refused employment.

Mutual agreement

To find out whether it is possible to fire a person who is on sick leave, let us turn to Art. 78 TK. Dismissal by mutual agreement does not require filing an application and is formalized by an appropriate agreement. Unlike termination of a contract at the initiative of the employee, it does not involve working the mandatory 14 days and is carried out on the day specified in the agreement.

Important information

If an employer violates the rights of an employee and dismisses him during sick leave, the employee must first contact the Labor Inspectorate with documents confirming that he was on sick leave on the date of dismissal, as well as documents confirming the fact of dismissal. If a violation is established, the employer will be issued an order to reinstate the employee in his position and pay wages. It is worth considering that the instructions of the Labor Inspectorate are mandatory. If they are ignored, the inspectorate may check the company. An employee also has the right to go to court in case of illegal dismissal while on sick leave. In this case, the employee is given the opportunity to also recover moral damages.

The proposal to conclude it can come from both the manager and the employee. It seems to be a more lenient alternative to dismissal for misconduct. And in a situation where the employer intends to immediately terminate the contract with an unwanted employee, it allows not to reflect the real reason dismissals.

Disability

Whether an employer can dismiss an employee on sick leave also depends on the severity of the illness and its consequences. An employee, while on sick leave, may become disabled and be recognized as:

1. Those who need to be transferred to another position based on the conclusion of a medical commission.
2. Unfit to perform work duties. In this case, the manager has the right to terminate the contract with him by paying for the certificate of incapacity for work.

The contract has expired

Art. 79 of the Labor Code determines whether a person on sick leave can be fired when concluding a fixed-term contract. This is possible if the agreement has expired, even if the employee is on sick leave (Article 79 of the Labor Code). This rule does not apply to pregnant women without their consent. Dismissal must be preceded by a written warning sent to the employee no later than three days before the termination of the employment relationship. An exception is cases of replacing a temporarily absent employee, which do not require such notification (Part 1 of Federal Law No. 90 of June 30, 2006).

Liquidation of the enterprise

Can an employee who is on sick leave be fired in the event of liquidation (self-dissolution) of the enterprise or cessation of activity? individual entrepreneur, specified in clause 1, part 1, art. 81 TK. Namely, all employees can be fired, including those on sick leave. This rule is valid regardless of the cause of disability, be it pregnancy or caring for a child under three years of age. The closure of a separate subdivision (SU), which is located on the territory of another municipal entity, is also equivalent to liquidation (Article 81 of the Labor Code).

Liquidation is considered accomplished from the moment of official announcement. It may happen that an employee quit before the liquidation of the organization, but, within 30 days after that, was forced to issue a certificate of incapacity for work. In this case, its payment is assigned to the Social Insurance Fund.

Watch the video about dismissal while on sick leave.

Taking sick leave after dismissal

In some cases, the company is obliged to pay a certificate of incapacity for work to an already dismissed employee (clause 2 of article 5, clause 3 of article 13 of Federal Law No. 255). To do this, the situation must meet the following conditions:

1. The employee did not have time to get another job.
2. Sick leave was opened within 30 calendar days after termination of the contract.
3. The cause of incapacity concerns the employee himself, and not his close relative.
4. The employee applied for payment of a certificate of incapacity for work no later than 6 months later. after dismissal.

The benefit amount is 60%, regardless of the length of insurance coverage and the reason for dismissal.

In practice, there are cases when a dismissed employee became temporarily disabled after leaving the enterprise. If such a situation arises, you can provide sick leave for payment within six months to your former employer. But this is only possible if the employee has not yet managed to register and start working in another company.

Consequences of illegal dismissal

Perhaps the manager will realize in time the illegality of his own actions and will have time to reinstate the employee before the end of the sick leave. In this case, the dismissal will not leave any consequences, the benefits will be paid as usual, and the employee will continue to carry out labor activity. An unfairly dismissed employee may appeal to the Labor Inspectorate or court by filing statement of claim. In the second option, if the court rules in favor of the employee, satisfying the claim will cost the director (Article 237; Article 394 of the Labor Code):

• reinstatement of an employee;
• payment for forced absence in the amount of the average salary;
• compensation for moral damage.

If you have questions regarding the procedure for filing for divorce, write in the comments.

The article talks about if an employee wrote a letter of resignation and fell ill, when to fire, and explains other subtleties of the law.

Legal regulation

The entire range of labor relations is regulated by the Labor Code. If a person starts to get sick and takes sick leave, then you cannot fire him. Even if a person worked poorly and committed violations of labor discipline, termination of the contract is prohibited.

Sick leave and simultaneous dismissal are incompatible. The rule is established by Art. 81 of the Labor Code.

Important! It is permissible to terminate a contract during a period of incapacity for work if the enterprise is liquidated or a private entrepreneur ceases its activities.

The situation regarding voluntary dismissal is resolved completely differently.

Termination of employment at the request of the employee

It happens that a person writes a letter of resignation, and then begins to get sick. Then the contract is terminated according to the usual procedure. The contract was terminated on the date indicated in the application. There will be no delays.

The issue is resolved in a similar way if an employee writes a letter of resignation and falls ill. When to fire if the contract is terminated by agreement of the parties?

The boss will have to wait until he is released from the hospital if he wants to fire his subordinate. Termination of the contract is possible, but only after the ballot ends.

When the specialist closes the bulletin, the HR employee will write all the necessary information in it. Then an order is issued and an entry is made in the work book.

On the day of dismissal and not a day later, a full settlement must be made with the person; no debts should remain. If cash will not be transferred on the day of dismissal, the employee will have the right to receive salary and penalties for each day of delay.

Difficult situations

It happens that a person falls ill and submits a letter of resignation. In such a situation, managers are often interested in extending the working period. But make a man work extra days management has no right. Two weeks may pass while a person is sick, and there will be no need to work extra time.

You can also safely terminate your contract while on vacation. The time spent in the office will not be extended.

Read also The procedure for dismissal for non-compliance with the position held

2 possible situations upon dismissal:

1. A person writes a statement, and after one week issues a sick leave. Dismissal dates do not shift if the person manages to go to work and close the ballot before the end of the work period.
2. The person is ill, the document on incapacity for work is not closed. The contract is terminated on the date written in the application. The deadlines remain the same. The time during which the person could not work is paid.

You need to give your work book and make payments on the last working day. The law makes no exceptions. It does not matter under what circumstances the decision was made to write a letter of resignation. When a person is absent from the office, this does not mean that there is no need to submit documents. The employee is notified in writing that he should come to the office to receive documents or give the go-ahead for the document to be sent by mail. Employment history is a valuable document. It can only be sent by registered mail if the person cannot receive the form himself.

Even if there are no questions about paperwork, then a financial question often arises: how is dismissal on sick leave paid?

Procedure for payment of time of incapacity for work

Sometimes the following situation arises: an employee decided to quit and then went on sick leave. What will be the payment procedure in this case?

The employer will have to pay for the ballot if the employee was working for the company when it was opened. Moreover, payment is made for the entire time of illness. Former employees you also have to pay. Payment is made if the illness begins within thirty days after dismissal.

Sick leave is paid in the amount of sixty percent of wages.

3 design examples:

Example 1. Kuznetsov N.A. worked as a manager of the Cheap Windows company. Quit. Fifteen days later I fell ill with a sore throat. I contacted my local doctor and drew up a document about incapacity for work. The employer will have to pay. Money is transferred over a period not exceeding thirty days. If the illness continues beyond this period, there will be no payment.

Demands for payment are legal if the employee makes them no later than six months from the date of termination of the contract.

Example 2. Ledentsova I.S. worked as a secretary of the Moscow District Court. The girl resigned from her position. Two weeks after the contract was terminated, I fell ill. I created a newsletter. She brought the document to the personnel service only four months after her dismissal.

Read also Features and procedure for paying severance pay upon dismissal of an employee

Question: Do I need to pay for sick leave for a former employee?

Answer. Yes, it is necessary, despite the fact that before her dismissal, her sick leave was not received by the personnel department. A resigning specialist has the right to present a document for payment no later than six months after his departure. In our example, the deadlines were met.
So, questions about whether it is possible to receive payment for sick time after dismissal are resolved in favor of the employee, the main thing is to comply with the deadlines for the application.

Example 3. Sergeev N.S. works as a mechanic for the Tekhmontazh company. The boss doesn’t like how the specialist performs his duties, and he decided to say goodbye to the unwanted employee. Sergeev fell ill, the doctor opened a document on his incapacity for work. Termination of the contract will be possible when the sick leave is closed. In this case, the procedure established by labor legislation must be followed.

Sanctions for violations

Liability for violations is established by the Code of Administrative Offenses. An employee can seek protection of his rights from labor inspectors, the prosecutor's office and the court.

If the court confirms that there were violations, the employee will be reinstated, and the company will compensate for lost earnings.

Social guarantees are provided by the Labor Code of the Russian Federation. A person can exercise their right to rest and submit a resignation letter at the same time. The rule also applies to cases when a woman takes sick leave to care for a child. In any case, the contract is terminated on the date specified in the application.

Social guarantees do not depend on the reason for registering a ballot. A person can be fired both during his illness and while caring for a sick family member.

Summary

1. The Constitution and the Labor Code guarantee the prohibition of forced labor. Therefore, a person can resign from office whenever he pleases. There are no obstacles.
2. You can resign while on vacation or during illness.
3. If sick leave is issued, then we resign on general principles. Dates are not transferred.
4. If you leave your position, you can still get money. Payment is made if you have time to apply no later than six months after dismissal.
5. When a person leaves work, the ballot is paid for a period no later than thirty days from the date of termination of the contract.
6. The documents are drawn up so that the employee leaves her position on the date indicated in the application. The working time is not extended when a document on incapacity for work is issued.