Is it possible to fire an employee who is on sick leave? Dismissal during sick leave: can an employee be fired during illness? When dismissal is prohibited by law

Dismissal during sick leave is an opportunity provided for by labor legislation for an employer to terminate an employment contract with an employee during his illness. But it is important to follow the established order. Otherwise, the procedure will be declared illegal and the employer will be punished.

Is it possible to fire an employee while on sick leave?

If an employee is temporarily disabled, then several scenarios are possible. Voluntary dismissal during sick leave or dismissal are the most common. Instructions on how to fire an employee on sick leave will depend on the reason, so we will analyze each of them separately.

At the initiative of the employer

An employer has the right to fire someone on sick leave only in exceptional cases, since dismissal of an employee on sick leave is not permitted. Exceptions are when the organization .

At the initiative of the employee

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

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

When an employee leaves on sick leave at his own request after the certificate of incapacity for work is closed. The period starts counting from the day following the day on which the employer received the letter of resignation. If a person has written a statement due to the inability to continue working (pension, enrollment in an educational institution), the employer is obliged to part with him on the day specified in the statement.

Upon expiration of the contract

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

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

By agreement of the parties

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

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

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

Who can't be fired while on sick leave?

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

You can't fire a pregnant woman.

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

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

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

Do I need to work 14 days?

As with any dismissal, this depends on the agreement with the employer. But it is important to remember that the employee upon completion of the certificate of incapacity for work. The countdown of the period begins on the day following the day the employer receives the notice of dismissal.

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

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

How to properly file a dismissal while on sick leave

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

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

How to write a statement

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

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

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

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

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

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

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

Sample application

How to place an order

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

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

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

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

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

Sample order

What entry should be made in the labor report?

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

The employer stamps the book.

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

Terms and payment procedure

Employer on the last day of work. Absence on a certificate of incapacity for work must be paid on a general basis.

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

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

How to calculate sick leave upon dismissal

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

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

Calculation example

Let’s say the salary for 2 years was 2,000,000 rubles, the insurance period was 6 years, and the number of days of incapacity for work was 10.

2,000,000 rubles / 730 days = 2,739.7 rubles (average daily earnings).

2739.7 rubles × 80% = 2191.8 rubles (calculation for the specified length of service).

2191.8 rubles × 10 days = 21,918.0 rubles (sick leave amount).

The amount that the employee receives in hand is considered minus 13% income tax.

Responsibility for violations

Lawyers will confirm that if an employer dismisses someone on sick leave with violations, he or she may face various consequences.

Administrative liability (in case of non-payment or untimely payment of due funds) under Parts 6, 7 of Art. 5.27 Code of Administrative Offenses of the Russian Federation in the amount of:

• 1000-5000 rubles - for individual entrepreneurs;

• 20,000-30,000 rubles - for an official;
• 10,000-30,000 rubles - for individual entrepreneurs;
• 50,000-100,000 rubles - for a legal entity.

Administrative liability for other violations related to dismissal, under Parts 1, 2 of Art. 5.27 Code of Administrative Offenses of the Russian Federation in the amount of:

• 1000-5000 rubles - for an official;
• 1000-5000 rubles - for individual entrepreneurs;
• 30,000-50,000 rubles - for a legal entity.

Repeated violation will increase the amounts:

• 10,000-20,000 rubles - for an official;
• 10,000-20,000 rubles - for individual entrepreneurs;
• 50,000-70,000 rubles - for a legal entity.

Ask questions and we will supplement the article with answers and explanations!

The legality of dismissal during sick leave depends on the initiator of the procedure. A situation may arise that an employee submitted a letter of resignation, but suddenly fell ill. What should the employer do in this case? Should I wait for the employee to recover or fire him after the 14-day period required by law has expired? Is it even possible to fire someone while on sick leave at their own request? Can an employer fire an employee on his own initiative? Let's figure it out.

Dismissal during sick leave at the initiative of the employer

The law prohibits dismissing an employee who is on sick leave, provided that he has concluded an open-ended employment contract with the employer. But there are a number of cases when this is possible, namely:

• upon termination by the employer of its activities or liquidation of the employing organization;
• upon expiration of the employment contract.

When a company is liquidated, a former employee can receive sick leave payments from the Social Insurance Fund (at his place of residence). For this he will need:

• statement:
• SNILS;
• certificate of incapacity for work;
• passport;
• employment history.

If the contract term is coming to an end

Is it possible to dismiss an employee while on sick leave at the end of the employment contract? Let me explain. If an employee is on sick leave and the term of his employment contract has come to an end, then the employer has the right to dismiss him. Otherwise, the fixed-term contract may take an indefinite form. Then it will no longer be possible to stop it during illness.

Is it possible to dismiss an employee while on sick leave if she is a pregnant woman (under any form of contract)? Definitely not. But she must provide the employer with a corresponding doctor’s certificate.

Algorithm for an employer's actions when the contract expires:

1. It is necessary to send the employee by mail a notice of the end of the contract with an invitation to appear for a work book. If the employee agrees, then it is possible to send it by mail.
2. Drawing up an order in form T-8 on the dismissal of an employee (if necessary, with a note that he cannot familiarize himself with the document due to absence).
3. Making a corresponding entry in the work book and personal card of the employee (Article 77, paragraph 2 of the Labor Code of the Russian Federation).
4. Transfer of all due payments to the employee (salaries and compensation for unused vacation).
5. After the former employee submits sick leave to the accounting department, it is paid in full (if the illness occurred before the end of the contract).

Read also Dismissal and compensation for unused vacation in 2018

Dismissal at the request of the employee

Many people are interested in the question of the possibility of voluntarily dismissal during sick leave. Let's talk about this in more detail.

If an employee submitted a letter of resignation before his illness, the employer has every right to dismiss him before the end of his sick leave period (14 days from the date of filing the letter). The procedure for terminating an employment contract in this case is standard:

• a dismissal order is written;
• a note is made in the work book and personal card;
• sick leave and other debts to the employee are paid.

There are situations when an employer forces an employee to work off the time missed during illness (14 days). He has no right to do this (letter of Rostrud dated 09/05/2006 No. 1551-6).

Is it possible to fire an employee during sick leave at the request of an employee? Yes it is possible. After informing the employer of the desire to terminate the employment contract, the employee can be either on vacation or on sick leave.

If for any reason during illness an employee changes his mind about resigning, he has the right to withdraw his application (it is advisable to do this in writing).

Payment of sick leave

Sick leave is paid on a general basis if it was issued for a still working employee. A certificate of incapacity for work is issued for different periods, depending on the severity of the illness.

By law, the employer is required to pay for such documents within 30 days after dismissal during sick leave, provided that he is not officially hired for another job. Most of the payments are covered by the Social Insurance Fund (the employer only pays for the first 3 days of sick leave). The amount of payments is equal to 60% of average earnings. In general, it is calculated as follows.

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)

Is it possible to quit while on sick leave? This topic is currently of interest to both employers and, accordingly, employees. Severance of labor relations during a period of sick leave is possible only on the basis of the employee’s initiative. This situation can have different options. For example, an employee initially wrote a statement about ending his employment contract with the employer, and then fell ill, or got sick and, while on sick leave, decided to quit. Or, going on sick leave occurred on the very day when the application for termination of the employment relationship was submitted. Taking into account all these options, the employer is obliged to correctly dismiss the employee at his own request during sick leave. In addition, the initiative of the institution employee in this case also includes the agreement of the parties.

Dismissal of an employee during illness at his own request

An employee can resign at his own request while on sick leave by notifying the employer 2 weeks in advance. It may happen that he falls ill during these two weeks, then the sick leave does not interrupt the specified period and there is no need to re-apply for dismissal.

Also, the employer has the right to terminate the contract with the employee based on his application if the deadline that was specified has arrived and the employee of the company is still ill. Then the dismissed person must provide a closed medical certificate of incapacity for work for calculation.

In practice, quite often a situation arises where an employee of an organization does not want to work the two weeks allotted to him before dismissal, so he submits a letter of resignation and goes on sick leave due to illness. In such cases, the manager sometimes demands that you work for the required period after recovery.

A detailed explanation about this issue was given by Rostrud, which believes that the employer’s demands are unreasonable - if the employee warned about this 14 days before dismissal, then the date of dismissal from the place of professional activity can in no case be postponed to another day according to the employer’s initiative. The department also indicates that the date of dismissal may well coincide with a period of vacation or release from work due to illness.

Dismissal on sick leave at one's own request occurs after the employee has recovered and returned to the enterprise. The manager must immediately fill out a sick leave form and only then formalize the dismissal.

Dismissal of one's own free will during sick leave must be accompanied by the issuance of a work book. It does not need to be sent by mail immediately, but it is necessary to send a notice that the dismissed employee must pick it up or give his consent to be sent by mail. The employer is released from liability regarding the untimely issuance of the work book from the very day he sent the specified notice.

Dismissal of an employee of an institution on sick leave based on the initiative of the employer

Is it possible to fire an employee who is on sick leave? The answer to this question is Art. 81 of the Labor Code of the Russian Federation - dismissal of an employee of an institution based on the initiative of the employer during the period of his incapacity for work or vacation is not allowed. Even if the employee fell ill on the day on which he was supposed to be fired, then this procedure will have to be postponed until he recovers.

If it happens that an employee does not appear at his legal workplace for a long time, but reports by phone that he is ill and is taking sick leave, then until the final reasons for his absence are clarified, the manager cannot remove him. In case of such dismissal from the place of professional activity, any court will take the side of the employee and reinstate him, and the employer will pay for the forced absence. What should an employer do in a situation where there is no one to work? You can hire another person to replace a sick mercenary before the main employee joins the company, concluding a fixed-term employment contract or agreement.

Art. 81 of the Labor Code of the Russian Federation states that it is possible to dismiss an employee who is on sick leave at the initiative of the employer only upon liquidation of the enterprise or upon termination of activities by the entrepreneur.

Calculation upon termination of employment during sick leave

According to Art. 140 of the Labor Code of the Russian Federation, on the day of termination of the employment contract (agreement), the manager is obliged to make a payment upon dismissal at his own request, if there is sick leave, and is also required to pay compensation (reimbursement) for unused vacation (part one of Article 127 of the Labor Code of the Russian Federation). If an employee of an institution is ill on the day of his dismissal and cannot come for payment, then the amount due to him must be paid no later than the next day after he submits a request for payment.

Since the insured event (illness) occurred during the period of work under an employment agreement, the employee of the enterprise has a legal right to temporary disability benefits. There are general rules according to which, in case of injuries and illnesses, temporary disability benefits are paid for the entire period of short-term disability until the end of the sick leave. In Part 1 of Art. 9 of Law N 255-FZ specifies the periods for which short-term disability benefits cannot be awarded. The benefit is paid for the entire period until the closure of the ballot, including the days after the date of dismissal.

Part 2 Art. 7 of Law N 255-FZ describes that benefits for short-term inability to work due to injury or illness are paid in the amount of 60% of average earnings if a person falls ill within 30 calendar days after completion of work under an employment agreement. Due to the fact that in this situation the insured event occurred before the termination of the employment relationship, the benefit is paid in the usual amount, since it depends on the insurance period.

To assign and then pay benefits for short-term inability to work, the insured person must provide a sick leave certificate, which must be issued by a medical institution. Part 1 art. 15 of Law N 255-FZ clearly establishes that the insurer must assign temporary disability benefits within 10 calendar days from the date the insured person applies for it with the necessary documents. The policyholder makes the payment of benefits on the nearest day after the assignment of benefits, which is set for the payment of wages.

Summarizing all of the above, we can come to the following conclusion: if an employee provides sick leave at the time of termination of the employment contract, then the employer undertakes to pay the benefit on the day of his departure. But if an employee of an enterprise does not provide a sick leave certificate at the time of dismissal, then the employer undertakes to pay the benefit on the next day that is set for the employer to pay wages.

So, the answer to such a pressing question for today: “What to do with the calculation when leaving at your own request if you have sick leave?” may be as follows: in accordance with the Federal Law “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Maternity,” sick leave, which is open to an employee of the company, is paid to him on a general basis. And this does not depend on whether the employment relationship was preserved at the time of its closure or not.

“The slightest thing - straight into the bushes!” Are you familiar with the position of employees who are responsible for something and fail to do it? Most often, such an employee suddenly becomes seriously and long-term ill. Does the employer have the opportunity to stop the tricks of unscrupulous employees who are trying in such a simple way to avoid responsibility for unfulfilled management tasks?

Almost every employer has encountered the situation of “ostrich” behavior of their employees: when there is a danger of disgrace from management and the risk of being punished for failure to fulfill their duties, the employee suddenly turns out to be sick. At the same time, his incapacity for work is confirmed both visually (the employee is absent from the workplace) and documented (the employee submits a certificate of incapacity for work). However, management has every reason to believe that there is actually no disease.

What reasons might prompt an employee to take such actions? The list is short:

1. Conflict. By going on sick leave, an employee thereby tries to avoid an imminent conflict with management and colleagues. The main message is “time heals,” which in this situation means the employee’s hope for exhaustion, repayment of the conflict by the long and complete absence of one of its parties.
2. Failure to comply with a standard, plan, task. The employee was afraid of the responsibility assigned to him by the manager for completing some task or project. The situation gets worse if the task is not completed and punitive measures may follow from the employer. For example, bringing to disciplinary action or reducing the size of the bonus.
3. Threat of dismissal. An employee becomes unable to work overnight due to news of an upcoming reduction in staff or numbers. Fearing being given notice of impending dismissal, the employee prefers to “get a little sick” in order to give himself a head start in finding a new job or a way out of the current situation. For example, getting pregnant.
4. Continuation of vacation. A trivial situation when an employee did not have time to return from vacation. Lack of advance planning of the route sometimes leads to sad results - there are no tickets for the last day, or the transport is broken down or stuck in the steppe, etc. The solution is to urgently issue (often “retrospectively”) a certificate of incapacity for work from a doctor you know.
5. Fatigue. The situation is typical for work areas where employees are very tired due to workload, intensity of work, and there is no alternative to replacement. For example, for a chief accountant if he does not have a deputy, or for employees occupying positions directly related to working with the public (payment acceptance, cashiers in supermarkets where there is a large flow of visitors), if there is no replacement employee. In such cases, in the absence of a full weekly rest, as well as the impossibility for production reasons of using annual paid leave in full at a time, the employee decides to take a little rest on sick leave.
6. Studies. The reason is relevant only for training employees. Reluctance or inability to take study leave, including in cases where the employer opposes the employee’s legal request to provide study leave, gives rise to the appearance of a disease that requires long-term outpatient treatment. Just for the entire duration of the next session at the educational institution.
7. Alcohol intoxication. Drawing up a certificate of incapacity for work serves as an emergency way out of the situation of an employee remaining intoxicated at the beginning of the working day or becoming intoxicated from drinking alcoholic beverages at the workplace. The problems are aggravated by the employer’s identification of this fact. In this case, the reason for going on sick leave becomes twofold: on the one hand, the employee, due to his general health, cannot perform his job duties, and on the other hand, in this way the employee tries to minimize the risk of being punished (including fired) for showing up at work drunk. All this becomes the reason for the employee to contact a medical organization in order to obtain a certificate of incapacity for work.
8. A game of hide and seek with management. In most cases, the basis for this reason lies in the political and career games of the “top” of the organization or its structural unit. A change in leadership, potentially dangerous by a subsequent chain of personnel changes, always causes trembling horror and nervous anticipation on the part of deputies, assistants and middle managers. “Serving” on sick leave in certain cases makes the employee invisible to management. In the heat of personnel changes, an employee who is neither seen nor heard is somehow forgotten for a while. And... they don’t touch it. And upon returning to work, he continues to work as if nothing had happened at his previous workplace and in his previous position.
9. Laziness. Perhaps the strangest reason of all. Its emergence is due to the presence of “warm” jobs, where there is little work, it is not hard and even well paid. But boring, uninteresting. And in general, despite all its positive properties, I’m somehow… too lazy to do it (the work). And while on sick leave you can have a good rest!

We use fighting methods

Of course, few employers are satisfied with the behavior of employees hiding from problems at work in clinics at their place of residence. Is it possible to combat this phenomenon and how? Let's try different paths and see what comes of it.

Solution 1: check the sick leave certificate for counterfeit and illegal issuance

Unfortunately, the employer will not be able to do this on his own due to. However, an employer, having reasonable doubts regarding the certificate of incapacity for work itself or the validity of his employee’s incapacity for work, may apply:

• to the authorities of the Social Insurance Fund of Russia with a request for verification. If the FSS of the Russian Federation recognizes the employer’s arguments as worthy of attention, an inspection will be carried out in relation to the healthcare institution in accordance with the Instructions on the procedure for monitoring the organization of examination of temporary disability, approved by Order of the Ministry of Health of the Russian Federation No. 291, FSS of the Russian Federation No. 167 of October 6, 1998;
• to the police and prosecutor's offices, which, within the framework of their powers, will also check the circumstances of the issuance of a dubious certificate of incapacity for work in order to detect signs of a crime.

Risk Such a solution to the problem for the employer lies in the possibility of violations that could lead to administrative and criminal liability provided for:

• Art. 24 of the Law on Personal Data (legal norms on personal data);
• Art. 13.11 of the Code of Administrative Offenses of the Russian Federation for violation of the procedure established by law for the collection, storage, use or dissemination of information about citizens (personal data) or Art. 13.14 Code of Administrative Offenses of the Russian Federation for disclosure of information with limited access;
• Art. 137 of the Criminal Code of the Russian Federation for violation of privacy (disclosure of information about the personal life of an employee, which can be qualified as a crime).

Plus of the method- the desire to achieve truth and justice.

Disadvantages of the method- violation of employee rights, many wasted actions with almost zero results, the pointlessness of attempts to convict doctors of illegally issuing certificates of incapacity for work.

Thus, the decision entails a great risk of liability for officials of both the employer itself and the medical organization in which the employee is being treated. It can only be true when contacting the Federal Social Insurance Fund of the Russian Federation and the prosecutor's office in order to initiate an audit of the circumstances of the issuance of a certificate of incapacity for work by a medical institution for an employee.

However, you can act in another way - through the investigative authorities. After all, the production and use of false documents is a criminal offense. And if we take into account that an agreement between an employee and a doctor, as a rule, does not exist without a bribe, which is also recognized as a crime, there is even more reason to initiate an appropriate inspection and initiate a criminal case based on its results.

Arbitrage practice

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The court convicted two people - an employee who gave a bribe for issuing a false “sick leave” and then received temporary disability benefits for it, and a doctor who received this bribe. The case turned out to be ordinary: knowing that he was not given leave at work (not according to the schedule, but at will), the employee turned to a general practitioner at a clinic other than his own with an offer to draw up and issue him certificates of incapacity for a total period of 15 days for a monetary reward. . Having agreed with the doctor, the employee went on vacation at sea, upon his return paying the doctor and receiving a document confirming his absence from work was justified, although he was not sick and was not disabled during the specified period. The employer paid for the certificates, including at the expense of the Federal Social Insurance Fund of the Russian Federation, but reasonably doubted the reality of the employee’s illness. At the initiative of the employer, after an appropriate check, a criminal case was initiated, and it even went to court. Both citizens were found guilty of committing crimes under the Criminal Code of the Russian Federation: the doctor - for forgery and taking a bribe, and the employee - for fraud and giving a bribe. Both received two years of suspended imprisonment with a probationary period of the same duration (sentence of the Lysvensky City Court of the Perm Territory dated March 4, 2008).

Solution 2: dismiss for absenteeism, allegedly not knowing about the employee’s illness

The possibility of dismissal for absenteeism is provided for in subsection “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation. Paragraph 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2) contains clarifications regarding cases of application of this basis. Thus, it is allowed to dismiss an employee on the above grounds for:

• absence from work without good reason, i.e. absence from work throughout the entire working day (shift), regardless of the length of the working day (shift);
• the employee being outside the workplace without good reason for more than four hours in a row during the working day;
• abandonment of work without a valid reason by a person who has entered into an employment contract for an indefinite period, without warning the employer of termination of the contract, as well as before the expiration of the two-week warning period;
• abandonment of work without a good reason by a person who has entered into an employment contract for a certain period before the expiration of the contract or before the expiration of the warning period for early termination of the employment contract;
• unauthorized use of days off, as well as unauthorized departure on vacation (main, additional). The exception is when the donor uses rest days when the employer illegally refuses to provide them.

Let us remind you that the burden of proving the fact of absenteeism lies with the employer (clause 38 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2).

Risk Such a decision consists of declaring the dismissal illegal, restoring the employee to his previous position, as well as collecting wages from the employer for the period of forced absence and compensation for moral damage.

Advantages of the method- an immediate impact on the employee, forcing him to be active, show up at work, show a certificate of incapacity for work, and explain the reasons for his absence. In addition, this method shows the employee that the employer is serious and wants to part with him.

Disadvantage of the method is that it is illegal. Even if the employer did not know about the employee’s illness, the latter is subject to reinstatement at work in court, where he will file a corresponding claim. Part 6 art. 81 of the Labor Code of the Russian Federation prohibits dismissal at the initiative of the employer during the employee’s illness or while he is on vacation. The only possible case of leaving the dismissal as is is if the employee himself misses the deadline for going to court (one month from the date of dismissal - Article 392 of the Labor Code of the Russian Federation). In this case, it is mandatory for the employee to familiarize himself with the order, including in absentia (sending the order to the address of residence with notification of the need to obtain a work book, i.e. the actions provided for in Article 84.1 of the Labor Code of the Russian Federation when dismissing an absent employee). This is necessary to prove the date the employee became aware of his dismissal and the start of the period provided for in Art. 392 of the Labor Code of the Russian Federation has a one-month period for going to court.

As you can see, the method is not based on law. The likelihood that the employee will not challenge it is very low.

Arbitrage practice

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The employee filed a lawsuit against the employer to declare the dismissal order illegal and cancel it, to change the date and wording of the grounds for dismissal, to recover monetary compensation, compensation for moral damage, and legal costs. In support of the claim, she indicated that she submitted an application to the employer for leave with subsequent dismissal. While on vacation, she fell ill, about which she notified her employer by fax and asked to extend her vacation by the number of days of incapacity. Upon returning from vacation (after two months), she found out that she had been fired for absenteeism.

The court found that the plaintiff was granted leave, during which she actually became ill. During the period of incapacity for work, she was issued two certificates of incapacity for work, the second of which was improperly brought to the attention of the employer. At the end of the first period of incapacity, the employee did not return to work. The employer conducted its own investigation, and the plaintiff was fired for absenteeism. However, due to the controversial fact of improper communication of information about the employee’s continuing disability, the court found proven the fact of her appeal to the employer to extend her leave for both periods of disability.

The court concluded that the dismissal procedure was violated; the employee was fired while she was on annual paid leave. This conclusion is based on the provisions of Art. 124 of the Labor Code of the Russian Federation, obliging the employer to extend or postpone the employee’s next vacation for the period of the employee’s temporary disability. Failure by the defendant to issue an order to postpone or extend the plaintiff’s vacation does not automatically deprive the employee of the right to its extension. If an employee wishes to resign at the end of annual leave, the day of dismissal must be considered the last day of leave. The employer determined the specified dates incorrectly, and therefore the plaintiff’s absence from the workplace was unreasonably regarded as absenteeism, which, in turn, resulted in illegal dismissal. Therefore, the court declared the dismissal illegal, changed the wording of the dismissal to “dismissal of one’s own free will,” and simultaneously collected appropriate compensation from the employer in favor of the employee (decision of the Sovetsky District Court of Astrakhan dated April 30, 2010).

Solution 3: do not pay benefits due to suspected fake sick leave

The situation is critical: the employer, having more than once caught the employee using such a method of avoiding troubles as sudden incapacity for work, confirmed by a properly issued and executed certificate of incapacity for work, decides to go for broke, i.e. do not pay for time of incapacity.

Risks arise immediately in aggregate:

• unscheduled inspection by the state labor inspectorate and the prosecutor's office at the request of the employee. And as a result of detecting a violation of an employee’s rights to receive social insurance benefits, the issuance of an appropriate order to eliminate the violation;
• bringing the employer or its officials to administrative liability under Art. 5.27 Code of Administrative Offenses of the Russian Federation for violation of labor legislation;
• bringing the employer to financial liability under Art. 236 of the Labor Code of the Russian Federation (collection of compensation for delay in payment of temporary disability benefits);
• recovery by the court from the employer in favor of the employee of amounts of compensation for moral damage caused by violation of his rights.

Plus of the method- temporary material impact on the employee: “If you don’t go to work, you won’t get anything. And while you are suing and complaining, there is no more money for food.”

Disadvantage of the method- a high risk of holding the employer liable in the absence of a visible effect on the employee. The employee will still receive temporary disability benefits - whether voluntarily, or through the influence of regulatory authorities, or through the court.

The method is not based on the law and immediately entails the risk of administrative and financial liability. However, it is possible to invalidate the certificate of incapacity for work and recover from the employee the amount of temporary disability benefits paid.

Arbitrage practice

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The employer filed a lawsuit against the employee to invalidate the certificate of incapacity for work and return the temporary disability benefit. In support of the claim, he indicated that the plaintiff went on vacation without registering it in the prescribed manner. However, upon completion, she presented a certificate of incapacity for work. At the same time, the certificate of incapacity for work was issued one day before the start of the defendant’s vacation, but there were no marks on it about the employee’s violation of the regime, although the vacation lasted longer than the periods established for carrying out examinations of the disabled. The employer paid social insurance benefits for the specified certificate of incapacity for work. An inspection of this sheet carried out by the Federal Social Insurance Fund of Russia led to the employer’s refusal to reimburse the benefits paid.

The court, based on information about departures from the airport, established the dates and times of departure and arrival of the defendant. Having examined the certificate of incapacity for work, the court did not find any violations in the procedure for issuing it, but found violations in the procedure for its extension and completion (in terms of the absence of appropriate notes on the patient’s failure to appear for examinations). Based on the evidence presented, the court concluded that, without notifying the employer and without documenting her request, the defendant spent her vacation having planned it in advance. Not knowing that the employee was on vacation, the employer paid her benefits. Taking into account the provisions of the law that amounts of temporary disability benefits overpaid to the insured person cannot be recovered from him, except in cases of accounting error and dishonesty on the part of the recipient, the court found the employee’s actions to be dishonest. However, due to the fact that no violations were identified when issuing a certificate of incapacity for work, the court declared the certificate of incapacity invalid starting from the day following the day of application, and recovered the paid amount of benefits from the defendant for 9 days, thus partially satisfying the employer’s claims ( decision of the Aircraft District Court of Kazan dated February 11, 2011 in case No. 2-215/11).

Decision 4: punish the employee in absentia - during his illness

The employee let the employer down by making mistakes at work and suddenly going on sick leave, and did this at the very beginning of the investigation into errors and violations, so the employer decides to punish him without waiting for his return. In this case, the procedure for bringing to disciplinary liability will be violated: an explanation is not requested from the employee, the investigation will be carried out without his participation, he will not be familiarized with either the investigation report or the order of punishment. Therefore the main risk consists in challenging the order of punishment due to non-compliance with the procedure for bringing to disciplinary liability established by Art. 193 Labor Code of the Russian Federation.

Plus of the method- the employee will be punished.

Disadvantage of the method- if the employee is highly legal, the punishment will be in vain; he will challenge it in court and remain unpunished. However, if the employee misses the three-month (one month if the punishment was dismissal) period for going to court (the period begins from the day he becomes familiar with the order of punishment) and the employer declares this when considering a legal dispute, the order of punishment may not be will be cancelled.

The method is not based on law. There is a high risk of challenging the employer's actions. It’s another matter if the employee cheated here too - he didn’t say about his disability, he hid this fact from the employer for the purpose of subsequent reinstatement at work. In this case, the court recognizes the employee’s actions as an abuse of right.

Arbitrage practice

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The employee filed a lawsuit for reinstatement at work. He considered his dismissal illegal, since in violation of Art. 81 of the Labor Code of the Russian Federation was dismissed during a period of temporary incapacity for work. The court found that the employer conducted an internal audit of the plaintiff, which confirmed that he had committed a disciplinary offense, and the plaintiff was presented for dismissal “under the article.” On the last day of work, a settlement was made with the plaintiff, but then he presented certificates of incapacity for work, according to which the onset of his illness and treatment coincided with the date of dismissal. Having analyzed the case materials, the court came to the correct conclusion that the fact that the plaintiff committed an offense, which influenced the employer’s decision to terminate the employment contract with the employee, was confirmed. Verifying the plaintiff’s argument about dismissal during the period of his incapacity, the court concluded that the plaintiff’s actions involved an abuse of right, since he did not promptly notify the employer’s management of his temporary incapacity. At the same time, after the receipt of the certificate of temporary incapacity for work, the employer issued an order that amended the order to dismiss the plaintiff, replacing the date with the first working day after the plaintiff returned from sick leave. In this regard, the court did not find any violation of the employee’s rights in the employer’s actions and rejected the employee’s claim for reinstatement at work (decision of the Pravoberezhny District Court of Lipetsk dated November 6, 2012; appeal ruling of the Lipetsk Regional Court dated January 16, 2013 in case No. 33-3228 /2012) .

Solution 5: punish for failure to fulfill duties after the employee returns to work

The situation when, despite the “ostrich” behavior of the employee, the employer decides to punish him anyway, develops as follows. In this case, the manager gives the task to conduct an investigation, prepare all the documentation in anticipation of the employee returning from sick leave in order to complete the procedure for bringing disciplinary action and issuing an order to punish the suddenly ill employee who committed a violation of discipline and his official duties.

If the disciplinary procedure is carried out correctly there are no risks.

Plus of the method- a conscious, gradual, targeted influence on the employee, designed to prove to the latter that no matter how much he hides on sick leave, he cannot avoid responsibility. After all, according to Part 3 of Art. 193 of the Labor Code of the Russian Federation, disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees. Thus, the employer will still have time to punish the employee, despite the duration of the latter’s illness.

Disadvantage of the method- it is necessary to wait for the offending employee to come out and then prevent mistakes in the procedure for bringing to disciplinary liability that could lead to the recognition of the order of punishment as invalid.

As we can see, the method is effective in terms of “accumulation” of disciplinary sanctions for the same employee, giving the employer the right to dismiss him in the future under clause 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation (for repeated failure to fulfill official duties).

The courts fully agree with the correctness of the employer in not rushing to issue an illegal punishment order in advance (due to non-compliance with the procedure), without denying his right to punish the employee after the end of the latter’s temporary disability.

Arbitrage practice

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The employee appealed to the employer with a claim to recognize the order to impose a disciplinary sanction as illegal, to force him to pay a bonus, and to compensate for moral damages. The court found that one of the plaintiff’s job responsibilities was to provide instructions on labor protection at the enterprise. On the eve of the onset of incapacity, the plaintiff filled out a log, entered the dates of the instruction and sent the log to the posts for the signatures of those instructed, but did not conduct any actual instruction. According to witnesses, this happened many times. The plaintiff’s argument that during the period of his illness the employer should have appointed another responsible person who would have carried out the planned instruction does not matter for the decision in the case, since the plaintiff committed a violation of discipline by making entries about instructions that had not yet been carried out. From the moment the violation was discovered until October 2, 2010 (approximately three months), the plaintiff was absent from work and disciplinary measures could not be applied to him during this period. However, after the plaintiff returned from sick leave, the employer, having completed all the actions required by law, brought the employee to disciplinary liability. Before applying a disciplinary sanction, a written explanation was requested from the plaintiff, which the plaintiff did not provide within the prescribed period, and therefore an act of refusal to provide a written explanation was drawn up. When applying disciplinary measures, the court did not find any violations on the part of the employer. Based on the above, the court found the plaintiff’s demands unfounded and refused to recognize the order of punishment as illegal (decision of the Severobaikalsky City Court of the Republic of Buryatia dated December 28, 2010).

Solution 6: reduce the employee’s bonus

Since it is not possible to punish the employee and there is no right not to pay social insurance benefits, the employer decides in some way to reduce or completely deprive the employee of the bonus. The desire is laudable and has a chance to be realized. For this to happen, the following conditions must simultaneously exist:

• the enterprise must operate a time-bonus or piece-rate wage system;
• the size of the bonus is not clearly fixed anywhere;
• the amount of the premium is subject to calculation based on certain changing indicators each reporting period;
• the procedure for calculating and paying bonuses is regulated by the employer’s local regulations (for example, the Regulations on Bonuses);
• local regulations (Regulations on bonuses) provide for a reduction (the employee has the right to a bonus in a smaller amount compared to the base amount) or non-payment of a bonus (i.e. when there is no right to a bonus at all) to employees who have disciplinary sanctions in the reporting period ( indicating the reduction coefficient or cases of complete non-accrual of the premium).

Thus, in order to exercise its right to reduce the size of the bonus or not pay it at all, it is enough for the employer to punish the employee (see decision 5) in compliance with the procedure provided for in Art. 193 Labor Code of the Russian Federation. And then act in accordance with the Regulations on Bonuses (or other local regulations governing relations regarding the payment of bonuses): collect memos, reports, punishment orders (issued when the employee returns to work after an “illness”), calculations and attach to the order on bonuses (de-bonuses) as a basis for not awarding a bonus to a cunning, sick violator of discipline.

Risk There is always a challenge to non-accrual of premiums, but it will arise only if all or part of the conditions listed above are absent.

Plus of the method that it is effective and legal. Its goal - to reduce the likelihood of relapses of such behavior by employees - is quickly achievable. Next time, many of these imaginary “patients,” having assessed their own losses, will prefer not only to endure the unpleasant procedure of investigating the violation they committed, but will also minimize the percentage of errors in the future.

Disadvantages of the method Hardly ever.

Thus, punishing workers with rubles can even be useful: they are less likely to make mistakes at work, and less likely to try to escape trouble by going on sick leave.

Arbitrage practice

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The employee filed a claim against the employer for the appointment and payment of temporary disability benefits, payment of underpaid wages, and compensation for moral damage. In support of the claim, she indicated that the employer, incorrectly accounting for her working hours in the accounting sheet, did not pay her additional wages, and also did not pay sick leave in full. The court found that, according to the work time sheets, the plaintiff worked only 34 days during the annual pay period: in September 2008 - 15 days; in October, November, December 2008 - 0 days; in January 2009 - 4 days; in February 2009 - 7 days; in March, April 2009 - 0 days; in May 2009 - 5 days; in June, July 2009 - 0 days; in August 2009 - 3 days. The endless “sick leave” and the plaintiff’s removal from work did not affect the continuation of the labor relationship between the disputing parties. The court checked all the accruals and payments made to the plaintiff and partially satisfied her demands, collecting compensation for moral damage caused by the illegal removal. All other demands for the collection of monetary amounts were denied to the plaintiff. At the same time, the court agreed with the employer in not accruing a bonus to the plaintiff, and in not including a one-time bonus in the calculation of average earnings (decision of the Budennovsky City Court of the Stavropol Territory dated February 24, 2011).

Solution 7: voluntary and persuasive method of parting with an unscrupulous employee

The employer is no longer satisfied with the employee’s game of being “always sick”, and he decides to part with the sly man. At the same time, he chooses a direct method - the method of persuasion. Giving various arguments, the employer insists on terminating the employment contract. Various reasons are used - from the employee’s own desire to the agreement of the parties. In any case, the separation does not occur on the basis of the “employer’s initiative,” although at his suggestion.

If a positive result is not achieved, the employment relationship between the parties continues. However, in this case, the employer’s goal (to terminate the employment contract) can be achieved using other methods, including on his initiative using one of the grounds provided for in Art. 81 Labor Code of the Russian Federation.

Risk here only in failure to reach agreement with the employee.

Plus of the method- its “softness”, which allows you to simultaneously realize the employer’s desire to get rid of the employee, give him a short-term opportunity to find a job and leave with dignity.

Disadvantage of the method- the manager needs to be able to convince, which can be quite difficult with problem employees.

This method is legal and effective, allowing you to solve the problem at the root - to exclude such an employee from the team, and not to fight his methods of avoiding problems by taking “sick leave”.

In conclusion, we summarize that the “ostrich” behavior of staff is typical for many work situations. Not all employers can calmly tolerate an employee going on sick leave during problems that arise in the production process. Even fewer employers are inclined to take for granted the suddenness of illness on such critical days for the enterprise. Problematic situations from which an employee tries to hide at home due to illness, as a rule, are created by himself, due to his mistakes and omissions in his work. Moreover, against this background, the behavior of the employer who is the culprit of the problems looks ugly.

Despite the wide choice of control methods, not all of them allow one to cope with the phenomenon under consideration in a legal and effective way. The use of illegal methods entails a high risk of challenging the actions and acts of the employer in court. Some of the methods used by the employer, due to their illegality, entail the risk of administrative, financial and criminal liability. Thus, out of the seven considered methods of struggle, only three have signs of legality, validity, purposefulness, indisputability and effectiveness.

Practice shows that, despite the unsightliness of such behavior, workers for the most part consider themselves entitled to avoid solving problems by feigning illness, while receiving social security benefits, good wages and even a bonus. The dissimilarity between the position of the employer and the culprit of the enterprise’s problems, who is hiding on sick leave, lies in the different understanding of the own degree of responsibility of the parties to the labor relationship, the scope of rights and obligations in relation to each other, guaranteed by law. However, the employer is able to significantly influence the “ostrich” behavior of an employee only in rare cases, in rare circumstances, or with a strong desire to prove fraud on the part of the employee.

Footnotes

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