Is it possible to quit while on sick leave? This topic is currently of interest to both employers and, accordingly, employees. The severance of labor relations during the period of the hospital regime is possible only on the basis of the employee's initiative. This situation may have different variants... For example, an employee first wrote a statement on the completion of an employment contract with an employer, and then fell ill, or fell ill and, being on sick leave, decided to quit. Or the hospitalization occurred on the same day that the application for termination of the employment relationship was filed. Considering all these options, the employer is obliged to correctly dismiss the employee according to on their own during sick leave. In addition, the initiative of the institution employee in this case includes the agreement of the parties.

Dismissal of an employee during illness of his own free will

An employee can carry out a dismissal of his own free will on sick leave, having previously warned the employer about this 2 weeks in advance. It may happen that he gets sick during these two weeks, then the sick leave does not interrupt the specified period and there is no need to reapply for dismissal.

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

In practice, quite often there is a situation regarding the fact that an employee of an organization does not want to work out the two weeks assigned 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 to work the required period after recovery.

About this issue, Rostrud gave a detailed explanation, who believes that the employer's demands are unreasonable - if the employee warned about this 14 days before the dismissal, then the date of dismissal professional activity in no time can it be postponed for another day according to the initiative of the employer. The department also points out that the date of dismissal may well coincide with the period of vacation or release from work due to an illness.

Dismissal on sick leave of their own free will occurs after the employee recovers and appears at the enterprise. The manager must immediately fill out the sick-list and only then formalize the dismissal.

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

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 - the dismissal of an employee of an institution based on the initiative of the employer during the period of his disability or vacation is not allowed. Even if the employee falls ill on the day he was supposed to be fired, then this procedure will have to be rescheduled until he recovers.

If it happens that an employee does not appear for a long time at his legal workplace, but reports on the phone that he is ill and takes sick leave, then the manager cannot remove him until the final reasons for the absence are clarified. With such a 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 absenteeism. What should an employer do in a situation when there is no one to work? In the place of a sick mercenary, you can hire another person before entering the company of the main employee, while concluding a fixed-term employment contract or contract.

Art. 81 of the Labor Code of the Russian Federation informs 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 calculation upon dismissal of his own free will, if there is sick leave, and it is also obligatory to pay compensation (reimbursement) for unused vacation (part one of Article 127 of the Labor Code of the Russian Federation). If the employee of the institution is sick on the day of his dismissal and cannot come for the settlement, then the amount due to him must be paid no later than the next day after the request for settlement is submitted to them.

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. Exists 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 closure of the sick leave. Part 1 of Art. 9 of Law N 255-FZ indicates the periods for which short-term disability benefits cannot be assigned. The allowance is paid for the entire period before the closing of the ballot, including the days after the date of dismissal.

Part 2 of Art. 7 of Law N 255-FZ describes the fact 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 nevertheless occurred before the termination of the employment relationship, the benefit is paid in the usual amount, since it depends on the length of service.

For the appointment, and then the payment of benefits for short-term incapacity to work, the insured person must provide a sick leave, which must be issued medical institution... Part 1 of Art. 15 of Law N 255-FZ clearly establishes that the insured must assign a temporary disability benefit within 10 calendar days from the date of the insured person's request to receive it from the necessary documents... The policyholder realizes the payment of the benefit on the day following the assignment of benefits, which is set for the payment of wages.

p> Summing up everything written above, we can come to the following conclusion: if an employee provides a sick leave at the time of termination of the employment contract with him, then the employer undertakes to pay the benefit on the day of his leaving. But if an employee of the enterprise does not provide a sick-list at the time of dismissal, then the employer undertakes to pay the benefit on the next day, which is set for this employer to pay wages.

So, the answer to such a topical question for today is: "What about the calculation when dismissing of your own free will, if you have a sick leave?" could be like this: according to 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 the basis of general principles. And this does not depend on whether the employment relationship was preserved at the time of its closure or not.

It says that the days of treatment must be paid for with temporary disability benefits.

The company's management should not allow employees to visit the workplace, in cases where there is a doctor's opinion on this. Failure to comply with such requirements may result in a fine for the organization. in accordance with article 76 of the Labor Code of the Russian Federation. In such cases, the existence of an agreement, and even the consent of the worker, does not matter.

Attention. Performing work duties during this period is a violation of the employee's rights in any of the possible situations and, as a rule, leads to negative consequences both for the company and for the employee.

When starting to work with outstanding sick leave, the worker should remember the following:

• the amount of the benefit can be reduced in cases of violation of the treatment regimen;
• hours spent at work cannot be paid.

Is it considered non-compliance with the law?

Going to work and, accordingly, appearing at the workplace while on sick leave should be considered as non-compliance with the treatment regimen and regarded as a reason for reducing disability benefits to an amount not exceeding minimum size wages for a full calendar month (Article 8 of Law No. 255-FZ).

Such situations are recorded by the attending physician in the sick leave itself and are accompanied by a mark in the appropriate field with code 25 (going to work without discharge). From the moment of violation of the regime, a decrease in disability payments begins.

As practice shows, such violations are not always reflected in certificates. In such situations, the management of the company itself may consider the actions of the worker as a violation and have reasons to reduce the amount of the payment. The evidence must be a book of accounting of working hours, magnetic entry-exit devices or documents signed by employees during the period of sick leave.

Benefit or salary - what is paid?

When the question of calculating payments arises, you need to understand that the employee will not be able to simultaneously receive disability benefits and wages, since one is designed to compensate for the other.

Most often, benefits are paid, since the employer is obliged to make his payment for the entire time of sick leave (Article 183 of the Labor Code of the Russian Federation). The presence at the workplace during the period of valid sick leave does not cancel the conclusion about the incapacity for work of the attending physician.

Article 183 of the Labor Code of the Russian Federation. Guarantees to an employee in case of temporary incapacity for work

In case of temporary disability, the employer pays the employee a temporary disability benefit in accordance with federal laws.

The amount of benefits for temporary disability and the conditions for their payment are established by federal laws.

In addition, the fact that a sick leave was issued confirms the employee's release from work during this period, but does not prohibit his voluntary presence at the workplace.

If the management allowed the employee to work during illness, often employees write a job application of the following form:

“Due to the deterioration of my health, I was issued sick leave No. ... for a period from 5.04.2017 to 13.04.2017. In fact, I was present at work on April 7, 8, 10, 2017.

I ask you to take these 3 days into account as workers and charge them based on the salary. I ask you to count the remaining days as sick days and pay the allowance, according to the certificate of incapacity for work. "

This statement can be considered an additional document, because according to Article 100 of the Labor Code of the Russian Federation, the internal labor regulations, as well as paragraph 3 of Article 37 of the Constitution of the Russian Federation - the very fact of labor activity is considered the basis for calculating and paying wages.

IMPORTANT! When drawing up a report card, attendance marks the days of going to work, the rest of the days - days of sick leave. The sick leave notes the days of absence due to illness.

In cases where the days of going to work were scattered throughout the sick leave period, in addition to the sheet, in the calculation of the allowance, it is necessary to explain in which specific days the accrual must be made.

Such payments are considered reasonable, since they are used to pay for labor activities, so there should not be any difficulties with including them in tax expenses.

What if an employee left the page ahead of schedule?

According to the law, only the attending physician can close the sick leave before the due date. based on the health status of the patient.

If an employee, due to various circumstances, is forced to go to work a day before the sick leave closes, the employer may recognize the reason for leaving as valid and not launch a legal mechanism to reduce the benefit. By agreement with the management, an employee can write a statement of this kind:

“Having a certificate of incapacity for work No.…, for the period from 25.03 to 5.04, in fact, I started work on 4.04. In connection with this situation, please consider 4.04 a working day "

In the report card, put down the attendance of the employee on that day, and in the certificate of incapacity for work in the column "Benefit due for the period: ..." do not include the dates 4.04 and 5.04 for the payment of benefits.

What if the boss makes you work during the treatment?

Obviously, it is impossible to force an employee to go to work from sick leave (Article 5.27 of the Code of Administrative Offenses of the Russian Federation). In the event of disputable situations in the field of coercion to work, a worker being treated may turn to the labor inspectorate with a statement (complaint), which may lead to further imposition of penalties on the employer.

Many are afraid of a possible dismissal if they refuse to go to work, but even here the law is in favor of the sick person. states that it is impossible to fire an employee during a period of temporary disability... Forcing the employer to sign the employee's letter of dismissal, in this case, may serve as an appeal to the prosecutor's office.

If the manager's call was more of an informal request, backed up by a promise of reward, employees sometimes go to work. As a reward, the employer can provide a bonus or time off.

Conclusion

Do not forget that going to work during treatment is considered non-compliance with the treatment regimen and is illegal from the point of view of the labor code. Therefore, it can lead to certain problems for both the employee and the employer.

That's why the best solution for an employee on sick leave, stay at home until complete recovery and start working with renewed vigor.

Is it possible to fire a person who is on sick leave is a question that worries many employees of companies, agencies, enterprises, government agencies. Dismissal during sick leave is well spelled out in the "Labor Code" Russian Federation, but here, too, there are a number of individual nuances that will also need to be taken into account.

The dismissal situation can be assessed from two sides: the employer and the employee. It quite often happens when an employee, in order to avoid disciplinary punishment in the form of dismissal, goes on sick leave. What are the nuances of dismissal during sick leave?

Dismissal of an employee on sick leave

Consider several nuances that provide for the possibility of dismissing an employee who is on sick leave. All of them are relevant for 2016.

It is possible to reduce an employee who is on sick leave if:

• an employee does not appear in a company or an enterprise for four consecutive months due to temporary disability
• reduction of an employee on sick leave, dismissal on sick leave is associated with the complete liquidation of the enterprise itself
• previously imprisoned urgent labor contract at the time of illness of the employee comes to an end
• on the day of dismissal, the employee went on sick leave, he is still considered dismissed

Is it possible to fire an employee on sick leave for other reasons? The legislator answers this question in the negative. Of course, there are exceptions, but they can lead the company to labor disputes and legal proceedings.

Is the employee obliged to inform the employer about sick leave - here the answer to the question is obvious. The employee must provide a sick leave, which contains information about a person's temporary inability to work. A sick leave is an important confirmation that a person is absent from the workplace for a specific good reason.

A separate topic for discussion is sick leave payment. If it is open to an employee who has not been fired, his payment takes place at general grounds... Even an employee who was dismissed during illness, the company undertakes to pay for the period of incapacity for work, as it is spelled out in the labor law with a number of restrictions.

Dismissal of an employee on sick leave is possible only in case of mutual consent. Each employee needs to familiarize himself in detail with " Labor Code", Which describes in detail the moments of whether you can be fired during sick leave. Information from the rules of law will allow you to maximally protect your interests and keep workplace even during illness.

Knowing the legal system and having an extract from labor legislation, you will definitely be able to defend your rights in front of the company's management. Sometimes more qualified legal assistance is required. Typically, many cities have specialized social services that can also provide all the necessary advice.

Another aspect that needs to be remembered when difficulties arise in communication is the dismissal of a person of their own free will. Termination of an employment contract here occurs by agreement of two parties: the employer and the employee. An employee comes to the office after an illness with a bulletin in his hands, at this stage the employer fills out a sick leave, then the dismissal procedure is drawn up and an allowance is issued.

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The Labor Code of the Russian Federation provides for various: at the initiative of the employer, at the initiative of the employee, by agreement of the parties, etc. (Article 77 of the Labor Code of the Russian Federation). During a period of temporary incapacity for work, an employee can also be fired. But not in all cases.

Dismissal during sick leave at the initiative of the employer

The employer is not entitled to dismiss an employee with whom an open-ended employment contract has been concluded during a period of temporary incapacity for work. An exception is the case when the organization is liquidated or the entrepreneur-employer ceases to operate (Article 81 of the Labor Code of the Russian Federation).

But if an employment contract was concluded with an employee for a certain period, and this period expires during the employee's illness, then dismissal on sick leave is possible. At the same time, despite the absence of an employee at work, he will still need to be notified in writing of the upcoming dismissal due to the expiration of the contract at least 3 calendar days in advance (Article 79 of the Labor Code of the Russian Federation). To do this, you can, for example, send him a message by mail.

On the date of dismissal of an employee who is on sick leave, it will be necessary to issue an order, make an entry about the dismissal in the employee's work book and in the personal card (Article 84.1 of the Labor Code of the Russian Federation). And also transfer wages and other payments due to the employee for bank card... On the order, a note must be made that the employee is not familiar with it due to his absence from work on the day of dismissal. In addition, it is necessary to send a notification to the employee that he must pick up the work book or may agree to receive it by mail.

The employee will need to pay the sick leave after he submits it to the accounting department. In this case, temporary disability benefits must be paid for the entire period of illness of the employee, taking into account his length of service (part 1.4 of article 6, part 1 of article 7 of the Law of December 29, 2006 N 255-FZ). The norm on limiting benefits based on 60% of average earnings is not applied, since temporary incapacity for work occurred before the date of dismissal (part 2 of article 7 of the Law of December 29, 2006 N 255-FZ).

Dismissal on sick leave of your own free will

Dismissal of their own accord during sick leave - life situation... Suppose an employee wrote a letter of resignation and then fell ill. The employer has the right to fire him during sick leave, because in this case, the contract is terminated on the initiative of the employee (Article 80 of the Labor Code of the Russian Federation).

At the same time, the dismissal of an employee who is on sick leave must be issued on the date indicated in the application, or the date on which the last day of the two-week “working off” of the employee falls (Letter of Rostrud dated 05.09.2006 N 1551-6).

Dismissal of an employee on sick leave by agreement of the parties

Frequent question on the HR forums - how to fire an employee on sick leave. Since dismissal during sick leave at the initiative of the employer is unacceptable, dismissal remains by agreement of the parties. Indeed, on this basis, the contract can be terminated at any time (Article 78 of the Labor Code of the Russian Federation).

The employee benefits from the fact that in addition to the salary and compensation for unused vacation, the agreement may provide for the payment of severance pay. Its size is limited only for employees holding certain positions: managers, their deputies, chief accountants (Article 349.3 of the Labor Code of the Russian Federation). In other cases, a specific amount is established by agreement between the employee and the employer.

When dismissing by agreement of the parties during sick leave, it is extremely important to obtain written consent from the employee to such dismissal. Confirmation that consent has been obtained can be both the agreement itself, drawn up before the date of dismissal and signed by both the employee and the employer, and the employee's statement of consent to terminate the contract by agreement of the parties.

We provided the form of the form and a sample of filling out an application for dismissal of an employee on sick leave.

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

Legal regulation

The entire spectrum of labor relations is regulated by the Labor Code. If a person started to get sick and took sick leave, then he cannot be fired. Even if the person did not work well 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! Termination of the contract during the period of incapacity for work is allowed if the company is liquidated or a private entrepreneur ceases to operate.

The situation regarding dismissal of one's own free will is solved in a completely different way.

Termination of employment at the request of the employee

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

Similarly, the issue is resolved if the employee wrote a letter of resignation and fell ill. When to fire if the contract is terminated by agreement of the parties?

The boss will have to wait for discharge from the hospital if he wants to fire a subordinate. Termination of the contract is possible, but only after the bulletin ends.

When the specialist closes the newsletter, the HR officer will write all the necessary information on it. Then an order is issued, an entry is made in the work book.

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

Difficult situations

It happens that a person gets sick and applies for resignation. In such a situation, managers are often interested in extending the term of service. But the administration has no right to force a person to work extra days. Two weeks can pass while a person is sick, and there is no need to work out extra time.

You can also safely terminate the contract while on vacation. The time spent in the office is not 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 he applies for a sick leave. Dates of dismissal are not shifted if the person has time to go to work and close the ballot before the end of the working time.
2. The person got sick, the disability document does not close. Termination of the contract is made by the date written in the application. The dates remain the same. Paid for the time during which the person could not work.

You need to give the work book and make the calculations 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 you can not give 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. A work book is a valuable document. You can only send it by registered mail if the person himself cannot get the form.

Even if there are no questions left on paperwork, it often arises financial question: How is 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 worked for the company at the time of opening it. Moreover, payment is made for the entire time of illness. Former employees also have to pay. Payment is made if the illness began within thirty days after the dismissal.

Sick leave payment is made in the amount of sixty percent of wages.

3 examples of design:

Example 1. Kuznetsov N.A. worked as a manager of the Cheap Windows company. I quit my job. Fifteen days later, he fell ill with a sore throat. I turned to the local doctor, issued a document on incapacity for work. The employer will have to make the payment. The money is transferred for a period not exceeding thirty days. If the illness lasts beyond this period, then there will be no payment.

Payment claims are legal if the employee presents 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 quit her job. Two weeks after the termination of the contract, she fell ill. Drawn up a ballot. She brought the document to the personnel service only four months after her dismissal.

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

Question: Do I need to pay for the time of incapacity for work for a former employee?

Answer. Yes, it is, despite the fact that before the 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 leaving. In our example, the deadlines are met.
So, the questions about whether it is possible to receive payment for the time of illness after dismissal are decided in favor of the employee, the main thing is to comply with the terms of application.

Example 3. Sergeev NS works as a mechanic of the Tekhmontazh company. The boss does not like the way the specialist performs his duties, and he decided to say goodbye to the unwanted employee. Sergeev fell ill, the doctor opened his disability document. 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

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

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

Social guarantees are given by the Labor Code of the Russian Federation. A person can exercise their right to rest and at the same time apply for resignation. The rule also applies to cases when a woman takes a sick leave to care for a child. Anyway, the termination of the contract occurs on the date specified in the application.

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

Summary

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