Is it possible to fire an employee on sick leave? Is it possible to call workers back from sick leave “due to production needs?” Is it possible to go to work on sick leave?
Dismissing an employee is a simple and fairly quick process if the employer and employee comply with all standards and do not violate the law.
However, dismissing a subordinate while on sick leave has a number of its own nuances.
In practice, there are cases when an employee quits, but is forced to work the two weeks stipulated by the contract; however, if the employee takes vacation or sick leave at this time, he does not work, and dismissal, in turn, takes place according to the usual mechanism.
Refusal to dismiss on the part of the employer may entail both administrative liability and even the liquidation of the enterprise by the Labor Commission in some cases.
When is it permissible to dismiss an employee who is on sick leave?
Dismissal is permissible in three cases: 
- At your own request. Dismissal from an employee's initiative is allowed at any time according to the usual mechanism.
- If the employee continues to be sick, but previously wrote.
- Dismissal upon liquidation of an enterprise. If the organization is liquidated, the employer is forced to notify the trade union 3 months in advance, and 2 months before the liquidation of all employees. This is done so that the liquidation of the enterprise does not take employees by surprise. In this case, dismissal occurs according to a different procedure; a person who is temporarily disabled is transferred to another enterprise or employed again, this is done by the employer himself.
At the initiative of the employer, an employee on sick leave may be dismissed exclusively in case of complete liquidation of the enterprise.
Dismissal during sick leave at the initiative of the employee
Since the initiator of the termination of the employment contract is the employee himself, dismissal during sick leave is permissible under current legislation. A similar dismissal mechanism also applies in the case of.
During the dismissal of an employee while on sick leave, the procedure itself takes place within the framework established by the Labor Code of the Russian Federation: 
- submitting a letter of resignation two weeks before leaving the company,
- registration by the employer of all necessary documents,
- settlement with the employee (including payment of sick leave and vacation pay).
Violation by the employer of the norms of the Labor Code of the Russian Federation is strictly punished by the Labor Commission, so dismissal often takes place calmly and within the established framework, because it is more expensive for the employer to break the law.
Are you planning to fire your part-time worker? Detailed procedure for dismissal of external and internal part-time worker described in .
What should an employer do if his employee’s illness is prolonged?
Sometimes situations arise when an employee submits a letter of resignation, but falls ill and remains on sick leave for the two-week period required by the Labor Code of the Russian Federation.
If a sick employee leaves sick leave by the date of dismissal, dismissal occurs according to the usual procedure, then payment to the employee follows.
However, if the employee is on sick leave and the dismissal date has come to an end, the dismissal still occurs.
Since the employer or employer himself does not have the right to change the date of dismissal without the knowledge and consent of the sick employee.
Next comes the calculation: payment of all vacation pay, and issuance of the employee’s work book. Settlement day - employee's last day of work at the enterprise or by agreement of the parties another, convenient for both parties.
In cases where the employee does not show up on the due day to receive the payment and work book, the employer is forced to notify his employee in writing that he must appear for the payment and his documents, and then wait until the employee recovers and appears for the payment.
As a result, dismissal of an employee while on sick leave at the initiative of the employer is prohibited by current legislation, while dismissal at the initiative of the employee himself or by agreement of the parties is also permitted while on sick leave.
Dismissal of an employee during a period of temporary incapacity at the initiative of the employer is illegal. An exception is the case of voluntary dismissal or liquidation of the enterprise.
If an employee is sick, he cannot be dismissed during sick leave at the initiative of the company. This provision is enshrined in the norm of Article 81 of the Labor Code, the last paragraph of which says: “The dismissal of an employee at the initiative of the employer is not allowed (except in the case of liquidation of the organization or termination of activities individual entrepreneur) during the period of his temporary incapacity for work and while on vacation.” Thus, only the termination of the employer’s activities can become legal basis dismissal of an employee during his illness at the initiative of the employer.
Therefore, in order to answer the question: “can they be fired on sick leave,” it is necessary to determine from whom the initiative for dismissal comes. IN practical activities In many companies, a situation often arises when an employee submits a letter of resignation on his own initiative, but during the two-week notice of dismissal period provided by law, he unexpectedly falls ill and goes on sick leave. In such cases, the question becomes more relevant: will it be legal to dismiss an employee during the period of his temporary disability or not?
On your own initiative - dismissal without obstacles
If an employee submits a statement in which he expresses a desire to stop labor Relations, then his dismissal during sick leave is possible, since the employment contract is terminated at the initiative of the employee, not the employer. A similar solution to the problem also applies to the termination of an employment contract by agreement of the parties. However, if the dismissal initiative comes from the employer and the employee falls ill on the day when the dismissal was planned, it can only be carried out after his recovery, since in such a situation the dismissal of an employee on sick leave is illegal. After the employee leaves sick leave, the employer is initially obliged to fill out a temporary disability certificate and only after that begin the dismissal procedure in accordance with the procedure established by law, that is:
- document the reason for dismissal;
- issue a dismissal order;
- make a settlement with the employee;
- issue a work book on the last day of work.
However, there are situations when the employer demands the employee to work before dismissal for a period equal to the time during which he was on sick leave. There is a clarification on this matter Federal service on labor and employment. The letter explains that the employee has the right to warn the employer about the upcoming dismissal, both during the period of work and while he is on vacation or during illness. The day of dismissal may also fall on any of the specified periods, including possible dismissal on the last day of sick leave. Therefore, if the notice period for dismissal is 14 days, the employer must dismiss on the day indicated in the resignation letter.
What to do in case of prolonged illness of an employee
In practice, a situation may arise when an employee submitted a letter of resignation on his own initiative, but fell ill during the two-week notice period for dismissal. If he returns from sick leave before the expected day of dismissal, no problems will arise and the dismissal will be carried out on the day specified in the application. But the situation can develop in a different way, when a person does not have time to recover before the end of the specified two weeks. Under such circumstances, the dismissal of an employee on sick leave is carried out on the date indicated in the application, since the employer does not have the right to change it without the consent of the employee. In this case, sick leave is paid after restoration of working capacity.
According to the law, when dismissing an employee, the employer must make a settlement with him and issue a work book on the last day of work requested. Thus, in a situation where an employee fell ill after submitting a resignation letter, but did not withdraw it, the organization must pay him on the day specified in the application. If, on the due date, the employee does not come to receive the work book and wages, he must be notified in writing of the need to appear for the work book or give permission to send it by mail. After sending the notice, you must wait for the employee to recover and dismiss him officially, making a payment and issuing documents. At the same time, the accountant needs to know whether it is necessary to pay for sick leave closed after the employee’s dismissal.
Payment of sick leave
If at the time of opening the sick leave, the person was officially an employee of the organization, then his payment should be made in the general manner, even if the closure of the sick leave occurs during the period when the employment relationship with the employee has already been terminated. One more important point is that by law the employer is obliged to pay sick leave to a dismissed employee for a certain period of time. Former employee has the right to pay for sick leave if it was issued within 30 calendar days after termination of the employment contract. However, in this case, he can only count on receiving 60 percent of average earnings.
Therefore, if a resigned employee after some time provides sick leave, opened within a 30-day period from the date of dismissal, the organization cannot refuse to pay for it. An employee has the right to present sick leave within six months from the date of recovery. Accordingly, even if the employee fell ill a week after dismissal, and months later came to receive benefits, the company will be required to make payment if the six-month period provided by law has not expired. To avoid violations of the law, every company should know how to behave in such situations, despite the fact that this happens quite rarely.
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 next day after notifying the employer 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:
- 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;
- the employer must send the employee notice of the need to obtain Money(salary, due 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 on such sick leave is obliged to pay the resigned employee if he falls ill within 30 calendar days from the date of dismissal - in in this case he fell ill on the 3rd day after his 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 last day(exceptions – part 3, part 4, article 6 of Law No. 255-FZ) and is 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 the employment contract had not been terminated, 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)
Employees who have lost their ability to work for some time can exercise their right to sick leave. This document confirms the legitimate reason for absence from work. But sometimes it is difficult to determine whether the employee was really sick, or whether the certificate of incapacity for work is just a cover for personal matters. Employers are especially concerned about cases where an employee suffers too often or the illness is prolonged.
Attention
You shouldn’t torment yourself with doubts and suspicions; it’s enough to study the regulatory framework of the issue and know how to check the authenticity of a certificate issued by a medical institution.
Are there restrictions on the number of sick leaves?
Labor legislation does not regulate the duration of temporary disability. The Labor Code only obliges the employer to pay appropriate sick leave benefits. Rules, terms of issuance, issues of payment of certificates of incapacity for work are determined federal laws And regulations Ministry of Health.
The periods for which sick leave certificates are issued are regulated by the procedure for issuing certificates of incapacity for work (approved by Order of the Ministry of Health No. 624n dated June 29, 2011). They depend on various factors. The maximum period may be:
- 15 days – if the certificate is issued to the employee by the attending physician;
- 10 days – dentist, paramedic;
- for a longer period - by a special commission, when the established time for recovery is not enough (in some cases it can reach from 4 to 10 months, and in especially difficult ones - up to a year).
An employee can get sick several times a year; there are no restrictions on the frequency of applying for sick leave. In addition to the illness of the employee himself, there are other reasons for disability: caring for sick family members, pregnancy and childbirth, aftercare, prosthetics, and more.
How to determine the authenticity of a sick leave certificate?
A sick leave certificate can be issued to an employee by a strictly defined circle of persons: attending physicians, dentists and paramedics of institutions with a special license. Blood transfusion centers, ambulances, mud baths, special medical centers, and hospital emergency rooms cannot issue sick leave.
Sick leave sheets have a prescribed form and are printed on special forms. If a forgery is detected, the Social Insurance Fund will not accept the document for payment. The main signs by which you can distinguish a genuine sick leave certificate from a fake one:
- the paper on which the form is printed is characterized by a “cash” crunch;
- under the words “Doctor’s signature” there should be a small text “certificate of incapacity for work”, it is also located at the bottom: signatures of the manager and chief accountant;
- the barcode must have 12 digits;
- the lower part of the sheet is tear-off, it is kept by the medical organization, but this part may be present in a fake;
- the name of the medical institution and its address must match the data on the seal;
- often there are errors and typos in fake forms, but there are none on real forms;
- The form must not be filled out with a ballpoint pen;
- The FSS website contains a list of leaflets declared invalid.
In addition to the above, it is necessary to check each certificate of incapacity for work for the presence of all seals and signatures of doctors (in case of illness for more than 15 days - the signature of the chairman of the commission), the correct filling of the employee’s last name, first name and patronymic. In all these cases, the social insurance authority may refuse to reimburse the costs of the benefit. In case of frequent absence of an employee due to illness, you can always contact a medical organization or the Social Insurance Fund with a request.
What is the penalty for falsifying a disability document?
Providing a false sick leave certificate may result in both disciplinary and criminal liability for the employee. If a forgery is detected, it will be difficult for the employee to prove good reason his frequent absence from work. The employer may take disciplinary action, including In addition, if the employee managed to receive sick leave benefits, losses can be recovered from him by deducting part of his earnings through the court, or by the voluntary consent of the employee.
Criminal liability may arise if, upon discovery of a false sick leave certificate, an appeal to the internal affairs authorities follows. Liability for a forged document is established by Article 327 of the Criminal Code:
- forgery of a document is punishable by forced labor, restriction of freedom or arrest;
- for using deliberately forged documents - a fine, work or arrest.
How to prevent the use of fake sick leave certificates?
The main thing for the employer is vigilance and attentiveness when checking documents received from employees. If sick leave certificates are subject to thorough checks, not everyone will risk using a forged document. Informing employees about the responsibility for using counterfeit products can play a significant role.
Besides self-check documents on incapacity for work, due to constant sick leave, if you have suspicions, you can submit a request to the social insurance authority to determine the validity of issuing a certificate by a medical institution. The controllers will ask the doctors for all documents related to the employee’s illness and issue an opinion. Even if the certificate of incapacity for work is not fake, this patient is unlikely to be prescribed it as willingly next time.
How to fire an employee who often takes sick leave?
Employees who systematically go on sick leave cannot always fully fulfill their job responsibilities, and this in turn can negatively affect the performance of the entire organization. There are also unscrupulous workers who use their right to sick leave for purposes other than their intended purpose. In such cases, the employer has to look for ways to solve the problem, and often the only way out is dismissal.
The old labor law had a provision that allowed dismissal of an employee who had been ill for more than four months. The Labor Code abolished this possibility. It is important to remember that dismissal of an employee during illness is prohibited if the initiative comes from the employer. In this case, it is the employer who bears the burden of proving that his employee was not sick. If the employee brought a fake certificate of incapacity for work, then it becomes possible to use disciplinary action
in the form of dismissal. When dismissing on this basis, it is important to follow the entire procedure in accordance with the requirements.
- In addition to the employer’s initiative, the labor code contains other possibilities for terminating an employment contract, which are not prohibited during the employee’s illness. The most common basis is the employee’s initiative ( own wish
- ), because in this case it is enough for him to write a statement.
- Agreement of the parties. In the dismissal agreement, both parties can set out all the conditions for terminating the contract, including agreeing on compensation for the employee.
- Expiration of the employment contract. A sick leave cannot be an obstacle to such a reason, since these circumstances do not depend on the parties. Refusal to work under changed working conditions. But here it is extremely important to act in accordance with the law and meet deadlines.
What else do you need to know about temporary disability?
Temporary disability is a condition in which an employee cannot fulfill his work obligations for a certain period of time. This condition must be confirmed by only one document - a sick leave certificate. In practice, employees may pass off absences as illness for reasons such as:
- passing medical examinations;
- examination, manipulations in relation to a patient with a chronic disease outside the exacerbation phase;
- examinations or examinations as directed by military registration and enlistment offices.
Employees can also take sick leave to care for relatives. It is important to remember that such a certificate of incapacity for work is not issued during vacations.
Perhaps every employee is interested in whether they can be fired on sick leave. After all, health can fail at any moment. But it’s unlikely that anyone wants to discover that their employment contract was terminated during the period of their illness. To avoid illegal actions, you need to be savvy in matters of labor law.
What does the law say?
To the question of whether someone can be fired on sick leave, it is worth looking for the answer in Article 81 of the Labor Code. It clearly states that the employer cannot terminate the contract with a subordinate during the period of his temporary disability on his own initiative. If such a nuisance occurs, the director has the opportunity to reinstate the employee in his position and pay him sick leave benefits in order to avoid negative legal consequences.
Otherwise, the employee may contact judiciary With statement of claim O illegal dismissal. Having studied domestic practice, we can conclude that such cases are almost always won by the plaintiff. As a result, the defendant has to reinstate the employee in his position, pay him compensation for moral damage, and also wages for the time during which he was on forced absenteeism.
Sick leave or absenteeism?
Can you be fired while on sick leave? The legislation gives a negative answer. But what if the employer did not know the reasons for the employee’s absence? Most likely, this will be considered absenteeism, and a dismissal order will be signed. But is everything as clear as it seems at first glance?
In fact, the employer does not have the right to dismiss an employee without finding out the reason for his absence. But the employee himself has no obligation to inform his superiors about his going on sick leave. The fact is that temporary disability can occur for various reasons, including the most serious ones. Thus, a person may be purely physically unable to notify his boss of his absence. The director must independently find out the reasons for the subordinate’s failure to attend his workplace.
Reduction and liquidation
Dismissal due to layoff while on sick leave is not possible. If the employer does not plan to completely close the activities of the enterprise or branch, terminating the contract with a temporarily disabled employee is illegal. However, reduction should not be confused with complete elimination. If the enterprise or branch where an employee working at sick leave, completely ceases to exist, dismissal is legal.
Dismissal of an employee on sick leave at his own request
If an employee has a sick leave, but has expressed a desire to terminate the employment contract, such dismissal will not have any negative consequences for the management of the enterprise. But a different situation may arise. For example, an employee wrote a letter of resignation while being able to work. But on the same day he goes on sick leave. In this case, the employee has every right to withdraw his application. In case of refusal, dismissal on sick leave will be considered illegal.
An employee can also write a letter of resignation while on sick leave. In this case, the following statements are true:
- The date of dismissal can be considered the day after two weeks have passed from the date of writing the application. Moreover, if this period is partially or fully covered by sick leave, the employee is released from the obligation to work off.
- The date indicated in the application itself, which is later than the closure of the sick leave. In this case, the employee will be required to work the required 14 days.
Sick leave during the probationary period
Can they be fired on sick leave during the probationary period? In this case, temporary disability is not an obstacle to terminating the relationship. If the boss considers that the employee does not meet the requirements of the organization or has violated some job duties or standards, he may be fired, even despite sick leave. However, there are some significant details. Notify the employee located on probationary period, dismissal must be announced 15 days in advance. If this rule was not complied with, the employee may apply to the court for reimbursement of funds for each day of delay in prior notice.
Disability
In some cases, as a result of temporary incapacity for work, a person may be assigned a disability. But this is not yet grounds for dismissal. The employer has the right to terminate the contract only if the medical commission has declared the person incapable of work. Otherwise, his job must be retained. Also, in accordance with the conclusion of the commission, the employer may have an obligation to transfer the employee to another position that involves easier work.
End of the employment contract
At many enterprises, fixed-term agreements are concluded with employees. employment contracts. Despite the fact that dismissing an employee on sick leave is prohibited by law, this rule does not apply to cases where the contract has expired. In this case, the boss can dismiss the temporarily disabled employee without consequences. However, this does not relieve him of the obligation to pay sick leave in full, even if its end date is later than the end of the employment contract.
Mutual agreement
The only case when it is possible to dismiss an employee on sick leave at the initiative of the employer is if the employee agrees with such a decision. Consent must be in writing and delivered in person or via postal services. On the day of dismissal, an employee on sick leave must receive a paycheck and a work book. If an employee cannot come to the enterprise for health reasons, he is sent a corresponding notice of dismissal, as well as an invitation to pick up the required funds and documents. If by the time of dismissal the sick leave has already expired, the calculation is carried out on a general basis. If the employee’s illness is prolonged, then with his consent, within thirty days, he is sent employment history and payment through postal services.
Payment of sick leave
Dismissal at the initiative of the employer during sick leave is considered illegal. But if the employee himself has expressed such a desire, the question regarding payment of sick leave becomes acute. So, if at the time of going on sick leave the person was officially considered an employee of the enterprise, payment is made on a general basis. Moreover, it must cover even the period during which the person was no longer considered an employee of the organization. A former employee also has the right to sick pay if the incapacity for work occurs within a month after dismissal. But in this case it will be equal to approximately 60% of earnings.
Sick leave period
Dismissal on sick leave is often due to the fact that the employee’s absence from work lasts too long. In this regard, the issue of the maximum possible duration of an employee’s incapacity for work is acute. It is worth noting that the maximum duration is not established at the legislative level. But there are some subtleties here too.
If an employee requires outpatient treatment, the medical worker issues him a certificate of temporary incapacity for work for a period of 10 days. If at the next examination it is determined that additional treatment is required, the document period can be extended up to 30 days. To increase the period of sick leave beyond a month, a conclusion from a medical commission is required. If the prognosis for restoration of working capacity is favorable, a certificate of incapacity for work is issued for up to 10 months. IN severe cases(after serious injuries or operations) sick leave is extended one-time up to 12 months with the possibility of further increase given period when passing a medical commission.
Reasons for going on sick leave
Dismissal of an employee on sick leave at the initiative of the employer is impossible, regardless of the reason for the disability. It could be as follows:
- for an illness requiring outpatient or inpatient treatment;
- for pregnancy and childbirth;
- caring for a disabled close relative (spouse or one of the parents);
- after dental procedures;
- after emergency hospitalization or calling an ambulance;
- for child care up to 7 years (for the entire period of illness) or up to 15 years (up to 15 days).
Conclusion
Unfortunately, not all employers conscientiously fulfill their obligations towards employees. Thus, there are known cases when management resorted to dismissing employees who were on sick leave. It is forbidden Labor Code. If a similar offense has been committed against you, feel free to go to the courts. Most likely, the court will take the side of the illegally dismissed employee, who will receive the right not only to reinstatement, but also to financial compensation.
