How to quit while on sick leave. Dismissal on sick leave: is it possible to dismiss, calculation of sick leave and terms of sick leave. Letter of resignation while on sick leave

The dismissal procedure is regulated by current labor legislation. And by law, it is prohibited to dismiss an employee during his disability. Therefore, when faced with the need to fire an employee, the employer wonders whether it is possible to fire the employee if he is on sick leave. There are two ways to solve the difficult problem of dismissal. Any employee can resign at his own request, even during sick leave. An enterprise can fire an employee only in certain cases when this is expressly stated in the law.

Dismissal at the initiative of the employer on sick leave

An employee who is on sick leave may be dismissed by the enterprise, at the initiative of the employer, in the following cases:

upon liquidation of an enterprise;
due to the termination by an individual entrepreneur of his activities, if the employer is an entrepreneur.

If the situation in the organization does not allow keeping an employee on staff, and according to the law he cannot be fired, dismissal can occur by agreement of the parties. This is beneficial both for the employer, who will not incur disciplinary liability or penalties from regulatory authorities, and for the employee, who will be able to register with the employment service. Dismissal by agreement of the parties can be carried out in the organization during the employee’s illness, since it is not a direct initiative of the employer.

In the event that a staff reduction is imminent and the employee is on sick leave, his dismissal can be carried out after recovery and provision of sick leave. The same rule exists for all employees who work at the enterprise, but often get sick. In case of temporary disability, when the employee actually cannot cope with his job duties, such employee should be temporarily suspended from work. But you can take another person in his place, write about it in the order and the labor report stating that this employee is temporarily performing the duties of a sick specialist.

Dismissal at the initiative of an employee on sick leave

An employee may himself want to resign from his position while on sick leave. The law does not prohibit him from doing this. Moreover, the employer does not have the right to demand additional work after sick leave. The whole point is that an employee who wrote a letter of resignation and went on sick leave has the right to calmly get sick during the period of mandatory, legal two-week work.

Thus, it turns out that an employee who wants to leave the company does not need to reapply. The two-week period is not interrupted, which means that after the stipulated period, the final payment is made to the employee and the dismissal is recorded in the work book.

However, the employer must provide sick leave before dismissal in order for the employee to be paid. Payment occurs for the entire period of the employee’s incapacity for work. This requirement is contained in the norms of Federal Law No. 255 of December 29, 2006. That is, an employee could get sick while in an employment relationship with the company, and be fired while still on sick leave. Regardless of how many days after the official dismissal such an employee will be ill, he must pay sick leave.

The law obliges an enterprise to pay sick leave for a resigned employee within 30 days from the date of dismissal. But only in the amount of 60% of his average earnings. In this situation, if an employee no longer works at the enterprise, but fell ill a week after dismissal, brought a sick leave certificate, which was issued within these 30 days established by law, the enterprise must pay him sick leave in the amount of 60% of average earnings.

Is it possible to fire an employee who is on sick leave?

To summarize, it should be noted that dismissal can also occur during an employee’s illness. The only question is on what legal grounds he was dismissed, and whether this right is confirmed by law.

There are three situations when an employee can be fired while on sick leave:

agreement of the parties;
at the request of the employee himself;
in case the employer ceases its activities.

Reading time: 10 min. Views 7 Published 10/07/2018

The question of whether it is possible to fire a person who is on sick leave is of interest not only to employers, but also to the workers themselves. Each person may face a serious illness that will cause loss of ability to work for a long period of time. People who find themselves in such a situation are afraid of losing their jobs. In order to avoid possible conflicts with management, it is necessary to carefully study the current legal framework.

In this article, we propose to consider the question of whether it is possible to fire a person if he is on sick leave.

Dismissal of an employee at the initiative of the employer while he is on sick leave is not permitted.

Dismissal of an employee on sick leave: legal framework The resolution of controversial issues related to dismissal is regulated by the eighty-first article of the Labor Legislation. This document states that dismissal of an employee who is on sick leave is strictly prohibited.

. In the situation under consideration, the right to terminate the employment agreement is granted only to the worker himself. It is important to note that these rules also apply to people on annual leave.

As judicial practice shows, situations related to dismissal during sick leave are observed quite often. The primary task of the control authorities is to identify the initiator of this process. It is important to note that the manager who fired an employee who is on sick leave will face penalties.

However, there are a number of exceptions to this rule, which we will talk about a little later.

When dismissal is prohibited by law

As we noted above, an employer cannot fire those employees who are absent from their workplace due to illness or going on annual leave. The eighty-first article of the Labor Law states that all workers belonging to the group described above cannot be dismissed at the request of the manager.

However, current legal provisions allow the dismissal of such employees in certain situations. This could be either the bankruptcy of a company or the liquidation of a private company. In these cases, the head of the company is obliged to terminate the employment agreements with all employees.

Acceptable situations The personal desire of management to terminate a contract with an employee is regarded as a gross offense. It is important to note that an employer who realizes his mistake can reinstate the employee until the ballot is closed. In this case, the employee will continue to fulfill his obligations, and the company’s management will avoid possible negative consequences.

When dismissing an employee during a period of illness, the main thing is to determine who exactly initiated the dismissal.

A worker who has not been reinstated at the time of closing the temporary disability certificate has the legal right to appeal to the labor inspectorate or court. As practice shows, the court recognizes the actions of the employer as unlawful. In this case, the employer must reinstate the dismissed worker and pay financial compensation. This rule is enshrined in the three hundred and ninety-fourth article of the Labor Code. It should also be said that administrative liability in the form of penalties is imposed on officials who committed this violation:

The amount of fines against private entrepreneurs varies from one to five thousand rubles.
The amount of the fine in relation to legal entities varies from thirty to fifty thousand rubles.
The amount of fines against officials varies from one to five thousand rubles.

Employee initiative

An employee on sick leave has legal grounds for dismissal at his own request.. In this situation, the employer does not face penalties from control authorities. In the case when an employee takes sick leave on his last working day, the company administration is not obliged to postpone the dismissal. The only exception to this rule is the situation in which the employee withdraws his application.

The situation in which an employee applies for termination of a contract after the opening of sick leave deserves special attention. In this case, the employee may be dismissed on the day specified on the application page or on the last day of work. It is important to note here that the worker’s illness itself cannot be a reason for extending this period.

Long-term disability

People with poor health often take out sick leave. In the event of a long absence from work, the employer may think that the employee is deliberately “inventing” illnesses for himself and providing false documents. As practice shows, situations involving deliberate deception of management are far from uncommon. But in most cases, the reason for absence from work is precisely loss of ability to work.

In order to verify the legality of the form provided by the employee, the company management needs to contact the representatives of the medical center who issued the form. Sending a formal request allows you to find out whether a given employee actually underwent treatment during a certain time period. This information is not subject to medical confidentiality, which allows the employer to easily recognize an attempt to deceive. It should also be noted that not all medical centers have the right to draw up a temporary disability certificate.

If the medical center confirms the truthfulness of the information provided by the employee, the company management does not have the right to dismiss the employee.

The current laws do not have regulations limiting workers in the number of sick leaves issued during the year. This means that this employee must continue to perform his functions as before. The employer is also given the right to insist on the gathering of a medical commission for the purpose of conducting an examination. The main task of the commission is to identify the level of compliance of the employee with the position he occupies, taking into account his state of health. This approach is often practiced in those areas of professional activity where both the effectiveness of the production process and the health of other workers depend on the quality of human health.

Dismissal of a citizen while he is on sick leave, confirmed by a certificate of temporary incapacity for work, is impossible in accordance with the provisions of Art. 81 TK

In the event of a negative response from the medical institution, refuting the fact that sick leave was issued, the employer can count all the days when the employee was not at his place of work as absenteeism. Such workers are subject to disciplinary liability in the form of a severe reprimand or termination of the employment agreement.

A sick leave certificate is an official document indicating temporary loss of ability to work. The absence of this document may prevent you from receiving compensation. In addition, in the absence of a document, all days when the worker was absent from his workplace are counted as absenteeism, which is a gross disciplinary violation.

Having dealt with the question of whether it is possible to fire someone for frequent sick leave, you should move on to the situation related to the liquidation of the company. This procedure is carried out according to the standard procedure, which involves notifying all personnel of the upcoming closure of the company sixty days before the cancellation of the business.

In this situation, the company management needs to issue an appropriate administrative act, which will be handed over to employees for review. Workers who have not yet received compensation payments can apply to the Social Insurance Fund. This body will accept sick leave and pay compensation within ten days.

Staff reduction

Unlike the situation described above, it is impossible to fire an employee who is on sick leave due to staff reduction.

These actions of management can be regarded as a gross violation of the law.

Some people confuse downsizing with the process of reorganizing a company. In the event that management decides to close a branch where a person who is temporarily absent from work due to illness works, the employer’s actions do not violate the law.

By agreement of the parties

Agreement between the parties is one of the main reasons that can be used to dismiss an employee on sick leave.

However, in this case, the employer must wait until the employee has fully recovered. The accounting department of the enterprise is obliged to pay compensation, and then prepare all the documents necessary for dismissal. However, in the event that the duration of the illness exceeds the total period of work, the worker may be dismissed on the day specified in the application for termination of the employment contract.

On the last day of work, the employee must collect the money due and the work book. If the employee filed a ballot within one month from the date of dismissal, the employer is obliged to pay compensation in the amount of sixty percent of the employee’s average income. The worker is given the right to receive this money within six months from the date of dismissal. As practice shows, the development of such situations is quite rare.

If the employee does not notify the company management of his illness, then the days of absence from work may be recorded as absenteeism. The development of this situation may lead to dismissal due to violation of labor discipline. It is important to note that in the current regulations there is no regulation obliging a worker to inform the employer about his illness.

In order to reduce the risk of making mistakes, the company's management must establish the true reasons for the worker's absence. This can be done either by telephone call or by sending a formal request to the employee’s home address. Quite often there are situations when a sick employee does not have the physical ability to notify his superiors about his illness.

How long can sick leave last?

The duration of the temporary disability certificate depends on the reason for taking sick leave. In addition to illnesses and injuries of the employee himself, it is allowed to take sick leave to care for sick family members, a child or a relative with a disability.

As a rule, the standard duration of sick leave due to illness is about two weeks. In order to renew the ballot, the patient must undergo a medical examination. It should also be noted that there are certain diseases for which the recovery period can be several months.

Payment of sick leave

Having considered the question of whether it is possible to fire an employee who is on sick leave, we should step back a little from the topic and talk about the methodology for calculating the amount of compensation payments. When compiling calculations, an enterprise accountant needs to adhere to the following algorithm:

The total salary for the last twenty-four months is determined. If an employee’s work experience in a particular company is less than two years, the employee must provide a certificate of income from his previous place of employment.
All employee income received over twenty-four months is added together. The result must be divided into seven hundred thirty or seven hundred thirty-one days. These calculations allow you to find out the average daily earnings of a worker.
At the next stage of calculations, it is necessary to identify the total amount of insurance experience. Determining this indicator allows you to identify the rate at which the amount of compensation will be calculated (60, 80 or 100 percent). Let’s assume that the employee’s total salary for twenty-four months was five hundred thousand rubles. In this case, the average daily earnings will be six hundred eighty-five rubles.
The amount of average daily earnings must be multiplied by the interest rate corresponding to the insurance period. If the employee’s insurance experience exceeds eight years, then the total amount of average earnings is taken into account when making calculations. The result obtained must be multiplied by the total duration of sick leave. All of the above actions allow you to find out the amount of compensation payment. It is important to note here that the first three days of temporary disability are paid for by the company’s management, and the remaining days are compensated by social insurance.

Dismissal of an employee during a period of incapacity for work is possible only if there are exceptional circumstances for such a decision.

At the end of the dismissal procedure, employees of the accounting department are required to issue the worker with a certificate of income. This document is provided to the new employer at the time of employment. Along with this act, the employee is given a completed work book. In the event that the employee cannot personally pick up the documents, he can give the company management a written notice with a request to send all documents via mail. Funds due to the worker are transferred to a bank card within three working days from the date of termination of the employment contract. Odnoklassniki

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The law allows dismissal while on sick leave only at your own request. Dismissal on sick leave at the initiative of the employer is prohibited by law..

The organization does not have the right to fire an employee when he is on official sick leave. Only at his own request. This is stated in Art. 81 Labor Code of the Russian Federation.
However, there are exceptions to this strict rule - the liquidation of an enterprise that is an employer or the termination of the activities of an individual entrepreneur.

The main common mistake an employer makes is that he does not know what to do in the following situation. For example, an employee writes a letter of resignation on his own initiative and undertakes to work for the required 2 weeks. But suddenly he gets sick! Two weeks expire during sick leave. Can the employer fire such an employee, or must he wait for his recovery?

In this case, the initiative comes from the employee, so dismissal of one’s own free will while on sick leave is possible. A similar situation may include dismissal by agreement of the parties. If the initiator of dismissal is the employer, and the employee fell ill on the last working day, then the employer must wait for him to recover, and only then dismiss him.

When leaving on sick leave at your own request, extension of service is not allowed. The law clearly states that a period of illness does not interrupt the 2-week period of work. It is also said that the employee must notify the employer of dismissal 2 weeks in advance. At the same time, he can be sick or rest.
Therefore, the employer’s requirement to work out sick days before dismissal is contrary to the law.

If the employee does not return from sick leave on the day of dismissal, then the employer is obliged to dismiss him on the very day indicated in the application at his own request. The employer does not have the right to change the date of dismissal at his own request in the employee’s application. This requires the written consent of the employee. Therefore, dismissal occurs on the specified date. There is nothing illegal about this.
In this case, the sick leave that the employee who has already resigned will eventually receive will be paid by the employer.
This is stated in Law No. 255. Such an employee must submit a closed sick leave certificate to the employer within six months after its closure. Within 10 days after receiving the certificate of incapacity for work. The employer is obliged to provide such an employee with temporary disability benefits. Benefits must be paid on the next payday.

The employer is also required to pay sick leave if the employee is injured or becomes ill within 30 days of dismissal. This is done only if the employee is not employed.
If an employee returns from sick leave before the date of dismissal, then he must work and resign on a general basis. This is stated in Letter of Rostrud No. 1551-6.

If sick leave was opened for a working employee, then it is paid on a general basis:

depending on insurance experience
average salary

An application for dismissal at the own request of an employee on sick leave is drawn up in accordance with the norms of the Labor Code of the Russian Federation. It must indicate:

Full name and position of the person authorized by the employer;
name of the employer indicating the organizational and legal form;
Full name and position of the dismissing employee.

In the application itself you only need to indicate the date of dismissal. There is no need to focus on sick leave.

In case of illness or the need to care for a family member (illness of a child), the employee is obliged to contact a medical institution to prescribe treatment.

In different life situations, an employee may have a desire to vacate his position in the organization during the period of treatment. In this case, the following questions justifiably arise:

Disability and temporary disability benefits

A certificate of incapacity for work (sick leave) is a document confirming the legality of absence from work, as well as giving the right to receive temporary disability benefits.

Depending on the severity of the disease, the employee is determined by the treatment regimen - outpatient (at home) or inpatient (isolation of the patient and placement in a hospital).

The employer is obliged to pay the employee temporary disability benefits due to his illness (Article 183 of the Labor Code of the Russian Federation). It is worth noting that temporary disability benefits are paid not at the expense of the employer, but at the expense of insurance contributions to the compulsory health insurance fund.

Dismissal while on sick leave

Let us clarify that this article discusses the situation of dismissal of an employee on sick leave on his personal initiative. The features of dismissal of an employee on sick leave at the initiative of the employer are discussed in the article “Dismissal of an employee on sick leave at the initiative of the employer.”

The dismissal of an employee undergoing treatment does not differ from the general dismissal procedure, with the exception of the method of submitting a resignation letter.

The employee expresses his desire to resign by sending a corresponding written statement.

While at the workplace, such an application is submitted in person. However, if on sick leave, and especially during hospital treatment, the employee does not have the opportunity to personally submit a letter of resignation. In this case, it is advisable to send the application by post with acknowledgment of delivery.

The specific method of notification of dismissal is not established by labor legislation. The only requirement is written notification.

Calling HR from a hospital bed is not legitimate.

Terms of dismissal of an employee on sick leave

As a general requirement, the employee must notify the employer at least two weeks (14 days) before the date of termination of employment (Article 80 of the Labor Code of the Russian Federation). The two-week period begins to run on the day following the notification of the employer. A registered letter can take up to a week, so to speed up the process, a copy of the application can be sent by email with the obligatory sending of the original. While the original application is being submitted, the personnel officer will prepare the necessary documents, and the accountant will calculate the salary. This must also be done if the employee wants to quit faster.

However, this period may not be observed under the following conditions:

agreement with the employer on an earlier date of dismissal (paragraph 2 of article 80 of the Labor Code of the Russian Federation);
impossibility of carrying out work activity (paragraph 3 of article 80 of the Labor Code of the Russian Federation).

Illness is one of the reasons for the impossibility of continuing work, so there is no need to wait 14 days in this case. In your resignation letter, you can emphasize this by referring to paragraph. 3 tbsp. 80 Labor Code of the Russian Federation.

Social guarantees upon dismissal of an employee on sick leave

If an employee falls ill within thirty calendar days after dismissal, he has the right to receive temporary disability benefits from his former employer. An employee has the right to sick pay even after official dismissal. The payment amount will be 60% of the salary at the time of dismissal (Part 2 of the Federal Law “On compulsory social insurance in case of temporary disability and in connection with maternity”). An application for payment of benefits must be submitted within 6 months from the date of dismissal.

FAQ

Is it possible to quit while on sick leave?

How to submit a letter of resignation while being treated in a hospital?

In this case, it is advisable to send the resignation letter by registered mail with notification. It is also advisable to notify the employer by telephone so that the necessary documents are completed in a timely manner.

Do I need to work 14 days after leaving sick leave?

No no need. If an employee has been on sick leave for 14 days, then after leaving sick leave the employer does not have the right to force him to work for two weeks. If the employee was on sick leave for 7 days, then after recovery he is obliged to work the remaining 7 days. The period of time spent on sick leave is counted towards the period of service.

Will sick leave be paid if an employee falls ill after filing an application?

After submitting the application, all social and labor guarantees do not cease. Therefore, sick leave must be paid. In addition, if an employee falls ill within a month from the date of dismissal, he is also entitled to social guarantees established by the legislation of the Russian Federation.