Can an employee quit while on sick leave? About how to properly fire an employee who wrote a letter of resignation and fell ill by the date of termination of the employment contract. Dismissal during sick leave: establishing the fact of temporary unemployability

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 receipt.

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.

Many workers, and even employers themselves, are concerned about the question: are they paid? sick leave after dismissal in 2019 year? We'll tell you how to act correctly.

Postpayment rules

When a company employee fell ill almost immediately after he quit, sick pay after dismissal made within another 30 calendar days. This right is enshrined in Article 5 of the Law on Compulsory Social Insurance No. 255-FZ of December 29, 2006 (hereinafter referred to as Federal Law No. 255). The employee is obliged to come and hand over sick leave after dismissal to the employer to obtain temporary disability benefits. But only if he did not find a new company. Also see "", "".

There is one more condition: payment is made not only for those days that fall within the 30 days specified by law, but also if the sick leave after dismissal extends beyond this period.

The main criterion is when exactly the malaise began. This can also happen on the 30th day of unemployment.

Benefit amount

When they talk about sick pay after dismissal, they mean an amount calculated at a rate of 60% of the average salary. In this case, work experience does not matter (Article 7 of Federal Law No. 255).

The procedure for paying sick leave after dismissal due to layoff is regulated by:

• Labor Code of the Russian Federation;
• Article 5 of Federal Law No. 255;
• Order of the Ministry of Health and Social Development dated June 29, 2011 No. 624n.

Various bases

Let's look at how sick leave is paid after dismissal from work for various reasons. The above procedure applies to all types layoffs during sick leave:

• when reducing personnel;
• of one's own free will;
• by agreement with management, etc.

Read also What are the features of hiring a former civil servant?

Optional

An employer cannot part with a subordinate on his own initiative while on sick leave. This is prohibited by Article 81 of the Labor Code of the Russian Federation. Therefore, it is impossible to dismiss an employee who is on sick leave. But dismissal during sick leave at the request of an employee is a real practice. To do this, the employee must come and submit an application during the period of illness (on the first day) or even before its onset.

One way or another, the employer must carry out [the dismissal of an employee on sick leave] on the date upon application (Articles 80 and 81 of the Labor Code of the Russian Federation). In this scenario, the rule on calculating payment in the amount of 60% of average earnings does not apply, since the employee fell ill while still on the staff of the enterprise. That is, dismissal of one’s own free will while on sick leave is paid according to generally established standards.

Full payment of sick leave upon voluntary dismissal occurs after the employee leaves treatment, at the time of receipt of the payment.

If on the day of dismissal the employee went on sick leave, then the date of dismissal is still considered to be the day on which the order was signed. True, payment is made based on the average salary of an employee in the amount of not 60%, but in accordance with his total length of service.

To confirm the right to sick pay after dismissal at will or for another reason, the employee must bring:

1. passport;
2. a copy and original work book (where it will be clearly visible that the former employee did not find a new place of duty).

An important condition: the sick leave must be for the employee himself due to illness or injury, and not for caring for a relative. Therefore, they do not pay for sick leave after dismissal by agreement of the parties or at their own request if the leave was issued for pregnancy or childbirth.

The law clearly states that you can only count on benefits when you leave on sick leave because of your illness or injury.

Maternity nuances

But the law provides an exception for employees who have valid reasons for dismissal. Sick leave after dismissal by agreement of the parties in 2019 due to pregnancy and childbirth, if it occurs within 30 days after dismissal, must be paid by the employer for the reason (clause 14 of the order of the Ministry of Health and Social Development dated December 23, 2009 No. 1012):

• inability to live and (or) work in a given region due to health reasons;
• transfer of the spouse of a pregnant employee to work in another region, her relocation to her husband’s place of residence;
• needs of supervision of sick relatives or disabled people of group I.

Read also Order for disciplinary action and type of reprimand: example

Each of the reasons for dismissal - before maternity leave or dismissal of an employee on sick leave, by agreement of the parties - must be proven documented: certificates from social security, medical institutions, from the husband’s place of work, from the housing department, homeowners’ association at the place of residence, etc.

Deadlines

You can receive issued sick leave after dismissal in 2019 within a month. If there was a voluntary dismissal during sick leave, and it continues for a long time (and not necessarily with one sheet, but with several, continuous by date), payment still comes at the expense of the former employer.

If the period of sick leave exceeds six months, then the issue of simultaneous dismissal and sick leave is regulated with the help of the Social Insurance Fund, which has the final say in how to pay for the leave.

The employer is not exempt from complying with the general procedure for processing documents when leaving on sick leave at his own request. Money for sick leave must be transferred on the next payday.

Working off

Many people have a question: what to do with the work off, which is also due when quitting during sick leave at your own request?

By law, the employee must notify the employer two weeks in advance, and in writing. But sick leave in case of voluntary dismissal cannot increase this period or extend it. This means that sick leave during service upon dismissal is counted as service itself. The rules are described in Article 80 of the Labor Code.

Thus, to the question of whether sick leave is considered work upon dismissal, we can safely answer: yes.

If an employee received sick leave on the day of dismissal, then he must be paid benefits not for one day, but for the entire period of illness. This is due to the fact that the benefit is paid for the entire period of illness of an employee who works in the organization under an employment contract (Part 2 of Article 5 of the Law of December 29, 2006 No. 255-FZ). And the day of dismissal is considered the last day of work (Part 3 of Article 84.1 of the Labor Code of the Russian Federation). In this case, you need to take into account the insurance period.

An employee who falls ill (injured) after dismissal must be paid sick leave benefits in one case: the illness occurs (injury received) within 30 calendar days from the date of dismissal. The amount of benefits that needs to be paid to the employee can be reimbursed from the Federal Social Insurance Fund of Russia. Such rules are established in Part 3 of Article 13 and Part 2 of Article 4.6 of the Law of December 29, 2006 No. 255-FZ. Regardless of length of service, pay benefits in the amount of 60 percent of average earnings.

23Jan

Hello! Today we will talk about dismissing an employee on sick leave. In what cases can this be done, and in what cases is it absolutely impossible?

When can you fire an employee on sick leave?

Dismissal – termination of labor relations between a boss and his subordinate.

There are several options for dismissing an employee on sick leave:

• With the consent of the employee himself;
• By decision of the authorities;
• By mutual consent of both parties;
• Due to unforeseen circumstances beyond the control of either party.

If your boss decides to fire you, this can happen in the following cases:

• If the number of employees is reduced;
• If the employee himself does not comply with job descriptions;
• If the company's activities are terminated;
• Due to the end of the contract period.

Unforeseen circumstances leading to dismissal include the following situations:

• Entry into compulsory military service;
• Arrest and detention;
• If you are not re-selected for your current position in this organization;
• And others.

Who cannot be fired on sick leave at the request of the manager

Such employees include all employees who have illnesses and are on sick leave or on annual leave. Article 81 of the code regulating the relationship between an employee and the person who hired him indicates that such employees are not subject to dismissal at the will of their superiors. With the exception of such frequent cases as the termination of the existence and activities of a legal entity. persons or individual entrepreneurs. In some cases, it is still legal to fire a patient.

Dismissal of an employee on sick leave at his own request

If an employee is sick and has a desire to resign, then the law allows this and does not restrict it in any way. In this case, the employee can write a statement. In such situations, the relationship between the employee and the employer ends on the date specified in the resignation letter. The accounting department makes all required payments under the certificate of incapacity for work within the established time limits and in accordance with all legal norms.

If an employee is injured at work, but wants to quit, then the boss must sign a resignation letter and at the same time pay his sick leave in the amount of 100% for the entire period of illness.

Dismissal on sick leave by mutual agreement of both parties, the employee and the employer

Dismissal is also possible by agreement of the two parties, but if the employee falls ill during the period of working out the two-week dismissal period, then the employer must wait for him to return to work. After this, the accounting department fully calculates the sickness benefit, and then carries out the dismissal procedure according to all the rules. But if the employee continues to be ill for more than the allotted period of work, then he is dismissed on the day specified in the resignation letter.

A person must come to work on the day of dismissal, pick up his paycheck and work book. In this case, the employer is obliged to pay temporary disability benefits within 30 days after his dismissal, but in the amount of 60% of average earnings. The former employee can receive this payment within six months after regaining his ability to work, but no later. These situations are very rare.

Dismissal on sick leave at the end of a fixed-term employment contract

A sick employee can be fired when he has reached the end date of cooperation, specified in the contract signed for a certain period. In such cases, it is not considered that the employee was fired, just that his term of work has expired and there is no fact of dismissal. An agreement concluded before a certain date is not subject to the restrictive measures of Article 81.

Courts on such issues explain that there is no fact of dismissal if the date specified in the contract as the end of the cooperation period occurs. In such a situation, dismissal does not depend on the manager, since the term of cooperation, agreed upon in advance, has simply expired.

There is one reason why it is still possible to dismiss a sick employee, this is the untimely provision of sick leave to the employer, that is, concealment of the fact of illness. If a person gets sick and does not give his sick leave to the accountant, he can be kicked out for absenteeism with the corresponding entries in his work record. In such a situation, a person still has the opportunity to recover through the court if he brings sick leave. This indicates that before dismissing an employee, the organization must find out the true reasons for a person’s absence from work.

But sometimes employees still abuse their right to “inviolability” and deliberately do not inform the employer about their illness, or deliberately receive sick leave. As a rule, this happens when an employee is laid off. This gives an employee who had a certificate of incapacity for work, the right to return to the workplace by a court decision, and even receive an average monthly salary for the entire period of forced absence (during the trial) due to the fault of the employer. In such cases, the court takes the position of the employer and explains that concealment by the employee of temporary disability is unacceptable.

If the dismissal occurs during the closure of the company

In this case, the employer is obliged to notify all employees of the liquidation of the organization two months in advance. An order must be issued, and all workers must be familiarized with this fact upon signature. If the employee did not manage to receive the benefit, then he must contact the Social Insurance Fund (clause 4 of Article 13 of Law No. 255-FZ), which, in turn, will pay sick leave within ten days.

Dismissal if an employee is pregnant

Also quite important is the question of, since she is also issued a certificate of temporary incapacity for work indicating the cause of illness number 5. Often the employer does not know about the pregnancy of the employee, and for a number of reasons she is fired, then according to the court the pregnant employee must be reinstated to her workplace.

If the end date of cooperation specified in the contract and signed by both parties has reached, the employee cannot be dismissed, as, for example, in the case of a common illness, such a contract is extended until the end of the pregnancy. But a pregnant woman works instead of someone until a certain date, after which it is not possible to offer the employee another place, then dismissal is allowed.

In the case where a contract was concluded with a woman expecting a child before a certain period, it must be postponed until the pregnancy ends (birth of a child, miscarriage or medical abortion). Upon the birth of a child, dismissal occurs on the day the maternity and pregnancy leave ends. If an accident occurs and the child is no longer alive, the employee can be fired only seven days after the employer finds out about it.

Documents for dismissal on sick leave

If the employee is nevertheless dismissed, he should complete a number of documents:

• An application for dismissal, which is registered with the secretary and then signed by the employer;
• An order stating that the employee is dismissed, which indicates the fact of payment of the final payment;
• The certificate of incapacity for work itself.

These documents are sent to the accounting department, where the disability benefits are calculated and the final payment is made.

Calculation of sick benefits

Sickness benefits are calculated using the following algorithm:

Step 1: A sample of wages is taken for the previous two years. If the employee did not work for this organization for these two years, then when applying for a job he had to provide certificate 182n, which indicated the amount of salary at the previous place.

Step 2: We add up the earnings for two years, then divide by 730 or 731 days (the number of days for two years), we get the average daily earnings to calculate the benefit itself.

Step 3: Next, you need to know your completed insurance period. It lets us know whether sick leave will be fully accrued, that is, 100%, 80% or 60%. We multiply the average daily earnings by the percentage received and get the amount with which the benefit itself will be calculated. For example, the salary for two years was 200,000 rubles/730 days. = 273.97 rub. If the experience is less than five years, then the percentage will be 60%, from five to eight - 80%, if more than eight years, then 100%.

Step 4: Next, 273.97 rubles * 80% = 219.18 rubles, then multiply this amount by the number of days on the certificate of incapacity for work and get the amount of the benefit. Moreover, the first three days of sick leave are paid at the expense of the employer, and the rest at the expense of the social insurance fund. The employee will receive sick leave pay minus income tax. If, for example, an employee was ill for 10 days, then in our case the amount of accrued benefits will be 2190.18 rubles. He will receive 285 rubles minus income tax. — 1905.18 rub.

Step 5: When an employee is in the accounting department, he must receive a salary certificate in form 182n in order to submit it to his next place of work. He is also given a work book. If the person who resigned is unable to come, due to illness, to pick it up, then he leaves written permission to send the book by mail. The final payment is transferred to the card within three days from the date of signing the dismissal order, and the benefit will be paid after the immediate calculation of the sick leave itself.

Deadlines for sick leave

The duration of sick leave varies and is determined depending on the reason. This could be caring for a child, a sick family member, or a disabled person. The general illness is extended by the attending physician for 15 days, then the period is extended by the medical commission. There are a number of diseases when sick leave is extended for a longer time.

Conclusion

From all of the above, it becomes clear that if a person is sick and does not work until a certain date, but constantly, then he cannot be fired. And temporary employees who are pregnant can be fired if it is not possible to offer another position. But if the employer decides to part with the subordinate, then sooner or later this will happen.

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.

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

Dismissal during sick leave at the initiative of the employer

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

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

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

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

If the contract term is coming to an end

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

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

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

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

Read also In the calculation of contributions, sick leave is reflected according to the date of reimbursement of the Social Insurance Fund, and not the date of payment

Dismissal at the request of the employee

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

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

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

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

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

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

Payment of sick leave

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

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