It is not uncommon for an employee to work on sick leave - at the personal request or at the insistence of his boss. In any case, both parties want to know if such a situation is acceptable, what the consequences may be and how to pay for such work.
Can I go to work on sick leave?
From a legal point of view, a person cannot be sick and work at the same time. Sick leave means a temporary disability of an employee, so a call to work is a gross violation of his rights.
If we consider the situation outside the official regulations, then it is quite possible. For example, an employee is on, but on some days one of his relatives sits with him, which makes it possible to work. This is illegal, but in agreement with the management it is possible. It remains to solve the issue of payment.
If the manager is not interested in the exit of the sick employee to work, and this happened, then he informs the doctor about the violated treatment regimen with relevant evidence. A special mark appears in the document, and the allowance is paid in a smaller amount.
Payment for sick leave
It is illegal to pay sick leave for one period and at the same time accrue wages. The employer has no such right.
There is one loophole for remuneration on sick leave - a bonus. An employer can reward a hardworking employee for the amount that he actually earned. In this case, everything is official, if no one reports on the current state of affairs.
In practice, things are different. Many organizations adhere to a gray salary policy, so the employee receives official accruals during the illness, and remuneration for work at this time is in an envelope. The employer does not have to look for a replacement, and the employee remains in the black.
What is the risk of non-compliance with the hospital regime?
If the employee does not comply with the hospital regime, then unpleasant consequences are possible:
- The appearance at work with a serious illness can aggravate your condition. In this case, the question concerns their own health.
- With a viral, infectious or other contagious disease, there is a risk of infecting other employees. So it is possible to reach the epidemiological situation.
- If the boss is not interested in the work of a sick employee, then he reports such a violation to the doctor, providing evidence. The consequences in this case are expressed in the reduction of benefits. In total, it will not exceed the minimum wage per month. Such changes will be legal from the date of the recorded violation. For this, a special mark is put on the sick leave.
- There is another aspect of the situation when an employee worked while on sick leave, but the management was not interested. In this case, the employee will not see payment for his work. Complaining about this to the labor inspectorate is pointless - violations will be recorded on both sides.
- If an employee was forced to go to work, then the employer violates the labor code. The employee must contact the labor inspectorate about this. In this case, the employer will be fined.
What to do if forced to work on sick leave?
Unfortunately, the rights of workers are often violated. It is not uncommon for an employee to be called to work on sick leave.
Every employee should know that sick leave is an important document. This is a confirmation of temporary disability. During this period, exemption from labor duties is fixed by law.
If you are forced to work while on sick leave, you should know what to do:
- Explain your position to your employer. You should first try to solve the problem without conflict.
- Contacting the Labor Inspector. To force you to go to work on sick leave means grossly violating the labor code. The employer will be fined.
- Do not be afraid of being fired on sick leave if you refuse to go to work during it. The Labor Code stipulates (Article 81) that a temporarily disabled employee cannot be fired. Read more about dismissal on sick leave -.
- Another situation is when dismissal threatens immediately after leaving the hospital. Unscrupulous employers always find reasons to fire an employee. Often employees themselves are forced to write a statement so that they are not fired under the article. In this situation, it is important to know your rights - you cannot sign a statement under duress, you need to contact the prosecutor's office with this fact.
It is not always possible to defend your rights. The employer can find or invent violations in the work, due to which the employee can be fired. An employee should insure himself - any modern telephone has a voice recorder, so the solution to controversial issues should be recorded. Words alone are not enough to prove your case, and the recording of the conversation is an indisputable argument.
What should an employer do if an employee wants to work on sick leave?
By law, if an employee decides to go to work on sick leave, the employer must inform the doctor. In this case, the hospital regime is violated. A violation is noted on the sick leave, and disability benefits are reduced.
In practice, if both parties are interested in the employee's return to work, then it remains to agree on the details. Officially, such work cannot be celebrated - this is a violation of the law. Thus, the fact of an employee's work on sick leave cannot appear in any documents.
Employers should remember that the work of an employee on sick leave is illegal. It threatens with a fine. In addition, an unhealthy condition of an employee can aggravate his health - in this case, an industrial injury or worse consequences are quite possible.
If both parties have agreed that the employee will work during the sick leave, then the question of remuneration arises - officially it cannot be performed. In this case, there are several options:
- Prize. In this case, the reward should be issued in a different period - the payment of a bonus during the illness is very suspicious.
- Days off. In this case, the employee receives compensation for the time of incapacity for work in full. In the future, the employee periodically takes time off, but in the time sheet he is given a worked shift and is paid a salary for it.
- Material aid. This option is possible if the employee has earned no more than 4,000 rubles on sick leave. From the point of view of the law, material assistance is possible, and the employer is attracted by the uselessness of paying contributions for this amount.
- Envelope. Payment for days worked can be done informally. Naturally, this is not legal, but it does not negate the fact that a large part of organizations practice gray wages.
- Another illegal option is not to pay sick leave and not to indicate the fact of its presence anywhere. This option is acceptable for an employee if sick leave payments are small.
Working on sick leave is possible, but illegal for both parties. In this case, you also have to solve the issue of payment. In practice, such situations often occur, but not always by agreement of both parties: in this case, one of the opponents will definitely be punished.
You can quit while on sick leave only on your own initiative. If dismissal on sick leave occurs at the decision of the employer (the reason is absenteeism during illness, dismissal due to staff reduction, etc.), his actions are illegal.
Dismissal on sick leave is lawful in the event that the liquidation (reorganization) of the enterprise occurs or the individual activity of the entrepreneur is terminated. This is written in Art. 81 of the Labor Code of the Russian Federation.
In the event that the employment contract is terminated by mutual agreement of the parties, dismissal during the period of sick leave is lawful, since there is no employer's initiative.
Grounds for dismissal on sick leave by decision of the employer
The procedure for dismissal of one's own will
Important! This law establishes the deadline for presenting a ballot for payment, which is limited to six months from the date of restoration of working capacity (disability determination), as well as the end of the period of release from work in cases of caring for a sick family member, quarantine, prosthetics and aftercare (Article 12 Part 1 of the Federal Law).For example, an employee quit, and a few days later he fell ill. In this case, he can present the ballot to the former employer in a month or two - the main thing is to meet 180 days from the date of dismissal. Benefits for everyone 
The legality of dismissal during sick leave depends on the initiator of the procedure. There may be such a situation that an employee has submitted a letter of resignation, but suddenly fell ill. What should the employer do in this case? Wait for the employee to recover or fire him after the 14-day period required by law? Is it possible to fire at all during the sick leave of your own free will? Can an employer fire an employee on its own initiative? Let's figure it out.
Dismissal during sick leave at the initiative of the employer
The law prohibits the dismissal of an employee who is on sick leave, subject to the conclusion of an indefinite employment contract with the employer. But there are a number of cases where this is possible, namely:
- when the employer terminates its activities or liquidates the employing organization;
- upon expiration of the employment contract.
When a company is liquidated, a former employee can receive sick leave payments to the FSS (at the place of residence). For this he will need:
- statement:
- SNILS;
- certificate of incapacity for work;
- passport;
- employment history.
If the contract expires
Is it possible to dismiss an employee during sick leave at the end of the employment contract? Let's explain. If the 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, a fixed-term contract may take an indefinite form. Then its termination during the illness will no longer be possible.
Is it possible to fire an employee during sick leave if she is a pregnant woman (under any form of contract)? Definitely not. But she must provide the employer with the appropriate certificate from the doctor.
The algorithm of the employer's actions when the contract expires:
- It is necessary to send the employee by mail a notice of the expiration of the contract with an invitation to come for a work book. If the employee agrees, then it is possible to send it by mail.
- Execution of an order in the form of T-8 on the dismissal of an employee (if necessary, with a note that he cannot familiarize himself with the document due to absence).
- Making an appropriate entry in the work book and personal card of the employee (Article 77, Clause 2 of the Labor Code of the Russian Federation).
- Transfer of all due payments to the employee (salary and compensation for unused vacation).
- After the former employee provides the sick leave to the accounting department, it is paid in full (if the illness occurred before the end of the contract).
Read also Dismissal and compensation for unused vacation in 2018
Dismissal at the request of the employee
Many people are interested in the question of the possibility of dismissal of their own free will during sick leave. Let's talk about this in more detail.
If an employee submitted an application for resignation before his illness, then the employer has every right to dismiss him before the end of the sick leave period (14 days from the date of application). The procedure for terminating an employment contract in this case is standard:
- a dismissal order is written;
- a mark is made in the work book and personal card;
- paid sick leave and other debts to the employee.
There are situations when an employer forces an employee to work off the time missed during an illness (14 days). He does not have the right to do this (letter of Rostrud dated 09/05/2006 No. 1551-6).
Can an employee be fired while on sick leave? Yes it is possible. After informing the employer of the desire to terminate the employment contract, the employee may be on vacation or on sick leave.
If, for any reason, during an illness, the employee changes his mind about quitting, then he has the right to withdraw his application (it is advisable to do this in writing).
sick leave payment
Sick leave is paid on a general basis if it was issued to a still working employee. A disability certificate is issued for different periods, depending on the severity of the disease.
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 employed in another job. Most of the payments are made by the FSS (the employer pays only the first 3 days of sick leave). The amount of payments is equal to 60% of the average earnings. It is considered, in the general case, as follows.
A working citizen has the right to terminate his employment relationship with the employer. At the same time, he must warn him about this 2 weeks in advance. And if a person is on sick leave, can he quit?
Can I quit my job while on sick leave?
All grounds for termination of employment relations are given in Art. 77 of the Labor Code of the Russian Federation. They also include the desire of the employee. But the employee is obliged to notify his manager 2 calendar weeks before the expected date of departure. This is stated in Art. 80 of the Labor Code of the Russian Federation.
During this period, the employee may fall ill or go on vacation. The law does not prohibit this. But in any case, he must write a letter of resignation.
Letter of resignation while on sick leave
There is no statutory form for voluntary resignation, but it must be in writing, and in this context:
- In the upper right corner is written "cap", which indicates:
- information about the employer - its abbreviated name, as well as the position and full name of the head who is authorized to accept and sign such applications;
- information about the employee himself - his full name, as well as position. If the enterprise is large, then you can indicate the name of the structural unit. You also need to provide contact information.
- body of the statement. Here you need to state a request to dismiss at your own request. Be sure to indicate the date - no earlier than 2 weeks after writing the application. This period is called working off.
- Signature and transcript, as well as the date of compilation.
It is impossible to indicate the expected end date of the illness in the application!
For more information on how to write a letter of resignation of your own free will -.
Is sick leave included?
An employee may fall ill during mandatory work. The employer does not have the right to force the employee to work, motivating his actions by the fact that the latter was on sick leave during working off.
The sick leave is counted in the period of mandatory two-week working off, even if it is closed after the dismissal of the employee. In addition, sick leave will be fully paid.
Is it possible to fire a person who is on sick leave?
If the employer wishes to dismiss his employee, he can only be guided by the grounds listed in Art. 81 of the Labor Code of the Russian Federation.
It also says that you cannot fire an employee who is on vacation or sick. Even if there are any violations on the part of the employee, it is impossible to dismiss him during illness.
As soon as the employee recovers and brings a certificate of incapacity for work, the employer can fire him. At the same time, the sick-list is obliged to pay depending on the insurance period of the employee.
Is sick leave paid?
For each employee, the employer makes deductions for insurance premiums. Therefore, he is obliged to pay sick leave, even if the employee quit.
However, Law No. 255-FZ says that during work, sick leave is paid depending on how much insurance experience the employee has.
After the dismissal, the employer is obliged to pay for the illness for another month if the resigned employee did not get a job with another employer. After dismissal within 30 days and upon presentation of a certificate of incapacity for work, sick leave is paid in the amount of 60% of the average earnings of this employee. Read more about paying sick leave after dismissal -.
To calculate sick leave payments, it is necessary to take into account his salary for the last 2 years. Since it is now 2017, for the calculation you need to take the employee's salary for 2015 and 2016.
For the calculation, all payments and remunerations from which insurance premiums are paid are taken into account. If during this period the employee worked in another place, then you need to bring a certificate of income from the previous employer.
If the average salary is below the minimum wage, then the calculation will be made based on this value. The same indicator is taken into account if the insurance period is less than six months.
Video about dismissal during sick leave
All the subtleties and rules for dismissing an employee during his period of incapacity for work are covered in detail in this video:
The employer is obliged to pay the sick leave of the employee, even if he quit during the sick leave. If he insists on “vacation at his own expense” instead of payment, then he thereby violates federal law. You can complain about such a leader to the labor inspectorate.
Question:
The organization has employees who often and for a long time are on "sick leave". In particular, one employee had a period of temporary disability due to the need to care for a sick child from January 2010 to March 2011 in total 73 calendar days (child over 3 years old, not disabled). Another employee of pre-retirement age was on "sick leave" from July 2010 to March 2011 for a total of 123 calendar days. Can the frequent or prolonged stay of an employee on "sick leave" be grounds for his dismissal? What is the duration of the period of temporary disability due to illness or injury, as well as due to the need to care for a sick family member?
Answer:
After considering the issue, we came to the following conclusion:
Frequent or prolonged stay of an employee on "sick leave" is not a basis for his dismissal.
The duration of the period of temporary disability due to illness or injury is not limited. The duration of the period of temporary disability due to the need to care for a sick family member in some cases is also not limited.
Rationale for the conclusion:
Prior to the entry into force of the Labor Code of the Russian Federation, that is, until February 1, 2002, it was indeed allowed to dismiss an employee at the initiative of the administration due to absence from work for more than 4 consecutive months due to temporary disability, not counting maternity leave, if the legislation did not a longer term for maintaining a place of work (position) has been established for a certain disease (clause 5, article 33 of the Labor Code of the Russian Federation). Now, among the grounds for terminating an employment contract, a long-term illness is not mentioned (Article 77 of the Labor Code of the Russian Federation). Accordingly, an employee who is often or ill for a long time cannot be fired due to this circumstance. However, the employer has the right to offer such an employee dismissal by agreement of the parties (clause 1 of the first part of 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). Dismissal is made in the case when the will of the employee regarding the termination of the employment contract is free. The employer cannot in any way force the employee to sign an agreement to terminate the employment contract.
In some cases, an illness of an employee gives the employer the right to terminate employment with him. However, this requires the presence of an appropriate medical certificate, 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 report, with his written consent, the employer is obliged to transfer to another available job that is not contraindicated to the employee for health reasons.
If an employee needs such a transfer for a period of up to 4 months, then his refusal to transfer or the absence of a corresponding job from the employer entails the obligation of the latter to remove the employee from work for the entire period specified in the medical report, while maintaining the place of work (position). If the medical report indicates that the employee needs a temporary transfer to another job for a period of more than 4 months or a permanent transfer, then if he refuses to transfer or there is no suitable job, the employment contract is terminated in accordance with paragraph 8 of part one of Art. 77 of the Labor Code of the Russian Federation. If during the medical and social examination the employee is recognized as completely disabled, then the employment contract with him is terminated on the basis of paragraph 5 of part one of Art. 83 of the Labor Code of the Russian Federation.
The period for which a certificate of incapacity for work may be issued in case of illness or injury is not limited by regulatory legal acts. There are also no restrictions on the number of disability certificates issued to an employee during a year or other period.
The procedure for issuing sick leave certificates by medical organizations was approved by order of the Ministry of Health and Social Development of Russia dated June 29, 2011 N 624n (hereinafter referred to as the Procedure). By virtue of clause 14 of the Procedure, by decision of the medical commission, with a favorable clinical and labor prognosis, a certificate of incapacity for work can be issued in accordance with the established procedure before the day of restoration of working capacity, but for a period not exceeding 10 months, and in some cases (injuries, conditions after reconstructive operations, tuberculosis ) - for a period of not more than 12 months with a frequency of renewal by decision of the medical commission no less than 30 calendar days later. Recognition of a citizen as a disabled person is carried out during a medical and social examination (ITU) (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 - the Rules).
Disabled citizens are sent to the ITU in the following cases (clause 27 of the Order):
- an obvious unfavorable clinical and labor prognosis, regardless of the duration of temporary disability, but no later than 4 months from the date of its commencement;
- favorable clinical and labor prognosis for temporary disability lasting more than 10 months (in some cases: conditions after injuries and reconstructive operations, in the treatment of tuberculosis - more than 12 months);
- the need to change the vocational rehabilitation program for working disabled people in the event of a deterioration in the clinical and labor prognosis, regardless of the disability group and the duration of temporary disability.
Thus, a citizen can be sent to the ITU before the expiration of 4 months from the moment the sick leave is opened in case of an obvious unfavorable clinical and labor prognosis. In the case of a favorable prognosis, by decision of the medical commission, a certificate of incapacity for work due to an injury can be issued for up to 12 months, and only after that a citizen can be sent to the ITU to resolve the issue of establishing disability.
When establishing disability with a degree of limitation of the ability to work, the period of temporary disability ends on the date immediately preceding the day of registration of documents in the ITU institution. From Section IV of the Rules, it follows that during a medical and social examination, a person does not necessarily have a disability.
For temporarily disabled persons who have not been diagnosed with disability, a certificate of incapacity for work may be issued by decision of the medical commission until the restoration of working capacity with a frequency of extension of the certificate of incapacity for work by decision of the medical commission at least 30 days later or until re-referral to the ITU. As you can see, the period of temporary disability due to illness or injury is determined in each case individually, depending on the favorable clinical and labor prognosis.
As for the issuance of a sick leave certificate for caring for a sick family member, in accordance with clause 35 of the Procedure, in some cases, even if we are not talking about a disabled child, the period is not limited. So, a sick leave certificate is issued for caring for a sick family member:
- a child under the age of 7 years: in case of outpatient treatment or joint stay of one of the family members (guardian, trustee, other relative) with the child in an inpatient medical institution - for the entire period of an acute disease or exacerbation of a chronic disease;
- a child aged 7 to 15 years: in case of outpatient treatment or joint stay of one of the family members (guardian, trustee, other relative) with a child in an inpatient medical institution - for up to 15 days for each case of the disease, if according to the conclusion the medical commission does not require a longer period;
- a disabled child under the age of 15: in case of outpatient treatment or joint stay of one of the family members (guardian, trustee, other relative) with the child in an inpatient medical institution - for the entire period of an acute illness or exacerbation of a chronic illness;
- children under the age of 15 infected with the human immunodeficiency virus - for the entire period of joint stay with the child in an inpatient medical institution;
- children under the age of 15: in case of their illness associated with a post-vaccination complication, malignant neoplasms, including malignant neoplasms of lymphoid, hematopoietic and related tissues - for the entire period of outpatient treatment or joint stay of one of the family members (guardian, trustee, other relative ) with a child in an inpatient medical institution;
- children under the age of 15 living in the resettlement zone and the zone of residence with the right to resettlement, evacuated and resettled from the zones of exclusion, resettlement, residence with the right to resettlement, including those who were in a state of intrauterine development on the day of evacuation, as well as for children of the first and subsequent generations of citizens born after radiation exposure of one of the parents - for the entire duration of the illness;
- children under the age of 15 suffering from diseases due to radiation exposure of their parents - for the entire period of illness;
- over 15 years old: for outpatient treatment - for up to 3 days, by decision of the medical commission - up to 7 days for each case of the disease.
