Employers quite often set a probationary period for new employees. Not everyone knows that persons undergoing testing are endowed with similar rights as permanent staff at the enterprise.
During testing, as with regular employment, a formal employment contract is also concluded. By concluding an agreement, an employee receives all the privileges that are provided to all employees of the company. At the same time, the employer and the employee have many questions related to benefits, terms and even dismissal.
In labor practice, it often happens that, for reasons beyond the employee’s control, it is necessary to open a sick leave certificate while on a probationary period.
Is it possible to take
Probationary period is the time (usually no more than 3 months) during which the employer must evaluate the ability and ability to perform a particular job. Upon completion, the candidate is either fired or hired on permanently. During this period, the employee himself realizes whether this position is suitable for him or not.
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People on probation have all the rights and responsibilities , including the possibility of taking sick leave. The provision of social assistance does not depend on the specifics of employment - it can be work under an open-ended contract or a probationary period.
Reference! In 2021, specialized bodies have established the following payment nuances: 3 days are paid by the employer, everything else is paid by the Social Insurance Fund.
As long as an employee is on the company's payroll, even as a test subject, he has the right to receive social support. And all because he, like other employees, withholds contributions to the fund from his salary. This is done either independently or by the employer.
Social assistance is issued to injured and sick people, pregnant women, caring for a relative, people undergoing inpatient and sanatorium treatment upon presentation of a certificate of incapacity for work.
Is it possible to quit while on sick leave during a probationary period?
Dismissal during sick leave: is it possible?
There are situations when an employee on a probationary period understands that cooperation with a given organization does not suit him and decides to quit. But suddenly illness strikes and it is no longer possible to work.
According to Article 71 of the Labor Code of the Russian Federation, an employee can resign at his own request while on sick leave for a probationary period. However, this does not mean that simply not going to work is enough.
By law, an employee must write a letter of resignation in free form. The date of dismissal is indicated 3 days after writing the application. The statement does not have to indicate the reason; the wording “at one’s own request” is sufficient.
On the day of dismissal, the employee must be given a correctly completed work book and paycheck. Officially employed employees are required to work for 2 weeks after writing an application. During the probationary period, the working period is 3 days. In exceptional cases and only with the consent of the manager, you can resign without working off.
Is it possible to extend
For example, Maria Petrovna was hired as a manager with a probationary period of 1.5 months. In the middle of the ordeal, Mary fell ill. The employer refused to pay for the sick leave certificate and extended the test for another 1.5 months. In this case, the employer violated a lot of labor rights, for which he may receive a large fine.
Management has no right to extend the probationary period due to forced rest. However, the probationary period does not include periods of temporary disability and other periods when the employee was actually absent from work, for example, on vacation.
In the situation above, the employer could not fail to pay sick leave and did not have the right to extend the probationary period. When appealing, the court will side with Maria Petrovna.
Is sick leave included in the probationary period?
In order to ensure equal rights to employment, the Labor Code sets the duration of the probationary period depending on the term of the contract and the type of vacant position.
If temporary disability occurs due to illness, the manager has the right to extend the probationary period, but only within established limits.
For example, when she was hired, a woman was given a probationary period of two months, and during this period she took out sick leave to care for her child for a period of five days. The employer extended the duration of the inspection by 5 missed days.
As practice shows, if the period of incapacity for work is less than a week, then the company’s management does not change the duration of the test period.
Calculation and payment
The probationary period is considered an ordinary employment with the conclusion of a contract. Therefore, such employees are legally entitled to compensation in the event of forced sick leave. Other behavior on the part of the employer will be a violation of the law.
According to Article 70, all rights and obligations of ordinary employees also apply to persons undergoing probation. Moreover, it doesn’t matter at what stage the employee is - even if it’s just the beginning of the trial period, or it’s already completed. The obligatory payment of sick leave during the probationary period is indicated by Federal Law 255, which was approved in 2006.
The calculation is carried out on the basis of length of service. It is clear that a person who is undergoing a probationary period at a given enterprise does not have much of it. That is why, when making calculations, accountants take into account the length of service recorded in the work book.
When calculating and paying benefits, a certain sequence of actions must be followed, both for the employee and for his employer:
- The sick person must notify management of his absence from the workplace. You can notify by any means available to a person.
- On the same day, go to the clinic for examination and treatment. At the same stage, sick leave is opened, which will be required for further calculation and payment by the accountant. It is allowed to call a medical specialist at home if, due to his poor condition, a person cannot get to the hospital on his own. A certificate of incapacity for work must be opened from the first day of illness.
- The form must include the diagnosis and name of the enterprise, opening and closing dates. Without the seal of a doctor and a medical institution, the employer cannot accept and pay for this certificate of temporary incapacity for work.
Attention! No entries are made on the sheet indicating that the person is on probation. This is considered a violation of registration, so the document is considered invalid.
Sick leave must be calculated within 10 days after submitting the slip, and paid on the next established billing day.
If the sheet was closed six or more months ago, then you do not need to pay for it.
Features of being on sick leave during the test
In addition to the fact that sick leave during the trial period is paid, it also extends it by the number of days that the employee was sick. In this case, no additional order needs to be issued. In fact, while the employee is sick, his test is interrupted, and when he recovers and returns to work, it is resumed. It is very important to remember that the employer does not have the right to dismiss an employee during a period of temporary disability certified by a doctor, even if he believes that he failed. It is necessary to wait for recovery and return to work duties, and then dismiss the person as someone who has not completed the probationary period.
Required documents
Before submitting documents for calculation and payment of compensation, you need to pay attention to the rules for issuing sick leave. If filled out incorrectly, the employer has the right to refuse to issue benefits to the employee.
The document must be drawn up on a form approved by law, which indicates:
- full and abbreviated name of the enterprise;
- diagnosis of the patient;
- conclusions of the attending physician about the patient’s health;
- start and end date of sick leave.
This document must be certified by the seals of the medical institution and the attending physician.
Sick leave pay during the probationary period
The certificate of incapacity for work during the probationary period is subject to payment in the same way as when officially applying for a job.
The calculation occurs according to the following rules:
- accounting department calculates the average income for the previous day worked;
- A percentage of average earnings is taken based on the employee’s length of service. For example, if the experience is more than 5 years, the percentage will be 60;
- the average payment per day worked is multiplied by the percentage, as well as by the number of sick days.
Is it possible to be fired?
Both parties may wish to resign during the probationary period.
At the initiative of the employer
According to Articles 71 and 81 of the Labor Code of the Russian Federation, the employer cannot use the assigned probationary period for his own purposes. He must objectively look at the employee’s performance—hire him if he passes the test favorably, and fire him if he passes it unsatisfactorily.
If the probationary period is not completed, according to Article 71, the employer is obliged to notify the employee three days before his dismissal. The notice must be given in writing, indicating the reasons for such a decision. Excessive illness or excessive sick leave cannot be grounds for dismissal.
Illnesses and other valid circumstances prescribed in the Labor Code should not influence the employer’s decision.
Also, the sick leave certificate cannot indicate that the employee is on probation. This document will be considered incorrectly filled out and will be declared invalid.
Important! A sick worker is required to submit it to the accounting department on the first day of returning to work after illness.
Can they be fired for sick leave during a probationary period?
Sick leave during a probationary period: a reason for dismissal?
The first question that worries an employee is “can I be fired for filing a certificate of incapacity for work?”
According to Articles 71, 77 and 81 of the Labor Code of the Russian Federation, an employee cannot be dismissed due to illness during the probationary period.
If the employer intends to terminate the working relationship with the employee, then this can be done only after submitting a certificate of incapacity for work, on the next working day. In other cases, the reason for dismissal may be the employee’s violation of official duties, or his own desire to quit.
If the reason for dismissal is sick leave, the employee has the right to go to court.
Extension of probation during COVID-19: is it legal?
Law Firm "Dmitrenko and Partners" represents the interests of an employee whose probationary period was extended during the period of the decrees of the President of the Russian Federation on the introduction of non-working days, despite performing work remotely.
Defendant – Subway Russia Marketing Company LLC
What is important to know in order to protect your rights in court if a similar dispute arises?
Let us briefly recall the conditions for establishing a probationary period for an employee.
Testing is a condition stipulated in an employment contract to verify the employee’s suitability for the work assigned to him.
There is no probationary clause in the employment contract and no separate agreement on it was drawn up >>> the employee was hired without a trial.
Test period: no more than 3 months, and for certain categories of workers - six months (for more details, see Article 70 of the Labor Code of the Russian Federation).
NB if the employment contract is concluded for a period of 2 to 6 months, the trial period should not exceed 2 weeks.
For whom is the test not established?
- elected to the position by competition;
- pregnant women;
- women with children under 1.5 years of age;
- under 18 years of age;
- who have received secondary vocational or higher education and are entering work for the first time in their specialty within a year from the date of its receipt;
- those elected to elective positions for paid work;
- concluding an employment contract for a period of up to two months;
- and etc.
What periods do not count towards the probationary period? – periods of temporary disability and other periods of employee absence from work (for example, periods of absenteeism, performance of state or public duties, vacation at the expense of the employee, etc.)
Has your employer extended your probationary period? We draw conclusions about the legality of this action.
- The Labor Code of the Russian Federation currently does not provide for the possibility of extending the probationary period even with the employee’s consent; accordingly, extending the probationary period is unacceptable.
- There are periods that do not count towards the probationary period. If there are any, the end date of the probationary period may be postponed. Attention! Not extended, but postponed! However, the total test period in any case cannot exceed three months (as a general rule).
- Actual absence from work presupposes failure to perform a labor function. Thus, if the organization’s employees, due to the announcement of non-working days, were transferred to a remote work format and continued to carry out their work duties, in the opinion of Dmitrenko and Partners Law Firm, there are no grounds for “extending” the probationary period.
NB If a dispute with an employer goes to court, it is necessary to create an evidence base for the implementation of labor activities during the period of remote work.
Important to remember! Dismissal based on the results of the test can be made only before the expiration of the probationary period (see Article 71 of the Labor Code of the Russian Federation).
Is the probationary period extended due to sick leave?
According to Articles 70 and 71 of the Labor Code of the Russian Federation, an employee can have their probationary period extended due to forced absence from work for the following reasons:
- vacation;
- education;
- performing mandatory work (in case of administrative violations);
- sick leave
As a rule, the employer decides independently whether to extend the probationary period or not, taking into account the fact whether he intends to officially employ the employee in the future or not.
Does sick leave affect the successful completion of the probationary period?
A limited list of circumstances leading to unilateral termination of a contract is indicated in the Employment Agreement.
Thus, the purpose of the test is to enable the management of the enterprise to evaluate the skills and knowledge of the applicant and determine his usefulness for the company. Upon completion of the probationary period (at least three days before its end), a written notice is prepared indicating whether the company wishes to retain the employee on an indefinite basis. If such notice was not sent, the contract is renewed automatically. It is impossible to terminate a contract with a person who is on sick leave under any circumstances. If the reason for unsatisfactory completion of the probationary period was illness, then the employee has the right to file a claim in court and challenge such a decision.
Features of refusal to hire during sick leave:
- dismissal can only be formalized after the person returns to work;
- It is possible to send a notification to a citizen about the upcoming termination of employment relations during a period of incapacity; the letter indicates that after returning to work the employee will have to work a specific number of days of the probationary period;
- if the parties agreed to terminate the contract, but the employee went on sick leave before the corresponding order was issued, then the dismissal will be recorded only after he returns to work.
Thus, the law establishes that the success of completing the probationary period should not depend on the sick leave received. But, given that the manager makes a decision based on his subjective opinion, in practice this may affect the further extension of the contract.
