13.06.2019
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4 min.
The Labor Code (hereinafter also referred to as the Code) provides for a number of possibilities for terminating employment contracts at the will of the employer. Thus, the employer has the right to reduce the staff of specialists by eliminating certain rates. The decision to reduce the number of personnel must be justified, and the dismissal must be in compliance with legal requirements.
Employees must be notified 2 months in advance. The form of notification is in writing. The procedure for familiarization is against signature. Retrenched specialists perform their job duties as usual: they have the opportunity to go on vacation; receive compensation provided by law in case of illness.
Sick leave after layoff
A situation may arise when an employer optimizes the number of employees working for him, that is, he reduces his staff. If within 30 days after dismissal, without having time to find a new place of work, a person falls ill, then he brings a certificate of incapacity for work (l/n) to the place of work from which he was fired. You can also read about payment of sick leave after dismissal in the article https://otdelkadrov.online/8190-pravila-rascheta-oplaty-bolnichnogo-posle-uvolneniya-soglasno-tk-rf.
This procedure is established by the legislator. The rule works provided:
- the illness occurred within 30 days from the date of dismissal;
- the sick leave was issued for an illness or injury, and not for caring for a child, infirm relatives, etc.
The law guarantees the insured the right to receive payment in the event of loss of work and insurance compensation in the event of temporary disability.
Payment for sick leave after layoff must be made by the employer within a month from the date of submission of documents.
A delay in insurance payment of more than two months threatens the company with a fine. Please note: the former employer will pay for sick leave if the loss of disability occurred within 30 days from the date of dismissal and a new employment contract has not yet been concluded!
Summary
- Who will pay for sick leave after being laid off while being unemployed?
- Sick leave when registering disability
- Sick leave for injury
- Sick leave after layoff
- Payment of sick leaves after layoffs
- Payment of sick leave upon dismissal
Questions
1. Who will pay for sick leave after being laid off while being unemployed?
1.1. Contact social protection.
2. I am interested in how payment is made in case of layoffs if sick leave was issued in the second month of the layoff period. The accountant said that with the payment of sick leave there should also be a benefit. Sick leave payment came in the amount of 60%. Should there be a payment this month? Thank you.
2.1. According to Article 180 of the Labor Code of the Russian Federation, the employer is obliged to notify you of dismissal 2 months in advance, during which you have the right to receive a salary, and then receive severance pay for at least 2 months (first for the first, and if you do not get a job, then for the second , and if you join the stock exchange within 2 weeks after dismissal, then in exceptional cases - for the third), based on average earnings (Article 178 of the Labor Code of the Russian Federation). Well, don’t forget compensation for unused vacations (Article 127 of the Labor Code of the Russian Federation).
According to Part 2 of Article 7 of the Federal Law of December 29, 2006 N 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity”, temporary disability benefits for loss of ability to work due to illness or injury are paid to insured persons in the amount of 60 percent average earnings in the event of illness or injury occurring within 30 calendar days after termination of work under an employment contract, official or other activity, during which they are subject to compulsory social insurance in case of temporary disability and in connection with maternity.
2.2. There must be a payment. If the accountant said... Art. 178 of the Labor Code of the Russian Federation states: Upon termination of an employment contract due to the liquidation of an organization (clause 1 of part one of Article 81 of this Code) or a reduction in the number or staff of the organization’s employees (clause 2 of part one of Article 81 of this Code), the dismissed employee is paid severance pay in the amount of the average monthly earnings, and also retains his average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay).
2.3. Hello. Payment of sick leave and payment of benefits are in no way related to each other. Severance pay ST. 178 of the Labor Code of the Russian Federation, as well as other payments, must be transferred to you on your last working day. The same time is set for the transfer of the work book. Sick leave will be paid separately.
2.4. Regardless of the presence or absence of a period of incapacity for work, money must be paid for the second month if you do not get a job. This requirement follows from the provisions of Article 178 of the Labor Code of the Russian Federation. Therefore, the accountant answered you correctly. All that remains is to find out why the money was not paid and, if necessary, this issue can be resolved, including in court, if necessary.
3. How to pay for sick leave when an employee is laid off due to the liquidation of an enterprise, if at the same time he joined the employment center and receives a retained salary for the period of employment.
3.1. Good day! An ill employee who is subject to layoff has the right to receive compensation for sick leave and severance pay.
3.2. 30 days have not passed since the dismissal
Your employer pays you sick leave in the amount of 60%; if it passes, they will not pay you. Good luck and success to you!
3.3. Good afternoon. Reduction and liquidation are different things and the procedure for paying sick leave is different. If an employee provides sick leave to the employer, he must recalculate and pay him sick leave at the expense of the Social Insurance Fund, this is for the first month after dismissal. After dismissal, sick leave is payable if the employee becomes ill within 30 days after dismissal.
3.4. Temporary disability benefits are paid to insured persons upon the occurrence of the cases specified in Part 1 of this article, during the period of work under an employment contract, performance of official or other activities, during which they are subject to compulsory social insurance in case of temporary disability and in connection with maternity, and also in cases where the illness or injury occurred within 30 calendar days from the date of termination of the specified work or activity or in the period from the date of conclusion of the employment contract until the day of its cancellation (Part 2 of Article 5 No. 255-FZ).
This is important to know: Calculation of sick leave for child care under 7 years old in 2021: example
3.5. Hello, For a month after dismissal, sick leave is paid by the former employer, or (if the employer has already been liquidated) by the Social Insurance Fund itself.
4. Can an employee be dismissed due to staff reduction during liquidation due to the bankruptcy of an enterprise, during the period of open sick leave, but the sick leave was opened after notification of the reduction.
4.1. ☼ Hello, In this situation, the employer must wait for you to return to work from sick leave and only then fire you, if you have a regular layoff, if liquidation, then no one will wait until you are treated, if the organization is excluded from the register of legal entities in tax office
I wish you good luck and all the best!
4.2. Maybe, but sick leave is provided for payment. You need to contact the person who is liquidating the company.
4.3. During the liquidation of an organization, subject to the procedure for notification of layoffs, dismissal can also be carried out while the employee is on sick leave.
4.4. Hello. You must be notified of your upcoming bankruptcy dismissal. In bankruptcy, you cannot be fired until you complete your sick leave. There are no such restrictions during liquidation.
5. The laid-off employee contacted the employment center for a certificate. At the same time, I registered on time. Then he didn’t show up for the check-in date and presented a sick leave certificate. The sick leave is still open at the moment. Did the employment center issue the certificate correctly?
5.1. You can appeal the illegal actions of the employment center to the prosecutor's office in accordance with the Law on the Prosecutor's Office, and also file a claim in court.
5.2. ☼ Hello, Depending on what kind of certificate you were given, the fact that you are registered with the employment center, such a certificate was issued quite legally
I wish you good luck and all the best!
6. Which day will be considered the day of dismissal in case of staff reduction with sick leave, if the date of dismissal is December 29, the sick leave ends on January 9. On January 10, a dismissal order is issued and paid as a working day. Although, as of January 1, the unit was removed from the staffing table.
6.1. Good day, Natalia! The employer extended the last working day for sick leave. Therefore, he acted correctly towards the employee, and January 10 will be considered the day of dismissal, the employee will receive a salary, pay and quit.
7. My name is Alena. I have been working in the organization for 2.5 years and am now in a position. Now we are making layoffs, and in my case I was offered to write a letter of resignation after paying my sick leave. The organization is not liquidated after. I would like to know what is the right thing to do without losing good child care benefits? Can I switch to another organization? And do I understand correctly that the Social Security Fund will be accrued for 2 years, regardless of which organization I am in? Thank you.
7.1. Women, upon their application and on the basis of a certificate of incapacity for work issued in accordance with the established procedure, are granted maternity leave of 70 (in the case of multiple pregnancies - 84) calendar days before childbirth and 70 (in the case of complicated childbirth - 86, for the birth of two or more children - 110) calendar days after childbirth with payment of state social insurance benefits in the amount established by federal laws. Termination of an employment contract at the initiative of an employer with a pregnant woman is not allowed, except in cases of liquidation of the organization or termination of activities by an individual entrepreneur.
8. In the first month after my dismissal due to staff reduction, I fell ill and was paid sick leave in the amount of 60% without withholding income tax. Two months later, when paying severance pay for the third month, the amount of income for sick leave was withheld. Is this provocative?
8.1. Hello! Yes, that's legal. Temporary disability benefits are excluded from the list of tax-free state benefits established by current legislation (clause 1 of Article 217 of the Tax Code of the Russian Federation).
Payment of incapacity for work during and after layoffs
The employee is informed about the upcoming optimization 2 months in advance, no later. If during this period of time the employee falls ill and goes on sick leave, and the required 2 months have ended, the employer does not have the right to dismiss the employee and must wait for him to return from sick leave.
The employee needs to remember that they will not be able to fire him automatically. Therefore, on the first day after the end of sick leave, you need to go to work and write a statement about termination of work.
A sick leave certificate in the hands of an employee and drawn up in accordance with all the rules can be handed over for payment to the former employer within 6 months from the date of its closure.
Another fact
In accordance with Russian legislation, when reorganizing an enterprise and reducing staff, the employer must, if possible, offer the employee a transfer to another permanent job or relocation.
Payment for sick leave when an employee is laid off during illness is made in the usual manner. The employee submits sick leave to the employer. The necessary data of the insured person is entered into it and the form must be submitted to the Social Insurance Fund within 10 days (see the list of documents for sick leave compensation at the Social Insurance Fund here). The amount of the benefit is not affected by the fact that the person who has been laid off has received payment. The amount of sick pay is affected only by the insurance period and average daily earnings for the billing period (2 years).
Payment of sick leave after layoff is also provided for by Federal Law No. 255 of December 29, 2006, if the illness occurred within the thirty-day period established by law. The calculation is based on average daily earnings. But the amount of payment, even if you have an insurance period of more than 8 years (entitles you to 100% of the benefit), will be only 60% of the calculated amount.
The employer is also responsible for paying personal income tax on the amount of sick leave benefits.
If someone who has been laid off falls ill, the dismissal is postponed until he recovers!
What the law says
According to the Labor Code of the Russian Federation, an enterprise represented by an employer is obliged to notify an employee of dismissal due to reduction 60 days in advance. If there are vacancies, then offer them to choose from. All this time, the employee continues to perform his duties and enjoy all rights, labor guarantees, including sick leave.
If the employee received sick leave at the time of layoff , then it is considered the basis for the continuation of the employment contract. It will be legal until the employee becomes able to work. The order with the date of his dismissal will be moved to the last day of his sick leave.
This is important to know: Sick leave for dad if mom is on maternity leave
Another option is if an employee is dismissed due to staff reduction while he is on sick leave. According to the law, payment of disability to a former employee after payment in connection with the reduction is carried out in accordance with the general rules.
If his incapacity for work occurred from the day he ended his work for a calendar month (30 days), then the employer is obliged to accrue and pay money according to the attached document in the form of a medical bulletin.
Who sets the rules for layoffs during incapacity?
The legislator has provided for the possibility of a situation in which a person on sick leave may lose his job. For this purpose, regulations have been adopted that are binding on those who pay sick leave after layoffs.
Labor Code of the Russian Federation Art. 81h.3. Regulates the dismissal of an employee who is being laid off and is on sick leave. Prohibits dismissal and orders to wait until recovery and return to work, after which a dismissal order is issued.
Federal Law No. 255 dated December 29, 2006, Article 5.2. A dismissed employee will receive disability benefits if it occurs due to illness or injury. Sick leave issued to care for a sick child, relative, etc. not paid.
Sick leave is paid if illness or injury occurs within 30 days from the date of dismissal.
Federal Law-255 dated December 29, 2006, Article 7, Part 2. A dismissed employee is paid benefits at the rate of 60% of average earnings.
A person dismissed due to redundancy is guaranteed to receive insurance benefits under l/n, subject to:
- no more than 30 days have passed from the date of release from work to the onset of incapacity;
- the sick leave was not issued for caring for a sick child or relative, or for any other reason, but for illness or injury;
- the former employee will contact the employer with a correctly completed personal identification document no later than 6 months from the date of dismissal;
- the sick leave was not issued in connection with an attempted suicide or specific self-harm.
The rules for paying sick leave after layoffs are outlined in the video
How is a notification served to a person with disabilities?
It is required to notify the employee of the upcoming layoff in any case. If at the time of issuing the relevant order he is ill, then the manager sends a notification, and the employee signs it or refuses to sign. In the second case, two witnesses from among colleagues are needed, who also sign the act of refusal.
In a small enterprise, the presence of one person as a witness is sufficient.
There are several ways to send a notice to an employee on sick leave:
- send by registered mail;
- send by courier;
- bring it to your home (or hospital).
Registered mail must be sent with return receipt requested. This receipt, signed by the employee, will be proof that the person received the document. When receiving correspondence by courier delivery, the addressee also signs for it.
Our website contains materials about layoffs for pensioners and people of pre-retirement age, mothers of many children, pregnant women, and part-time workers.
What determines the size of sick leave benefits during reduction?
Besides
In addition to correctly calculating the amount of the benefit, the employer should pay attention to the issuance of sick leave for the dismissed employee, since the responsible persons of the enterprise must fill out the reverse side of the sick leave. During layoffs and subsequent illness of an employee, information about the dismissal should be entered in the “Special Notes” column: reason, date, order number.
The amount of sick leave benefits depends on the average daily earnings, length of insurance coverage and the time of onset of the disease. If the illness occurs while the employee is still working, the amount of the benefit will be calculated according to the general rules. If the illness occurs after dismissal, the benefit amount will not exceed 60% of average earnings.
The average daily earnings used to calculate sick leave benefits are calculated based on the amount earned during the pay period (find out how to calculate the average daily earnings for sick leave here). Average daily earnings are compared with the minimum and maximum average daily earnings, calculated using a formula, taking into account the established basic income for the 2 years preceding the disease.
If the insured person's average daily earnings are greater than the basic one, the basic one is taken into account when calculating benefits. If the average daily earnings are less than the minimum daily average, then the minimum value established by law is taken to calculate the benefit. Read about the calculation of sick leave at the minimum wage in 2021 in the article https://otdelkadrov.online/6712-pravila-rascheta-minimalnoi-oplaty-bolnichnogo-lista-v-year-godu-prakticheskii-primer.
What does the Labor Code say?
By virtue of Article 180 of the Labor Code of the Russian Federation, the company’s management is obliged to notify employees of the upcoming dismissal due to job reduction at least 60 days in advance, and in some cases - to offer a vacant vacancy, of course, if it is available.
Also, Article 81 of the Labor Code of the Russian Federation states that if on the day of dismissal an employee is on vacation or suddenly falls ill, it is impossible to dismiss him, since such actions deprive the worker of the guarantees established by law, namely, maintaining a job during his absence within Article 183 of the Labor Code of the Russian Federation.
We suggest you read: Sick leave for a child on vacation is paid
It is this contradiction that leads to personnel errors, which are then corrected in court.
One more legislative aspect should be noted, namely, the norms of the Federal Law of December 29, 2006 N 255: on the basis of Article 5, an employee who falls ill within a month from the date of dismissal is also entitled to compensation for days of incapacity for work, but in an amount that depends on the time of onset of the illness and general experience.
Workers' rights
It is impossible to predict days of incapacity for work. That is why, at the legislative level, workers who are officially employed and make monthly contributions to the Social Insurance Fund are entitled to a kind of guarantee.
It consists in:
- maintaining a full-time job until full recovery or disability is established;
- compensation for all sick days in an amount calculated based on the total length of service, that is, from 60% to 100%.
At the same time, within the framework of Article 5 of Federal Law No. 255, sick leave can be issued not only in case of loss of ability to work by the employee himself, but also in other cases.
In particular:
- to care for a child or a close relative;
- when taking leave for childbirth;
- if necessary, stay in quarantine, but only in cases strictly defined by law.
Also, by virtue of Article 81 of the Labor Code of the Russian Federation, an employee is not subject to dismissal at the initiative of management on any of the grounds of this article, with the only exception, which implies the liquidation of the company or termination of the activities of the individual entrepreneur.
That is, it is possible to terminate the employment relationship with an employee in case of staff reduction on the date specified by the previously issued order only upon liquidation of the company. In all other cases, there are several options.
The main responsibility of the company’s management from the moment the decision is made to optimize the staff is maximum respect for the labor rights of employees and the possibility of continuing cooperation in several ways.
This may include:
- transfer of a worker to other vacant positions, even if they are lower in qualifications or wages, but only with consent;
- granting a preferential right to remain in the regime of the norms of Article 179 of the Labor Code of the Russian Federation;
- payment of benefits due to layoffs;
- notification of the Trade Union, as well as the employment center, about the upcoming release of several units.
That is, in anticipation of the termination of cooperation, the employer must provide the dismissed employee with all opportunities for retraining or finding another job, and only after exhausting the above steps - dismiss, and even then in compliance with the norms of Article 81 of the Labor Code of the Russian Federation, that is, only after the employee has recovered.
When staffing or staffing levels are reduced, the employment contract is terminated at the initiative of the employer. This issue is addressed in 81 articles, which are called “Termination of an employment contract at the initiative of the employer.” The reduction is discussed in paragraph two.
When sick leave after dismissal is not paid by the employer
If a dismissed employee has registered with the employment service and has been assigned the status of unemployed, he can receive sick pay from the State Employment Fund in the amount of the unemployment benefit.
If the company does not have funds in its account, the benefit will be paid by the regional Social Insurance Fund.
The Center for Social Protection of the Population, in the event that the enterprise from which the insured was dismissed is liquidated, assumes obligations to pay benefits due to disability.
On issues of obtaining sick leave during or after layoffs, a lawyer will advise you in the comments to the article
