Procedure Is sick leave time included in the working time upon dismissal?

27.08.2019

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4 min.

Termination of an employment agreement can occur for various reasons. If we are talking about an initiative on the part of an employee, then the employer has the right to oblige the employee to work for two weeks. This period is required by management to find a replacement for the departing specialist. Let's consider how the situation is resolved if this period of time falls on sick leave.

Reasons for termination of an employment contract

When applying for a job, a new employee enters into an agreement with the organization, which is regulated by the provisions of the Labor Code of the Russian Federation. Termination of this agreement may occur for various reasons:

1. at the request of the employee;
2. at the initiative of the employer;
3. by agreement of both parties;
4. due to circumstances beyond the control of both parties;
5. when moving to a new position;
6. in case of violation of the rules of the employment contract;
7. upon expiration of the contract.

The most convenient option for both parties is mutual consent. In this case, the employee and manager can enter into an agreement that will be beneficial to both. Usually, in this case, the employee receives additional payments, and the employer guarantees that the agreement will not be canceled or challenged due to changed circumstances in the employee’s life.

Dismissal for inadequacy of the position is a rare option, as it is often difficult to prove.

An employee who does not show up for work may subsequently bring sick leave, in which case he will not be counted as absenteeism. Professional unsuitability can only be revealed in the event of a general certification that meets the requirements of the law.

The most common is leaving work of your own free will. Sometimes, even in the case of serious violations, the employer gives the person the opportunity to write a statement on his own so that dismissal under the article is not recorded in the work book.

But more often a person simply finds another, higher-paying, prestigious or convenient vacancy or moves.

Sometimes the reason for dismissal is reluctance to work under new management, unpreparedness for business trips, changes in working conditions, or deteriorating health.

After the written application, a two-week work period follows , but often people try to reduce it or avoid it altogether. Since sick leave is included in service upon dismissal, sometimes it is taken so as not to return to the place of duty. But before making hasty decisions, you need to know how many days you are supposed to work in different situations.

Procedure for submitting documents for dismissal

Mandatory service is established by Art. 80 of the Labor Code of the Russian Federation, according to which the employer, if necessary, can terminate the employment agreement only two weeks after the employee submits the application. If he is on sick leave, he has the right to resign without returning to work if the notice period falls within the period of validity of the certificate of incapacity for work.

Is it possible to quit while on sick leave?

At the legislative level, there is no prohibition on dismissal during sick leave, and each employee can apply to terminate the contract without going to work. However, there are several nuances here:

Is sick leave included in the working time then? Based on the information above, we can draw a simple and correct conclusion: sick leave is included in the work provided that the obligation to notify superiors about the dismissal, discussed above, has been fulfilled.

Duration of processing

Working off is not a completely legal term. This is the name given to the two-week period given to the employee after he writes a letter of resignation under Part 1 of Art. 80 Labor Code of the Russian Federation. During these 14 days, the employee has the opportunity to reconsider his decision and transfer matters to the person who will subsequently take his place. Then the employment contract is terminated.

It happens that after writing a statement, a person changes his mind and wants to stay. In this case, you have the opportunity to pick up the document and continue working.

But if by this time a replacement has already been found for the employee, the employer does not have the right to refuse the employee taken in his place and will be forced to dismiss the one who wrote the application anyway, therefore, before officially notifying management about your departure, it is important to carefully weigh everything and understand that, if you change your mind , you can still lose your job.

Three to fourteen days

If the decision is made and the application is written, no one has the right to detain the employee for more than two weeks. During this time, he is either present on site and transfers cases, or the following situations occur:

1. working hours occur on holidays (for example, the weekend after the New Year);
2. the employee goes on his next annual leave (if he did not have time to exercise this right, compensation must be received);
3. the person is absent due to illness (sick leave is included in the pay off upon dismissal).

The work does not have to last two weeks. This period may be reduced to three days in the following cases:

1. the employee is on a probationary period;
2. the duration of the employment contract is less than 60 calendar days;
3. The contract states that the employee is hired for one season.

You must notify management of your desire to stop working by writing a statement.

Quick dismissal

Management may also release an employee earlier by agreement of both parties or in the following circumstances:

1. employee retirement;
2. enrollment in an educational institution;
3. gross violations of the employment contract;
4. moving to another region for work, health reasons or changing permanent place of residence;
5. transfer of a military spouse;
6. pregnancy;
7. caring for a child or sick relative.

For these reasons, actual dismissal may occur on the day the application is written, but it is usually required to provide evidence proving the right to leave without working time.

This may be an order for the transfer of a spouse, a health certificate, an extract from the previous place of residence and other documents appropriate to the case.

You can also go on sick leave followed by dismissal without work if the incapacity for work lasts for 14 days after the application was submitted to superiors.

In what cases is sick leave counted towards working off?

But if the dismissal occurred at the initiative of the employer, and subsequently the employee brought sick leave, the start date of which falls on the day of dismissal, then this fact will not be the basis for reinstatement at work, although paying sick leave and postponing the date of dismissal specified in the order and work book , have to. This is stated in paragraph 27 of the resolution of the Plenum of the Supreme Court of the Russian Federation “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” dated March 17, 2004 No. 2.

Is it considered legal to quit while on sick leave?

The law does not allow writing a resignation letter in which the expected date of expiration of the certificate of incapacity will appear as the date of termination of the contract. This is due to the fact that it is impossible to calculate in advance what day it will be.

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An employee can also avoid working off work if the resignation letter was completed and submitted to the employer on the day of going on sick leave or while it was still in effect. Days of incapacity for work will be included in the number of days to be worked off.

14 days before termination of the employment relationship, the employee must notify the employer of his planned resignation. The calculation of this period begins when management receives the relevant application. Therefore, it is impossible to officially go on sick leave with further dismissal. In this case, there are several options for the development of events:

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• preliminary agreement between the employee and his manager - the employer does not object to terminating the relationship with the worker without working the last 2 weeks;
• the employee does not have the opportunity to work 14 days. For example, when retiring, when entering an educational institution, when moving to another region, etc.;
• violation by the employer of the established norms of the labor legislation of the Russian Federation.

• If, after the certificate of incapacity for work is closed, days of compulsory work remain, you will still have to return to the workplace.
• Payment for the period of illness is made in full, even if it stops after leaving the company.

Dismissal at the initiative of the employer

Sometimes termination of a contract occurs not at the request of the employee, but at the initiative of the organization, for example, in the event of liquidation of an enterprise, reduction of staff, or violations by an employee. In most cases, the employee must be warned 2-3 months before the upcoming dismissal, with the exception of seasonal workers, who need to be warned a week before.

In any case, at the time of termination of the contract, wages must be paid in full, as well as due compensation payments and benefits.

Sometimes an organization seeks to avoid unnecessary monetary compensation and insists on dismissing employees at their own request. However, by agreeing to this, the employee is deprived of all payments due to him, except for the basic calculation.

In case of gross violations of official duties, the offender is fired; in case of liquidation of the enterprise, all employees are fired, but when staff is reduced, management has to make a choice between specialists. Usually the most highly qualified and promising employees are retained, but besides them, there are categories of people who simply cannot be laid off. These include:

1. pregnant women;
2. parents with children under 3 years of age;
3. temporarily disabled.

In this way, it is impossible to lay off a person who is on sick leave . And since the date of dismissal is known 2 months in advance, some are tempted to take a certificate of incapacity for work for that day, so that the organization does not have the right to take away the workplace. But such actions will not lead to the desired result.

The reduction will not occur at the appointed time, but will follow immediately after the person returns to work. There will be no extension of the employment contract or even work off (it will be included in the period of sick leave). However, the date of dismissal in the order and work book will be postponed, and all payments will be made at the expense of the organization.

So, management cannot lay off an employee on sick leave on their own, since this contradicts Art. 81 Labor Code of the Russian Federation. An employee has the right to write a statement during illness and not go to work, since sick leave is included in the work off upon dismissal of his own free will. If the employer did not take this into account and did not issue an order two weeks after reading the application, and the recovered employee changed his mind about leaving, he cannot be fired at another date.

Features of dismissal while on sick leave

As for cases where the initiator of dismissal is the employer, the warning period is directly related to the grounds for termination of the contract. During the probationary period, the period is three days. Please note that the manager is not obliged to explain the reasons for dissatisfaction to employees who are not yet on permanent staff. Clarifying whether sick leave is considered work upon dismissal, we note that definitely yes.

Notice period for dismissal

In accordance with Russian legislation, temporary disability associated with illness or other grounds specified in regulations does not postpone the date of dismissal, but counts towards the assigned work.

• Severance pay for layoffs is one or two average monthly earnings (parts 1 and 2 of Article 178 of the Labor Code of the Russian Federation).
• For seasonal workers, the payment amount is equal to the average earnings for two weeks (Article 296 of the Labor Code of the Russian Federation). The same allowance is due when an employee is called up for military service or refuses to move to another area (Part 3 of Article 178 of the Labor Code of the Russian Federation).
• Upon dismissal due to a change in the owner of the enterprise, management employees are paid compensation in the amount of three monthly salaries (Article 181 of the Labor Code of the Russian Federation).

You can quit and not work all the required days , if this issue was initially agreed upon with the employer and consent was obtained. In this case, the reason for termination of the employment contract will be the consent of the parties. This is legal, since an enterprise, at its discretion, can set a working period of less than two weeks.

In what cases is the period of incapacity counted towards working off?

• First of all, an application for resignation is required from the employee;
• the last working day is determined;
• a dismissal order is issued;
• on the appointed date, the accounting department makes the calculation;
• A record of dismissal is made in the work book.

Many people are interested in the issue of dismissal without working while on sick leave. The letter from Rostrud has its own opinion on this matter, which is in favor of the workers. More precisely, it says that the employer’s requirement to work out sick days before terminating the employment contract is illegal.

The Labor Code, namely Article 81, prohibits the dismissal of an employee during a period of temporary disability. This norm is imperative, but if you look in more detail, you can find a window in the law. The legislator, having issued a rule prohibiting the dismissal of an employee during his sick leave, had the goal of protecting the worker from the actions of an unscrupulous employer. But if the desire to change jobs comes from the employee himself, who is in a state of illness, how does the law regulate this issue?

Is it possible to quit while on sick leave?

When it comes to some more profitable place of work, where waiting is impossible, the employee is interested in the question of whether it is possible to quit without working. Below we will discuss issues related to termination of the contract and give recommendations on how to avoid a two-week working period.

IMPORTANT! Up until the date of dismissal, the employee may withdraw the application, and the employer does not have the right to dismiss the individual, unless a new person has already been invited to fill this vacancy.

Sick leave payment

In all cases, except for the liquidation of the enterprise, the period of incapacity for work must be paid.
But the size of the benefit varies depending on the time of dismissal, as well as the insurance experience available to all people who have entered into an agreement and who actually work. Charges are calculated as follows:

1. 100% of salary for 8 years of experience;
2. 80% - from 5 years;
3. 60% in all other cases.

Thus, in the event of illness and the presence of a document confirming it, the corresponding payment for it occurs in full, regardless of the date on which the sick leave is closed, as well as when it expired after the date of termination of the employment contract.

Moreover, if a certificate of incapacity for work was received within a calendar month after dismissal and a new employment has not yet occurred, you can contact your former employer within six months with a demand to pay for it. But regardless of the insurance period, payments will not exceed 60% of average earnings.

Is it possible to fire an employee on a ballot?

It is possible to terminate an employment contract while an employee is on sick leave if he resigns on his own initiative or by agreement of the parties. Quite often it happens that a letter of resignation was submitted in advance, then the employee went on sick leave and was still ill during the last working day. Then the documents for dismissal are drawn up during the validity of the certificate of incapacity for work.

As a general rule, an employer does not have the right to dismiss an employee while he is on sick leave. But there is an exception when this is permissible - the liquidation of a legal entity or the closure of an individual entrepreneur (Part 6 of Article 81 of the Labor Code of the Russian Federation). In this case, the employer is obliged to comply with all the rights of the employee: all compensation must be paid in full, and the work book must be handed over on the day of dismissal or sent by mail with acknowledgment of receipt.

The employer is obliged to pay for the provided certificate of incapacity for work even after dismissal, if the employee fell ill within 30 days after termination of the employment contract (Part 2 of Article 5 of Federal Law No. 255-FZ of December 29, 2006).

Read more about whether it is possible to dismiss an employee on sick leave or due to frequent absence from work due to illness.

Case studies

An employee has the right to quit while on sick leave, and he will not have to work additional days if the sick leave closes the working period. However, under no circumstances can an employer fire an employee while he or she has an open certificate of incapacity for work. The main thing is to notify the employer in time that it is open.

Example 1

The Moscow City Court considered case No. 11-27557/2012, in which the plaintiff stated that he was illegally fired from his job. Having considered the essence of the issue, the court found that in the period from December 13 to December 20, the employee was absent from his workplace without warning that he was on sick leave. He presented the certificate of temporary incapacity for work only after December 20, when he returned to work.

As a result, taking into account the resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004 on the application of the Labor Code by the courts, the dismissal was recognized as legal. This resolution states that it is unacceptable for an employee to hide the fact of temporary disability.

Example 2

Case No. 2-591/2014 was pending in the Novovyatsky Court of Kirov, in which the plaintiff requested to be reinstated in his job. The situation was as follows: the employee was undergoing treatment in a hospital, which he did not have the physical ability to inform the employer about.

The management of the enterprise considered that the employee skipped work and fired him. However, the court found that there was no abuse on the part of the individual. Russian laws do not establish the obligation of close people and relatives to report to their place of work that they are undergoing treatment.

Consequently, the employer was obliged to take measures to establish the reason for the employee’s absence from his place of work. Such measures also include requests from relatives.

Example 3

Not only documentary evidence is taken into account, but also testimony. An example of this is case No. 2-632/2012-M-614/2013, which was considered by the Krasnoborsky District Court of the Arkhangelsk Region. The plaintiff notified the employer that she would not be able to go to work on August 18-19, which was subsequently confirmed by a certificate of incapacity for work.

The plaintiff also stated that it was open. However, the employer issued a dismissal order. The fact that the employee warned the administration of the enterprise was stated by her colleague, who was a witness in this case. The court took this circumstance into account and decided to reinstate the plaintiff at work.

Articles from our experts will help employees find out more information about their rights regarding certificates of incapacity for work and dismissal. Read about whether sick leave is required for child care after dismissal, how to apply for continuation of sick leave after dismissal, whether it is possible to take sick leave on the day of termination of the employment contract, and how sick leave is paid during vacation followed by dismissal.

The law prohibits dismissing employees at the initiative of the employer if they are on sick leave. However, this is possible if the reason is leaving of one’s own free will or by agreement of the parties, or the complete liquidation of a legal entity. The dismissal procedure itself is carried out according to the general rule, and the employee is entitled to compensation and payments established by law in full.

Severance of labor relations

Knowing all the rules that an organization follows when dismissing or severing an employment relationship, you can begin the process by writing a statement. It’s most convenient to use the company’s letterhead, but if you don’t have one, you can write the application by hand. This is done as follows:

1. in the upper right corner is indicated the full name, position of the person to whom the application is addressed, and the name of the organization (for example, General Director of Stal LLC Ivanov I.A.), as well as the initials and position of the person wishing to resign (from engineer Kotova M . IN.);
2. the title of the document (resignation letter) is written as the title;
3. the text of the document itself contains the request, the date of the last working day, special circumstances, if any, and the reason (I ask you to dismiss me at your own request on May 1, 2021, without work due to the transfer of my spouse to a new duty station);
4. the document ends with the full initials of its author, personal signature and date (Kotova Marina Vladislavovna, April 30, 2018).

The example considers an application requesting leave without work. If you plan to remain at work for another two weeks, they will be counted from the next day after written notification to the employer.

If the application is written on April 30, the person is completely free from all official obligations on May 15. But the deadlines are observed only when personally transmitting the document to the employer; an oral statement has no legal force, and when sending a letter by mail, the deadlines for delivering the correspondence must be taken into account.

If circumstances change, you can withdraw a previously written application.
If they have not yet managed to invite another person to this position in writing, the employer does not have the right to dismiss someone who has changed their mind from the position .
After reading the application, the manager issues an order indicating the full name of the person being dismissed, his personnel number, position and name of the unit, date and reason for leaving, and a link to the Labor Code. After the employee signs the order, the HR department will prepare a work book, and the accountant will make the accruals.

The full calculation contains payment for the entire period worked, required compensation, incentive payments, if any. Compensation most often includes payment for vacation that the employee did not have time to take. But if he was taken off work ahead of time and had to be worked off, the employee, on the contrary, will be withheld the amount owed.

The payment must be received on time, even if the person is on sick leave at that time. In case of long delays, the organization is obliged to pay a penalty. The certificate of incapacity for work will be paid after its closure, on the next day or on the nearest day of payment of salary or advance payment.

Thus, if you intend to quit, you need to carefully weigh the pros and cons and remember that this decision cannot always be reversed. If you are completely sure of the need for care, you need to know that no one will be able to keep an employee at work for more than 14 days, and sick leave is counted as working time upon dismissal. But the employer will be forced to wait until his subordinate’s certificate of incapacity for work expires, regardless of the date for which the layoff was planned.

Certificate of incapacity for work during vacation with subsequent dismissal

Sick leave followed by dismissal without work The employee wants to quit without working for two weeks, writes a letter of resignation on the same day of his own free will, and the manager obliges him to work for two weeks.

What is the best way to go on sick leave followed by dismissal?

So, according to Art. 127 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) of the Russian Federation, upon a written application from an employee, unused vacations may be granted to him with subsequent dismissal. In this case, the day of dismissal is considered the last day of vacation.

25.1. Federal Law of December 29, 2006 N 255-FZ (as amended on May 1, 2017) “On compulsory social insurance in case of temporary disability and in connection with maternity” Article 7. 2. Benefit for temporary disability in case of loss of ability to work due to illness or injury is paid to insured persons in the amount of 60 percent of average earnings in the event of illness or injury occurring within 30 calendar days after termination of work under an employment contract.

23.1. If the state of health in the event of illness or deterioration in well-being due to injuries and injuries does not allow further full performance of official duties, employees of the Ministry of Internal Affairs may be dismissed from the bodies:

Is it possible to go on sick leave with subsequent dismissal?

If you resign of your own free will and do not write a statement before dismissal to change the date of dismissal or extend leave due to illness, then you will be fired in accordance with the original resignation letter, and you will be required to pay sick leave.

• That is, in fact, if the period of incapacity for work is 2 weeks, then the employee will spend the entire working period outside of work.
• However, in any case, he will be able to resign only 14 days after submitting the application, regardless of whether he spends this period at work or at home sick.

• How to resign of your own free will while on sick leave?

Is BL included during the two weeks that need to be worked out?

The law includes sick leave during the two-week period of work before dismissal. This concept is part of work ethic. It is important that the employee notifies his superiors no later than 2 weeks before the day of departure. This period is given to management in order to find a new employee to replace him, and to the leaving employee to think about his decision.

Within 14 days, the employee has the right to change his mind and withdraw his resignation letter.

The period of compulsory service cannot be increased. Even if the next day the person went on sick leave and recovered at the end of this period, the day of termination of the employment agreement will be the same.

Expert opinion

Semenov Alexander Vladimirovich

Legal consultant with 10 years of experience. Specializes in the field of civil law. Member of the Bar Association.

If management demands that absences be worked out or refuses to pay for sick leave, this will be illegal - a complaint can be filed against the employer with the labor inspectorate.

Sick leave must be paid in full, even if 14 days have expired on the date of its closure and the employee has become a former employee.

In what situations do sick days count towards 2 weeks?

It should be mentioned that the term “compulsory service” does not exist in the legislation, so the question of whether a certificate of incapacity for work is considered part of it is a little incorrect. By law, an employee must notify management 2 weeks before the date of termination of the employment agreement.

During this time he may change his mind. That is, it is correct to talk about the period for warning the employer, and not about mandatory work.

Example. The employee wants to resign on October 15th. He submitted his application for voluntary resignation on October 1, two weeks before the expected date of dismissal. However, on October 14, the employee withdrew his application. In this case, the dismissal will be illegal.

An exception may be a situation when a candidate has already been selected for a position who cannot be refused admission (for example, a specialist invited in writing by way of transfer from another employer within one month from the date of dismissal from his previous place of work - Part 4 of Article 64 Labor Code of the Russian Federation).

The management of the organization cannot increase the duration of the two-week period from the date of application to the day of dismissal. This rule applies even to cases when an employee takes sick leave or goes on vacation.

Example. The employee wants to resign on October 15; he submitted his resignation on October 1. From October 5 to October 10, he was on sick leave. Despite this, the dismissal date will be October 15th. It is this date that must be indicated in the dismissal order and work book, since it is recorded in the application.

Common mistakes

Error: An employee demands an extension of his main leave with subsequent dismissal for the period of time that he spent on sick leave.

Comment: In general, annual leave should be extended by the number of days indicated on the sick leave issued during the rest period. But not in the case of vacation followed by dismissal - in such a situation the vacation is not extended.

Error: An employee is going to complain to the Labor Inspectorate about an employer who refused to provide him with leave followed by dismissal.

Comment: Providing leave, after which the employee immediately leaves work, is not the responsibility of the employer, so he is guided by the current state of affairs at the enterprise.