The workplace is empty: can they fire you for frequent sick leave?

Grounds for dismissal

Right to dismissal

There are several forms of termination of an employment contract, which are specified in Article 77 of the Labor Code of the Russian Federation:

• at the initiative of the employee;
• at the initiative of the employer;
• by agreement of the parties;
• due to the expiration of the contract;
• upon liquidation of the organization;
• when identifying the fact of unauthorized registration of sick leave.

Typically, dismissal occurs in accordance with the first three points. Therefore, the employer must initially talk with the employee and try to resolve the issue peacefully. If you can conclude a settlement agreement, then it is possible to get rid of the specialist quite easily.

Can you be fired for frequent sick leave?

In other situations, an employee “cannot be fired for health reasons, even if he does not take sick leave. Moreover, during a period of illness, dismissal is impossible on grounds that are attributed to the “administration initiative (downsizing, service inconsistency, disciplinary violations, etc.), except in cases of liquidation of the organization.

However, sick leave is not an obstacle to terminating an employment contract for all other reasons: (or) at one’s own request; (or) by agreement of the parties; (or) due to circumstances beyond the control of the parties, for example, when depriving a special right for a period of more than 2 months, if this entails the impossibility of work

If the inspection reveals abuses, the doctor will be punished and the channel for obtaining “additional leave for an unscrupulous employee will be blocked. Is it possible to fire an employee who is constantly sick? This can be done, although long sick leave in itself is not grounds for parting with an employee.

Legal dismissal for health reasons is possible in two cases: 1) if the employee is completely incapacitated (according to the conclusion of the ITU); 2) in case of permanent or temporary (more than 4 months) unsuitability of the employee for the work he performs (which was revealed as a result of a medical examination or other medical examination).

Is it possible to fire an employee who is constantly on sick leave?

Conditions of dismissal

The law does not provide for a period during which an employee may be absent from work due to health reasons. Previously, the Labor Code of the Russian Federation had a norm that was 4 months, but now it has been canceled. But there is an order of the Ministry of Health and Social Development No. 624N, according to which the validity of a certificate of incapacity for work cannot last more than a certain period:

• 15 days with the possibility of extension up to 30 days by decision of the medical commission;
• 10 months by decision of the board of doctors;
• 12 months if the patient has tuberculosis, serious injury or negative consequences after reconstructive surgery.

If an employee is really sick, then managers, as a rule, treat this with understanding and do not try to get rid of him. often try to compromise and decide how to help the specialist continue to perform his job duties outside the company.

But sometimes employees feign it, wanting extra rest. So, after several days of work, they often go to the doctor again to get a certificate of incapacity for work. This alarms many company managers, so they are forced to take appropriate measures.

Can you be fired from your job for frequent sick leave?

In the interests of the employee, the employer is obliged to remove him from work, usually without pay. If, in accordance with a medical report, an employee needs a temporary transfer to another job for a period of more than 4 (four) months or a permanent transfer, then if he refuses the transfer or if the employer does not have the corresponding job, the employment contract is terminated in accordance with paragraph. 8 hours 1 tbsp. 77 Labor Code of the Russian Federation. Such dismissal is not a violation of the employee’s rights, since it is aimed at protecting his health (Decision of the Constitutional Court of the Russian Federation dated July 14, 2011 No. 887-О-О). One of the cases falling under the provisions of Part 2 and Part 3 of Art. 73 of the Labor Code of the Russian Federation, is the transfer to another job for medical reasons of pregnant women and women with children under the age of one and a half years. Therefore, first of all, check whether there are specific reasons in the company’s local documents or in the agreement that the employer or the parties have decided to consider valid. If there is a list, but none of the reasons apply to the situation with your employee, then he is obliged to return the money. Another thing is that he can actually refuse. In this case, there is only one way to collect the debt - through the court. The law does not say which reasons are considered valid. Representatives of Rostrud explained that the employer in each case can decide for himself whether the reason given by the employee for leaving is valid or not. Therefore, for the future, it is necessary to write down in the employment contract a list of specific reasons under which the employee should not return money for training (letter dated October 18, 2013 No. 852-6-1).

How to detect the fact of simulation

Feigning illness can be equated to absenteeism

You cannot send a request to a medical organization, since information about the patient constitutes medical confidentiality. But with the help of specialized services it is possible to check sick leave. You can also contact the regional office of the Social Insurance Fund to understand the reason for providing a particular citizen with certificates of incapacity for work.

After a request to the Fund, a medical institution is checked to see if it is competent to provide a bulletin to an individual patient.

Important . If the employee did not go to the doctor, but provided a false document, then the action falls under a number of articles of the Criminal Code of the Russian Federation. Typically, punishments fall under Articles 159, 292 or 327 of the Criminal Code of the Russian Federation.

It is quite simple to identify the fact of simulation. To do this, you can send a colleague and an HR employee to the sick specialist’s home. It is only necessary to ensure that no one warns him about the planned trip. In this case, you can find out whether the person really has health problems and make him happy with your visit, or whether he is pretending and minding his own business during working hours.

Companies that have a practice of visiting the homes of sick employees are less likely to encounter them going on sick leave.

If an employee brings sick leave after absenteeism

A lot of sick leave is a reason to doubt the employee’s illness

We are talking about providing a false document or obtaining it illegally. Usually, counterfeits are easily identified after a request to the FSS. Suspicions arise in the following cases:

• the paper does not match the established pattern;
• the doctor’s signature or seal is not readable;
• the barcode contains an unspecified number of characters;
• All notes were made using a ballpoint pen.

You also need to pay attention to the timing of treatment. They are listed above. It is much easier to identify a fake certificate of incapacity for work than to prove its illegal receipt. Therefore, it is recommended to call a specialist and talk with him, pointing out the possibility of transferring the case to lawyers, and then to the court, if he does not agree to resign.

Important . Forcing dismissal at the initiative of an employee is considered a violation of the law. The list of reasons when dismissal is possible at the request of the employer is specified in Article 81 of the Labor Code of the Russian Federation (violation of labor discipline, incompetence, staff reduction, and so on). Therefore, it is necessary to prepare for the conversation and make sure that audio recording devices are not used.

Sick leave after writing a letter of resignation

Application for resignation

Often employees leave the ballot after writing a letter of resignation. The employer may have a fair suspicion about this. The document may be real, but the reason may be fictitious.

Important . Most often, employees turn to a therapist for sick leave. But if there is a chronic disease that periodically takes acute forms, then it is almost impossible to prove simulation.

In this case, the employer will spend more time searching for the truth. It is much easier to wait 14 days or release the specialist “without work.” It is worth understanding that working off is not provided for by law. That is, a letter of resignation is a 2-week notice of intention to leave the organization. During this time, specialists from the relevant departments must prepare all the required documents, and the employer has the opportunity to find a new employee.

Also find out what to do for an employee who has not been paid vacation pay before the start of the vacation? Detailed information about the rules for paying vacation pay.

If there is a desire to complicate the life of an employee, and also if you are confident that you have provided false documents, you can conduct an audit. To do this, you will need to contact the Social Insurance Fund and request the authority to provide a certificate of incapacity for work to a specific person.

Certificate of incapacity for work after refusal to grant administrative leave

Rules for issuing sick leave

Another reason when an employee goes on sick leave is a refusal to grant administrative leave by a certain date. Here it is necessary to carefully check the bulletin, request information from the Social Insurance Fund and monitor the specialist himself so that he does not go about his business during the alleged illness.

If you can prove the forgery of documents, then it will be easy to agree on dismissal at the employee’s initiative. To do this, he needs to explain the possible consequences when the case is brought to court.

Important . It is required to have evidence of the fictitiousness of the ballot. Otherwise, if an employee records the conversation, you yourself may end up in the dock for forced dismissal.

Pregnant women cannot be fired. Violation of the relevant article of the Labor Code of the Russian Federation is grounds for initiating a criminal case. The exception is if the girl herself asked to be fired and wrote a statement.

How long can an employee be sick without being fired?

The Labor Code of the Russian Federation states that frequent absence of an employee from the workplace due to illness is not a reason for his dismissal.

The worker must provide medical certificates and reports in a timely manner. Law No. 255-FZ of December 29, 2006 states that the duration of sick leave is within the competence of the doctor.

The number of certificates of incapacity for work subject to payment for 1 year is not limited , it is impossible to control and predict the disease.

No enterprise is immune from an outbreak. In this situation, the employer must announce a quarantine and send the staff on sick leave while maintaining their jobs.

Sometimes a serious injury or pathology may be accompanied by assignment to an employee of a disability group; if it is not compatible with work, then the manager has the right to terminate the relationship with the employee.

If the disability group is working, first he is offered work in accordance with his capabilities; if the worker does not agree with the new conditions, he quits.

Unscrupulous employers may require an employee to resign after being injured on his own initiative or under an article for absenteeism. Such actions are illegal; if they occur, you must contact the regulatory authorities.

Can an employer fire an employee who is on sick leave?

Breaking labor obligations during sick leave is a possibility provided for by labor legislation, but in compliance with the established procedure, violation of which threatens to declare the procedure illegal and punish the employer.

There are situations in which the dismissal of a sick specialist is permissible:

• liquidation of the enterprise;
• the worker's own desire;
• agreement of the parties - how to dismiss by agreement of the parties if the employee is sick;
• expiration of the term of a fixed-term employment contract.

Dismissal of an employee during illness at his own request

If the employee decides to resign of his own free will and falls ill during the 2-week period of work, then the period of work is not extended or postponed.

This rule is also valid in the case of filing a letter of resignation while a specialist is on sick leave. Dismissal without service is possible if you are pregnant or moving to another location for permanent residence.

We also recommend the article: Is it possible to go on sick leave with subsequent dismissal without working off?

If an employee sent an application to terminate the employment contract, and fell ill on the last working day, then the dismissal will still take place - details here.

If a specialist returns to work after illness before the day of dismissal, he works out the remaining days.

The calculation of payment for sick leave differs significantly when it is opened before dismissal and after. If, before terminating his employment obligations, the employee consulted a doctor, then payment for incapacity for work is carried out depending on the period of time worked based on the average earnings for the previous 2 years. When opening sick leave after dismissal (no more than 30 days), the calculation of the amounts due does not depend on length of service; for all citizens, 60% of earnings is taken.

Please note: until the end of 2021, a new procedure for paying sick leave, introduced in connection with the coronavirus, is in effect.

At the initiative of the employer

The employer is prohibited from terminating the relationship at will while the employee is on sick leave (Article 81 of the Labor Code of the Russian Federation).

If the employment contract is terminated by the employer and the employee falls ill before the designated date, the dismissal procedure is suspended and resumed when the employee returns to work.

If an employee’s rights are violated, he has the right to send a petition to the court, where, as a rule, a decision is made in favor of the worker. The employer, by decision of the court, reinstates the specialist in his position and pays wages for forced absences.

Is it possible to terminate the contract during the probationary period?

When an employee is officially employed, he is given a probationary period. This time is allocated to assess the professional qualities of the specialist, and work in the new team is checked. Each candidate tries to show his best qualities, but sometimes he has to issue a sick leave.

Dismissal during the probationary period deserves special attention. There can be a lot of problems with it. In practice, termination of employment under these conditions is extremely rare.

Articles 71, 77 and 81 of the Labor Code of the Russian Federation regulate the inadmissibility of dismissing an employee due to illness during the probationary period.

If the employer wishes to dismiss a subordinate, then the dismissal is formalized after the submission of the certificate of incapacity for work (on the next working day).

If during the probationary period an employee decides to quit while on sick leave, he needs to write a corresponding statement addressed to the manager, indicating his own desire as the reason. On the 3rd day after writing an application with an employee on a probationary period, it is necessary to terminate the employment relationship.

If a person works under a fixed-term employment contract

Under normal circumstances, dismissing an employee whose employment contract is about to expire does not cause any particular problems. Only written notification to the worker of the upcoming event is required 3 calendar days in advance.

The expiration of an employment contract is an independent basis for dismissal. The company has every right to terminate relations with a sick employee, which is confirmed by judicial practice.

The main condition is timely and correct notification of the employee about the upcoming dismissal.

If the contract expires and the dismissal is not formalized, there is a risk of the fixed-term employment contract becoming permanent. In this case, dismissal upon expiration of the contract is excluded.

It is not necessary to warn a temporary employee about the termination of the employment agreement if he is hired for the period of a temporarily absent specialist (during maternity leave).

Employers sometimes offer a frequently ill employee a position with a lower workload, which is accompanied by low pay. Many citizens do not agree to change working conditions; all transfers in accordance with the law are permissible only with the approval of the employee. Dismissing an employee for frequent sick leave is a violation of the law, but they can provoke other reasons for dismissal.

If the employer admits its mistakes and reinstates the dismissed worker no later than the day the doctor declares him capable of work, the employee is paid disability benefits and continues to work as usual. There are no negative consequences for the employer in this case.

The worst option is for the worker to go to court; in case of loss, the employer, in addition to mandatory payments, compensates for moral damage.

The illegal dismissal of a sick employee is subject to administrative liability (Parts 1 and 2 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation):

• from 1 to 5 thousand rubles. for officials or private entrepreneurs;
• from 30 to 50 thousand rubles. for legal entities.

What is an email newsletter?

Electronic sick leave

Today, electronic technologies are actively used, which makes it possible to reduce the incidence of document forgery. From July 1, 2021, it became possible to provide a ballot in paper or electronic form. The goals of its implementation are the following:

• simplification of interaction between patients, the Social Insurance Fund and the employer;
• reduction of paper document flow;
• increasing control over the issuance of certificates of incapacity for work.

But the electronic form of this document can be obtained if the following requirements are met:

1. The employer has a personal account on the FSS website.
2. The medical organization is connected to electronic document management.
3. The patient signed consent for the registration and issuance of a digital certificate of health problems.
4. The doctor has the necessary material and technical base to perform the required procedures related to electronic document processing.

If one of the specified conditions is not met, then a paper ballot is provided.

Video - Electronic sick leave: detailed explanation

How to receive electronic newsletters

A doctor fills out an electronic certificate of incapacity for work.

The scheme itself works as follows:

1. The patient informs about the desire to issue an electronic version of the documents, provides the necessary information about the employer and provides his SNILS.
2. The doctor sends a request for the opportunity to fill out a certificate of incapacity for work for a specific employee and completes it. The patient is only informed of the document number.
3. Certification of a document by electronic signature.
4. Certification of the signature with the electronic seal of the medical organization, after which the file is sent to the Social Insurance Fund.

Thus, complete transparency of actions is achieved. It is impossible to format the sheet incorrectly, since the program will not allow you to save it and proceed to the next step. You also cannot provide a false sick leave certificate to your employer.

Why does an employer welcome an electronic version of documents?

Scheme of working with electronic sick leave

There are several reasons for this. And the main thing is the opportunity to control the legality of the specialist’s actions.

Table 1. Advantages and disadvantages of electronic sick leave certificates

Thus, if an employee provides sick leave in electronic form, then the employer can practically eliminate the fact of document forgery. But with frequent visits to the doctor, additional investigation may be required to identify a violation of the law on the part of the employee.

What the law says

Labor relations between an employer and an employee are regulated by the norms of the Labor Code.
The grounds for dismissal are specified in Art. 81 of the Labor Code, and these do not include frequent illnesses of an individual. For an employee, this means that he cannot be fired on the initiative of his manager due to frequent illness. The article of the Labor Code directly states that the dismissal of an employee on the initiative of the manager is unacceptable during the period of validity of the certificate of incapacity for work and while he is on vacation. An exception is the case of liquidation of an enterprise or the activity of an individual entrepreneur.

Often, employers compromise and offer a frequently ill employee a position with a less severe workload. Such a transfer in most cases is associated with lower pay, and many citizens are not ready to take such a step. According to current legislation, transfer and dismissal are permissible only with the consent of the employee. In this regard, the answer to the question of whether they have the right to fire for frequent sick leave is negative. Even with too frequent illnesses, an employee can be fired for any other circumstances, but not because of a large number of sick days.

How to fire a constantly sick employee - step-by-step instructions

It is worth considering how things happen in different cases. The actions taken will differ slightly depending on the applicable article of the Labor Code of the Russian Federation.

At the employee's initiative

Step 1. Negotiations with the employee. He needs to explain the employer's position.

Clarify your position

Step 2. Checking sick leave through the Social Insurance Fund.

Check sick leave

Step 3. Checking the employee’s activities while on sick leave.

Check the employee's activities while on sick leave

Step 4. Dismissal by agreement of the parties or on the initiative of the employee after the fact of forgery of documents is revealed.

If fraud is discovered, dismiss the employee peacefully

Even a child can’t be sick every week, so it’s worth checking an employee if they go on sick leave frequently.

At the initiative of the employer

Step 1. Finding a reason to fire a specialist.

Find a good reason to quit

Step 2. Drawing up an order.

Draw up a dismissal order

Step 3. Preparation of documents and delivery of the work book.

Prepare all necessary documents

Important . An employee is not considered dismissed until he signs the work book confirming familiarization with the changes in it. Until this point, he can challenge the order in court.

Reasons for dismissal

An employee who has been on sick leave for a long time can be fired for several reasons. This becomes possible if the employee’s health condition does not allow him to return to his previous place and perform duties as before. For example, if the incorrect performance of one person’s duties can threaten the health and life of the entire team.

The employer is obliged to provide an alternative location where an employee in poor health can cope with assigned tasks. Special conditions must be created here to make it easier for the employee to cope with his task. If an employee refuses such an offer, he may be fired.

In case of transfer to a lower-paid position, the first salary must be no less than what the employee received before the transfer.

If a medical examination finds a person completely incapacitated, the employer has the right to terminate the employment relationship with him.

However, this is possible if you have a certificate confirming your disability status.

Features of sick leave payment in 2019

Conditions for paying sick leave

According to the law, payment for sick leave is carried out from the Social Insurance Fund if the reason for receiving it is not related to pregnancy. There are several nuances, according to which part of the funds is paid by the employer. However, the employer must pay for the first three days of incapacity due to illness.

Payment must be made within 10 days from the date of filling out the form. The amount of payments depends on:

• work experience;
• average wage per day;
• period of being on the ballot.

If the experience is more than 8 years, then the employee receives 100% of the salary. When working for 5 to 8 years, he can receive 80% of the amount; when the experience is less than 5 years, payments will be 60%. If sick leave took place in the first 6 months of active economic activity, then the calculation is based on the minimum wage.

There is also a maximum limit on sick leave payments during the year. Now it is 755 thousand rubles.

What can you expect when leaving due to illness?

After the employment contract with a sick employee is terminated, he can receive sick pay. The employee can receive money for the missed period if a new job has not been found. All these days count towards the insurance period.

If a person is laid off, but the company is not liquidated, the employee can count on paid sick leave. To receive the required payments, you must contact your previous employer. A company does not pay sickness benefits to employees if it is declared bankrupt. In this case, it is possible to receive a payment from the Social Insurance Fund.

If an employee resigns of his own free will, he remains entitled to paid sick leave. This is especially true if the disease prevents you from getting a new job. The employer does not have the right to refuse this type of payment. The amount is calculated based on the amount of earnings and insurance coverage of the former employee. If a person has worked for less than six months, the minimum wage in the region is taken as the basis.

Regulatory framework and judicial practice

Here are the basic laws that regulate the procedure for issuing sick leave and dismissing employees who are constantly sick:

• Federal Law-255 dated December 29, 2006;
• Decree of the Government of the Russian Federation No. 1567 of December 16, 2017;
• Order of the Ministry of Health and Social Development No. 624N dated June 29, 2011;
• Labor Code of the Russian Federation.

Important . Illegal issuance of a ballot is punishable under Article 327 of the Criminal Code of the Russian Federation. Doctors know about this, so they rarely take conscious risks.

If the case goes to court, the employer must provide a package of documents confirming the provision of false documents. It can be:

• witness's testimonies;
• receipts for payment of fake sick leave;
• photographs or video recordings of the employee attending to personal matters during a suspected illness;
• the certificate of incapacity for work itself.

If the fact of violation of the law is proven, then dismissal for the specialist will be the least of the problems. In this case, we will be talking about a fine and imprisonment. He will need to provide evidence on his part and characteristics. At best, if a violation actually occurred, the employee may face a suspended sentence. Therefore, it is recommended to discuss the development of such a scenario in advance with the person who cannot be fired. In most cases, he will understand everything and quit himself.

An employee is often sick, how to fire him

If an employer decides to fire an unscrupulous employee, he should act without error. At the same time, the main condition for legal dismissal is the correct execution of all necessary documents and compliance with the procedure established by labor legislation. Otherwise, the employee always has the opportunity to be reinstated at work in court, as well as to recover monetary compensation for the time of forced absence and compensation for moral damage. The terms of temporary disability are determined in accordance with the Procedure for issuing certificates of incapacity for work, approved. by order of the Ministry of Health and Social Development of Russia dated June 29, 2011 No. 624n “On approval of the Procedure for issuing certificates of incapacity for work (hereinafter referred to as the Procedure).

Thus, according to clause 11 of the Procedure for outpatient treatment of diseases (injuries) associated with temporary loss of working capacity of citizens, a medical worker single-handedly issues a certificate of incapacity for work at a time for a period of up to 10 calendar days (until the next examination of the citizen by a medical worker) and single-handedly extends it for a period of up to 30 calendar days. It is very difficult to find a good employee and to attract him to your company on terms favorable to him and you. But it is even more difficult to fire a negligent employee, since the labor code does not contain the concepts of “lazy employee”, “stupid employee”, “scandalous employee and gossiper”. Judicial practice is replete with stories where dismissed employees were reinstated by court decisions, when they were paid money for forced absence.

I recently conducted a training as part of a business breakfast with the Kommersant newspaper. The topic of the training was the motivating behavior of a leader, which contributes to achieving maximum results together with the team that God gave, or, at worst, the HR department. So, a heated discussion broke out among us after I proposed a bonus for working for six months without sick leave as a means of motivating employees.

Alternative option

Work from home

It is not always easy to get rid of a specialist. If he is constantly on sick leave, and his work involves activities using a computer or other special means with Internet access, then you can offer to perform work duties at home. In this case, you need to do the following:

• enter into an additional agreement to the employment contract regarding the impossibility of using official data for personal purposes;
• install the necessary software on your PC.

After this, the company will begin to receive profit from the employee’s activities, regardless of his actual presence in the office.

Thus, the law does not allow an employee to be fired for constantly being on sick leave. Therefore, it is necessary to use other methods of influencing humans. If a violation of the law is discovered, it will not be difficult to get rid of this employee.

What to do if an employee is on long-term sick leave

Put the letter code “NN” or the digital code “30” on the timesheet until the employee brings a closed sick leave sheet. Some personnel officers believe that if an employee verbally or in writing reported his illness, they can immediately put the letter code “B” or the digital code “19” on the report card. This position is risky.

Only a certificate of incapacity for work confirms the illness. Without documentation, you have no good reason to use disease codes. When the employee returns to work, request sick leave and adjust the time sheet. To arrange additional work, obtain the employee’s written consent and sign an agreement to the employment contract (Art.

72 TK). In the agreement, establish the period and amount of the additional payment, stipulate that the order is valid “until the main employee returns to work (Article 151 of the Labor Code). Based on the agreement, issue an order. There is no need to make an entry in section 3 of your personal card; information about the combination can be reflected in section 10 “Additional information”.

Our advice.

Prescribe in the local act the procedure for action in case of employee illness. For example, indicate that an employee, when opening a sick leave, must report illness to his immediate supervisor on the next working day. The manager draws up and sends a memo to the HR department stating that the employee did not come to work, but reported illness. Introduce the local act to the employee against his signature.

If during a long sick leave the term of the employment contract expires, terminate it in accordance with the general procedure (Article 79 of the Labor Code). Warn the employee in writing about dismissal three days before the expiration date of the employment contract.

To comply with the dismissal procedure, send a warning letter to the employee’s place of residence with a list of attachments and a receipt confirmation. The notice period will begin to run from the day the employee receives the letter, so send it early. If an Employee Is Sick for a Long Time How to Fire Him

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Attention!

Due to recent changes in legislation, the legal information in this article may be out of date! Our lawyer can advise you free of charge - write your question in the form below.

General information

The Social Insurance Fund is the main source of funds for sick leave compensation. Employers pay a certain amount into this Fund, depending on the size of the standard remuneration of a particular employee.

A sick leave certificate is proof of the employee’s incapacity for work.

Dismissal during sick leave is unacceptable even for those subordinates who have signed temporary employment contracts. In such cases, the procedure is organized only after the citizen returns to his place. Usually this is the day after the official expiration of the sick leave itself.

Situations often occur when management issues one or more absences to an absent employee. For example, when it is impossible to get in touch with a subordinate. Or when he is in intensive care, unconscious.

To avoid such situations, the manager is recommended to take contact information from relatives and other persons who are in close relationships with the citizen.

For both parties, there are several options for behavior in the event of an unexpected illness:

1. Independent revocation of the order and restoration of the workplace. Similar actions are performed by the leader. This situation does not entail any additional sanctions; you don’t have to worry about this.
2. Appeal to court by an employee. This is relevant when dismissal occurs due to a prolonged lack of information. And when upon the citizen’s return there was no reinstatement. The manager will be obliged to compensate for moral damage, as well as the sick leave itself. Forced absenteeism presupposes the preservation of average earnings. It is impossible to do without fulfilling the request to reinstate the citizen in his position.

Permissible duration of the period of incapacity for work

The duration of sick leave can vary in duration and largely depends on the severity of the patient’s illness.
The average period of validity of a certificate of incapacity for work is 10 days. For such a period it can be issued by a paramedic or dentist. The doctor has the right to decide, if there are sufficient grounds, to extend the sick leave for up to 15 days. After the maximum allowable period has expired and the patient has health problems, a decision on the possibility of extending sick leave is made by a medical commission. The following rules are established:

• the maximum period of sick leave for most diseases is 10 months;
• in case of injury, the need for recovery after reconstructive operations, in case of tuberculosis - a period of no more than 12 months;
• every 15 days the patient is required to re-pass the commission to further complete the period of incapacity;
• When treated in hospitals, the last day of validity of the work certificate is the day of discharge from the medical institution.

During the period of sick leave, the employer, on his own initiative, cannot fire an employee who is on sick leave. Dismissal due to illness is possible if the employee is declared incapacitated, which prevents him from carrying out work activities. In most cases, this situation is associated with serious diseases that cause disability.

The medical commission may decide on the need to improve working conditions. In this case, a conclusion is issued and, in agreement with the employer, the employee is transferred to a less complex type of activity. An employee can be dismissed only if the company does not have a suitable vacancy with simpler working conditions.

Pregnancy and maternity leave

Pregnant women are given sick leave upon reaching their due date.
The period of validity of official permission to be absent from work can last up to 3 years. According to current regulations, during this time the employer cannot take the initiative and fire the woman from her job. The exception is the situation of liquidation of the enterprise. In this case, the employer has the right to fire the woman, but pays the employee a certain amount of severance pay. Its size is equal to the average monthly earnings. At the same time, the average monthly earnings for the period of employment are maintained, but not more than 2 months from the date of dismissal. Additionally, monetary compensation is paid for all days of vacation that were not used.

During the period of maternity leave, the employer is obliged to extend the contract. At the end of this period, a woman’s dismissal is possible, but only on the grounds provided for by the current norms of the Labor Code.

Reality and practice

Current legislation directly states that frequent illness of an employee cannot be a reason for dismissal.
In this case, the reasons that led to the onset of the period of incapacity do not matter. An employee may be sick himself or absent due to the need to care for a child or family member who is in a difficult situation and requires constant supervision. In practice, the situation of an employee’s absence and the impossibility of carrying out work activities in most cases is perceived negatively by the employer, and he may decide to dismiss. The order will not contain direct wording and will indicate other reasons, which are not so difficult to find if desired. This could be a violation of labor discipline, tardiness, inadequacy for the position held, and many other circumstances.

In theory, in case of illegal dismissal, an individual has the right to go to court to carry out the procedure for reinstatement at the place of employment. For the employer, this development of events is fraught with the following consequences:

• financial liability - the employee is reimbursed his average earnings for the period of forced inability to work and may be paid monetary compensation for moral damage caused by illegal dismissal;
• administrative liability - a fine is imposed for violation of legislation in the field of labor relations.

In case of unjustified dismissal of a pregnant woman or a woman raising three or more children, the head of the organization may be subject to criminal liability in the form of paying a fine or performing compulsory work.
In practice, it can be quite difficult to prove the illegality of dismissal, so it is recommended to focus efforts on eliminating the situation of frequent illnesses with loss of ability to work. The current norms of the Labor Code do not provide for the possibility of dismissal due to frequent illness. In practice, many employers suffer losses due to long-term absence of an employee due to illness and find other reasons for dismissal. Due to the frequent provision of certificates of incapacity for work, they cannot be fired, and in such a situation it is possible to assert rights in court.

Sick leave on probation

Today, there is a widespread practice in which an employee is taken on a probationary period to test his professional skills. Upon successful completion of the test, an employment contract is subsequently concluded with him. On average, the period lasts 3 months, but can be longer. During this time, frequent illnesses cannot be ruled out, so many are concerned about whether they can be fired due to sick leave.

The relationship between an employer and an employee undergoing a probationary period is subject to all the norms of the Labor Code. For a frequently ill person, this means that he cannot be fired during the period of the professional skills test.

Payment for sickness is no different and is carried out according to the rules of the Federal Law on compulsory insurance. The amount will depend on the employee’s length of service and his salary at his previous place of work and at his old one. In the absence of the latter, the average daily earnings at the new job will be taken into account.

The probationary period is extended for a period that corresponds to the duration of the sick leave. In the future, the employer may dismiss the employee, but not because of frequent illness, but due to failure to complete the probationary period. He will be able to do this only after the individual returns to work. The employee has the right to decide to terminate the employment relationship, but only after the final closure of the sick leave. Moreover, if after dismissal he immediately falls ill, the employer is obliged to pay him a new sick leave. This rule applies for a period of up to 30 days.