Available information about important things: is it possible to fire an employee who is on sick leave, and what to do if he was expelled illegally?

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Published: 04/22/2016

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Dismissing an employee is a simple and fairly quick process if the employer and employee comply with all standards and do not violate the law.

However, dismissing a subordinate while on sick leave has a number of its own nuances.

• Legislation
• When is it permissible to dismiss an employee who is on sick leave?
• Dismissal during sick leave at the initiative of the employee
• What should an employer do if his employee’s illness is prolonged?

On your own initiative - dismissal without obstacles

If an employee submits an application in which he expresses a desire to terminate the employment relationship, then his dismissal during sick leave is possible, since the employment contract is terminated at the initiative of the employee, not the employer. A similar solution to the problem also applies to the termination of an employment contract by agreement of the parties. However, if the dismissal initiative comes from the employer and the employee falls ill on the day when the dismissal was planned, it can only be carried out after his recovery, since in such a situation the dismissal of an employee on sick leave is illegal.

After the employee leaves sick leave, the employer is initially obliged to fill out a temporary disability certificate and only after that begin the dismissal procedure in accordance with the procedure established by law, that is:

• document the reason for dismissal;
• issue a dismissal order;
• make a settlement with the employee;
• issue a work book on the last day of work.

However, there are situations when the employer demands the employee to work before dismissal for a period equal to the time during which he was on sick leave. There is an explanation from the Federal Service for Labor and Employment on this matter. The letter explains that the employee has the right to warn the employer about the upcoming dismissal, both during the period of work and while he is on vacation or during illness. The day of dismissal may also fall on any of the specified periods, including possible dismissal on the last day of sick leave. Therefore, if the notice period for dismissal is 14 days, the employer must dismiss on the day indicated in the resignation letter.

Dismissal while an employee is on sick leave: judicial practice

The precedent reflected in the cassation ruling of the Moscow City Court dated July 22, 2010 No. 33-22024/10 is noteworthy. The employee, having learned about the upcoming layoff, attempted to resign early due to layoffs in the manner prescribed by Art. 180 Labor Code of the Russian Federation. But the employer each time refused to accept his statement of consent to early dismissal.

One day (at that time, the 2-month period from the date of notification of the employee about the layoff had not yet passed), the employee fell ill and left work about 1.5 hours early due to poor health. I immediately went to the doctor and took out sick leave. The employer, however, fired him for absenteeism and did not reinstate him even after sick leave was granted.

Can an employee on sick leave be fired for absenteeism, according to the courts?

This procedure is highly likely to be considered illegal. The court in this dispute ruled that the employer’s actions were unlawful because:

• at the time of dismissal the person was on sick leave;
• there was no evidence that the employee deliberately concealed his illness;
• Leaving work 1.5 hours early is not considered absenteeism.

As a result, the employer was charged:

• amount for forced absenteeism of a dismissed employee (more than RUB 399,000);
• compensation for moral damage (RUB 5,000).

Can a person on sick leave be fired for failure to timely submit a certificate of incapacity for work to the employer?

The answer to this question is reflected in the ruling of the Moscow Solbsud dated January 25, 2012 No. 33-601/2012. There is also talk about the dismissal of an employee who is on sick leave.

The employee was laid off. He was warned 2 months earlier, but the employer committed a number of violations (discovered by a literal reading of the Labor Code of the Russian Federation):

• did not offer the employee alternative vacancies;
• did not provide the employee with a work book immediately after layoff;
• dismissed an employee while on sick leave.

In connection with these circumstances, the employee filed a lawsuit against the company, demanding reinstatement at work, compensation for simple and moral damage. The court of first instance, notably, sided with the employer because:

• the employee was not offered any vacancies due to the absence of any (this was confirmed by the company’s staffing table);
• the employee, according to the court, used sick leave, abusing his own right, without informing the employer that he was going on sick leave (with his knowledge that a reduction would be made during the period of sick leave).

In addition, the court took into account that after returning from sick leave, the employee did not show up for work, but went to another area for a month, that is, he did not immediately provide a certificate of incapacity for work.

The cassation upheld the decision of the trial court.

Thus, whether a full-time employee can be fired while on sick leave is not in all cases determined by a direct reading of labor legislation.

What to do in case of prolonged illness of an employee

In practice, a situation may arise when an employee submitted a letter of resignation on his own initiative, but fell ill during the two-week notice period for dismissal. If he returns from sick leave before the expected day of dismissal, no problems will arise and the dismissal will be carried out on the day specified in the application. But the situation can develop in a different way, when a person does not have time to recover before the end of the specified two weeks. Under such circumstances, the dismissal of an employee on sick leave is carried out on the date indicated in the application, since the employer does not have the right to change it without the consent of the employee. In this case, sick leave is paid after restoration of working capacity.

According to the law, when dismissing an employee, the employer must make a settlement with him and issue a work book on the last day of work requested. Thus, in a situation where an employee fell ill after submitting a resignation letter, but did not withdraw it, the organization must pay him on the day specified in the application. If, on the due date, the employee does not come to receive the work book and wages, he must be notified in writing of the need to appear for the work book or give permission to send it by mail. After sending the notice, you must wait for the employee to recover and dismiss him officially, making a payment and issuing documents. At the same time, the accountant needs to know whether it is necessary to pay for sick leave closed after the employee’s dismissal.

Dismissal of an employee on sick leave at his own request

If an employee is sick and has a desire to resign, then the law allows this and does not restrict it in any way. In this case, the employee can write a statement. In such situations, the relationship between the employee and the employer ends on the date specified in the resignation letter. The accounting department makes all required payments under the certificate of incapacity for work within the established time limits and in accordance with all legal norms.

If an employee is injured at work, but wants to resign, then the boss must sign a resignation letter and at the same time pay his sick leave in the amount of 100% for the entire period of illness.

Payment of sick leave

If at the time of opening the sick leave, the person was officially an employee of the organization, then his payment should be made in the general manner, even if the closure of the sick leave occurs during the period when the employment relationship with the employee has already been terminated. Another important point is that by law the employer is obliged to pay sick leave to a dismissed employee for a certain period of time. A former employee has the right to pay for sick leave if it was issued within 30 calendar days after termination of the employment contract. However, in this case, he can only count on receiving 60 percent of average earnings.

Therefore, if a resigned employee after some time provides sick leave, opened within a 30-day period from the date of dismissal, the organization cannot refuse to pay for it. An employee has the right to present sick leave within six months from the date of recovery. Accordingly, even if the employee fell ill a week after dismissal, and months later came to receive benefits, the company will be required to make payment if the six-month period provided by law has not expired. To avoid violations of the law, every company should know how to behave in such situations, despite the fact that this happens quite rarely.

Conditions and process for dismissing an employee at the initiative of the employer

The Labor Code clearly states that the employer does not have the right to fire an employee if he is on vacation or sick leave, provided that an agreement was signed with him for an indefinite period. Complete exemption from labor obligations during this period is possible in the event of termination of the enterprise's activities or expiration of the employment agreement.

The only exceptions are pregnant women. Under any form of contract, they do not have the right to fire them. If a woman went on maternity leave before or after the liquidation of the organization, she will be accrued benefits in accordance with her wages for the previous two years.

To receive sick leave payments in case of liquidation of the company, other employees need to contact the Social Insurance Fund. You must have with you: an identification document, a work book, a sheet of temporary disability, SNILS and an application.

When the period of the employment agreement has come to an end, the employer has the right to dismiss the employee on the day it ends. Otherwise, the fixed-term contract will turn into an open-ended one.

The dismissal process will occur in the following order:

1. The employee is sent a notice of expiration of the contract. After receiving it, he must come for the work book or agree to have it sent by mail.
2. A dismissal order is issued. If the employee does not show up, a note is placed in the document that he cannot familiarize himself with it due to absence.
3. Making an entry about dismissal in the work book and card.
4. Transfer of salaries and necessary compensations.
5. Payment of benefits in full.

How to write an application for termination of an employment contract in such a situation?

Above, we have already answered the question of whether it is possible to write a letter of resignation while on a certificate of incapacity for work, and whether it is possible to fire such an employee.

It must be taken into account that the rules for writing a resignation letter at the initiative of an employee, if it is written by him on sick leave, will be similar to the rules for writing one for able-bodied employees.

How to compose it correctly?

There is no unified form for a resignation letter at the employee’s initiative, so it is written in free form.

However, the application must include the following information:

• Full name is indicated in the header. and the position of the head of the company, as well as full name. and the position of the departing employee;
• the title of the document ( “
  Statement
  ”
  ) is written in the center;
• The following is the essence of the request: dismissal at the initiative of the employee, preferably indicating the date of termination of the employment contract, 14 days from the date of writing the notice;
• you can add a link to the norms of labor legislation - clause 3 of part 1 of Article 77 of the Labor Code of the Russian Federation or Article 80 of the Labor Code of the Russian Federation, however, the lack of regulatory justification is not an obstacle to satisfying the employee’s request;
• the date of writing and the personal signature of the employee are mandatory, since the signature indicates the good will of the person, and the date is a necessary attribute of any official document, in addition, when indicating a specific day of dismissal, it is counted from this date.

Reference. In a voluntary resignation letter, there is no need to mention temporary disability or the expected date of closure of the sick leave.

There is no need to justify the decision to terminate the employment relationship, except in cases where the employee needs to resign before the end of the two-week period.

This is important to know: Will they give you sick leave if your back hurts?

How can I transfer it to my employer?

Expert opinion

Novikov Oleg Tarasovich

Legal consultant with 7 years of experience. Specializes in criminal law. Member of the Bar Association.

If an employee is on sick leave, he can submit a resignation letter to the employer at his own request in the following ways:

1. Appearing in person at the organization if your health condition allows. In this case, it is worth preparing two copies of the document, asking to put a mark on its receipt on the second one.
2. Send by registered mail with notification of its receipt by the addressee. To avoid questions regarding the contents of the postal item, the employee should draw up an inventory of the attachment.
3. Send an application with a request to terminate the employment agreement at your own request by e-mail , if the company provides electronic document management. The document must be signed with the electronic signature of the applicant.

It must be taken into account that when submitting a document requesting termination of an employment contract, it is important for the employee to confirm that it was received by the employer.

How is sick leave paid during vacation followed by dismissal?

It doesn’t matter for what reason an employee is fired, sick leave must be compensated in any case.

The actions of an employee who wishes to receive payment for a certificate of incapacity for work are as follows:

• bring the head of the enterprise a sick leave certificate (issued within a month after dismissal, no later) within six months from the date of dismissal;
• demand payment of benefits for sick leave issued due to illness, poisoning, injury to the employee himself, as well as the need to care for a sick family member (not if the sick leave was issued after dismissal);
• demand sick leave benefits calculated according to the minimum wage (7,800 rubles from July 1, 2021), if there is no data on average earnings for the past 2 years.

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 from the position someone who has changed his mind

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.

Disability and temporary disability benefits

A certificate of incapacity for work (sick leave) is a document confirming the legality of absence from work, as well as giving the right to receive temporary disability benefits.

Expert opinion

Novikov Oleg Tarasovich

Legal consultant with 7 years of experience. Specializes in criminal law. Member of the Bar Association.

Depending on the severity of the disease, the employee is determined by the treatment regimen - outpatient (at home) or inpatient (isolation of the patient and placement in a hospital).

This is important to know: An employee brought sick leave: what to do next

The employer is obliged to pay the employee temporary disability benefits due to his illness (Article 183 of the Labor Code of the Russian Federation). It is worth noting that temporary disability benefits are paid not at the expense of the employer, but at the expense of insurance contributions to the compulsory health insurance fund.

Refusal to accept resignation letter

What to do if the employer refuses to accept an application from a sick employee, citing the fact that the person is not currently performing his job duties and should not be at work.

In this case, you need to do the following:

1. Draw up the document in two copies.
2. Register it with the secretary.
3. The employee must keep one copy and there must be a mark on it that the document has been accepted and the date of acceptance.

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This is important to know: How to take sick leave with a child

If a company representative refuses to register a document, you can send an application by mail. It is better to do this not just by registered mail, but by sending it with an inventory. In this case, the sender will have in his hands a document confirming that the envelope actually contained an application for dismissal at the initiative of the employee.

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Otherwise, the employer may claim that the letter did not contain any document, or that it was a paper containing other information and not a letter of resignation. It must be borne in mind that this method extends the working period. The regulated 14 days will begin to count only from the moment the employer receives the letter.

Not allowed

As Article 81 of the Labor Code states, terminating an employment relationship with an employee who is on sick leave is strictly prohibited. Otherwise, it will be a violation of the law and a reason for the latter to go to court.

In addition, it is impossible to fire a person if he is on vacation. Here, too, there is an exception to the rules, since it is possible to terminate an official relationship with an employee even when he is on sick leave or on a well-deserved rest, but only if the organization is liquidated or the individual entrepreneur ceases its activities.

In what case does an employer have the right to fire an employee for long-term sick leave?

Can you be fired for long sick leave?

When an employee's sick leave is long and frequent, some employers begin to think about replacing him. They have the right to dismiss an employee if, due to illness, he does not show up for work for more than four months in a row. An employee's departure for at least one day interrupts the calculation of the period of illness.

If he went to work a few days later due to illness, this is not a reason for dismissal. Especially when providing a certificate of incapacity for work. If the employee cannot produce it, then this is not an unjustified reason for his absence. The fact of poor health can be confirmed by witness and other testimony.

What are the features of sick leave during vacation followed by dismissal?

Expert opinion

Gusev Pavel Petrovich

Lawyer with 8 years of experience. Specialization: family law. Has experience in defense in court.

Sick leave during vacation followed by dismissal is not a typical situation, and therefore it differs in some features associated with the following points:

• the date of issue of the order to dismiss the employee;
• the employee’s right to leave;
• carrying out the transfer of dismissal;
• the procedure for calculating payments to a dismissed employee.

The head of the company must simultaneously issue 2 orders in relation to one of his subordinates:

• order to grant the employee leave (form No. T-6);
• order to dismiss an employee (Form No. T-8).

The date of dismissal of the employee and the last day of his vacation should not coincide.

If an employee is fired for violating the labor discipline of the enterprise, he does not have the right to leave, after which he could have been fired. If there is a certificate of incapacity for work, then leaving work will be dated on the first working day after leaving sick leave.

If an employee takes sick leave when the manager has already issued a dismissal order, the dates relating to leave and dismissal should not be changed.

If an employee loses his job immediately after he goes on vacation, the money he earned and his work record must be transferred immediately, without waiting for the end of the vacation.

Vacation followed by dismissal is provided at the discretion of the employer - the law does not oblige to satisfy the employee’s request.

There is also the opposite situation, when an employee managed to rest, taking advantage of part and full period of annual leave, but did not work these days - then leave not only cannot be granted, but overpaid vacation pay is also withheld from the employee’s salary in the amount of no more than 20% of the amount. salary

Common mistakes

1. Incorrect actions by the employer when assigning work at the time the employee writes a letter of resignation, but remains on sick leave for more than 2 weeks. It is worth understanding that according to the law, the time allocated for working out is exactly 2 weeks. After their expiration, the days cannot be increased, even if the employee continues to be on sick leave. The employer needs to wait for the return, then the employee’s desire is taken into account and the right to work or not remains only with him.
2. Termination of an employment agreement is possible only with a written agreement between the parties. Oral is not illegal. An employee must submit a resignation letter only in writing.
3. If the date of dismissal is not specified , the right to decide whether to issue an order remains with the employer, but the period for issuing the document should not exceed more than 2 weeks after the application is received.
4. on work-off issues in the absence of strong evidence from the employee about the need for its urgent cancellation.
5. The issuance of an order must be carried out in accordance with all the rules outlined in Art. 77 part 3 of the Labor Code of the Russian Federation.

The notorious working hours often become the subject of a dispute between the employer and employees. Its essence lies in the ability to select a new employee for a place so that it is not empty, and the company (organization) does not have financial problems in connection with this.

In any case, there is always the possibility of reaching an agreement. You can only hope for understanding from your manager. When you leave, you don’t need to burn any bridges behind you. It is better to part ways peacefully and amicably, so that later you can proudly remember the years you worked in production in a friendly, understanding team.

Answers to common questions about sick leave during vacation followed by dismissal

Question No. 1: Will I be paid for sick leave if I took it out during my main vacation followed by dismissal?

Answer: Yes, a certificate of incapacity for work provided to the employer within a month from the date of dismissal is subject to compensation in the amount of 60% of the average income for the 2 years preceding the insured event.

Question No. 2: I was fired for repeated violations of labor discipline, can I request leave with subsequent dismissal?

Answer: No, in such a situation the employee is not entitled to leave.

While on annual paid leave, an employee may experience a period of temporary incapacity due to his illness. In this case, in order to pay compensation, an officially employed citizen must provide the employer with a certificate from the medical institution.

A special situation is in which it is issued while on vacation with subsequent dismissal.

1. What to do if you get sick?
2. Will the holiday be extended?
3. Is it possible to pay for sick leave?
4. conclusions

Sick leave before dismissal

Sometimes the following situation arises: an employee submitted his resignation and assumed the responsibility to work for a two-week period, but a few days later he suddenly fell ill. In this case, there may be two scenarios. First: if he recovers before his dismissal, this procedure will be completed on time and without problems.

Second: if the sick leave is prolonged, then the procedure must be completed without the employee on the day appointed by him, since by law it is impossible to change the date of dismissal recorded in the application. Temporary disability leave will be fully paid until its end, regardless of whether the employee is on staff or no longer.

A previously employed employee who falls ill within 30 days after dismissal has the right to receive sick leave pay from the former employer in the amount of 60% of the average salary. When completing documents for dismissal, the employee must come on the specified day in order to pick up the work book, card and receive a full payment.

If he does not appear, the company is obliged to notify him in writing and, if necessary, obtain permission to forward documents.