Dismissal at will during sick leave

The Labor Code (LC) of the Russian Federation is a set of laws designed to protect the rights of working citizens. Dismissal is one of the inevitable aspects of working life. The Labor Code of the Russian Federation clearly regulates situations in which an employer is allowed to fire its employees. Dismissal of one's own free will while on sick leave has certain nuances.

In addition to the interests of the employee himself, who wants to maintain his working position and not be subject to disciplinary action, registration of sick leave also affects the financial performance of the organization. We find out whether it is possible to apply for sick leave retroactively and how dismissal on sick leave is carried out.

General provisions

Termination of labor relations at the request of the worker is regulated by Article 80 of the Labor Code of the Russian Federation. It says the following:

• Any worker has the opportunity to terminate his employment relationship with the organization unilaterally.
• You must notify your intention to terminate your employment relationship no later than 14 days in advance. In separately specified cases, this period can be reduced to three days, or it may be absent altogether.
• If management does not insist on working off the job, then the person can leave work on the day the application is submitted.
• A resigning person has the right to change his decision at any time, before the termination of his employment obligations, even on the last day of going to work. An exception will be the case when another person has already been invited to the position by way of transfer.
• Even if the dismissal documents are not completed on the last day of the employment contract, the person has the right to stop performing labor functions starting from the day following the one indicated in his application.
• On the last day of work, the former employee must be given the work book and a full payment must be made.

Neither this article of the Labor Code of the Russian Federation, nor other acts of labor legislation indicate that a person cannot be fired at his own request if he is not present at the workplace. Accordingly, it is possible to resign on sick leave at your own request.

Terms of dismissal of an employee on sick leave

As a general requirement, the employee must notify the employer at least two weeks (14 days) before the date of termination of employment (Article 80 of the Labor Code of the Russian Federation). The two-week period begins to run on the day following the notification of the employer.

This is also important to know:
How to formalize the dismissal of an employee by way of transfer to another position or to another organization

A registered letter can take up to a week, so to speed up the process, a copy of the application can be sent by email with the obligatory sending of the original. While the original application is being submitted, the personnel officer will prepare the necessary documents, and the accountant will calculate the salary. This must also be done if the employee wants to quit faster.

However, this period may not be observed under the following conditions:

• agreement with the employer on an earlier date of dismissal (paragraph 2 of article 80 of the Labor Code of the Russian Federation);
• impossibility of carrying out work activity (paragraph 3 of article 80 of the Labor Code of the Russian Federation).

Illness is one of the reasons for the impossibility of continuing work, so there is no need to wait 14 days in this case. In your resignation letter, you can emphasize this by referring to paragraph. 3 tbsp. 80 Labor Code of the Russian Federation.

When can you quit?

Let's consider a situation: a person filed a resignation letter of his own free will. But a few days before the day of dismissal, he went on sick leave. And on the last day he did not go to his workplace.

This is also important to know:
Paying sick leave after dismissal

What should a manager do, does he have the right to dismiss an employee on sick leave? Yes, if the employee has not expressed a desire to cancel his application. Being on sick leave will in no way affect voluntary dismissal. After all, this is the personal initiative of the employee himself. And the Labor Code of the Russian Federation prohibits dismissing an absent person if the initiative comes from the management of the enterprise.

Therefore, a sick person has the right to expect that he will be fired on the day specified in his application. They will also transfer the final payment (excluding payment for temporary disability) and issue a work book filled out in the prescribed manner.

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.

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).

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.

Dismissal during illness

Let's consider the question - is it possible to resign during sick leave at your own request? Another nuance that may raise questions is a situation when a person falls ill and only then brings his application. Should the employer accept such a statement? How to resign correctly in this case? Labor legislation does not regulate this situation in any way. Accordingly, a person has every right to submit an application while on sick leave.

In this case, the processing time will remain unchanged. The application must be submitted no later than 14 days before the expected date of termination of the employment relationship. This period can be reduced in the following cases:

• The person leaving is on a probationary period or a fixed-term employment contract has been concluded with him. In this case, the warning period is reduced to three days.
• A person has the right to resign on the day the application is written. This is possible if a person has entered full-time study, is drafted into the armed forces, retires, etc.
• The head of the organization agrees to shorten the warning period.

These rules apply in any situation.

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.

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.

This is also important to know:
Resign by agreement of the parties - how to terminate by agreement

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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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.

Documents for dismissal on sick leave

If the employee is nevertheless dismissed, he should complete a number of documents:

• An application for dismissal, which is registered with the secretary and then signed by the employer;
• An order stating that the employee is dismissed, which indicates the fact of payment of the final payment;
• The certificate of incapacity for work itself.

These documents are sent to the accounting department, where the disability benefits are calculated and the final payment is made.

Working off

In the Labor Code of the Russian Federation, the notice period for dismissal is set in calendar days.

Fact

The working period begins to count the next day after submitting the application. The fourteenth day is also the day the work ends.

But at the same time, not a single regulatory act states that during the warning period the employee must fulfill his work duties. Accordingly, if an employee is dismissed while on sick leave, the employer does not have the right to demand an extension of the notice period. As, for example, this happens with a probationary period.

This means that the manager’s demand for work after the end of the illness is unlawful. This is true for a situation where the day of dismissal falls during a period of illness.

If a person who has expressed a desire to resign during illness ends up with a certificate of incapacity for work before the date of dismissal, he is obliged to return to the workplace.

This rule can create unpleasant situations for the employer. If an employee is on sick leave, the employer cannot force him to come to work to hand over official documentation. Even if there are shortcomings in the documents.

This is also important to know:
What to do if the employer does not sign the resignation letter

An exception is the situation when the employee is a financially responsible person or especially important documents are handed over to him for signature (strict reporting forms, originals of statutory documents, etc.).

Is sick leave included in working off?

An employee may fall ill during compulsory work. An employer does not have the right to force an employee to work, motivating his actions by the fact that the latter was on sick leave while working.

This is also important to know:
Notice of job reduction: sample, procedure for drawing up the document

Sick leave counts toward the mandatory two-week period of work, even if it is closed after the employee’s dismissal. In addition, sick leave will be fully paid.

The procedure for dismissing an absent employee at his request

Dismissal of an employee on sick leave in 2019 will occur as follows:

1. The employer is preparing a dismissal order. The order is issued in the usual manner. As a rule, the T-8 or T-8a form is used. But you can also draw up a document on a form developed by the company. There is no need to note in the order that the termination of the employment relationship occurs during a period of incapacity for work and the employee is absent from the workplace. The reason is stated in paragraph 3 of Article 77 of the Labor Code of the Russian Federation.
2. The final payment is made. Days when the employee is sick will not be included in this calculation. The employer will pay for them after the employee brings him a certificate of incapacity for work.
3. A work book is drawn up. Termination of the contract occurs while the employee is on sick leave, which means he will not be able to receive it on time. In order to protect yourself from possible claims from the dismissed person, the personnel officer needs to send the sick employee an information letter about the need to come for a work book.

Sick leave benefits are issued to a dismissed employee in the usual manner. Accrual occurs within three days from the date of receipt of the slip, and payment is made on the next salary date.

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.

Payment of sick leave to a dismissed employee

The employer pays sick leave in the usual manner:

• The amount of the benefit will depend on the length of service.
• To calculate the base for sick leave, the two previous calendar years are taken.
• The employer pays for three days of sickness, the rest of the benefit comes from the Social Insurance Fund.

All sick days are subject to payment: both those that occur before the date of dismissal, and those that occur during the period when the person is no longer an employee of the company.

Who pays for sick leave?

An important question is who will pay for sick leave.
According to the law, certificates of incapacity for work opened during the period of employment are paid by employers. It is also worth considering Part 2 of Art. 5 Federal Law No. 255-FZ, according to which employees who fall ill within 30 days after termination of the contract have the right to demand payment for incapacity for work on a certificate from the organization at the place of last employment. In this case, they will be transferred 60% of the average monthly salary in accordance with the number of sick days. The sick leave certificate must be presented within six months from the closing date. Even if a former employee brings him to the company 5 months after termination of the contract, the employer is obliged to pay benefits. The only condition is the onset of illness within 30 days from the date of termination of the contract.

Is it necessary to confirm that the employee is actually sick?

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The manager cannot demand confirmation from a person that he is sick until the certificate of incapacity for work is closed. Moreover, the legislation does not oblige the sick person to report that he is sick. This responsibility can be reflected in the company’s local documents.

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This is also important to know:
Withdrawing a resignation letter at your own request

To make sure that the dismissed employee is actually sick, you can contact a medical institution.

Additional grounds for dismissal

On what other grounds is dismissal possible while on sick leave? As noted above, the legislator establishes a ban on the dismissal of a worker who is on the ballot only if the initiative comes from the company’s management.

This means that a sick person can be fired not only at his request, but also for reasons beyond the control of the parties. Or, on the contrary, on the basis that is possible if both parties come to an agreement.

This includes cases:

1. End of the employment relationship.
2. Death of an employee or employer classified as an individual entrepreneur.
3. Prohibition for medical or other reasons from holding a position and lack of possibility of transfer.
4. Agreement between the parties.

Let's take a closer look at various situations of dismissal in the absence of a person at the workplace:

• The employee's initiative, that is, his own desire. In this case, the procedure for terminating the contract is carried out as usual. The employee is fired on the date specified in his application, even if he is absent on that day.
• Long-term disability. Labor legislation preserves a sick person’s job. Therefore, a long-term illness cannot become a basis for terminating the employment relationship. Accordingly, if an employee does not express a desire to leave on his own initiative during a long illness (or did not express it before its onset), he cannot be fired. The only thing an employer can do if an employee is often sick or his sick leave lasts long enough is to send the person for a medical examination in order to determine the employee’s suitability for the position held.
• Liquidation of the enterprise. This is an exceptional case when a sick person can be fired in his absence from the workplace. In this case, he will receive temporary disability benefits from the Social Insurance Fund.
• Staff reduction. In this case, dismissal of the absent person is impossible. If the employer has carried out the entire layoff procedure and the last day of work falls during the person’s absence, then the dismissal is postponed to the first day the person returns to work.
• For absenteeism. The law does not allow dismissing people at the initiative of the employer if they are absent from the workplace (except for liquidation). Moreover, the employer does not have the right to classify an employee’s absence as absenteeism until this is established by an internal audit. Before this, the code “nn” is entered on the report card - failure to appear for unknown reasons.

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.

Employer's liability

The legislator prohibits the dismissal of a person on sick leave at the initiative of the employer. If the latter violates this rule of law, the employee can challenge the termination of the employment contract. This is especially true when staffing is reduced.

This is also important to know:
Dismissal - entry in the work book, sample 2021

In addition to reinstating the person to the workplace and paying for forced absences, the employer is subject to a fine. The fine for a legal entity varies from 30,000 to 50,000 rubles. If an official or an individual entrepreneur is punished, the amount of the fine is much less, 1000 - 5000 rubles.

FAQ

What is the date to dismiss a sick employee?

The order to terminate the contract will contain the date that the person indicated in his application. That is, this date will not shift by the number of days on the ballot, even if it falls during the period of incapacity for work.

Is the employer required to pay for a ballot that began after the employee left?

According to current legislation, a person has the right to receive benefits from a former employer if the period of incapacity for work began within 30 days from the date of termination of contractual obligations.

What will be the entry in the work book if a person was fired during his absence?

When filling out the work book, there is no need to note that the termination of the contract occurred during the person’s absence. The grounds for dismissal are entered in accordance with the Labor Code of the Russian Federation (own desire, agreement of the parties, etc.).

How to pay for a newsletter?

How is sick leave paid if it is open on the day of dismissal?

Questions on the topic are regulated by the norms of the Federal Law “On compulsory social insurance in case of temporary disability and in connection with maternity”, adopted in 2006.

Do they give money for a banknote if a person opens it on the last day of being at the enterprise?

In Art. 5 of the specified Federal Law refers to cases that are considered insured. In addition, it is indicated that the payment of temporary disability benefits is carried out by the employer if such a case occurs during the validity of the employment contract or within 30 days from the date of termination of relations between the employee and a certain organization.

We talked in more detail about the procedure for paying sick leave if an employee falls ill within 30 days after dismissal, and you can find out who and how makes such payments here.

In our case, it turns out: the day of dismissal is the last working day. The employment contract is still valid. The employer will also pay for subsequent days of illness, because the insured event occurred not even after the dismissal, but before it.

How long does it take to present the document?

The law establishes the following period: 6 months from the date of termination of the employment contract. This is a completely reasonable time, sufficient to finally recover from the illness and deal with issues of receiving the money owed. Sick leave and other documents can be:

• send to the organization by mail - registered mail with notification and a list of the contents;
• submit through your representative, who must have a written power of attorney signed by a notary;
• submit in person, making sure that information about receiving a certificate of incapacity for work is “recorded” somewhere.

We told you how long it takes to apply for sick pay after dismissal here.

Calculation of the amount of temporary disability benefits

Art. 7 of the Federal Law “On Compulsory Social Insurance...” establishes that the amount of payments to an employee whose employment contract has not been terminated depends on his length of service :

• over 8 years – 100% of average earnings;
• over 5 to 8 years – 80%;
• less than 5 years – 60%.

If an insured event occurs after dismissal, within 30 days, then, regardless of length of service, 60% of average earnings for each day are paid.

Attention: the day of dismissal, as noted, is still a working day. Consequently, the illness occurred at a time when the employment contract had not yet been terminated. This means that it is imperative to focus on the employee’s length of service.

Average earnings are calculated as follows:

1. The amount of income for 2 years is determined.
2. The result is divided into 730 days.

It's quite simple. All that remains is to multiply the resulting amount by the amount of interest, in accordance with the length of service and the number of days of illness.

For example, saleswoman Sumkina earned 550,000 rubles in two years. Her work experience was 5.5 years. She decided to terminate her employment relationship with Svetofor LLC on her own initiative, but fell ill on the day of her dismissal; in total, Sumkina was ill for 5 days. The benefit amount will be calculated as follows:

(550000/730)*80%*5=3017.75 rubles.

Payment deadlines for newsletter

The law establishes that 10 days are given for the accrual of funds, and they are paid on the next payday . According to the norms of the Labor Code of the Russian Federation, wages cannot be paid less than twice a month.