Sick leave during work upon dismissal: to count or not?

In what cases is sick leave counted towards working off?

First of all, it is worth noting that the term “working off” does not exist in the legislation.
The Code implies the obligation to notify the organization of voluntary dismissal no later than 14 days in advance. After a two-week period from the date of notification of his intention, if the individual does not change his mind about quitting, the employment contract with him must be terminated. IMPORTANT! Up until the date of dismissal, the employee may withdraw the application, and the employer does not have the right to dismiss the individual, unless a new person has already been invited to fill this vacancy.

Labor legislation does not allow an organization to extend the period of service, even if the resigning person goes on vacation or sick leave. Therefore, the employee’s illness does not entail a change in the date of dismissal. The entry in the work book will be dated on the date that was agreed upon at the time of notification of leaving work.

The algorithm for the employer's actions in a situation where the day of voluntary dismissal falls on sick leave is explained in detail in the Guide from ConsultantPlus. You can view the material by getting free access to the system.

Sick leave during the period of work before dismissal is paid in full, even if the period of incapacity for work ends after the date of actual dismissal.

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

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

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

The period of compulsory service cannot be increased. Even if the next day the person went on sick leave and recovered at the end of this period, the day of termination of the employment agreement will be the same. If management demands that absences be worked out or refuses to pay for sick leave, this will be illegal - a complaint can be filed against the employer with the labor inspectorate.

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

All of these rules apply if work activities are carried out on the basis of an employment contract.

The provision of services or performance of work under a civil contract is not regulated by the Labor Code. An employee may, while on sick leave, submit a resignation letter to the employer by registered mail. Rostrud confirms that in this case the two-week period before the date of dismissal will not be extended for sick days (letter dated September 5, 2006 No. 1551-6).

In what situations do sick days count towards 2 weeks?

It should be mentioned that the term “compulsory service” does not exist in the legislation, so the question of whether a certificate of incapacity for work is considered part of it is a little incorrect. By law, an employee must notify management 2 weeks before the date of termination of the employment agreement. During this time he may change his mind. That is, it is correct to talk about the period for warning the employer, and not about mandatory work.

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

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

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

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

You will find more information about sick leave and dismissal in separate articles on our website. Read about whether child care leave is required after a position is vacated, how to apply for continued sick leave after dismissal, and how sick leave taken during leave followed by dismissal is paid for.

Is it possible to go on sick leave followed by dismissal without work?

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

According to Part 1 of Art. 80 of the Labor Code of the Russian Federation, an employee can be dismissed at his own request. To do this, he must write a statement no later than 14 calendar days before the expected date of dismissal. At the same time, the legislation provides for the possibility, with the consent of the employer, to leave work before the expiration of a two-week period. That is, if the organization has no objections, it is permissible to resign on the day the application is submitted.

How to refuse to dismiss an employee without working time, see ConsultantPlus. Get trial access to the system and proceed to the material.

If within 30 days after the date of entry in the work book a former employee falls ill, the employer is obliged to pay sickness benefits.

Read more about this here .

How is sick leave calculated?

In order to avoid debts on the part of both participants in labor relations, the company’s accounting department must make calculations of the total amount of payments due to the resigning person. This amount includes:

1. Salary for the period worked.
2. Compensation for unused vacation. In situations where the employee has taken leave in advance, the amount of money previously paid must be subtracted from the amount due to the employee.
3. Incentive and bonus payments, as well as various compensations.

It should be noted here that the calculation of the amount of compensation for temporary disability is carried out only at the time of submitting the ballot to the accounting department. In the event that the ballot is closed before the last working day, the amount calculated on the basis of the insurance period is added to the remaining funds that are issued on the day of dismissal. When the ballot is closed after dismissal, funds are issued when an advance or salary is issued to the remaining employees. In case of delay in funds due to the fault of the company management, the employer undertakes to add a certain percentage in the form of a penalty to this amount.

An employee’s illness does not entail a change in the date of dismissal

Sick leave before dismissal due to reduction

According to sub. 2 p. 1 art. 81 of the Labor Code of the Russian Federation, an employee may be dismissed due to staff reduction. Moreover, in accordance with Part 2 of Art. 180 of the Labor Code of the Russian Federation, the employer must warn about the upcoming dismissal no later than 2 months before the planned date of termination of the employment contract.

If during the two-month period the employee goes on sick leave and misses the dismissal date, then the actual termination of the contract will occur on the first working day of his return to work after recovery. Temporary disability in this case is not a reason for increasing the period before the fact of reduction, but at the same time it is impossible to dismiss an employee before the end of his sick leave, since during illness, on the initiative of the employer, it is permissible to dismiss an employee only in the event of liquidation of the enterprise.

Sick leave payment

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

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

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

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

Is it considered legal to quit while on sick leave?

Provisions of Art. 81 of the Labor Code of the Russian Federation prohibits the dismissal of an employee on sick leave. But this only applies to cases where the employer wishes to terminate the employment contract. In the case where the employee himself wants to resign, there are no contradictions with the law. This is confirmed by letter of the Federal Service for Labor and Employment dated September 5, 2006 No. 1551-6, as well as judicial practice (for example, the ruling of the Orenburg Regional Court dated April 21, 2016 in case No. 33-3155/2016). The date of dismissal will be considered the one specified in the application; in this case, sick leave is included in the work off upon dismissal.

IMPORTANT! According to Art. 7 of Law No. 255-FZ, sick leave benefits are paid to a dismissed employee at the rate of 60% of average earnings. But this rule does not apply in cases where the application for dismissal is submitted while on sick leave or if the employee falls ill during the working period. In these cases, the benefit is calculated based on the insurance period.

Read about how to properly pay for sick leave in the article “Accruing sick leave - an example.”

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

Can an employer fire an employee on sick leave?

So, we figured out that an employee is not required to work 14 days if his sick leave falls during this period. But workers are no less concerned about the question: can an employer fire an employee on his own initiative? After all, going on sick leave is considered just a temporary inability to work. Probably, after recovery, the person wants to continue working in the same place. According to the law, there are two legal grounds that will allow an employer to dismiss an employee:

• when he does not comply with the clauses in the contract: he violates discipline, does not go to work on time, does not fulfill his obligations;
• if the company is liquidated.

Results

Working off is considered to be the period between the date of filing an application for voluntary dismissal and the date of actual termination of the employment contract. There is no such concept in the law; there is only an employee’s obligation to notify his employer of his upcoming dismissal two weeks before the desired date. Therefore, the norms of the Labor Code of the Russian Federation make it quite clear that sick leave during dismissal does not affect the desired date of entry in the work book.

Sources:

• Labor Code of the Russian Federation
• Federal Law of December 29, 2006 N 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity”
• Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2

You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

General information

First, let's take a look at some key unshakable rules regarding labor relations:

1. Who can afford to get sick and expect benefits for it? All insured persons => 2 tbsp. 4 paragraphs of the Law.
2. How do I know if I am an insured person? If an employment contract has been concluded with you, or you are actually allowed to work => 2 tbsp. 5 hours of the Law.
3. What does “actually admitted” mean? This is when the employer or his representative knows that you have started work without a previously executed contract => Art. 16. Labor Code of the Russian Federation.
4. Do I need to tell the management in advance about my intention to quit? Yes, in two weeks => 80 tbsp. Labor Code of the Russian Federation. The two weeks will start from the day after you put your application on the table. It happens that management will meet you halfway and allow you not to work out.
5. I wrote a statement, and a series of holidays began, is my working time increasing? No. The count is in calendar days, not working days => 14 tbsp. Labor Code of the Russian Federation. That is, all holidays and weekends must be included in the two weeks worked.

In general, everyone who uses their talents and abilities for the benefit of society can count on paid sick leave. Even those who work in prisons, if their work is paid. But this Law does not apply to police personnel.