What to do if an employee is constantly on sick leave. Sick leave upon dismissal of one's own free will

A period of temporary disability, or sick leave (common name) is a period of time during which an employee is not at the workplace because he has health problems.

According to the current legislation, while an employee is sick, he retains average earnings, but not in full: if the experience is less than six months, then based on the minimum wage, if less than 5 years - 60% of earnings, from 5 to 8 - 80%, and one hundred percent he can calculate the average earnings after 8 years of work (the length of service is considered in total, and not with a specific employer).

The first three days of illness are paid by the employer, the rest - by the Social Insurance Fund (exception - sick leave for pregnancy and childbirth is fully paid by social insurance). In practice, management often faces the question: is it possible to fire an employee during his illness?

At the initiative of the employer

Many employees are afraid that because of a long illness, the management will fire them. Fear in vain the company cannot lay off an employee who is on sick leave.

Moreover, if a person wrote a letter of resignation and fell ill on the same day, the employer's right to work for two weeks is not extended - even if he was sick all two weeks.

Article 81 of the Labor Code of the Russian Federation prohibits the employer from firing people during their vacation or illness.

If the organization violates the provisions of the code, the court will recognize the employee as injured, reinstate him at work, and the company will face a fine (for an official - at least 2 thousand rubles, and for the company as a whole - at least 50 thousand rubles) and payment to the person for forced absenteeism.

However, there is a situation in which a sick employee may lose his job, even if he is against it. When or occurs, all employees, both healthy and on sick leave, lose their jobs. In this case, you need to contact the FSS to pay for a disability certificate.

At the request of the employee

If the parties decide to disperse, then this can be formalized either as dismissal by agreement of the parties, or at their own request. What are the rights of the employee and the obligations of the employer in this case?

An employee who decides to quit while temporarily unable to work should not wait until the end of the sick leave to write a letter of resignation. By mutual desire, the employer and employee can sign an agreement - in this case, the employer is protected from possible accusations that he forced the subordinate to write.

The worker two weeks before the date of departure warns the manager about the desire to leave the job. However, the final settlement with him is made only after recovery and the provision of a closed certificate of incapacity for work. The company's accounting department calculates sick leave payments and.

The organization must pay sick leave for the entire period of illness, including after the dismissal of a person.

Moreover, if a healthy retired employee falls ill within 30 days after he left the firm, she must pay him sick leave based on 60% of average earnings(Part 2, Article 7 of Federal Law-255 “On Temporary Disability”), provided that he has not found a new job during this time. The employee has the right to pay within 6 months after the end of the illness (according to the temporary disability certificate).

If the company does not want to part with a valuable employee, then for the duration of his temporary disability, you can hire another worker, stipulating this fact in the employment contract. This is not prohibited by law - provided that both parties to the employment contract are satisfied with this.

You can learn some of the nuances of this process from the following video:

Calculation of benefits and execution of the procedure

Let's consider this procedure with an example. Employee Smirnov went on vacation for 28 calendar days in August 2015 and fell ill on the very first day. During the examination in the hospital, it turned out that he had a serious illness that required surgical intervention. Having decided that he would not be able to work, he handed over to the place of work a letter of resignation of his own free will from September 1, 2015.

After the operation, Smirnov was discharged from the hospital on September 15, and the sick leave was opened on August 29. In 2013-2014, Smirnov earned 378,000 and 402,000 rubles, respectively, from this employer. Insurance experience - 2 years. In 2013-2014, he did not work in other places, he worked full-time in the company.

So, the number of days of disability is 18. Despite the fact that Smirnov decided to quit on September 1, the employer is obliged to pay him benefits after this date.

The amount of the benefit will be:

• (378000 + 402000) / 730 days * 60% (less than 5 years of experience) * 18 days = 11,539.72 rubles.

Of these, the FSS will reimburse the company 9616.44 rubles, 1923.28 rubles will be paid at the expense of the company itself.

Do not forget to deduct personal income tax from the amount of hospital payments from the employee - in this case, the tax will be 1,500.16 rubles.

Thus, if Smirnov submits a sick leave to the company on September 16, then no later than September 26, the accounting department is obliged to calculate his allowance and pay it on the next day on which the organization pays wages.

He may not come for a work book, submitting a statement that the document be sent to him by mail with a return receipt. And the company can transfer payments to his bank card, or Smirnov will come for the money when he feels better - then the company will deposit his payments.

The dismissal must be documented at the enterprise by the following documents:

• an application for dismissal of one's own free will from Smirnov with a permit resolution from the authorities;
• certificate-calculation of the amount of hospital benefits;
• order for the payment of benefits;
• if necessary, Smirnov's statement about sending labor by mail and an order to deposit payments.

Smirnov has the right to demand payment of his sick leave within six months after the sick leave is closed.

It is known that labor legislation guarantees the right to maintain a job for a temporarily disabled employee. This means that it is against the law to dismiss an employee during his illness. Is such a guarantee always preserved, or are there still cases when termination of an employment agreement with an employee during a period of incapacity for work is permissible? The article will discuss how to dismiss an employee on sick leave (temporary worker), what amount of payment will be.

Who can initiate a dismissal?

An employee may resign on his own initiative or at the insistence of the employer. The dismissal of an employee who is on sick leave is not permitted by the Labor Code. The right to maintain a job during this period is enshrined in Art. 81 of the Labor Code of the Russian Federation.

But there are some exceptions to the rules provided by law.

The employee has the right to receive sick leave payment no later than 30 days after dismissal

Length of sick leave for various diseases

Sick leave can be issued for a different period depending on the nature of the disease. At this time, the employer does not have the opportunity to dismiss the employee, he will have to wait until the end of his disability.

A disability certificate may be issued for the following reasons:

• own disability;
• caring for a sick family member;
• due to pregnancy and childbirth;
• if it is necessary to care for a child up to 7 years old, and in some cases up to 15 years old.

The period of disability for which it is possible is established by law. It can be increased by decision of the medical commission.

If necessary, the duration of the sick leave can be increased by decision of a special medical commission. The duration of sick leave can be up to 10 months, and in difficult cases, for example, if the cause of disability is tuberculosis, then up to a year

If the illness or injury of an employee is complex, then by decision of the commission, 4 months after the onset of the disease, it is possible to resolve the issue of assigning disability. When an employee undergoes treatment in a sanatorium, he is entitled to sick leave for a period not exceeding 24 calendar days. By this time, the time needed to travel to the treatment site and return home may be added.

Dismissal at the request of a disabled employee

If the employee initiates the dismissal, as stated in writing, then the termination of the employment agreement is legal. After the employee recovers, the employer accepts the application and dismisses him, observing the procedure established by law. At the same time, it is necessary to issue a dismissal order, pay the employee in full and hand over the work book.

Perhaps the employer will insist on an increase in the period of working out during the illness. But this is illegal. The main rule established by law is the obligation of the employee to notify the employer of his desire to terminate the employment contract two weeks in advance. If the dismissal was reported during illness, the period of working off is counted.

What should the employer do if he received a letter of resignation, but after a short time the employee who submitted it fell ill? If he recovers within two weeks, then you can issue a dismissal, calculate and pay sick leave for this period. The illness can last more than 14 days. Then it will be legal to dismiss the employee within the period specified in his application. In this case, the employer must pay temporary disability benefits for the entire period of illness, even if the employment agreement was terminated before recovery.

The employer is obliged to calculate the employee on the day indicated on the application, provided that the two-week working period has expired. If an employee is ill and has not come for money and a work book, then a written notification should be sent to him that he needs to pick up the work book or send it by registered mail.

Dismissal of a disabled employee at the request of the employer

When an employee falls ill after being fired

If an employee falls ill shortly after dismissal (no later than 30 days), then, regardless of the reason for terminating the employment contract, the employer will have to pay sick leave. In this case, the duration of the disease does not matter. The main condition for paying temporary disability benefits is that the employee himself was ill. If he cared for a sick child, then the former employee will not be able to count on payment.

Payment order

The following procedure for paying sick leave has been established:

• the first three days of illness are paid by the FSS;
• The rest of the time is paid by the employer.

To receive sickness benefit, you must apply for it no later than six months after recovery or disability. If the established period for granting sick leave has expired, then the decision to pay it is made by the territorial social insurance authority, provided that the reason for the late appeal is valid. According to the law, this means:

• force majeure circumstances (natural disasters, emergency situations);
• the duration of the disease is more than six months;
• moving for permanent residence in another region;
• death of a family member;
• other reasons that are recognized as valid by the court.

When the employer does not have funds in the account to pay sick leave, as well as in the event of termination of the organization's activities, the obligation to pay benefits passes to the social insurance authorities in full.

Part-time employees after dismissal have equal rights with the main employees. For such an employee, it is possible to receive benefits both at one place of work, and for each at his discretion. He must take the required number of sick leaves to provide them to employers.

A retired employee is paid 60% of the average salary.

Sick leave and layoffs

An employee to be laid off may fall ill both a few days before the layoff and after it. It may happen that after receiving the reduction allowance in full, he will provide a sick leave to the accounting department of the organization. How to be in that case? Is the employee entitled to receive sickness benefits in this case? (see → ).

If disability occurred a few days before the reduction, then the employer must wait for the employee to recover. You should call the employee during his illness and inform that he is not fired and must come after the end of disability in order to issue sick leave and subsequent dismissal.

If an employee falls ill within 30 days of being laid off, they are also entitled to receive temporary disability benefits. In neither case, the payment of sick leave does not exclude the obligation to pay reduction benefits.

Answers to topical questions upon dismissal

Question number 1. Is it possible to fire an employee who is often and for a long time on sick leave?

Answer. The frequent illness of an employee cannot be a reason for his dismissal. Since February 2002, the norm of the law has not been in force, according to which the employer can dismiss an employee if he has been ill for more than 4 months continuously. Today, an employee can be fired only on the grounds listed in Art. 81 of the Labor Code of the Russian Federation. And there is no such reason as a long-term or regularly recurring illness. Even if the employee first fell ill himself, and then looked after a sick family member, if he has a certificate of temporary disability, it will not work to dismiss him for this. It is possible to terminate the employment agreement in the case when the medical commission recognizes the employee as completely disabled.

Question number 2. Are there time limits for determining and issuing sickness benefits by the insured?

Answer. The law establishes that after the employee has applied for benefits, provided that they provide all the necessary documents, the insured is obliged to appoint him no later than 10 days. The employer must pay sick leave as soon as possible after its calculation, established for the issuance of salaries in the organization. The terms for calculating and paying sick leave for a retired employee are identical.

Question number 3. The employee decided to resign from September 01, 2016, about which he filed a corresponding application on August 15. A week later he fell ill. The duration of disability was 14 days. From what date will the termination of the employment agreement be issued?

Answer. If the employee expressed a desire to quit and notified the employer about this in writing, then the employment agreement can be terminated by the number indicated in the resignation letter, that is, from September 1. But the dismissal of an employee does not release the employer from the obligation to pay temporary disability benefits for all days.

Question number 4. An employee after a long stay on sick leave received a disability of the 2nd group. Currently, he does not speak well and has difficulty moving around. Can he be fired? How to carry out the procedure so that the dismissal is legal?

Answer. An employee cannot be fired just on the basis that he was recognized as disabled. The determining factor is the degree of ability to work, which is determined by the commission of doctors. If, according to the conclusion, the employee can perform his official duties in the position he occupies, the dismissal will be illegal. If the state of health of the employee does not allow him to perform his previous duties, but at the same time he is recognized as able-bodied, the employer must transfer him to a more suitable position. If the employer does not have such vacancies, or the employee refuses to move to a new place, the employment contract can be terminated.

Perhaps every employee is interested in whether they can be fired on sick leave. After all, health can fail at any moment. But hardly anyone wants to find out that during the time of indisposition, the employment contract was terminated with him. To avoid illegal actions, you need to be savvy in matters of labor law.

What does the law say?

To the question of whether they can be fired on sick leave, it is worth looking for an answer in article 81 of the Labor Code. It clearly states that the employer cannot terminate the contract with a subordinate during his period of temporary disability on his own initiative. If such a nuisance occurs, the director has the opportunity to reinstate the employee in his position and pay him sick leave in order to avoid negative legal consequences.

Otherwise, the employee may apply to the judicial authorities with a statement of claim for illegal dismissal. Having studied domestic practice, we can conclude that such cases are almost always won by the plaintiff. As a result, the defendant has to reinstate the employee in his position, pay him compensation for moral damage, as well as wages for the time during which he was in forced absenteeism.

Sick or absenteeism?

Can they get fired on sick leave? The legislation gives a negative answer. But what if the employer did not know about the reasons for the absence of the employee? Most likely, this will be considered absenteeism, and a dismissal order will be signed. But is everything as simple as it seems at first glance?

In fact, the employer does not have the right to dismiss an employee without finding out the reason for his absence. But the employee himself has no obligation to inform his superiors about his sick leave. The fact is that temporary disability can occur for various reasons, including the most serious ones. Thus, a person may be physically unable to notify the boss of his absence. The director must independently find out the reasons for the absence of the subordinate from his workplace.

Downsizing and liquidation

Dismissal by reduction on sick leave is impossible. If the employer does not plan to completely terminate the activities of the enterprise or branch, terminating the contract with a temporarily disabled employee is illegal. However, do not confuse reduction with complete elimination. If the enterprise or branch where the employee who was on the sick leave worked completely ceases to exist, the dismissal is legal.

Voluntary dismissal of an employee on sick leave

If an employee has a sick leave, but he expressed a desire to terminate the employment contract, such a dismissal will not have any negative consequences for the management of the enterprise. But a different situation may arise. For example, an employee wrote a letter of resignation, being able to work. But on the same day, he ends up on sick leave. In this case, the employee has the full right to withdraw his application. In case of refusal, dismissal on sick leave will be considered illegal.

Also, an employee can write a letter of resignation during the sick leave. In this case, the following statements are true:

• The date of dismissal can be considered the day after two weeks from the date of writing the application. At the same time, if this period is partially or completely covered by sick leave, the employee is released from the obligation to work off.
• The date indicated in the application itself, which is later than the closing of the sick leave. In this case, the employee will be required to work the prescribed 14 days.

Sick leave during probation

Can I be fired on sick leave during my probationary period? In this case, temporary disability is not an obstacle to termination of the relationship. If the boss considers that the employee does not meet the requirements of the organization or has violated some job duties or norms, he can be fired, even despite the sick leave. However, there are some significant details. An employee on probation must be given 15 days' notice of termination. If this rule has not been observed, the employee may apply to the court for a refund for each day of delay in prior notice.

Disability

In some cases, as a result of temporary disability, a person may be assigned a disability. But this is not yet grounds for dismissal. The employer has the right to terminate the contract only if the medical commission has recognized the person as incapable of work. Otherwise, his job must be kept for him. Also, in accordance with the conclusion of the commission, the employer may have an obligation to transfer the employee to another position, which implies easier work.

End of employment contract

In many enterprises, fixed-term employment contracts are concluded with employees. Despite the fact that the dismissal of an employee on sick leave is prohibited by law, this rule does not apply to cases when the contract has ended. In this case, the boss may, without the onset of consequences, dismiss the temporarily disabled employee. However, this does not relieve him of the obligation to pay the sick leave in full, even if the end date is later than the end of the employment contract.

Mutual agreement

The only case when it is possible to dismiss an employee on sick leave at the initiative of the employer is the consent of the employee with such a decision. Consent must be in writing and delivered in person or through postal services. On the day of dismissal, an employee on sick leave must receive a calculation and a work book. If the employee is unable to come to the enterprise due to health reasons, he is sent an appropriate notice of dismissal, as well as an invitation to collect the required funds and documents. If, by the time of dismissal, the sick leave has already ended, the calculation is carried out on a general basis. If the employee’s illness has dragged on, then with his consent, a work book and settlement through postal services are sent to him within thirty days.

sick leave payment

Dismissal at the initiative of the employer during sick leave is considered illegal. But if the employee himself expressed such a desire, the issue of paying for a sick leave sheet becomes acute. So, if at the time of going on sick leave a person was officially considered an employee of the enterprise, payment is made on a general basis. At the same time, it should cover even the period in which the person was no longer considered an employee of the organization. A former employee is also entitled to sick leave if the disability occurred within a month after the dismissal. But in this case, it will be equal to about 60% of earnings.

sick leave

Dismissal on sick leave is often due to the fact that the absence of an employee on the spot lasts too long. In this regard, the issue of the maximum possible duration of disability for an employee is acute. It should be noted that the maximum duration at the legislative level is not established. But here there are some subtleties.

If an employee needs outpatient treatment, a medical worker issues him a temporary disability certificate for a period of 10 days. If at the next examination it was found that additional treatment is required, the period of the document can be extended up to 30 days. To increase the period of sick leave for more than a month, the conclusion of a medical commission is necessary. If the prognosis for the restoration of working capacity is favorable, a certificate of incapacity for work is issued for up to 10 months. In severe cases (after serious injuries or operations), the sick leave is extended up to 12 months at a time with the possibility of a further increase in this period when passing a medical commission.

Reasons for taking sick leave

Dismissal at the initiative of the employer of an employee on sick leave is impossible, regardless of the reason for the disability. It may be as follows:

• for a disease requiring outpatient or inpatient treatment;
• on pregnancy and childbirth;
• to care for a disabled close relative (spouse or one of the parents);
• after dental procedures;
• after emergency hospitalization or an ambulance call;
• for child care up to 7 years (for the entire period of illness) or up to 15 years (up to 15 days).

Conclusion

Unfortunately, not all employers conscientiously fulfill their obligations regarding employees. So, there are cases when the authorities resorted to the dismissal of employees who were on sick leave. This is prohibited by the Labor Code. If such an offense has been committed against you, feel free to go to the courts. Most likely, the court will take the side of the illegally dismissed employee, who will receive the right not only to reinstatement, but also to financial compensation.

Grounds for dismissal of an employee on sick leave

The legislation provides for the following basic guarantees for the period when the employee is on sick leave:

• payment of benefits (Article 183 of the Labor Code of the Russian Federation);
• the impossibility of applying a number of grounds for dismissal at the initiative of the employer;
• vacation extension (Article 124 of the Labor Code of the Russian Federation).

All of the above affects the calculation of deadlines and the procedure for processing.

During this period, the employer has the following grounds for terminating relations with an employee:

• liquidation of the organization or termination of the activities of the individual entrepreneur (clause 1 of article 81 of the Labor Code of the Russian Federation);
• termination of the activities of a unit that is not located at the place of registration of the organization (clause 4, article 81 of the Labor Code of the Russian Federation);
• expiration of the employment contract (see appeal ruling of the Moscow City Court dated December 12, 2018 No. 33-54921/2018).

It should be taken into account the impossibility of dismissal under Art. 71 of the Labor Code of the Russian Federation of an employee who has not passed the probationary period (see the appeal ruling of the Moscow City Court dated December 18, 2014 in case No. 33-40905).

Note! P. 7 h. 2 art. 341 of the Labor Code of the Russian Federation provides, as a special reason for dismissal from work in a representative office of the Russian Federation abroad, temporary disability for a period of more than 2 months or the presence of a disease that prevents the performance of such work, from the list approved by Decree of the Government of the Russian Federation dated April 10, 2002 No. 208.

There are no restrictions on dismissal at the initiative of an employee (see letter of the Federal Service for Labor and Employment dated 05.09.2006 No. 1551-6 on this). Other grounds provided for in Art. 77 of the Labor Code of the Russian Federation.

Dismissal during sick leave: establishing the fact of temporary disability

The reasons for the absence of an employee are not always known: is a sheet of temporary disability open for him or is he just truant? To fire or not, but to fire, how?

The obligation to notify management of the reasons for absence from the workplace is not fixed by the legislator. You can go through a clear regulation of the employee’s actions in the internal labor regulations or an employment contract (for example, establish a notification procedure by e-mail or SMS - this is more convenient than the obligation to call, because you cannot refer to the fact that the phone was busy or did not answer ). Violation of this obligation is an abuse of the right, but cannot be regarded as a disciplinary offense, since a sick employee does not have labor duties. But the court may take into account the fact of abuse of the right when making a decision (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).

The simplest verification measure is to call the medical institution and clarify the information.

Sick pay upon dismissal

A situation is possible when the date of dismissal has come, and the employee is still sick. In this case, the question arises of paying for the period of temporary disability: is it necessary to do this or not? As a general rule, benefits are paid for the entire period. If the employment contract is valid for up to 6 months, the total duration of paid periods in the aggregate for the entire period of work can be no more than 75 calendar days (Articles 6, 9 of the Federal Law “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood” dated 29.12. 2006 No. 255-FZ).

Note! There is also an obligation to pay benefits if the sick leave was opened within 30 days after dismissal, in the amount of 60% (part 2, article 5, part 2, article 7 of the Federal Law No. 255-FZ). This refers to a sick leave opened due to an illness or injury to the employee himself (and not to care for a sick family member, for example).

The allowance is subject to payment in the general manner when granting leave with subsequent dismissal (see the definition of the Supreme Court of the Russian Federation of November 23, 2015 No. 34-KG15-13).

Date and procedure for dismissal of an employee on sick leave

1. In the event of dismissal of one's own free will, the day of dismissal is determined by the expiration of the notice period established by law or the date (term) indicated in the application. The management of the organization does not have the right to arbitrarily change the date of dismissal. Therefore, these circumstances apply if the employee has not independently withdrawn the letter of resignation.
2. Dismissal at the end of the term of the employment contract is not dismissal at the initiative of the organization (see the appeal ruling of the Rostov Regional Court dated April 15, 2013, case No. 33-4528). It is necessary to notify the employee in writing of the upcoming dismissal no later than 3 days in advance (Article 79 of the Labor Code of the Russian Federation). This rule does not apply to 3 categories of workers:

• accepted in the absence of another employee - the contract is terminated on the day the latter goes to work;
• hired to perform certain work - the term of the contract expires upon its completion;
• employed during the season - the term expires at the end of the season.

1. If an employee is notified of a dismissal due to a reduction in headcount or staff and falls ill in the subsequent time, then he cannot be dismissed until he returns to work. The order is issued by the date of release of the employee. Until that moment, he retains his position.

Form of dismissal and settlement

A work book with an entry must be handed over to the employee against receipt upon his personal appearance (Article 62 of the Labor Code of the Russian Federation). In this situation, a sick employee may not appear to receive documents. Then you should send him a registered letter about the need to obtain a work book or provide consent to send it by registered mail (Article 84.1 of the Labor Code of the Russian Federation). Compiling an inventory of an attachment when sending a letter is proof of its content - this should not be neglected.

The calculation is made on the day the employee appears, subject to the provision of a completed certificate of incapacity for work.

Some grounds are not prohibited, but the absence of an employee will make the implementation of the established procedure so difficult that, in fact, the termination of the employment contract will become impossible. This applies, in particular, to dismissal in connection with a transfer or refusal to transfer (clauses 5, 9, article 77 of the Labor Code of the Russian Federation), when there are great difficulties in obtaining consent to a transfer or refusal to transfer it.

So, dismissal during sick leave is possible, but not in all cases. Sometimes it is necessary to wait for the employee to recover and then resolve issues related to the dismissal. This will avoid future litigation and additional costs.

In the practice of any leader, a situation arises when it is required to dismiss an employee who “at the most inopportune moment” went on sick leave. The reasons for this may be different, but whatever they are, the employer should take the issue with all responsibility.

The labor legislation of the Russian Federation is constantly changing. What employers could afford, say, 10 years ago, today is fraught with lost court cases, monetary penalties and labor inspections. It is worth spending a little time and sorting out in advance the issue of dismissing an employee who is on temporary disability leave (in other words, “on sick leave”).

Dismissal at the initiative of the employer's management

The Labor Code of the Russian Federation clearly does not allow dismissal during illness unilaterally at the initiative of the management. Even in cases where there are such serious grounds for this, specified in Article 81 of the Labor Code of the Russian Federation, such as absenteeism, appearing at the place of work in a state of intoxication or regular failure to perform work duties. This prohibition was introduced into the Labor Code of the Russian Federation by Federal Law No. 90-FZ of June 30, 2006.

An exception is made for only two cases:

• if the legal entity has entered the process of liquidation (bankruptcy);
• if an individual entrepreneur has started the process of termination of activity.

It should be noted that in the event of a partial reduction in the staff of an organization or an individual entrepreneur, this exception is no longer valid.

It also does not apply to the situation when the management of the organization - its head, deputy directors and chief accountant are removed from their positions due to a change in the owner (founder) of the legal entity.

The position of the Labor Code of the Russian Federation on this issue is also supported by the Plenum of the Supreme Court of the Russian Federation in its Resolution No. 2 of March 17, 2004. Therefore, if an employee on sick leave was fired at the initiative of the employer, and the organization did not enter the phase of liquidation, he can be guaranteed to be reinstated in the workplace in a judicial proceeding.

It is also possible that the employee was quite legitimately dismissed at the initiative of the management, but on the day of the planned termination of the employment relationship or before that day, he went on sick leave. Here, the management of the organization also does not have the right to issue a dismissal during the sick leave and is forced to wait for the return of its employee.

Only after that, having properly issued the sick leave, signing the order and making the necessary payments, the head of the organization can finally issue a labor certificate with the appropriate mark.

In the event that the decision to dismiss is made by a bilateral agreement between the employee and the management, the dismissal can be carried out during the period of his temporary disability, because. in this case, there is no unilateral initiative to terminate the employment contract on the part of the management.

Of your own accord

A slightly more complicated case is dismissal during an illness of one's own free will. Let's consider possible situations.

An employee who had been on sick leave for some time decided to quit by filing an application. He can do this by sending an application, including by registered mail. The Labor Code of the Russian Federation does not restrict him in such a possibility. If during the 14-day working period he appeared at his official place, then sick leave payments are made to him in the usual manner, and labor is handed out on the day of dismissal from the organization.

The employee went on sick leave after he filed an application and managed to go to work before the end of the working period. This situation is basically the same as the previous one.

In the two cases mentioned above, a moment may arise when the employer requires an increase in the working period by the number of working days that the employee spent on sick leave. Is it legal? The answer was given by the Federal Service for Labor and Employment in a letter dated September 5, 2006 No. 1551-6. It establishes that the employee has the right to apply for the termination of employment relations unilaterally during a period of temporary incapacity for work or while on vacation.

He can also withdraw such application within 14 days and not be dismissed as a result, except for the case when an employee was hired in his place, who, in accordance with the Labor Code of the Russian Federation, cannot be denied employment. In addition, the date of dismissal may also fall on these periods (absence due to illness or vacation), from which it can be concluded that the employer is directly obliged to dismiss his employee on the date indicated in the application and does not have the right to require any additional work.

But what to do if, before the expiration of the 14-day working period, the sick employee did not return to his place? The development of the situation in this case is regulated by Art. 84.1 of the Labor Code of the Russian Federation, which requires the employer to send a notification by mail to the now former employee on the day the employment relationship is terminated that he can receive his work book. At the same time, the organization is not entitled to send labor by mail without obtaining the prior written consent of the employee to this.

How is sick leave paid in the above cases?

The answer to this question is given by Federal Law No. 255-FZ of December 29, 2006. It obliges employers to draw up a sick leave and pay for it even if at the time of closing this sick leave, the employment relationship with the employee has already ceased. Article 5 of the above law obliges the employer in this case to make sick leave payments within a period not exceeding 30 days from the date of dismissal of the employee. The only restriction will be that sick leave is paid in an amount not exceeding 60% of the average monthly earnings.

In practice, a case may arise when an employee did not immediately apply for a cash payment on sick leave. The specified Federal Law No. 255-FZ provides him with a period of 6 months for this, starting from the moment of restoration of working capacity.

Summing up, the employer can be recommended to be extremely careful in the matter of dismissing "sick" employees, because in this case, the law takes the side of the dismissed person. Even the dismissal of an inveterate truant is fraught with lost lawsuits and a damaged reputation, if at the time of termination of the contract he will correct his health “undermined” by an undisciplined lifestyle!