Dismissal during sick leave: can an employee be fired during a period of illness? Can an employee who is on sick leave be fired?

According to the letter of the law, the initiative of the employer is not allowed in relation to the dismissal of an employee who is often absent for health reasons. A prolonged illness or frequent stay on sick leave is not sufficient grounds for dismissal. In addition, there is no clause in the Labor Code of the Russian Federation that would provide for the dismissal of an employee due to a prolonged illness or frequent sick leave.

Therefore, if a person was nevertheless fired due to frequent and prolonged sick leave, then this fact is a direct violation of the law. In this case, the dismissed employee needs to consult the labor inspectorate on this matter and seek reinstatement through the court. Here, any court will be on the side of the dismissed employee. In addition, having restored to work, you can write a letter of resignation the next day after your restoration, while receiving the due penalty for downtime due to the fault of the employer. The period of disability of an employee for health reasons or as a result of an injury is not limited. The period of disability in connection with caring for a sick relative in some cases is also not limited.

Exceptions

Only in exceptional cases an illness of an employee entitles the employer to terminate the employment contract. This dismissal is based on an appropriate medical report. In article No. 77 of the Labor Code of the Russian Federation, paragraph 8 specifies the dismissal process in detail.

This article of the labor law states: the dismissal procedure is legal if there is a medical certificate confirming that an employee who, for health reasons, needs a temporary transfer to another job for a period of 4 months or more or a permanent transfer refuses this transfer or the employer does not have required vacancy.

In reality, the Labor Code is observed only for, and then until a certain time. For the sick leave payment comes from the state treasury or the state insurance compensates everything. In a commercial organization, management does not like frequent sick leave for an employee, since the entrepreneur pays sick leave from his own pocket. And often all the “conditions” are created under which the employee is forced to write a letter of resignation.

Therefore, if there is a reason to often take a sick leave, it is better to immediately discuss this fact with the management. Surely there will be some kind of compromise, because managers are people too, and if the employee is a first-class specialist in his field, you don’t want to lose him under any circumstances.

Tip 2: How to fire an employee on sick leave

According to the Labor Code of the Russian Federation worker who is on the ballot cannot be fired. But what about an employer who doubts that an employee is doing a good job? And is it possible to dismiss an employee if he worked on the basis of an employment contract that has expired?

Instruction

If an employee submitted a letter of resignation before applying for sick leave, you have the right to fire him if he sent you a confirmation of resignation by mail. If such confirmation has not been received, you can dismiss the employee only after he leaves the hospital and personal written confirmation of the previously written application. Dismissal worker located on, but can lead to penalties in favor of the victim and proceedings.

You can fire worker who is on sick leave, only if the liquidation of the enterprise or the self-dissolution of the organization was officially announced.

Please note that if an employee on sick leave sent you a letter of resignation (as well as confirmation of his intention to quit) by mail, then the date from which the necessary period will be kept to wait for the refusal of the application or confirmation (14 days ), will be the date of receipt of the registered letter.

If the term of the employment contract with an employee who is currently on sick leave has expired, then you have the right to fire him without waiting for the end of his illness. But you will have to pay sick leave for the entire period indicated on the temporary disability certificate.

Sources:

dismissal of an employee on sick leave

Each employee, in accordance with the labor legislation of the Russian Federation, has the right to choose a job according to his state of health. However, at the same time, the employer, for its part, undertakes to take care of the health worker and to grant him the position and duties in accordance with the indications of the doctors. Therefore, if a situation arises when you need to fire worker For health reasons, you need to know some ways to get around the law.

Instruction

So, what needs to be done by the employer so that, on the one hand, not to affect the rights worker and on the other hand, follow your own interests? Since the dismissal worker as such is prohibited by the legislation of the Russian Federation, try the following. Verify the health status of the employee based on the official report. To do this, send him to some medical institution, or demand from him worker medical opinion.

Next, determine the vacancies for this employee based on the staffing table, taking into account his medical indications. Notify in writing worker on his permanent or temporary transfer to a certain position, based on a medical report. A sample of such a notice should be in your company.

Acquaint under painting worker with this notice. If the employee refuses the proposed conditions, make an appropriate entry about this in the notice itself and draw up an act of refusal. If he agreed, draw up an additional agreement on changes in the terms of the employment contract.

If denied, proceed to the next step. Terminate the employment contract on the basis of the employee's refusal to transfer to another position due to medical reasons. To do this, issue an order or order to terminate (terminate) the employment contract with the employee.

Such dismissal occurs in accordance with paragraph 8 of Art. 77 of the Labor Code of the Russian Federation. The calculation upon dismissal in this case occurs according to the standard principle, as well as the terms of dismissal are determined.

Tip 4: How to fire an employee who is on sick leave

In accordance with the Labor Code of the Russian Federation, an employee who is on sick leave cannot be fired just like that. But what should an employer do if he doubts that an employee is coping with his duties? And is there an opportunity for dismissal if he worked under an employment contract that has expired?

Instruction

You have the right to fire an employee if they submitted a voluntary resignation letter prior to leaving, or if they sent you a notice letter or letter of resignation. If such an application (or subsequent confirmation) has not been received, then you will be able to dismiss him only if you submit an application or a written confirmation of a previously submitted one. Please note: the dismissal of an employee who is currently located may subsequently lead to penalties and court.

If an employee who is currently on sent you a letter of resignation (or confirmation of his intention to leave) by letter with a notification, the date from which the period for waiting for the refusal of the application or confirmation (14 days) will be counted will be the date you receive letters, about which you will need to make an appropriate entry in the log of incoming correspondence.

You have the right to dismiss an employee even if the term of the employment contract with him has expired. However, you will have to pay in full (that is, for the entire period indicated on the temporary disability sheet). But if you plan to fire, which, you will not be able to do this, even if the employment contract ends. This requires her written consent.

If an employee was recognized as incapable of work and received a disability while on sick leave, you can fire him only after you pay the ballot.

Tip 5: Is it possible to write a letter of resignation while on sick leave

Ironically, the issue of dismissal of employees always worries the employer much more than its employees. The manager incurs certain losses due to an unplanned termination of employment, and yesterday's colleagues of the departed specialist are forced to “tighten their belts” in order to work faster.

It is possible to quit your job on sick leave only at your own request. The Company cannot dismiss an employee who is ill or on vacation at the time of termination of employment. This is spelled out in Article 81 of the Labor Code of the Russian Federation.

The only possible exception to this rule is the complete liquidation of the enterprise, during which the company ceases to operate.

The procedure for dismissing an employee on sick leave

You cannot change the date indicated by the employee in the letter of resignation without his consent to this. Regardless of the situation, the employer cannot legally influence his employee to work longer. However, the employee himself has the right to withdraw the first application and write a second one, which will indicate a different date.

The Labor Code obliges the employer to complete the calculation on the day specified in the application, to fully issue him the salary and work book.

According to regulatory legal acts, if the employee did not withdraw his application during the sick leave, he should be dismissed only on the date that was previously indicated in the document.

In this case, the sick leave is paid upon the fact of the end of the disease.

Features of dismissal during long-term sick leave

In cases where the employee cannot personally come to the office of the company so that the head performs the calculation procedure, the personnel department is obliged to send a written notice to the place of residence of the specialist about the termination of employment obligations and a request to come to the enterprise.

The employee, in turn, can give his consent to send the work book by mail, and credit the wages to the card. Otherwise, the employer is still obliged to wait for the employee to appear.

How is sick leave paid?

The sick leave of an employee who wants to quit or has already quit is always paid on a general basis. Even if the term of the sick leave is much longer than the prescribed term for working out on dismissal.

But this does not mean at all that an employee can be treated for several months and receive a salary on general terms. For example: in Ukraine, the period of sick leave cannot exceed more than 40 days. If the patient has not recovered, then the first sick leave must be closed and a new one opened.

Not a single organization in the territory of the Russian Federation is released from the obligation to pay sick leave benefits for another 30 calendar days from the date of dismissal of the employee! However, the amount of such benefit is 60% of the average earnings.

Therefore, even if the employee is on sick leave during the prescribed working time (14 days), and then closes the sick leave (40 days) and opens a new one, in the worst case, the company undertakes to pay the employee for another 4 calendar days already in the new sick leave.

The term for submitting claims for payment of sick leave benefits should not exceed 6 months from the date of recovery.

Dismissal of an employee on sick leave at the initiative of the employer

The Labor Code expressly states that the dismissal of an employee who is on sick leave at the initiative of the employer is prohibited (Article 81 of the Labor Code of the Russian Federation). The only exception is the situation when the employer himself ceases to operate (the company is liquidated or the individual entrepreneur "turns off" the business).

What awaits the employer, who fired on his own initiative an employee who is on sick leave

If the employer realizes that he acted unlawfully and reinstates the dismissed employee no later than the day when he is recognized by the doctor as able-bodied, the employee is paid sick leave and he continues to work as usual. Those. there are no negative consequences for the employer.

The worst option would be if the employee goes to court with a claim for illegal dismissal. Judges, as a rule, take the side of employees in such situations. As a result, the employer will have to reinstate the employee, paying him the time of forced absenteeism on average earnings and compensating for moral harm (Article 237, Article 394 of the Labor Code of the Russian Federation).

The dismissal of an employee who is on sick leave threatens the employer and his officials with administrative liability (parts 1.2, article 5.27 of the Code of Administrative Offenses of the Russian Federation):

For officials of the employer - a warning or a fine in the amount of 1,000 rubles to 5,000 rubles;

For an employer-individual entrepreneur - a fine from 1,000 rubles to 5,000 rubles;

On the employer-organization - a fine from 30,000 rubles to 50,000 rubles.

Dismissal for absenteeism

Sometimes employees are fired because they do not report their illness, and the employer regards their absence from work as absenteeism. In this regard, many employers have a question, is the employee obliged to inform the employer about sick leave? So, the employee has no such obligation. Therefore, in order to protect themselves, it makes sense for the employer to make efforts to find out the reason for the absence of the employee (for example, try to get through to the employee or his relatives). After all, it happens that he would be happy to report that he fell ill, but simply physically cannot do this (for example, after an accident he is unconscious).

Downsizing and liquidation are not the same thing for hospital purposes

If the employer does not plan to complete the activity, but only for some reason reduces the staff, then the reduction of the employee who is on sick leave is again illegal. True, if we are talking, for example, about the closure of only a separate division located in a different area than the parent organization, then the reduction (dismissal) of a sick employee is possible. After all, the closure of such an open space is equated to liquidation (Article 81 of the Labor Code of the Russian Federation).

Dismissal during sick leave, if the employee decided to part with the employer himself

In this case, the dismissal of the employee does not threaten the employer with any negative consequences. After all, the employee decided to quit of his own free will. And if, for example, on the day of dismissal, the employee went on sick leave, then he must be fired anyway on that very day. Of course, if the employee has not withdrawn the letter of resignation (Article 80 of the Labor Code of the Russian Federation).

By the way, if an employee wrote a letter of resignation while already on sick leave, then the date of dismissal will be (Letter of Rostrud dated 05.09.2006 N 1551-6):

or the last day of a two-week working day. Moreover, if on this date the employee was still sick, then he should not work again for two weeks after the end of the illness;
or later date specified in the employee's application.

In what other situations can a person who is on sick leave be fired?

This is possible, for example, if:

dismissal occurs by agreement of the parties (Article 78 of the Labor Code of the Russian Federation);
the term of the employment contract has expired

Can an employee be fired while on sick leave? This question interests many leaders. In this case, dismissal is possible only in the situation when the citizen decided to terminate the employment relationship on his own initiative or by mutual agreement with the employer. In another situation, the termination of the contract is not allowed, unless, of course, the enterprise is liquidated.

Not allowed

As Article 81 of the Labor Code states, termination of 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. There is also an exception to the rule here, 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 to operate.

At the initiative of the employee

Can an employee be fired while on sick leave? This question is of interest to many leaders of organizations. Because it often happens that an employee wrote on his own initiative, and then went on sick leave. In this case, it is quite possible to dismiss a citizen on the date indicated in the document. Because the initiative here does not come from the boss, but from the employee himself. That is why the leader has the right to carry out this procedure.

At the same time, employers are concerned about the question of whether it is possible to dismiss an employee who is on sick leave, and how, in this case, to pay him the money due on the last day of his work duties, if he is at home?

In this case, you just need to prepare an order to end the service relationship and make it to a card or bank account. In this case, the work book can be sent to the dismissed employee by mail with a return receipt. At the same time, there will be no violations of the law in the actions of the leader. Especially if the citizen did not withdraw his application.

sick pay

In practice, there are also situations when a dismissed employee becomes temporarily disabled after the end of the employment relationship with the organization. In this case, he can provide his sick leave for payment within six months to the former manager. But only if he did not find a job at the time of illness in a new place.

Therefore, when the heads of enterprises ask themselves whether it is possible to dismiss an employee who is on sick leave, they should not forget that this is permissible only when the citizen himself wants to end his service relationship with the boss, or both parties come to this decision by mutual agreement. In addition, provided by a person after this procedure, must be paid by the enterprise, but only in the amount of 60%.

If the contract is urgent

In practice, there are cases when an agreement with an employee can be concluded not only for an unspecified, but also for a certain period of time. In this case, the head is guided only by Article 59 of the Labor Code. Also, during the validity of this agreement, personnel specialists are often interested in the question of whether it is possible to dismiss an employee who is on sick leave under a fixed-term contract. This can only be done if the validity period has expired. In another situation, such a dismissal would be illegal. Because a citizen who temporarily performs his official activities is the same employee as a person who interacts with an organization on an ongoing basis.

Prolonged disability

In practice, situations often occur when employers want to fire their subordinates just because the latter were not as strong in health as they were at the beginning of their professional activities. In this case, the employee’s long-term incapacity for work will not be the basis for terminating official relations with him, but only if this is supported by an official sick leave. If such a document is not available, then the manager has the right to dismiss a person for absenteeism under article 81 of the Labor Code. In addition, the sick leave is paid as a percentage, the amount of payments depends on the length of service of the employee.

Many heads of organizations are interested in the question of whether it is possible to dismiss an employee who has been on sick leave for more than 4 months. This is possible only if the citizen himself wishes to terminate the service relationship with the organization, or by agreement of the two parties. As Article 81 of the Labor Code states, termination of service relations with a person is prohibited if he is on sick leave, which is supported by an official document. An exception in this case is dismissal at the initiative of the employer at the time or completion of the activity by an individual entrepreneur.

Employer Violations

In practice, it happens that the head during a long-term incapacity for work of a citizen decides to terminate his official relationship with him, which is considered unlawful. Because the dismissal of a subordinate at the initiative of the boss during his sick leave is not allowed, unless, of course, the employee himself announced this. In addition, during the period of disability, a citizen retains his place and position, as well as average earnings. Nevertheless, the head asks the lawyers whether it is possible to dismiss an employee who has been on sick leave for more than 2 months. So, this can be done only upon a written application of the employee himself or by agreement of the parties. Also, this procedure will be absolutely legal if the enterprise completes its activities.

liquidation

The subordinate himself can quit at any time, even during his period of incapacity for work. The head has the right to terminate the official relationship with the employee, but only in those cases that are expressly provided for by law. Therefore, most HR specialists are thinking about whether it is possible to dismiss an employee who is on sick leave during liquidation. Yes it is possible. Because Art. 81 of the Labor Code expressly states that the boss has the right to terminate the service relationship with the employee upon or completion of the entrepreneur's activities. Therefore, there will be no violations on the part of the leadership.

In the event that a subordinate was dismissed before the termination of the organization's activities and suffered a disease within thirty days after that, then he is entitled to receive sick leave pay, which is made through the social insurance fund.

By agreement

During a citizen's incapacity for work, an agreement with him can be terminated only at the mutual desire of the two parties or at the initiative of the citizen himself.

Nevertheless, in practice, various controversial situations often occur. This allows the manager to think about whether it is possible to dismiss an employee who is on sick leave by agreement of the parties. Yes, it is legally allowed. In addition, the initiative to terminate the employment contract by mutual agreement can come from both the employee who is on sick leave and from his manager.

If this document was drawn up before the employee became disabled, then he must be dismissed on the day specified in the agreement, with the payment of all due funds.

More than half a year

In practice, there are often situations when employees are on sick leave for quite a long time due to the fact that, due to their health, they cannot begin to perform their duties. At the same time, the manager does not have the right to terminate labor relations with a citizen only on this basis. This would be a gross violation of the law. Nevertheless, many personnel specialists are interested in the question of whether it is possible to dismiss an employee who has been on sick leave for more than 6 months. So, Art. 81 of the Labor Code states that the termination of service relations with an employee who is temporarily disabled is prohibited. And this does not depend on how many months he will be on sick leave. This is a good reason for non-performance of official duties, which is supported by an official document. Therefore, if an employer dismisses an employee just because he is on sick leave for more than 6 months, then this will be a reason for the judicial authority.

Can someone on sick leave be fired? worker is an ambiguous question. We will study how it is regulated by labor legislation and is considered in the framework of litigation.

Is it possible to dismiss an employee during sick leave at the initiative of the employer

Can I be fired on sick leave? employee and why? It all depends on whose initiative it is - an employee or a company.

In the labor legislation of the Russian Federation there are no norms allowing the employer, on his own initiative, to get fired while on sick leave staff worker. The only legal options to terminate an employment relationship with a person who has gone on sick leave may be:

dismissal by agreement of the parties;
termination of the employment contract at the request of the employee who wished to quit.

A certain specificity characterizes the legal consequences of the employer's decision to reduce staff in a situation where a person goes on sick leave. Let's study this nuance in more detail.

Can a person be fired for reduction while he is on sick leave

Really, is it possible to fire a person on sick leave if he somehow has to be fired due to layoffs?

Dismissal as part of a layoff is a procedure that is initiated by the employer. An employee, unless otherwise expressly prescribed by law, in the general case does not have the opportunity to prevent the reduction (but he also receives sufficient preferences - in the form of a good severance pay).

However, one of those cases when an employee who has been laid off cannot be fired is when he is on sick leave. As long as he is being treated, the company does not have the right to reduce him (that is, remove the position occupied by the employee from the staff list) and, as a result, dismiss him.

Accordingly, as long as the employee is in the state, he is paid sick leave - in the same amount as if he were not subject to reduction.

However, as soon as a person returns from sick leave to work, the legal consequences of the employer's decision to reduce may come. In this case, the moment of opening and closing the sick leave plays a role.

Opening and closing a sick leave: what do they affect upon dismissal

Considering the relationship between sick leave and dismissal, it is necessary to fundamentally separate 2 legal mechanisms (employer obligations):

to keep the employee in the state when he is on sick leave;
paid sick leave to an employee.

The implementation of these mechanisms does not always coincide. The fact is that an employee who quit for one reason or another (including reduction) and falls ill within 30 days after dismissal is entitled to claim sick leave compensation from a former employer. True, it is paid in a smaller amount.

Thus, a person who falls ill after a reduction will not be in the state for 30 days, but will receive sick leave pay.

However, if the sick leave is open before the termination of the employment contract for reduction (even on the last day of the employee’s work), this circumstance immediately extends the validity of the employment contract for the duration of the sick leave. Dismissal of an employee on sick leave, even with downsizing is impossible.

At the same time, as soon as the sick leave is closed, the legal consequences of the decision to reduce will come. The cured employee will have to go to the company's personnel department and settle the formalities related to his dismissal.

While on sick leave, the employee was fired: legal consequences

What should an employee do if, while he was on sick leave, the employer fired him? Can I get fired while on sick leave? a person who has been made redundant?

At a literal reading of the legislation, we will talk about a direct violation of the labor law of the Russian Federation. Dismissal of an employee on sick leave, as we already know, the law is not allowed.

First of all, the employee needs to contact the Labor Inspectorate with documents confirming that he was on sick leave on the date of dismissal, as well as documents certifying the fact of dismissal. If the violation is obvious to the specialists of the department, they will issue an order to the employer to reinstate the employee in his position (with payment of wages for downtime).

IMPORTANT! The instructions of the Labor Inspectorate are binding. If the company ignores them (does not fulfill them within the prescribed time), the department will have grounds for an unscheduled audit of its activities.

Another option when the employer allowed dismissal of an employee on sick leave, is going to court. Its advantage lies primarily in the ability to recover moral damages from the employer (not counting salary accruals). Consider how large the corresponding amount can be, as well as what is the probability of its award.

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 reduction, made an attempt to quit ahead of schedule on the reduction in the manner prescribed by Art. 180 of the Labor Code of the Russian Federation. But the employer each time refused to accept from him a statement of consent to an early reduction.

On one of the days (at that time, the 2-month period from the moment the employee was notified of the reduction had not yet passed), the employee fell ill and left work about 1.5 hours earlier due to poor health. Immediately went to the doctor and issued a sick leave. At the same time, the employer fired him for absenteeism and did not reinstate him even after the sick leave was granted.

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

This procedure is highly likely to be recognized as illegal. The court in this dispute ruled that the actions of the employer are 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 earlier is not considered absenteeism.

As a result, the employer was charged:

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

Can a person on sick leave be fired? for the untimely submission of a certificate of incapacity for work to the employer?

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

The employee was made redundant. He was warned 2 months before, however, the employer committed a number of violations (which are revealed by a literal reading of the Labor Code of the Russian Federation):

did not offer the employee alternative vacancies;
did not issue a work book to the employee immediately after the reduction;
dismissed an employee during the period of sick leave.

In connection with these circumstances, the employee sued the company, demanding reinstatement, compensation for simple and non-pecuniary damage. The trial court, remarkably, sided with the employer because:

no vacancies were offered to the employee due to the lack of such (this was confirmed by the staffing of the company);
the employee, according to the court, used the sick leave, abusing his own right, without informing the employer that he was going on sick leave (if he was aware that a reduction would be made during the sick leave period).

In addition, the court took into account that after leaving the sick leave, the employee did not come to work, but left for a month in another area, that is, he did not immediately provide a certificate of incapacity for work.

The cassation upheld the decision of the court of first instance.

Thus, then Can they get fired while on sick leave? a full-time employee, is not in all cases determined by a direct reading of labor legislation.

Results

Dismissal while an employee is on sick leave is possible only with his personal consent or initiative. With an open sick leave, it is impossible to dismiss an employee for reduction.

But if an employee has abused the right to protection from dismissal during a reduction due to sick leave, the employer can fire him and prove his case in court. Thus, Can I be fired while on sick leave?, in many cases is determined through a detailed interpretation of labor laws.

You can learn more about the issues of dismissal of employees from the articles:

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received
fee 27%

Hello.

To begin with, you should apply for verification of the reliability of the employee’s health status, as well as compliance with the procedure and rules for issuing sick leave to him, with a detailed indication of the information that you provide in your question.

The application should be addressed to the prosecutor's office of the district (or subject) on the basis of Article 21 of the Law "On the Prosecutor's Office of the Russian Federation".

In addition, in accordance with the Federal Law "On the fundamentals of the health of citizens in the Russian Federation",

Article 59
7. Social Insurance Fund of the Russian Federation in order to assess the validity of spending compulsory social insurance funds for the payment of temporary disability benefits in the manner established by the authorized federal executive body, has the right to check compliance with the procedure for issuing, extending and issuing sick leave certificates.

Therefore, I consider it expedient to appeal to this body.

At the same time, you have the right to self-defense of violated rights (Article 14 of the Civil Code of the Russian Federation): for example, obtain evidence on your own confirming the circumstances to which you refer: these may be witnesses of such words and actions of an employee, video and audio recordings of open (including telephone) conversations involving him, you (as well as other persons).

After carrying out checks on your application by the prosecutor's office and the FSS, I believe that you will have legal grounds for terminating an employment contract with an employee on other conditions than he imposes now.

In addition, it is possible that negative legal consequences will come for his relatives, who currently provide him with sick leave. At the very least, a full check will be carried out, including the health of your employee.

Also with an indication to check the validity of the doctor's discharge of such a quantity of BL. It is quite possible that after the inspections, the willingness to write out such documents from the doctor will decrease a little.

Although, by and large, it is possible to fire him during the sick leave, since the initiative for dismissal does not come from the employer, but from the employee. About this for example here:

It is not entirely clear about 2 salaries. What are the grounds?

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Druzhkin Maxim

Lawyer, Moscow

Free assessment of your situation

1103 answers

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Hello!

The procedure for issuing sick leave certificates by medical organizations was approved by order of the Ministry of Health and Social Development of Russia dated August 1, 2007 N 514. According to clause 14 of the specified Procedure, with a period of temporary disability exceeding 30 calendar days, the decision on the issue of further treatment and the issuance of a certificate of incapacity for work is carried out by a medical commission . Doctors engaged in private medical practice, with a period of temporary disability exceeding 30 calendar days, send a citizen to a medical commission at a medical organization at the place of his attachment or registration at the place of residence (at the place of stay, temporary residence) to extend the certificate of incapacity for work. By decision of the medical commission, with a favorable clinical and labor prognosis, a certificate of incapacity for work may be issued in accordance with the established procedure before the day of restoration of working capacity, but for a period not exceeding 10 months, and in some cases (injuries, conditions after reconstructive operations, tuberculosis) - for a period not exceeding 12 months with a frequency of renewal by decision of the medical commission at least every 30 calendar days. After the specified period, the citizen is sent for a medical and social examination (MSE), where the issue of continuing treatment or establishing disability will be decided.

The period of temporary disability is determined in each case individually, depending on how favorable the clinical and labor prognosis is.

It is worth noting that the maximum duration of an employee’s stay on “sick leave” is not limited by law, however, it is possible, taking into account local regulatory legal acts, to apply to the Social Insurance Fund, requesting an audit of the issuance of such a certificate of incapacity for work and the correctness of the actions of the medical commission, before which it is also necessary to raise the issue of issuing a medical report confirming the impossibility to continue to perform their duties due to the presence of an established disease. If such a conclusion is received, then on this basis the employee may be fired. Therefore, check the validity of the issuance of disability certificates.

If it turns out that the disability certificates are false, then criminal liability is provided for under Art. 327 of the Criminal Code of the Russian Federation, which will also affect your employee.

You cannot fire an employee because he is often on sick leave.

According to article 81 of the Labor Code of the Russian Federation

The employment contract may be terminated by the employer in the following cases:

1) liquidation of the organization or termination of activity by an individual entrepreneur;

2) reduction in the number or staff of employees of the organization, individual entrepreneur;

3) non-compliance of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification;

4) change of the owner of the property of the organization (in relation to the head of the organization, his deputies and the chief accountant);

5) repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction;

6) a single gross violation of labor duties by an employee:

a) absenteeism, that is, absence from the workplace without good reason throughout the working day (shift), regardless of its (her) duration, as well as in case of absence from the workplace without good reason for more than four hours in a row during the working day ( shifts);

b) the appearance of an employee at work (at his workplace or on the territory of the organization - the employer or the facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcoholic, narcotic or other toxic intoxication;

c) disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee;

d) committing at the place of work theft (including small) property of others, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses;

e) a violation by an employee of labor protection requirements established by the labor protection commission or the labor protection commissioner, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences;

7) the commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer;

8) commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;

9) making an unreasonable decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;

10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;

11) submission by the employee to the employer of false documents when concluding an employment contract;

12) is no longer valid.

13) provided for by the employment contract with the head of the organization, members of the collegial executive body of the organization;

14) in other cases established by this Code and other federal laws.

The certification procedure (clause 3 of part one of this article) is established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of employees.

Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or a lower paid job) which the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

In the event of termination of the activities of a branch, representative office or other separate structural subdivision of an organization located in another locality, termination of employment contracts with employees of this subdivision is carried out according to the rules provided for in cases of liquidation of the organization.

Dismissal of an employee on the grounds provided for in paragraph 7 or 8 of part one of this article, in cases where the guilty actions that give grounds for the loss of confidence, or, accordingly, an immoral offense were committed by the employee outside the place of work or at the place of work, but not in connection with the performance of labor duties, is not allowed later than one year from the date of discovery of the misconduct by the employer.

It is not allowed to dismiss an employee at the initiative of the employer (with the exception of the case of liquidation of the organization or termination of activity by an individual entrepreneur) during the period of his temporary disability and during the period of vacation.

So you need to terminate the contract by agreement of the parties and pay him a salary. I see no other options.

Hello!

The Labor Code, the Rules of Compulsory Social Insurance do not limit the possibility of being absent from work due to illness by any deadline.

The procedure for issuing certificates of incapacity for work by medical organizations was approved by order of the Ministry of Health and Social Development of Russia dated 08/01/2007 N 514 became invalid due to the entry into force of the Order of the Ministry of Health and Social Development of Russia dated 06/29/2011 N 624n (as amended on 01/24/2012) "On approval of the procedure for issuing certificates of incapacity for work" ( hereinafter referred to as the Rules).

In accordance with clauses 5-13 of the Rules, the issuance and extension of a sick leave certificate is carried out by a medical worker after examining a citizen and recording data on his state of health in the medical record of an outpatient (inpatient) patient, justifying the need for temporary exemption from work.

Forms of certificates of incapacity for work are registered in the primary medical documentation indicating their number, dates of issue and renewal, discharge of a citizen to work, information about the direction of a citizen to another medical organization.

A certificate of incapacity for work is issued to a citizen by a medical organization at his request on the day of application or on the day the certificate of incapacity for work is closed.

A certificate of incapacity for work, issued by a medical organization for the appointment and payment of benefits for temporary disability, for pregnancy and childbirth, is issued, as a rule, to a citizen by a medical organization on the day it is closed.

A certificate of incapacity for work is issued by a medical organization on the day of application, if a citizen is sent (applies) for treatment to another medical organization. The extension and (or) closing of the disability certificate is carried out by the medical organization to which the citizen was sent (applied) for treatment.

In the case of long-term treatment, the medical organization issues a new certificate of incapacity for work (continued) and at the same time draws up a previous certificate of incapacity for work for the appointment and payment of benefits for temporary disability, pregnancy and childbirth.

Verification of compliance with the established procedure for issuing, extending and issuing certificates of incapacity for work is carried out by the Social Insurance Fund of the Russian Federation in the manner established by the authorized federal executive body<9>.

P In the outpatient treatment of diseases (injuries), poisonings and other conditions associated with the temporary loss of working capacity by citizens, the attending physician single-handedly issues certificates of incapacity for work to citizens for up to 15 calendar days inclusive. For periods of temporary incapacity for work exceeding 15 calendar days, a certificate of incapacity for work is issued and extended by decision of the medical commission appointed by the head of the medical organization<10>.

A paramedic or a dentist issues and extends a certificate of incapacity for work for up to 10 calendar days inclusive.

With a period of temporary incapacity for work exceeding 15 calendar days, the decision on the issue of further treatment and the issuance of a certificate of incapacity for work is carried out by a medical commission.

Doctors licensed for medical activities, including works (services) for the examination of temporary disability, with a period of temporary disability exceeding 15 calendar days, send a citizen to a medical commission at a medical organization at the place of his attachment or registration at the place of residence (at the place of stay, temporary residence) to extend the sick leave.

By decision of the medical commission, with a favorable clinical and labor prognosis, a certificate of incapacity for work may be issued in accordance with the established procedure before the day of restoration of working capacity, but for a period not exceeding 10 months, and in some cases (injuries, conditions after reconstructive operations, tuberculosis) - for a period not exceeding 12 months, with a frequency of renewal by decision of the medical commission at least every 15 calendar days.

That is, you have the right to check compliance with the established procedure for issuing a certificate of incapacity for work.

There are two ways to check the authenticity of a document: 1 Send a written request to the medical institution that issued the document. 2 Make a request to the regional division of the Social Insurance Fund. Based on the results of the request, it will be clear whether the disability form was issued to the employee, by whom, when and under what number the document was registered. By the way, the person responsible for receiving, storing, issuing sick leave forms is appointed by order of the head of the medical organization. Most often these are heads and chief accountants of medical organizations. It is they who issue forms of disability certificates under the report to doctors. Therefore, the attending physicians (in some cases, paramedics, dentists) are personally responsible for the safety of the received forms.

All issued sick leave are registered by the medical institution itself (indicating the number, dates of issue and renewal, an extract for work, information about sending a citizen to another medical organization). Therefore, first of all, you can call the clinic and make sure that the sick leave is registered under the appropriate number. You can also clarify whether the doctor who signed the document works in this clinic. It is possible that the sick leave was entered into the database, but the doctor who issued it "out of friendship" or for money did not want to take risks and put not his own, but a fictitious name. Note that the obligation of medical institutions to respond to such requests is not regulated in any way. However, it is important for them themselves to comply with the Procedure for issuing sick leave certificates, since they are responsible for its violation. Therefore, medical institutions, as a rule, do not refuse. The clinic may require a written request from you, but this is even better. After all, if it turns out that the sick leave was issued with violations or forged, then in any case you will need a written response from the medical institution in order to reasonably refuse to pay the sick leave to the employee. If the medical institution that issued the "suspicious" sick leave still refuses to cooperate with you , then contact Roszdravnadzor or the FSS so that they check it themselves.

At the same time, if the fake benefit has already been paid, you have the right to demand that the employee return the money. In case of refusal, the amounts paid are withheld from the salary by order of the head or collected in court if the employee has already quit.

You can also file a police report (with all supporting documents attached), since using a knowingly false document is a crime. An employee may be punished, in particular, by forced labor for up to 2 years or by arrest for up to 6 months.
If an employee falsifies a sick leave, he will have to return the allowance paid to him. He can also be fired for absenteeism and prosecuted.

You can check whether the organization that issued the sick leave to an employee has a license on the website of Roszdravnadzor. Here you can also check the exact name of the organization that issued the sick leave, its PSRN and address. And compare the information received with those indicated in the sheet. If everything is in order with the permits, then the employer may be interested, but did the employee really have any reason not to go to the workplace? After all, the fact that an organization has a license does not mean that sick leave will be issued to all those who apply for help. It is also possible to check the legality of the issuance, but only on this aspect: whether the employee had the right to receive a sick leave by law. The first paragraph of the Rules contains a complete list of persons who are entitled to receive a sick leave. The employer will not be able to find out for what reason and for what disease the doctor issued the sick leave to the employee. This fact cannot be legally verified. According to Part 1 of Art. 13 of the Federal Law of November 21, 2011 N 323-FZ “On the Fundamentals of Protecting the Health of Citizens in the Russian Federation”, information about the fact of applying for medical help, the state of health of a citizen, the diagnosis of his disease and other information obtained during his examination and treatment, constitute a medical secret . So doctors have every right to refuse the employer to "look" into the employee's medical record. Part 4 Art. 13 of this Federal Law lists when it is possible to transfer information constituting a medical secret without the consent of a citizen or his legal representative. Disclosure of information constituting a medical secret is allowed with the written consent of a citizen or his legal representative for the purpose of medical examination and treatment of a patient, conducting scientific research, publishing them in scientific publications, using them in the educational process and for other purposes.

T oh yes, you will be able to verify the authenticity of disability certificates, but not the grounds for issuing them. But you have the right to complain about a specific doctor who issues sick leave to such an employee, the management of the clinic, as well as to the FSS or Roszdravnadzor. Checking the validity of the issuance of disability certificates is within their competence. At the same time, a written request from the employer is the basis for an unscheduled inspection of a medical organization. If, as a result of the audit, abuses are revealed, the doctor will be punished and the channel for obtaining "additional leave" for an unscrupulous employee will be blocked.

Also in accordance with Art. 83 of the Labor Code of the Russian Federation, an employment contract is subject to termination due to the following circumstances beyond the control of the parties: 1) conscription of an employee for military service or sending him to an alternative civilian service replacing it; 2) reinstatement of an employee who previously performed this work, by decision of the state inspection labor or court; 3) non-election to a position; 4) conviction of an employee to a punishment that excludes the continuation of the previous work, in accordance with a court verdict that has entered into legal force; 5) recognition of an employee as completely incapable of working in accordance with a medical report issued in in the manner established by federal laws and other regulatory legal acts of the Russian Federation; 6) the death of an employee.

T Yes, you have the right to terminate the Agreement on the basis of a medical report on the unfitness of the employee for work.

In accordance with Art. 213 of the Labor Code of the Russian Federation Employees engaged in heavy work and in work with harmful and (or) dangerous working conditions (including underground work), as well as in work related to the movement of transport, undergo mandatory preliminary (when applying for a job) and periodic (for persons under the age of 21 - annual) medical examinations (surveys) to determine the suitability of these workers to perform the assigned work and prevent occupational diseases. In accordance with medical recommendations, these employees undergo extraordinary medical examinations (examinations). Employees of food industry, public catering and trade organizations, water supply facilities, medical and preventive and children's institutions, as well as some other employers undergo the indicated medical examinations (examinations) for the purpose of protection health of the population, prevention of the occurrence and spread of diseases. This Code, other federal laws and other regulatory legal acts of the Russian Federation may establish mandatory medical examinations (examinations) for certain categories of workers at the beginning of a working day (shift), as well as during and (or) at the end of the working day (shift). The time of passage of the said medical examinations (examinations) is included in working hours. established by the federal executive body authorized by the Government of the Russian Federation. If necessary, by decision of local governments, individual employers may introduce additional conditions and indications for mandatory medical examinations (examinations). Employees engaged in certain types of activities, including those related to sources increased danger (with the influence of harmful substances and adverse production factors), as well as those working in conditions of increased danger, undergo a mandatory psychiatric examination at least once every five years in the manner established by the federal executive body authorized by the Government of the Russian Federation.

You will not be able to fire an employee due to frequent sick leave.

If an employee has a confirmed disability certificate, the employee has the legal right to be absent from work and restore his own health, and you do not have the right to fire him because such a move is contrary to law. In this case, you can terminate the employment contract by agreement of the parties.

Therefore, terminate the employment contract by agreement of the parties with the payment of 2 salaries.

What a thoughtful worker you have...

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