Dismissal on sick leave: is it possible to dismiss, calculation of sick leave and terms of sick leave

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Published: 04/22/2016

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

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

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

At the initiative of the employee

Dismissal during sick leave at one's own request begins with a personal statement. The employee notifies in writing of his intention to resign at least two weeks in advance. He has the right to do this both during work and during absence, that is, when he is officially on sick leave or on vacation. The employer is obliged to dismiss him a maximum of two weeks after the warning.

The Labor Code of the Russian Federation does not prevent filing an application in any way; you can send it by mail, for example, by registered mail. In this case, the countdown of work time will begin when the employer receives the letter, and not when it is sent.

When leaving on sick leave at his own request, the employee is not required to work two weeks after the certificate of incapacity for work is closed. The period starts counting from the day following the day on which the employer received the letter of resignation. If a person has written a statement due to the inability to continue working (pension, enrollment in an educational institution), the employer is obliged to part with him on the day specified in the statement.

Does an employer have the right to dismiss an employee during a period of temporary incapacity?

“Is it possible to fire an employee who is on sick leave?” Subordinates ask this question quite often. The dismissal of a citizen who is on sick leave, which is confirmed by a certificate of temporary incapacity for work, cannot be carried out in accordance with the current Article 81 of the Labor Code of the Russian Federation.
This provision determines that an employee cannot be dismissed, regardless of the reason for which he is incapacitated. For example, this could be illness, injury, or child care.

Compensation for sick leave is made from the Social Insurance Fund, where the employer transfers certain contributions (determined taking into account the employee’s salary). If a specialist is employed under a temporary contract, his dismissal during sick leave is not allowed.

In certain cases, situations arise when the management, in the absence of a subordinate at work, formalizes absenteeism with subsequent dismissal. Quite often, such circumstances arise due to the inability to contact the employee.

To avoid misunderstandings, the employer is recommended to record the telephone numbers of relatives and loved ones who could explain the absence of a specialist. If a person is in intensive care or unconscious, the issues that arise will be resolved much more quickly.

Upon expiration of the contract

The dismissal of an employee due to the end of the period of validity of the employment agreement is formalized as follows:

1. Send the employee a notice that the contract is expiring and invite him to dismiss him and present him with a work book. If the employee wishes, send it by mail.
2. Issue a dismissal order and inform the employee in writing.
3. Make an entry about the dismissal in the work book and personal card (clause 2 of article 77 of the Labor Code of the Russian Federation).
4. List the payments required upon dismissal.
5. Pay for sick leave provided by the resigned employee (carried out in full upon the onset of illness before the end of the contract).

Voluntary care during illness

To dismiss a worker on sick leave at his own request, you need to receive an application . He draws it up in any form with a mandatory indication of the desire to quit on a certain date, taking into account the time worked.

When terminating a fixed-term contract for a period of up to 2 months or during the season, the warning period is 3 days , and for regular contracts - 2 weeks . Moreover, if an agreement is reached with the employer to leave in one day or after working for a shorter period of time, it also applies in case of incapacity for work.

IMPORTANT!

If after the day of dismissal an employee continues to be on sick leave, he must be paid in full, as if he had not left the organization.

The time spent on treatment does not increase the working time - dismissal at one's own request during sick leave occurs strictly within the period specified in the application .

It must be remembered that during the period from the date of notification to the employer of resignation until the last working day, the employee retains the right to withdraw his application and remain working in the company. This rule also applies if he is on sick leave.

IMPORTANT!

By virtue of Part 3 of Art. 80 of the Labor Code of the Russian Federation, an employee may have circumstances that make it impossible to continue working. And then the employer is obliged to dismiss the employee on the date strictly indicated in the application without working off.

By agreement of the parties

This is the only opportunity to part with an employee at the request of the employer when he is on sick leave. But a compromise will have to be found. If an employee refuses to agree to a settlement, he cannot be forced. To dismiss, the employer will have to wait until the employee has fully recovered and the sick leave period ends. The accounting department will calculate and pay the necessary amounts for sick leave.

If the period of illness and sick leave extends beyond the total period of service, the person can be fired on the day specified by him at his request in the resignation letter.

On the day of dismissal, the employee receives the payments and wages due for the period of work. When a certificate of incapacity for work is issued no later than 30 days after dismissal, the employer pays compensation in the amount of 60% of average income.

Dismissal of a disabled employee at the request of the employer

Even if the employer has good reasons to fire an employee who is on sick leave, he will be able to do this only after he has recovered and returned to work. If there is a reduction in personnel or liquidation and reorganization of a legal entity, you can legally dismiss an employee no earlier than the first day he returns to work. Read the article: → Procedure for dismissing an employee. Payments upon dismissal of an employee.

Who can't be fired while on sick leave?

An employer does not have the legal ability to fire those who are officially on sick leave or on vacation. This can only be done when the employee returns to the workplace.

You can't fire a pregnant woman.

On its own initiative, the employer can formalize dismissal on sick leave only upon liquidation of the enterprise (Part 6, Article 81 of the Labor Code of the Russian Federation). You can part with an employee who is sick only in the following cases:

• upon liquidation of an enterprise;
• at the employee’s own request;
• by agreement of the parties;
• upon expiration of the period of validity of the fixed-term employment agreement.

Other dismissal options will be illegal. The employee may go to court, and he will have to be reinstated in his position and paid wages for the time he was listed as dismissed.

Is sick leave included in working off?

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

This is also important to know:
How to make calculations when dismissing an employee at his own request

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

Do I need to work 14 days?

As with any dismissal, this depends on the agreement with the employer. But it is important to remember that the employee is not required to work for two weeks upon the closure of the certificate of incapacity for work. The countdown of the period begins on the day following the day the employer receives the notice of dismissal.

If a person quits and falls ill during a two-week work period, then this period cannot be extended by the number of days of illness, like a vacation. You can’t force someone to “work” after an illness. For example, an employee was sick for 10 days, upon recovery he will work only 4 days: the period of 14 days for working off includes the period of sick leave, without extending this period.

IMPORTANT!

It is impossible to force an employee to work all 14 days after the end of sick leave!

Terms of dismissal of an employee on sick leave

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

This is also important to know:
Termination of an employment contract at the initiative of the employer: grounds, how to formalize

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

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

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

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

How to properly file a dismissal while on sick leave

Termination of an employment contract during sick leave is carried out according to the algorithm provided for by the Labor Code of the Russian Federation (Article 80, 84.1):

1. The employee sends the application to the employer in person or by mail.
2. The employer issues an order indicating the date. Remember that the employee has the right to withdraw the application. In this case, dismissal is not formalized. There is only one exception - a written invitation to replace the dismissed person with another person, whose employment is impossible to refuse due to the norms provided for by labor legislation.
3. The employer familiarizes the employee with the administrative document in writing. If the person resigning is absent on this day, the employer records in the order the impossibility of informing him in writing “due to absence from the workplace.”
4. On the last day of work, the employer issues the employee a work book and finally pays him off. If the employee is not present, the employer sends him a notice to appear for a work book or invites him to agree to send it by mail. If there is no consent to send the work book by mail, the employer is obliged to keep the document and issue it after a written request.

If you plan to be dismissed by agreement of the parties while on sick leave, proceed as follows:

1. Make a decision and come to an agreement on the terms of termination of the contract.
2. Draw up an agreement. The form of the document has not been established. The agreement is drawn up in two copies, which are signed by both parties. One copy is kept by the employer, the second by the employee.
3. Issue an order to terminate labor duties on the basis of “agreement of the parties” with reference to clause 1, part 1, art. 77 Labor Code of the Russian Federation.
4. On the last day of work, issue a work book and money (salary, sick leave, vacation pay, compensation, etc.).

How does an employer accept a resignation letter during sick leave?

An employee on sick leave can submit a letter of resignation to the employer in person or by sending the document to the company by mail. At the same time, the employee can inform the employer of his consent to accept the work book upon the fact that the employer issues an order to terminate the employment contract with the employee by mail.

This is also important to know:
Dismissal of an employee due to loss of trust, article of the Labor Code of the Russian Federation

At the same time, the dismissal order indicates that the employer does not have the opportunity to hand over this document to the employee personally.

If an employee on sick leave has not informed the employer of his consent to receive documents by mail, the employer must notify the employee himself:

• about the need to appear for a work book;
• if it is impossible to appear, inform the company of your consent to receive the work book (and dismissal order) by mail.

How to write a statement

The dismissal of an employee on sick leave is carried out at his own request. It must be written and handed over to the boss at least 14 days before the date of dismissal (Part 1 of Article 80 of the Labor Code of the Russian Federation). In some cases, the notice period may be different.

The employee fills out an application in free form. You can write it by hand or type it on your computer and then print it out. The document must include the following information:

• FULL NAME. and employee position;
• the name of the institution in which the person works;
• the date on which termination of the contract is planned;
• date of compilation.

The statement must include the words “at your own request.” The employee signs the paper.

An application for voluntary resignation is sent to the employer before going on sick leave or while on sick leave.

Having received a voluntary resignation letter from an employee, you need to check that it contains three main points:

• the desire to terminate the contract at one’s own request (that is, the phrase “please fire me at one’s own request” is present);
• date of voluntary dismissal;
• employee signature.

Dismissal of an employee on sick leave: legal framework

The resolution of controversial issues related to dismissal is regulated by the eighty-first article of the Labor Legislation . This document states that dismissal of an employee who is on sick leave is strictly prohibited . In the situation under consideration, the right to terminate the employment agreement is granted only to the worker himself. It is important to note that these rules also apply to people on annual leave.

As judicial practice shows, situations related to dismissal during sick leave are observed quite often.

The primary task of the control authorities is to identify the initiator of this process. It is important to note that the manager who fired an employee who is on sick leave will face penalties. However, there are a number of exceptions to this rule, which we will talk about a little later.

How to place an order

The employer issues a notice of dismissal on the employee's last day of work. If there is a certificate of incapacity for work, the order is issued according to the data of the sick leave certificate or according to the date of the application.

The dismissal order includes information about the position of the person leaving and the department in which he works. The date on which the employee quits is indicated, that is, the last working day, and the date of publication is indicated. The person leaving must be familiarized with the dismissal order in writing.

A dismissal document can be drawn up using (at the employer’s request):

• forms T-8 (Decree of the State Statistics Committee No. 1 of 01/05/2004);
• independently developed format.

If the employer uses the T-8 form, the basis for dismissal must be reflected using the wording of clause 3, part 1, art. 77 of the Labor Code of the Russian Federation: “Termination of an employment contract at the initiative of the employee, paragraph 3, part 1, art. 77 of the Labor Code of the Russian Federation.”

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

Is it possible to fire an employee on sick leave and on what basis?
It all depends on whose initiative it is - the employee or the company. There are no provisions in the labor legislation of the Russian Federation that allow an employer, on his own initiative, to dismiss a full-time employee while on sick leave. The only legal options for terminating an employment relationship with a person who has gone on sick leave may be:

• dismissal by agreement of the parties;
• termination of an employment contract at the request of an employee who wishes to resign.

Certain specifics characterize the legal consequences of an employer’s decision to reduce staff in a situation where a person goes on sick leave. Let's study this nuance in more detail.

What entry should be made in the labor report?

The employer makes an entry in the work book about dismissal at his own request. The document indicates the date of termination of the contract and the signature of the resigning employee.

The employer stamps the book.

The entry reflecting the fact of termination of the contract is formulated indicating the grounds for dismissal from clause 3, part 1, art. 77 of the Labor Code of the Russian Federation: “The employment contract was terminated at the initiative of the employee, clause 3, part 1, art. 77 of the Labor Code of the Russian Federation.”

Is it possible to fire an employee during illness?

Author: Tatyana Kudashova, HR administration expert at BDO outsourcing division

Dismissal of an employee at the initiative of the employer while he is on sick leave is not permitted. It’s another matter if a person quits of his own free will.

The company cannot fire an employee who is on sick leave on its own initiative. This is clearly stated in the last paragraph of Article 81 of the Labor Code: “the dismissal of an employee at the initiative of the employer is not allowed <...> during the period of his temporary disability and while on vacation.” An exception is made only for the situation when the employing organization is liquidated (an individual entrepreneur ceases his activities).

Therefore, when dismissing an employee during illness, the main thing is to determine who exactly initiated the dismissal.