The employee hid on sick leave. What to do? Disputes with employees who are on sick leave for an excessively long time

Dismissal while on sick leave at the initiative of the company is impossible. However, there are certain nuances in this issue that you need to be aware of. We will tell you about them in this publication.

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

Often employees worry that during frequent periods of incapacity, the employer may decide to terminate the employment contract. These fears are groundless - according to Part 6 of Art. 81 of the Labor Code of the Russian Federation, a company cannot fire an employee during his vacation or illness. Violation of this norm of labor legislation is fraught with a fine for the company from 30,000 to 50,000 rubles, and official or the merchant will pay 1,000-5,000 rubles for the violation. (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

It should be kept in mind: if an employee decides to quit and falls ill on the same day, the employer cannot require the employee to work for two weeks after recovery. In this case, the employer is obliged to pay the employee sick leave, because the law does not provide for the suspension of a two-week period for the period of illness. Since the disability occurred while the employee was working for the company, the company must pay benefits depending on the employee’s insurance coverage.

Employees often take advantage of this by obtaining a certificate of incapacity for work from the doctor so as not to work the required two weeks. There is a precedent when the court considered such behavior of an employee to be an abuse of his rights and protected the employer by canceling the fine for dismissal while on sick leave(resolution of the Plenum Supreme Court dated 17.03.04 No. 2).

At the same time, the law establishes that upon liquidation of a company or individual entrepreneur, all employees: both healthy and sick, lose their place of work (Clause 1, Part 1, Article 81 of the Labor Code of the Russian Federation). In this case, the employer is obliged to issue an order and, against signature, familiarize all employees with the upcoming closure of the company at least 2 months in advance (Part 2 of Article 180 of the Labor Code of the Russian Federation). If the company was liquidated and the employee did not manage to receive benefits from the employer, then he needs to apply to the Social Insurance Fund for payment (clause 4 of article 13 of law No. 255-FZ). Within 10 days after the application, the fund will pay for sick leave.

The material will tell you more about what other personnel procedures need to be carried out when liquidating a company. .

Another situation in which dismissal of an employee on sick leave is legal is if a fixed-term employment contract was concluded and the employer warned the employee three calendar days in advance that he was not going to renew it (Article 58, Article 79 of the Labor Code of the Russian Federation). In this case, the employer will fully pay the employee for sick leave in accordance with the insurance period and dismiss him on the day the fixed-term employment contract ends. Moreover, if the contract was concluded for a period of less than six months, then you can pay the employee a maximum of 75 calendar days disability. If the term of the employment contract was more than 6 months, then the entire period of illness is subject to payment (Article 6 of the Law of December 29, 2006 No. 255-FZ “On Mandatory social insurance»).

Important ! If you do not notify the employee three days before terminating a fixed-term employment contract, then the contract is considered unlimited. Then it will not be possible to fire an ill employee, and the court will side with the employee in the event of a conflict (FAS resolution North Caucasus District dated August 23, 2011 No. A32-6455/2010).

Dismissal during sick leave at your own request

An employee can resign at will, even while on sick leave. If he is still ill on the day of dismissal, the employer should not postpone the dismissal date and wait until the employee recovers. On the date of dismissal, the employer is obliged to give the employee work book and a certificate of the amount of earnings in the form of order of the Ministry of Labor dated April 30, 2013 No. 182n, to pay wages and compensation for unused vacation.

If the employee cannot appear and pick up the documents, then he is sent a registered letter asking him to come to the enterprise. But the company will pay for the certificate of incapacity for work after the employee gets it from the doctor and brings it to the company. The benefit is paid in full for all days of illness in accordance with the insurance period (Clause 2, Article 5 of Law No. 255-FZ of December 29, 2006).

Important ! There are situations when an employee is seriously ill and his relatives, on their own behalf, but with a power of attorney from the employee, demand termination of the employment contract. Fire an ill employee at will on the basis of an application signed by a person authorized to do so by power of attorney, it is impossible - the court will recognize such dismissal as illegal and will oblige you to reinstate the employee in his position and pay wages for the period of forced absence (decision of the Moscow City Court dated August 13, 2010 No. 4g/3-7015/10 , dated February 14, 2013 No. 4g/5-595/13, St. Petersburg City Court dated November 2, 2011 No. 33-16328/2011).

We would like to draw your attention to the dismissal of an employee injured at work while on sick leave. Such an employee can also resign of his own free will at any time during illness, but the company must pay him benefits for the entire period of temporary disability in the amount of 100% of average earnings. The upper limit of the benefit amount for a calendar month is limited by social insurance and cannot be more than the maximum monthly insurance payment established for the current year, multiplied by 4: in 2016, from February, this amount will be 69,150 rubles. × 4 = 278,040 rub. (clause 2 of article 9 of the law dated July 24, 1998 No. 125-FZ “On compulsory social insurance against accidents”, clause 1 of article 6 of the law dated December 1, 2014 No. 386-FZ “On the budget of the Social Insurance Fund of the Russian Federation”, taking into account indexation on the basis of clause 1 of the Decree of the Government of the Russian Federation dated January 28, 2016 No. 42).

An employee has the right to payment for sick leave within six months after the doctor closes the sick leave. The accounting department is obliged to calculate the amount of benefits payable within 10 calendar days from the date of receipt of the sick leave. Pay - on the next payday after the benefits are accrued.

The employer withholds personal income tax from the benefit amounts and transfers it to the budget as the employee’s tax agent. Only the first three days of the employee’s illness are paid at the employer’s expense; the payment for subsequent days is reimbursed by social insurance.

For dismissal during sick worker The following documents must be prepared at your own request:

statement from the employee;
manager's order of dismissal;
certificate of calculation of temporary disability benefits;
order for payment of benefits;
certificate of the amount of earnings in the form of order of the Ministry of Labor dated April 30, 2013 No. 182n;
if an employee decides to receive a work book by mail, he must submit an application to the company;
if benefits are paid from the cash register, then an order is drawn up to deposit the benefit amounts, as well as other payments due to the employee - until he is able to come for the money.

An example of calculating payment for a certificate of incapacity for work

Employee Potashev caught a cold in March 2015. During an examination in the hospital, the doctor discovered a formation in Potashev that required immediate surgical intervention and further lasting solution. Potashev decided to quit to focus on his health. On March 11, he went to the hospital for treatment, and on March 16, Potashev handed over to the manager a handwritten letter of resignation. Potashev was discharged from the hospital on March 26, 2015 with a closed certificate of incapacity for work. The number of days of Potashev’s illness is 16. Potashev earned 356,000 rubles in 2013, and 384,000 rubles in 2014. Potashev's insurance experience is 25 years. He did not work in other places, he worked full time in this company, and has no excluded periods from the calculation.

The employer is obliged to pay Potashev benefits for all days of illness in accordance with the insurance period, since Potashev was not fired at the time of the onset of incapacity. The benefit amount will be:

(356,000 + 384,000) / 730 days × 100% (since the experience is more than 8 years) × 16 days = 16,219.20 rubles.

Of this, the employer will pay for the first three days of illness - 3,041.10 rubles.

Don’t forget - you need to deduct from sick leave amounts income tax, more about this in the article .

Personal income tax from sick leave amounted to 2,108.5 rubles.

In total, Potashev will receive 14,110.7 rubles on a certificate of incapacity for work.

In Potashev's work book, the employer made an entry about the employee's dismissal on March 30 - two weeks after receiving the application. Since Potashev came for the documents on his own, the accounting department gave him a work book and a certificate of the amount of earnings. Benefits, wages and compensation for unused vacation were transferred to bank card employee.

Results

No matter how many days you are sick, the employer cannot fire you, unless, of course, you are working under a fixed-term employment contract or your company is closing. The materials in our section will help you understand your rights as an employee and responsibilities as an employer in different situations.

The Labor Code (LC) of the Russian Federation is a set of laws designed to protect the rights of working citizens. Dismissal is one of the inevitable aspects of working life. The Labor Code of the Russian Federation clearly regulates situations in which an employer is allowed to fire its employees. Let's consider important point: is it possible to quit while on sick leave on your own initiative, and can the employer do this?

In addition to the interests of the employee himself, who wants to maintain his working position and not be subject to disciplinary action, registration of sick leave also affects financial indicators organizations. Let's find out.

Legal options for dismissal on sick leave

Labor legislation clearly interprets that the dismissal of an employee on sick leave at the initiative of the employer is illegal (Article 81 of the Labor Code of the Russian Federation). When an employee applies to the courts regarding wrongful dismissal, the court, as a rule, takes the side of the applicant.

In this case, the employer will be obliged to reinstate the employee at his previous place of work and pay him wages for the period of forced absences.

There are several situations that allow the dismissal of a sick employee on legal grounds.
This is only possible in the following cases:

complete liquidation of the organization;
dismissal of an employee on sick leave at his own request;
dismissal by agreement of the parties;
expiration of the fixed-term employment contract.

Dismissal at one's own request is initiated by the employee himself, therefore, even while he is on sick leave, dismissal occurs on a general basis.

It is worth noting that the employer does not have the right to refuse to dismiss an employee at his own request. The Constitution of the Russian Federation guarantees every citizen the right to freedom of choice of type of work activity (Article 37). Article 80 of the Labor Code of the Russian Federation regulates the procedure for terminating an employment contract: the employee must notify the employer of his desire to resign 2 weeks before the expected date of dismissal.

Nuances of the dismissal procedure during sick leave

Despite the fact that the listed options for dismissal on sick leave are legal, there are some nuances that must be observed.

Additional information

Special attention should be paid to dismissal during the probationary period. After all, it can cause a lot of problems. In practice, termination of employment during the period of sick leave at one’s own request probationary period happens very rarely. In this case, the organization must be notified three days before the proposed dismissal and then by writing a statement in the established form.

If the termination of the employment contract is initiated by the employer during the employee’s ability to work, then if the employee falls ill before the appointed date of dismissal, including on the last day of work, the dismissal procedure is suspended and resumed only when the citizen recovers and returns to the workplace.
If an employee quits of his own free will and falls ill during the 2-week period of work, then the work in this case is not extended or postponed. This rule is also valid if an employee, while on sick leave, submits a resignation letter. Thus, in fact, working off does not occur or occurs only partially if the employee manages to recover before the end of its term.
In addition, you can quit without working in the following cases:
- when moving for permanent residence to another locality,
- when a spouse is transferred to work in another area,
- during pregnancy,
- if it is impossible to live in this region for medical reasons,
- if you need to care for a child or other family member,
- upon retirement, etc.
If an employee, having written a letter of resignation of his own free will, does not go to work on the day of dismissal due to illness, then the dismissal is still made.
If an employee returns to work after illness before the dismissal date, he must work out the remaining working days.
The calculation of payment for sick leave when it is opened before the date of dismissal and after it differs significantly. If an employee falls ill before the termination of the employment contract, then the amount of payment under the certificate of incapacity for work depends on the insurance period and the average salary of the employee for the previous 2 years. When sick leave begins after the date of dismissal, but no more than 30 days later, the calculation of the payment amount does not depend on the length of insurance. You can read more about this on our Internet portal.

The table shows the procedure for terminating an employment relationship while on sick leave.

Actions	Details
1. A citizen writes an application for sick leave. Together with it (or after) a letter of resignation is drawn up.	It must be written there “at your own request”.
2.The employer studies the submitted documents.	From this moment the countdown of 2 weeks begins.
3.After 14 days from the date of notification of dismissal, the boss draws up an order to terminate the employment relationship.	It is presented to the person being dismissed for review. The corresponding entry is made in a special accounting journal. If the employee cannot come to the employer in person, you need to send a copy of the order by registered mail.
4. A record of dismissal is made in the work book.	It is necessary to indicate Article 80 of the Labor Code of the Russian Federation. This means that the employee himself decided to terminate the relationship.
5. As soon as the order comes into force, the employee receives a work book and pay slip.	An act is drawn up about this.
6. The person being dismissed contacts the accounting department for payment.	After this, you can sign in the accounting journals for receiving funds in full, as well as for issuing a work book to a subordinate.
7.If the employee refuses to sign, a special act is drawn up in which all actions are recorded.	If it is not possible to make a personal visit to obtain a “labor” document, you will have to send a notification of the need to make a payment by registered mail. Then a trusted person can receive the money and work book.

Submitting a resignation letter

An application for resignation of one's own free will, including while on sick leave, is written by the employee in any form.

The application must contain the following points:

last name, first name, patronymic and position of the resigning employee;
name of the organization in which the employee works;
the wording “At your own request”;
the date from which the citizen plans not to go to work;
date of document preparation;
personal signature of the employee.

It is important to know that if an employee is on sick leave, he also has the right to withdraw his resignation even on the last day of the employment contract with the company. And if at that time a new employee had not been hired by the company, then after the permanent employee leaves the sick leave, the employer must continue to work with him.

Dismissal at your own request during sick leave

The voluntary dismissal process begins with the employee submitting a resignation letter to the employer. This must occur at least 14 calendar days before the expected date of termination of the employment contract. After submitting the application to the employee responsible for personnel matters, a 2-week period begins, otherwise called working off. The term “working out” does not appear in the Labor Code of the Russian Federation. 2 weeks is only the period during which the employer must find a replacement for the resigning employee.

After 14 days, the organization issues an order stating that the employee is fired. This document is given to the resigning employee for review under a personal signature, or, in the case of a territorial remoteness of the citizen, it is sent to him by post with notification of delivery.

Then the personnel employee (accountant, employer) makes an entry in the employee’s work book about dismissal at his own request, indicating Article 80 of the Labor Code of the Russian Federation and hands over the work record. After which the citizen is given a payslip indicating the payments due to him. The final stage is receiving the calculation from the accounting department.

We are ready to answer any questions you may have - ask them in the comments

Is it possible to fire an employee who is on sick leave? This question interests many managers. In this case, dismissal is possible only in a situation where a citizen decides to terminate the employment relationship on his own initiative or by mutual agreement with the employer. In another situation, termination of the contract is not allowed, unless, of course, the enterprise is liquidated.

Not allowed

As Article 81 of the Labor Code states, terminating 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. Here, too, there is an exception to the rules, since it is possible to terminate an official relationship with an employee even when he is on sick leave or on a well-deserved vacation, but only if the organization is liquidated or the individual entrepreneur ceases its activities.

At the employee's initiative

Is it possible to fire an employee who is on sick leave? This question interests many organizational leaders. 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 the citizen on the day specified in the document. Because the initiative here comes not from the boss, but from the employee himself. That is why the manager 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 what he is owed. cash on the last day of performance of work duties, if he is at home?

In this case, you just need to prepare an order to end the official relationship and transfer it to a card or bank account. In this case, the work record book can be sent to the dismissed employee by mail with acknowledgment of delivery. At the same time, there will be no violations of the law in the actions of the manager. Especially if the citizen has not withdrawn his application.

Sick leave payment

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

Therefore, when enterprise managers ask themselves whether it is possible to fire an employee who is on sick leave, they should not forget that this is permissible only when the citizen himself wants to terminate his official relationship with his boss or both parties come to this decision based on mutual agreement. In addition, what is provided by the 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 period of time, but also for a certain period of time. In this case, the boss is guided only by Article 59 of the Labor Code. Also, during the validity of this agreement, HR specialists are often interested in the question of whether it is possible to dismiss an employee who is on sick leave. fixed-term contract. This can only be done if its validity period has expired. In another situation, such dismissal would be illegal. Because a citizen who temporarily carries out his official activities is the same employee as a person who interacts with the organization on a permanent basis.

Long-term disability

In practice, situations often occur when employers want to fire their subordinates only because the latter turned out to be not as healthy as they were at the beginning professional activities. In this case, the employee’s long-term incapacity for work will not be grounds for terminating an official relationship with him, but only if this is supported by an official sick leave certificate. If such a document is missing, then the manager has the right to dismiss the person for absenteeism under Article 81 of the Labor Code. In addition, 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 fire an employee who has been on sick leave for more than 4 months. This is only possible if the citizen himself wishes to terminate his official relationship with the organization, or by agreement of the two parties. As Article 81 of the Labor Code states, termination of an official relationship with a person is prohibited if he is on sick leave, which is supported by official document. The exception in this case is dismissal at the initiative of the employer at the time or completion of the activity individual entrepreneur.

Employer violations

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

Liquidation

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

If a subordinate was dismissed before the organization ceased its activities and suffered an illness within thirty days after that, he has the right to receive payment for a certificate of incapacity for work, which is made through the social insurance fund.

By agreement

During a citizen’s incapacity to work, a contract with him can be terminated only by the mutual desire of the two parties or on the initiative of the citizen himself.

Nevertheless, in practice various controversial situations very 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, this is legally permitted. In addition, the initiative to terminate the employment contract by mutual agreement can come from both the employee who is on sick leave and his manager.

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

More than six months

In practice, there are often situations when employees are sufficiently long time are on sick leave due to the fact that due to their health conditions they cannot begin to perform job responsibilities. In this case, the manager does not have the right to stop labor relations with a citizen only on this basis. It will be gross violation law. Nevertheless, many HR specialists are interested in the question of whether it is possible to fire an employee who has been on sick leave for more than 6 months. So, Art. 81 of the Labor Code states that termination of official 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 good reason failure to fulfill official duties, which is supported by an official document. Therefore, if an employer dismisses an employee only because he has been on sick leave for more than 6 months, then this will be a reason to go to court.

Dismissal during sick leave at your own request is a fairly common situation. But many do not know how such a certificate of incapacity for work will be paid, what is the correct date to terminate the agreement, and how to document it. The answers to all questions are in our article.

Illness is not an obstacle to terminating a contract

The employee must notify his superiors of his intention to terminate the employment agreement at least 2 weeks in advance. During this period, often called work-off, many things can happen, including the employee getting sick or injured. How, in this case, to formalize dismissal on sick leave at your own request?

There is no need to invent anything special. There is a written statement from the employee. It indicates a specific date for termination of the contract; it cannot be changed. Therefore, if the application is not withdrawn, dismissal must be made on the day that the employee previously asked for and which was agreed upon with management. If the date is changed, it will turn out that the employee is being separated at the initiative of the employer, and this is prohibited during the period of incapacity for work.

Sick leave and detention

For those who are concerned about the question of whether sick leave is considered work upon dismissal, we explain: if within 14 days before the termination of the contract the employee falls ill, after the end of the period of temporary incapacity for work he will not need to work additionally. The employee will be fired on the day he asked for in the application, regardless of whether he worked before last day or was sick. To confirm the reason for absence from work, the employee must bring a certificate of incapacity for work after it is closed.

How to issue documents to an absent employee

One more point regarding the procedure for terminating the contract. According to the law (and voluntary dismissal during sick leave does not create any special requirements for the procedure), on the last working day a person is given documents related to his labor activity, including work book. If an employee is sick and cannot come to pick up the papers, he should be sent a notice with an offer to send them by mail. If the employee agrees, the package of documents is sent by registered mail, preferably with an inventory. Be sure to keep the receipt and file it in the ex-employee’s personal file. In case of refusal of postal transfers, the employer is obliged to store all documents of the former subordinate. In the future, he will need to apply in writing for the issuance of the required documents. The employer must issue them within 3 days from the date of application.

Can I count on disability benefits after dismissal?

Some are not sure whether sick leave is paid after dismissal. But all doubts in this regard are dispelled by the regulatory framework, namely Art. 5 of the Federal Law of December 29, 2006 No. 255-FZ. It says that in cases where a dismissed employee brought sick leave, benefits are paid provided that the illness or injury occurred within 30 days from the date of cancellation of the contract.

Please note that the rule applies regardless of the duration of the period of incapacity and the reasons for termination of the employment agreement. Therefore, payment for sick leave after dismissal by agreement of the parties will also be received after the employee brings a certificate of incapacity for work and the employer calculates the amount of the benefit.

How is sick leave calculated and paid after voluntary dismissal?

In order for the former employer to calculate and pay for sick days, a temporary disability certificate must be provided to him no later than six months from the date of closure of this document. In addition to the sheet, the resigned employee needs to bring a work book and a passport to confirm his identity and the absence of a new place of work ( necessary condition to receive payment for sick days in this situation).

The calculation must be made by the former employer within 10 days from the moment the documents are provided to him, and payment must be made on the next payday established by the enterprise.

The amount of payment for sick leave for a resigned employee does not depend on the length of service and is 60% of his average earnings.

Special cases

In the case of opening sick leave with subsequent dismissal, regardless of the period for which the certificate of incapacity for work is issued, the amount of payment is calculated based on the employee’s length of service. For example, employee A., with 9 years of work experience, wrote an application to terminate the employment contract at his own request 14 days before the date of dismissal, and at that time took out a certificate of incapacity for work, which he closed after the date of dismissal. The employer is obliged to pay him for sick days in the amount of 100% of average earnings.

What to do if an employee gets sick while on vacation followed by dismissal

There are two possible situations here:

The employee opens a certificate of temporary incapacity for work until the last day of vacation - before the date of termination of the contract. In this case, the employer must pay sick leave in the same manner as for all employees - for all sick days in an amount depending on length of service employee.
The employee opens sick leave within 30 days after the end of the vacation. In this case, the employer must also pay it, but in the amount of 60% of average earnings.

Do I need to pay sick leave for care?

Unfortunately, this situation has not yet found a consensus among experts. Judicial practice on this issue also varies. Clause 2 art. 5 of Law No. 255-FZ allows different interpretation. But most experts still believe that the employer is not obliged to pay sick leave to a retired employee to care for family members.

How is sick leave paid for pregnancy and childbirth in case of dismissal?

In contrast to the situation discussed above, a resigned employee who is on maternity leave can count on payment for one of the following reasons for dismissal:

The employee’s husband has been transferred from his place of work (service) to another region, and the employee moves with him.
The employee's health condition does not allow her to live in this region, and she is forced to change her region of residence.
An employee had a need to constantly look after sick relatives or group I disabled people.

Each of these reasons requires documentary evidence from the resigning employee.

Almost every organization has employees who are often on sick leave for long periods of time. Not every employer will take kindly to the fact that his employee is sick, is on sick leave for quite a long time and does not know when he will begin his work duties. As a result, there are conflict situations between employee and employer.

If we talk about how long you can be on sick leave, it should be noted that the periods of temporary disability are determined in accordance with the Procedure for issuing certificates of incapacity for work, approved by order of the Ministry of Health and Social Development of Russia dated June 29, 2011 No. 624n “On approval of the Procedure for issuing certificates of incapacity for work.” In accordance with clause 11 of the Procedure for outpatient treatment of diseases (injuries) associated with temporary loss of working capacity of citizens, a medical worker single-handedly issues a certificate of incapacity for work at a time for a period of up to 10 calendar days (until the next examination of the citizen by a medical worker) and single-handedly extends it for a period of up to 30 calendar days. For periods of temporary incapacity for work exceeding 30 calendar days, a certificate of incapacity for work is issued by decision of the medical commission. According to paragraph 2 of paragraph 13, by decision of the medical commission, with a favorable clinical and work prognosis, a certificate of incapacity for work can be issued in the prescribed manner before the day of restoration of working capacity, but for a period of no more than 10 months, and in some cases (injuries, conditions after reconstructive operations, tuberculosis) - for a period of no more than 12 months with a frequency of extension by decision of the medical commission at least every 30 calendar days. There are no restrictions on the number of certificates of incapacity for work issued to an employee during a year or another period of time.

By conducting a medical and social examination (MSE), a citizen can be recognized as disabled (clause 2 of the Rules for recognizing a person as disabled, approved by Decree of the Government of the Russian Federation of February 20, 2006 N 95; hereinafter referred to as the Rules). Citizens who have persistent limitations in their ability to live and work and who are in need of social protection according to the conclusion of the medical commission when:

Obvious unfavorable clinical and labor prognosis, regardless of the duration of temporary disability, but no later than 4 months from the date of its start;

Favorable clinical and work prognosis for temporary disability lasting over 10 months (in some cases: conditions after injuries and reconstructive operations, in the treatment of tuberculosis - over 12 months);

Need to change the program vocational rehabilitation working disabled people in the event of a worsening clinical and work prognosis, regardless of the disability group and the duration of temporary disability (clause 28 of the Procedure).

Thus, the maximum duration of the period of sick leave is not established by law. A sick leave certificate is issued for the entire period of treatment until recovery or until disability is established.

The question arises: is it possible to fire an employee who has been on sick leave for an excessively long time? Previously, the Labor Code of the Russian Federation provided for dismissal if an employee is on sick leave for more than four months in a row (Clause 5, Article 33 of the Labor Code of the Russian Federation). Currently, long-term illness is not mentioned among the grounds for termination of an employment contract (Article 77 of the Labor Code of the Russian Federation). Accordingly, an employee who is often or long sick cannot be fired due to this circumstance at the initiative of the employer. Moreover, in Art. 81 of the Labor Code of the Russian Federation states that the dismissal of an employee at the initiative of the employer is not allowed (except in the case of liquidation of the organization or termination of activities by an individual entrepreneur) during the period of his temporary disability and while on vacation. Thus, the Labor Code of the Russian Federation guarantees the employee the preservation of his job for a period of long-term temporary disability.

However, the employer may offer the employee to resign of his own free will (Article 80 of the Labor Code of the Russian Federation) Let’s consider ruling of the St. Petersburg City Court dated September 20, 2011 in case No. 33-14267/2011.

The employee went to court to challenge his voluntary dismissal, considering it illegal, since he did not write a letter of resignation and was on sick leave at the time of his dismissal, which was confirmed by a certificate from the district clinic. The court heard testimony from a witness that the head of the personnel department asked the plaintiff to write a letter of resignation of his own free will, but he refused. However, the court found no violations during the dismissal. He indicated that the witness's testimony does not affect the court's conclusions. The fact that the employee was on sick leave does not affect the legality of termination of the employment contract, since the initiator of the dismissal was the employee, not the employer.

Thus, we can conclude that it will be quite difficult for an employee to prove in court the fact that the dismissal of his own free will was carried out under the coercion of the employer.

The employer can also offer the employee dismissal by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation). With the consent of the employee, the employment contract is terminated at any time by agreement of the parties (Article 78 of the Labor Code of the Russian Federation). In this case, we can give an example of a dismissed employee successfully challenging his dismissal. Let's consider the appeal ruling of the Supreme Court of the Republic of Buryatia dated June 18, 2012 in case No. 33-156). The court carefully examined the agreement drawn up by the employee and the employer and came to the conclusion that there was no real will of the employee to terminate the employment relationship. The agreement contained the employer's obligation to rehire the employee in the future. In this connection, the court came to the conclusion that the dismissal was illegal under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation (by agreement of the parties).

Established part 6 of Art. 81 of the Labor Code of the Russian Federation, the ban on dismissal during a period of temporary incapacity for work of an employee applies only to cases of termination of an employment contract at the initiative of the employer. Dismissal due to the expiration of the employment contract does not apply to such cases. The Sverdlovsk Regional Court came to this conclusion. The employee was dismissed due to the expiration of the employment contract on the basis of clause 2, part 1, art. 77 Labor Code of the Russian Federation. At the time of dismissal, she was temporarily disabled. The plaintiff demanded that the dismissal order be declared illegal and reinstated at work. But the court concluded that the dismissal was lawful. The worker's demands were denied. The decision of the court of first instance was upheld (appeal ruling of the Sverdlovsk Regional Court dated December 24, 2013 No. 33-15642/2013).

As for employees who are sick for a long time and are on a probationary period. In this case, it is necessary to take into account that the employment contract can be terminated on the grounds provided for in Part 1 of Art. 71 of the Labor Code of the Russian Federation during the period established for testing, if the employment contract contains a condition on testing, because according to Art. 70 of the Labor Code of the Russian Federation, the purpose of the hiring test is to check the employee’s suitability for the work assigned to him.

Sick leave is not an obstacle to terminating an employment contract due to circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation), for example, when depriving a special right for a period of more than 2 months, if this entails the impossibility of working. For example, a driver of an organization who has been temporarily deprived of his license for violating the Rules traffic, was fired during a period of incapacity ( Definition St. Petersburg City Court dated July 26, 2011 N 33-11291/2011).

It should be noted that the Labor Code of the Russian Federation gives the employer the right, during the period of temporary incapacity of an employee, to accept a new one in his place under a fixed-term employment contract until the previous one returns to work (Part 1 of Article 59 of the Labor Code of the Russian Federation) or to entrust the performance of the duties of an absent employee to another with his written consent in during the working hours established for him (Article 60.2 of the Labor Code of the Russian Federation), or to temporarily transfer another employee to the place of an employee who has been on sick leave for a long time (Part 1 of Article 72.2 of the Labor Code of the Russian Federation). In the latter case, the transfer is carried out only by agreement of the employer and the transferred employee, concluded in writing.

In some cases, an employee’s illness gives the employer the right to terminate the employment relationship with him, but this requires an appropriate medical report, and not a certificate of incapacity for work. According to Art. 73 of the Labor Code of the Russian Federation of an employee who needs to be transferred to another job in accordance with a medical certificate issued in the manner established federal laws and other regulatory legal acts Russian Federation, with his written consent, the employer is obliged to transfer him to another job available to the employer that is not contraindicated for the employee for health reasons.

If an employee in need, in accordance with a medical certificate, temporary transfer to another job for a period of up to four months, refuses to transfer or the employer does not have the corresponding job, then the employer is obliged to suspend the employee from work for the entire period specified in the medical report while maintaining his place of work (position). During the period of suspension from work wages the employee is not accrued, except in cases provided for by this Code and other federal laws, collective agreement, agreements, employment contracts.

If, in accordance with a medical report, an employee needs a temporary transfer to another job for a period of more than four months or a permanent transfer, then if he refuses the transfer or the employer does not have the corresponding job, the employment contract is terminated in accordance with paragraph 8 of part one of Article 77 of this Code .

Supreme Court of the Russian Federation in definition dated November 25, 2011 No. 19-B11-19 calls such a case of an employee’s refusal to transfer to another job, necessary for him in accordance with a medical report, a circumstance of an objective nature, that is, independent of the will of the parties to the employment contract and, in particular, the will of the employer.

Really, Art. 81 The Labor Code of the Russian Federation does not contain as a basis for dismissal an employee’s refusal to be transferred to another job in accordance with a medical report. However, if there are medical indications, the employer is obliged to dismiss the employee so as not to risk his health when performing his job duties and thereby not cause even greater harm to his health.

In judicial practice, there are examples when an employee tries to appeal such a decision of the employer in judicial procedure, there is even successful examples appeals.

For example, the Sovetsky District Court of Vladivostok recognized illegal dismissal By clause 8 Part 1 Art. 77 of the Labor Code of the Russian Federation, since the employee was temporarily disabled at the time of dismissal. (Case No. 2-1537/11 dated 04/21/2011).

But it would still be more correct to adhere to the position of the Supreme Court of the Russian Federation on this issue.

If during a medical and social examination the employee is found to be completely disabled, then the employment contract with him is terminated on the basis of clause 5 of Part 1 of Art. 83 Labor Code of the Russian Federation.

There are known cases when a medical report is issued to an employee in violation of Order of the Ministry of Health of Russia dated March 14, 1996 N 90 “On the procedure for conducting preliminary and periodic medical examinations and medical regulations for admission to the profession.”

The Sovetsky District Court of Krasnoyarsk, by its decision dated February 27, 2008, reinstated the plaintiff, who was dismissed by the employer in accordance with a medical report due to the employer’s lack of relevant work, in her position. The court came to the conclusion that the medical report was taken in violation of Order of the Ministry of Health of Russia dated March 14, 1996 N 90 “On the procedure for conducting preliminary and periodic medical examinations and medical regulations for admission to the profession.”

The violation was that, in accordance with the requirements established by the said Order, the number of medical commissions must be at least seven doctors of the clinic according to their profile. The commission that issued the medical report to the plaintiff included only three doctors, and one of them was not a member of the commission. The doctor whose profile includes making diagnoses of diseases similar to the plaintiff’s was not present at the commission either. In addition, when making the conclusion, the necessary medical documents of the plaintiff were not examined. The conclusion of the medical commission was signed only by its chairman, which also contradicts the requirements of the Order. Such a conclusion cannot give rise to any legal consequences.

In practice, there are cases when the employer was aware of the employee’s disability even when he was hired.

Considering the dismissal under clause 5, part 1, art. 83 of the Labor Code of the Russian Federation (in connection with the recognition of the employee as completely disabled in accordance with a medical report), the plaintiff filed a claim in court for reinstatement at work. In support of the stated requirements, the plaintiff indicated that the employer was aware of his disability even when he was hired (the plaintiff provided the employer with a certificate from a medical and social examination recognizing him as completely disabled). This fact did not prevent the employer from hiring the plaintiff. The plaintiff carried out his official duties for 10 years in special conditions with a reduced working day, and the plaintiff’s disability, in his opinion, does not prevent him from carrying out his official duties, which was confirmed in court. The court found that the basis for the plaintiff’s dismissal was precisely the ITU certificate that he presented to the employer when he was hired.

The court refused to satisfy the plaintiff's claims, but, taking into account the lack of concealment of the fact of total disability by the employee, the court changed the wording of the dismissal to “the employment contract was terminated due to a violation of the established rules for concluding an employment contract, which precludes continuation of work, clause 11, part 1 Art. 77 Labor Code of the Russian Federation." In accordance with clause 11, part 1, art. 77, part 3 art. 84 of the Labor Code of the Russian Federation, the court recovered from the employer in favor of the employee severance pay(decision of the Kamensky District Court Rostov region dated 09/28/2012; appeal ruling of the Rostov Regional Court dated November 29, 2012 in case No. 33-13961).

Thus, having studied the legislation of the Russian Federation and judicial practice on the issue outlined in the topic of this article, we can conclude that, in accordance with Part 6 of Art. 81 of the Labor Code of the Russian Federation, the dismissal of an employee at the initiative of the employer during the period of his temporary incapacity for work is not allowed. Clause 5 of Part 1 of Article 83 of the Labor Code of the Russian Federation can only be applied if there is a medical report, according to which the employee is recognized as completely incapacitated, and not on the basis of sick leave, including long-term leave. It should also be noted that, on the one hand, the Labor Code of the Russian Federation guarantees the employee the preservation of his job during a period of long-term temporary disability, but there are enough mechanisms that allow the employer to get rid of a long-term ill employee.