Procedure for dismissal due to health reasons. Can an employee be paid off without his consent?

Is it possible to quit your job for medical reasons?

To begin with, it is necessary to indicate that dismissal for health reasons means termination of an employment contract due to the fact that the employee cannot continue to perform his functional duties for medical reasons.

If such a problem arises, the employee can do one of the following:

• immediately write a letter of resignation of your own free will (Article 80 of the Labor Code of the Russian Federation) - labor legislation provides for the employee’s right to dismiss from his position on his own initiative;
• ask the employer to provide another easier job - if the proposed options are not satisfactory and the employee refuses them, then the employment contract will be terminated on the basis specified in paragraph. 8 hours 1 tbsp. 77 Labor Code of the Russian Federation.

In addition, an employee can also be dismissed regardless of his will if he is officially declared incapacitated. This is discussed in more detail below in the text.

No voluntary work

In accordance with Part 1 of Art. 80 of the Labor Code of the Russian Federation , when leaving a position of his own free will, each employee is obliged to notify his management about this in advance . According to the established procedure, this must be done two weeks before the expected date of dismissal specified in the application. Thus, the resigning person is required to work for another 14 days before leaving the organization. But this rule does not always apply.

According to Part 3 of Art. 80 of the Labor Code of the Russian Federation, in cases where an employee wants to leave the organization due to the fact that he can no longer fulfill his functional duties, the employer must terminate the employment contract within the period specified in the application.

Poor health can also be attributed to a situation in which the employee is unable to continue working. In this case, you can resign of your own free will without working for two weeks.

The employee is not obliged to specify the reason for leaving at his own request . However, in this case, your application should clarify exactly what circumstances prompted such a decision. This is necessary in order to receive an exemption from the two-week work period.

With severance pay

Not in every case an employee can count on severance pay when leaving for health reasons. This mainly depends on the chosen method of leaving office.

In order to receive such a payment, the employee must refuse the other most suitable job (according to a medical report) offered by the employer. In this case, the employment contract will be terminated, and the employee, in addition to standard payments, will receive severance pay in accordance with Part 3 of Art. 178 Labor Code of the Russian Federation.

The amount of such payment is equal to two weeks’ average salary of the resigning person.

It is also worth emphasizing that a collective or employment agreement may provide for additional compensation when leaving work due to medical contraindications. In addition, the mentioned documents may specify an increased amount of severance pay (Part 4 of Article 178 of the Labor Code of the Russian Federation).

Labor disputes and ways to resolve them

There are many ways to resolve labor disputes. This could be as simple as asking a lawyer and then trying to resolve the conflict yourself. By the way, you can do this via the Internet and get a free consultation from a lawyer online. The last resort is going to court.

Disputes regarding violations of labor laws in relation to people with special physical disabilities can be of a different nature. Among the many controversial situations, there may be, for example, the following.

A disabled person of the third group worked at the enterprise for about 10 years. During this time, she has a conflict over management’s refusal to grant her leave in May. It turns out that her colleague has allergies and takes a vacation in this month every year, and she has never been refused. The applicant is understanding, therefore she does not demand a planned vacation in May, but only an additional one at her own expense, due to her disability (60 days). Are the actions of the boss lawful when he refuses this leave to a disabled person at the specified time?

The answer is simple: it is not legal. In accordance with Part 2 of Article 128 of the Labor Code of the Russian Federation, a disabled person has the right to additional leave at the time he wishes and for up to 60 days.

Issues related to the work activities of people with special physical abilities and needs are very important. The employer must be well versed in the basic provisions of Labor legislation in order to prevent conflict situations that could lead to negative consequences not only for the manager, but also for the enterprise as a whole. After all, the unspoken rule that ignorance of the laws does not exempt from responsibility for violating them remains relevant today.

Can an employee be fired for medical reasons without his consent?

The list of reasons, in the presence of which the management of an organization can initiate the procedure for dismissing an employee, is prescribed in Art. 81 Labor Code of the Russian Federation. Among the proposed options, there is no such reason as the unsatisfactory state of health of the employee. However, despite this, dismissal is still possible.

Thus, if there are health problems with an employee, the employment contract may be terminated on one of the following grounds:

1. Clause 8, Part 1, Art. 77 Labor Code of the Russian Federation . According to the law, if one of the staff needs easier work (according to an official medical report), the employer is obliged to transfer him to another, more suitable position. Moreover, if the health problems are temporary (up to 4 months) , and the employee refuses to take the places offered to him, then the management of the enterprise must send him home while maintaining his job.
   However, if the transfer to another job must be made for a period of more than 4 months or on a permanent basis, then if the proposed options are rejected, the employer has every right to dismiss the employee.

   In addition, dismissal can also be made if there are no suitable vacancies in the organization.

2. Clause 10, Part 1, Art. 77 Labor Code of the Russian Federation . In this case, we are talking about circumstances beyond the control of the parties to the employment contract. It is possible to dismiss an employee on this basis only if he is officially recognized as completely disabled (Clause 5, Part 1, Article 83 of the Labor Code of the Russian Federation). In such a situation, the wishes of the employee or employer are not taken into account. A person who has serious health problems and is unable to continue to perform his job duties must, in any case, be dismissed.

How to calculate the size - step by step instructions

To determine the amount of two-week severance pay paid upon dismissal, you need to follow the following algorithm:

• Step 1. Determine the amount of average daily earnings by dividing the amount of his income received during the calculation interval (year) from a given employer by the number of working days actually worked in this interval.
• Step 2. Calculate the benefit amount by multiplying the average daily earnings by the number of working days in a two-week period.

The following requirements must be taken into account:

1. For the above calculations, only working days are taken. Thus, weekends (holidays) are excluded from this calculation, since they are not paid when this benefit is issued.
2. To calculate the average daily earnings, you need to take into account only labor payments (that is, wages - basic wages, bonuses, overtime). Accordingly, benefits, vacation pay, financial assistance and other compensation are not taken into account.
3. The amount of this benefit does not depend on the applied remuneration system.
4. If the day of dismissal is the last day of a particular month, this month is taken into account when calculating average daily earnings.
5. The amount of this severance pay is not legally subject to personal income tax (13%) - details here.

Calculation example

The procedure for calculating the two-week severance pay provided upon dismissal can be considered using specific examples reflecting typical situations.

Example 1

Initial data:

• The annual earnings of a working citizen received from this employer amounted to 220,000 rubles.
• The number of working days per accounting year is 220.
• The day of dismissal is November 30.

Calculation:

Severance pay must be paid 2 weeks from December 1 to December 14 inclusive.

Only working days of a given two-week period are taken into account - for the calculation you should take 10 working days (that is, each week - 5 working days).

The following calculations are performed:

1. Average daily earnings = 1000 (220,000 / 220 working days).
2. Allowance = 10,000 (1000 * 10 working days). The retired employee will receive this amount in full, since it is not subject to income tax.

Example 2

Initial data:

• The dismissal date is December 31, 2022.
• The billing period is from January 1 to December 31, 2022.
• The average daily earnings calculated for the accounting year amounted to 1,500 rubles.

Calculation:

The employer must pay the resigning person severance pay based on a two-week interval that begins on January 1 and ends on January 14, 2022:

1. Total number of working days in a two-week period = 4 (for a five-day working week).
2. Allowance = 6000 (1500 * 4 days).

Obviously, this type of severance pay is calculated only for those working days that the departing employee would have had to work (if he had not resigned) during the two-week interval counted after the day of departure.

Procedure

The following is a step-by-step procedure on how to terminate an employee for medical reasons. When dismissing an employee due to unsatisfactory health, it is very important to take into account all the requirements and rules prescribed by labor legislation. Otherwise, the employer may face unpleasant consequences in the form of a fine, litigation, etc.

In general, the dismissal procedure on this basis will include the following main steps :

1. First of all, an employee who has health problems must provide the employer with an official medical report issued in accordance with the procedure prescribed in the order of the Ministry of Health and Social Development of the Russian Federation dated May 2, 2012 No. 441n.
2. After receiving a medical report, the management of the organization is obliged to offer the employee in writing all available vacant positions that he can occupy in accordance with his state of health.
3. If the employee is not satisfied with the proposed options, then he must write a written refusal, after which the procedure for terminating the employment contract can begin.
4. The head of the organization must issue an order to dismiss the relevant personnel and familiarize him with the text of the document for signature.
5. Next, the resigning person must be paid all amounts due by law (this point is discussed in more detail below in the text).
6. The final stage will be making an entry in the work book and issuing a complete package of documents to the employee leaving his position for health reasons. All this must be done on the last working day.

Employee Notification

As noted above, an important condition is to necessarily offer the employee other places that he could occupy without harming his health.

The employer must offer the employee a job suitable for his health in writing. The current legislation does not provide for the type of such document. As a rule, it is prepared in any form.

The content of the written notice to the employee must include the following main points:

1. “Head” of the document - information about the organization is written here (name, address, etc.), as well as personal information of the employee himself (full name, position, department in which he works).
2. Document registration data: date of registration in the outgoing correspondence journal and assigned number.
3. Title of the document – ​​the following wording is usually used: “offer to transfer to another job.”
4. Notifying the employee about the possibility of transferring him to another position in which he can continue working without harm to his health (with reference to the relevant norm of the Labor Code of the Russian Federation).
5. A list of vacant positions, one of which can be filled by an employee with health problems.
6. At the end of the document, the full name and signature of the head of the organization, as well as the employee himself, are placed (as a sign that he has read the text of the notification).

How to write an application?

If an employee with health problems does not want to move to the vacant positions offered, he must notify management about this in writing.

For this purpose, a written application is prepared, which must reflect the following information:

1. Introductory part - placed in the upper right corner of the A4 sheet. Here the full name of the manager and the name of the organization are written, as well as the full name, position and department in which the person who wishes to resign works.
2. Main part - in this section, the applicant must refer to the previously received notification (indicate its number and date) and report his refusal to transfer to the proposed jobs. At the same time, a note is also made here that the dismissed person is aware of the consequences provided for in Art. 77 Labor Code of the Russian Federation.
3. At the end of the application, the date of its preparation and signature are indicated.

Order

The next step is to prepare an order to dismiss the employee for health reasons.

The employer has the right to take the officially approved form of such a document (No. T-8) or use its own order template. Private companies are given the right to choose in this matter.

In general, the order to terminate an employment contract due to health problems of the employee contains the following information:

1. Full name, position and department in which the outgoing employee worked;
2. reference to the norm of law that is the basis for dismissal (in this case it will be clause 8, part 1, article 77 of the Labor Code of the Russian Federation);
3. a document serving as the basis for termination of the employment relationship (an employee’s written refusal to move to the proposed position or a medical report);
4. position and signature of the head of the enterprise, including its transcript;
5. a note from the employee himself that he has read the text of the order.

Legislative regulation

The legal framework of the Russian Federation provides for different types of termination of labor cooperation due to the poor health of the employee:

What compensation is due?

Upon dismissal for health reasons, the following main types of payments must be made :

• salary for the period of time that he managed to work before dismissal,
• compensation for unused vacation (if there are days that the employee did not have time to take off);
• severance pay in the amount of two weeks' average earnings in accordance with Art. 178 of the Labor Code of the Russian Federation (in case of refusal to transfer to another vacant position).

According to Part 4 of Art. 84.1 of the Labor Code of the Russian Federation, on the day of final departure from work, the employer must pay the employee in full, issue him a work book, as well as other documents provided for by law.

Dismissal from the RF Armed Forces and the Army due to health reasons

By virtue of clause 3 of Art. 51 of the Law “On Military Duty...” dated March 28, 1998 No. 53-FZ, military personnel who serve under a contract may retire early for health reasons. The conclusion must be given by a military medical commission. The list of diseases is quite extensive - from tuberculosis to diseases of the genitourinary system. The list is contained in the Regulations approved by Decree of the Government of the Russian Federation dated July 4, 2013 No. 565.

If an illness is established, a serviceman has grounds for early dismissal from the army for health reasons and receiving all the required guarantees and benefits.