What to do if the Social Insurance Fund delays sick leave payments

The procedure for paying sick leave is regulated in detail by law. But sometimes employers have difficulties with calculations.

For example, how is sick leave paid during vacation, after dismissal, during downtime, or sick leave for a part-time employee? What to do if an employee brings two sick days? You will find answers to these questions in the article.

A certificate of incapacity for work is a document certifying the temporary disability of an employee and is the basis for the assignment of temporary disability benefits. Its form was approved by Order of the Ministry of Health and Social Development of the Russian Federation dated April 26, 2011 No. 347n.

The procedure for issuing certificates of incapacity for work was approved by Order of the Ministry of Health and Social Development of the Russian Federation dated June 29, 2011 No. 624n.

Who issues it and how?

A certificate of incapacity for work is issued by:

• attending physicians of medical organizations;
• paramedics and dentists of medical organizations;
• attending physicians at clinics of research institutions (institutes), including research clinics
• institutions (institutes) of prosthetics or prosthetics.

Sick leave is issued in the following cases:

• diseases, in particular professional ones, injuries, including those received as a result of an industrial accident, poisoning;
• referrals for medical and social examination;
• the need to care for a sick family member;
• quarantine of an employee, his child under 7 years of age attending a preschool educational organization, or another family member recognized as legally incompetent in accordance with the established procedure;
• implementation of prosthetics for medical reasons in a hospital specialized institution;
• follow-up treatment in sanatorium-resort organizations located on the territory of the Russian Federation, immediately after the provision of medical care in a hospital setting;
• if the illness or injury occurred within 30 calendar days from the date of termination of the employment contract (service contract);
• when the illness or injury occurred during the period from the date of conclusion of the employment contract until the day of its cancellation;
• pregnancy and childbirth.

The employer pays a temporarily disabled employee disability benefits in accordance with federal laws, which also establish the amount of these benefits and the conditions for their payment (Article 183 of the Labor Code of the Russian Federation).

In accordance with Art. 12 of the Federal Law of December 29, 2006 No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity”, benefits for temporary disability are assigned if the application is made no later than 6 months after its onset.

The employer assigns temporary disability benefits within 10 calendar days from the date of application and pays them on the day closest to the date established for payment of earnings. The amount of the benefit depends on:

• on the duration of the insurance period;
• from the amount of salary for the last 2 years preceding the year in which temporary disability occurred;
• from the basis for payment of benefits;
• on the duration of temporary disability.

The benefit amount is set as a percentage of the employee’s average earnings. In case of loss of ability to work due to illness or injury, during quarantine, prosthetics and after-care in sanatorium-resort organizations immediately after medical care in a hospital, the values ​​are as follows:

If, for periods of incapacity for work from April 1 to December 31, 2020 (inclusive), the amount of the benefit determined according to Law No. 255-FZ per full calendar month is less than the minimum wage, the benefit is calculated based on the minimum wage.

If the insured person is working part-time at the time of the insured event, the amount of temporary disability benefits calculated on the basis of the minimum wage is determined in proportion to the length of the insured person's working hours. This provides for taking into account regional coefficients applied to wages (Article 1 of Federal Law No. 104-FZ dated April 1, 2020 “On the specifics of calculating temporary disability benefits and making monthly payments in connection with the birth (adoption) of the first or second child”) .

Is it possible not to submit an electronic sick leave?

Home → Articles → Is it possible not to submit an electronic sick leave?

The employee received electronic sick leave, but was at work most of the time; the time sheet indicated that the employee worked full time. Can an employee not submit electronic sick leave? Is this a violation on either side?

According to Art. 183 of the Labor Code of the Russian Federation, in case of temporary disability, the employer pays the employee temporary disability benefits in accordance with federal laws. The conditions for its payment are established by Federal Law No. 255-FZ of December 29, 2006 “On compulsory social insurance in case of temporary disability and in connection with maternity” (hereinafter referred to as Law No. 255-FZ).

In accordance with Part 8 of Art. 6 of Law No. 255-FZ, temporary disability benefits are paid to the insured person in all cases for calendar days falling within the corresponding period, with the exception of calendar days falling within the periods specified in Part 1 of Art. 9 of Law No. 255-FZ. Consequently, the fact that an employee experiences temporary disability gives rise to the employer’s obligation to pay the appropriate benefit.

The basis for an employer to assign temporary disability benefits to an employee is a certificate of incapacity for work issued by a medical organization in the form and manner (hereinafter referred to as the Procedure), approved accordingly by orders of the Ministry of Health and Social Development of the Russian Federation dated April 26, 2011 No. 347n and dated June 29, 2011 No. 624n (Part. 1, 5, Article 13 of Law No. 255-FZ). At the same time, according to Part 3.2 of Art. 59 of the Federal Law of November 21, 2011 No. 323-FZ “On the fundamentals of protecting the health of citizens in the Russian Federation”, a certificate of incapacity for work can be issued both in the form of a paper document, and (with the written consent of the patient) in the form of an electronic document signed using enhanced qualified electronic signature by a medical worker and medical organization. This is possible if the medical organization and the insurer are participants in the information exchange system for the purpose of generating a certificate of incapacity for work in the form of an electronic document.

Letter No. 02-09-11/22-05-13462 of the Federal Social Insurance Fund of the Russian Federation dated 08/11/2017 notes that the electronic certificate of incapacity for work (hereinafter referred to as ESL) from 07/01/2017 has equal legal force with the certificate of incapacity on paper.

To date, the procedure for interaction between a medical organization, the insured (employee), the insurer (employer) and the policyholder (FSS) has not yet been approved. The Russian Ministry of Labor has prepared a draft resolution of the Government of the Russian Federation “On approval of the Procedure for information interaction between insurers, policyholders, medical organizations and federal state institutions of medical and social expertise for the exchange of information for the purpose of generating a certificate of incapacity for work in the form of an electronic document.” A draft resolution of the Government of the Russian Federation “On approval of the Rules for information interaction between insurers, policyholders, medical organizations and federal state institutions of medical and social expertise on the exchange of information for the purpose of generating a certificate of incapacity for work in the form of an electronic document” has also been developed.

The official website of the Social Insurance Fund of the Russian Federation contains instructions for the insured person, medical organization, and policyholder on the formation of an ELN.

1. The employee, having contacted a medical institution, reports his SNILS and agrees to the formation of an electronic sick leave.

2. The medical organization opens an electronic medical record and assigns it an individual number.

3. After being discharged, the employee provides the ELN number to the employer.

4. The employer, using the selected method of information interaction, requests from the Social Insurance Fund information on the employee by his SNILS number and ELN number, etc.

Thus, a certificate of incapacity for work in any form is an appropriate document to confirm the fact of temporary disability, as well as the right of the insured person to receive temporary disability benefits. However, in the case under consideration, the employee continued to work and did not provide the employer with information about the personal identification number issued by the medical organization where he applied for medical care. Such actions indicate that the employee did not voluntarily exercise the right to be released from work due to disability.

If an employee voluntarily starts work during a period when, according to the doctor, he is incapacitated, the employer has no reason to not allow him to work, since such a reason as temporary disability of the employee is not listed among the grounds for removal from work (Article 76 of the Labor Code of the Russian Federation ), with the exception of suspension from work in accordance with a medical report, according to which the employee is contraindicated from performing work stipulated by the employment contract (which does not apply to the case under consideration).

Compliance by an employee with a regime prescribed by a doctor during his temporary disability is not the employee’s labor duty. Labor legislation does not establish methods of control on the part of the employer over compliance with the regime during temporary disability, nor the right to control the employee’s compliance with such a regime. In this case, the employer has the obligation to take into account the time worked by the employee (part four of Article 91 of the Labor Code of the Russian Federation). In addition, the employer is obliged to pay employees wages for the time they worked (Articles 56, 129, 132, 135 of the Labor Code of the Russian Federation).

Since the employee, on the days of release from work due to disability, performed his job duties and did not submit a certificate of incapacity to work to the employer, the employer legally took this time into account in the time sheet as worked and therefore must pay wages for the specified period. Subsequent communication of the ENL number to the employer, in our opinion, should not entail any legal consequences and will not require the employer to take further actions to accrue temporary disability benefits to the employee (see, for example, the appeal ruling of the Investigative Committee for civil cases of the Tver Regional Court from 04/08/2016 in case No. 33-854/2016). Temporary disability benefits are intended to compensate citizens for lost earnings due to the onset of temporary disability (clause 1, part 1, article 1.2, clause 1, part 2, article 1.3, clause 1, part 1, article 1.4 of Law No. 255-FZ ). Therefore, payment of benefits for the period during which earnings have not been lost is impossible and contrary to the law (see, for example, the appeal ruling of the Investigative Committee in civil cases of the Khabarovsk Regional Court dated March 30, 2016 in case No. 33-2279/2016).

Thus, in this case, there are no violations of the law on the part of the employee who did not inform the employer about the issued certificate of incapacity for work and who worked the working hours prescribed by his work schedule, and the employer who recorded the time worked by the employee.

Answer prepared by: Olga Zhguleva, expert of the Legal Consulting Service GARANT Response quality control: Victoria Komarova, reviewer of the Legal Consulting Service GARANT

Latest news of the digital economy on our Telegram channel

What to do if an employee takes sick leave after the end of the working day?

Since simultaneous payment of earnings and temporary disability benefits is not provided for by law, the employee must choose what payment he wants to receive for the first day of illness.

Moreover, according to the law, citizens who seek medical help after the end of working hours (shift), at their request, the date of release from work on the certificate of incapacity for work can be indicated from the next calendar day. If the employee has chosen the benefit, he will have to make appropriate changes to the working time sheet.

Since the first 3 days of temporary disability due to illness or injury must be paid at the employer’s expense (if the employee has worked the first day of disability and is paid a salary for that day), the period paid at the employer’s expense is shifted. That is, the second, third and fourth days of incapacity will be paid.

The employee brought sick leave after dismissal

If sick leave is opened on the day the employee is dismissed or before this date, pay temporary disability benefits as if the employee had not resigned. In such a situation, sick leave must be paid for in any case of incapacity for work (due to illness or injury of the employee, caring for a sick child or other relative, etc.).

At the same time, the amount of the benefit depends on the employee’s insurance experience ( Parts 1, 2, Article 5, Part 1, Article 7, Part 1, Article 13 of Law No. 255-FZ).

If the employee has already quit, sick leave is paid only in case of illness or injury that occurs within 30 calendar days from the date of termination of work under the employment contract.

The benefit amount is 60% of average earnings, which is calculated, as usual, for the 2 previous calendar years.

The basis for payment of benefits after dismissal is sick leave. The dismissed employee must submit it no later than 6 months from the date of restoration of working capacity or establishment of disability (Part 1 of Article 12 of Law No. 255-FZ).

The first 3 days of sick leave due to illness or injury of a dismissed employee are paid at the expense of the organization, the subsequent days - at the expense of the Social Insurance Fund (clause 1, part 2, article 3 of Law No. 255-FZ).

When filling out a certificate of incapacity for work, the code “47” is indicated in the “Calculation conditions” line of the sick leave certificate (clause 66 of the Procedure). The line “Insurance experience” indicates the number of full years and months of work on the date of dismissal from the organization, despite the fact that the amount of benefits in such a situation does not depend on the insurance experience and is 60% of average earnings.

Where is sick leave submitted?

Considering that the employer pays for the first three days of incapacity for work on sick leave, the document must be submitted to the organization. The person responsible for preparing documents regarding incapacity for work is the HR department inspector. He accepts the sick leave and issues it. Subsequently, this document is transferred to the accounting department for calculation and payment of compensation.

If an employee cannot submit a certificate of incapacity for work to the organization, he submits it to the Social Insurance Fund with a completed application and an indication of the current account to which the funds should be transferred.

Timely submission of a certificate of incapacity for work will allow the employee to receive compensation in a short time. The legislation provides reasons that allow you to issue sick leave with a delay in delivery and receive benefits. If an employee is not paid as required, he has the right to contact the labor inspectorate.

If sick leave is issued during downtime

According to the law, benefits are not assigned for the periods:

• releasing an employee from work with full or partial retention of salary or without payment in accordance with the legislation of the Russian Federation, with the exception of cases of loss of ability to work due to illness or injury during the period of annual paid leave;
• suspension from work in accordance with the legislation of the Russian Federation, if wages are not accrued for this period;
• detention or administrative arrest;
• conducting a forensic medical examination;
• downtime (except for cases established by Part 7 of Article 7 of Law No. 255-FZ).

If temporary disability occurred before the downtime period and continued during its period, benefits for the downtime period are paid in the same amount as wages are maintained during this time, but not more than the temporary disability benefit that the employee would receive according to the general rules. To calculate the amount of the benefit, you first need to calculate the benefit in the usual manner, compare the result with the amount of the employee’s salary saved during the idle period, and select the lower value.

If an employee falls ill after the start of the downtime, then disability benefits are not paid for days of illness falling during the downtime period.

If temporary disability, which began during the period of downtime, continues after its end, then for its days the employee is paid benefits, it is calculated in the general manner. The first 3 days of illness after idle time are paid by the employer.

If an employee falls ill before the downtime begins, sick leave is paid as usual. For days of illness coinciding with downtime, benefits are paid in the amount of no more than:

• 2/3 of the salary (tariff rate), if downtime arose for reasons beyond the control of the employee and the employer;
• 2/3 of average earnings if the downtime was due to the fault of the employer.

How is sick leave paid for an external part-time worker?

The general rule for taking into account earnings when calculating benefits for an external part-time worker is this: if the employee applied for benefits not only from you, but also from other employers, you take into account only your payments (that is, payments for part-time work), and if only to you - then payments from all employers for the billing period, including payments for work at the main place of work and part-time work in all organizations.

The place of work at which an employee can receive temporary disability benefits depends on the organizations in which he worked during the billing period:

1. If during the billing period he changed jobs or was employed by the same employers for both years, but in the current year he does not work for at least one of them, then to receive benefits he can choose any employer for whom he currently works ( Part 2.1, 2.2 Article 13 of Law No. 255-FZ).
2. If during the billing period an employee worked for the same employers with whom he is currently employed, then he must apply to all employers at the same time to receive benefits (Part 2 of Article 13 of Law No. 255-FZ).

Depending on where the external part-time worker worked and what documents he provided, the calculation will be different.

So, if an external part-time worker worked in the organization during the billing period (worked the billing period in full or part of it) and provided sick leave, the benefit is calculated by each employer to whom the employee applied. In this case, only your payments are taken into account. Certificates from other places of work stating that benefits were not accrued or paid there are not needed.

Earnings based on certificates from employers for whom the employee worked during the billing period are not taken into account (if the employee provided such certificates earlier).

If the part-time worker has provided the following documents:

• sick leave;
• certificates from other current places of work stating that benefits were not paid there;
• certificates of earnings from other employers for whom the employee worked during the pay period (including former ones) -

payments for all places of work are taken into account, including those where the employee no longer works. The benefit is paid by one of the employers chosen by the employee.

An employee can confirm temporary incapacity for work with other employers with a copy of the certificate of incapacity for work, certified by the employer paying the benefit.

The benefit is not accrued if the employee has not provided certificates from other current places of work stating that the benefit was not accrued or paid.

If an external part-time worker did not work part-time for the employer during the billing period and provided him with sick leave and certificates, payments for all places of work in which the employee worked in the billing period can be taken into account. The benefit is paid by one of the current employers chosen by the employee.

Payment of benefits is carried out depending on the specific situation: either for all places of work, or only for one of them at the employee’s choice, taking into account earnings from other employers.

If an employee falls ill on vacation at his own expense, on maternity leave or on parental leave, he will only be paid for sick days at the end of these vacations, if he has not yet recovered by that time: for days of illness coinciding with such vacation, he should not be given sick leave, since temporary disability benefits are not paid for the days of such vacation. Therefore, the employee must notify the doctor that he is on such leave.

If a certificate of temporary incapacity for work was nevertheless issued for periods of leave without pay, leave to care for a child under 3 years of age, for which the doctor should not have issued this document, but the employee did not warn him, then formally the FSS may not accept offset the amount of benefits paid under such sick leave. The best option is to replace such a sheet with a duplicate.

In any case, the benefit must be paid to the employee from the day when he was supposed to start work at the end of his vacation at his own expense.

Procedure for providing sick leave

The newsletter is opened on the day of the visit to the attending physician. The execution of the document is the responsibility of medical workers with a license for professional activities, paramedics, dentists, and specialists from tuberculosis dispensaries. Sick leave is not issued to students of educational institutions, citizens undergoing examination, examination during exacerbation of chronic pathology, or in custody. The bulletin is opened after examination and treatment. The procedure for providing certificates of incapacity for work:

1. Closing sick leave in a medical institution.
2. Placing the doctor's signature and stamp on the form.
3. Submitting a newsletter to the personnel department of the organization.
4. Registration of a document in the accounting journal.
5. Determination of compensation payment by an accountant.
6. Transfer of the prepared package of documents to the social insurance authorities for the calculation of funds.

To receive payment, a citizen must comply with the deadline for providing sick leave to the employer. When issuing the form, on the reverse side, the HR department employee indicates the name of the enterprise, position and tax identification number of the employee, personnel identification number, period of suspension from official duties, salary amount, date of resumption of work. The accountant establishes the insurance period, on the basis of which the average income necessary to determine the amount of monetary compensation is calculated.

Effective date

Receiving monetary compensation is only permissible upon closing the document. Work is possible after undergoing treatment and after the doctor has marked the patient’s complete recovery. The expiration date of the form is the specified date of return to work duties. When registering sick leave to care for a child or close relative, the withdrawal period is considered to be the day following the closing date of the ballot. The expiration date of the certificate of incapacity for work is the number indicated in the “Start work” column.

Submission deadline

Article 12 of Federal Law No. 255 regulates the period of contacting the head of the enterprise to pay for a bulletin issued for health reasons. In accordance with the law, the period for submitting sick leave to the employer is 6 months from the date of recovery. The established period is determined for persons who have issued a document due to deterioration in health, caring for a child or close relative, prosthetics, maternity leave, quarantine, or undergoing treatment in a sanatorium. After submitting the form, the director of the company sends the received data to the Social Insurance Fund for calculation of payments.

Where and to whom to give

To receive monetary compensation, you must close the ballot and provide it to the head of the organization. After filling out the form at a medical institution, employees must know who to give sick leave to at work. To confirm a valid reason for not fulfilling official duties for a certain period, you must provide a document to the HR department. In accordance with local regulations, the ballot is registered in the accounting journal. Employees must be informed where to submit sick leave to receive benefits. The calculation of compensation payments is carried out by the organization's accountant. Based on data on the average monthly income, the number of days away from work and the insurance period, the accrued amount of money is determined.