Dismissal at will during sick leave

At the initiative of the employee

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

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

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

Dismissal while on sick leave

There are often cases when, for one reason or another, it is necessary to terminate the employment relationship with a worker, and this can also happen while the employee is on sick leave. In such a situation, how can one properly dismiss a worker and accrue the required compensation payments?

Resigning during sick leave at our own request

An employee may terminate his employment relationship with the employer on his own initiative by notifying him of this in writing at least 2 weeks before the day of dismissal. This period begins to count from the next day after the employer is notified of dismissal (Article 80 of the Labor Code of the Russian Federation). If an employee goes on sick leave during this two-week period, then his illness does not act as an obstacle to dismissal. The same applies to termination of employment relationships by agreement of the parties.

Important! During illness, the employee will be dismissed on the day specified in his application without additional work (letter of Rostrud No. 1551-6 dated 09/05/2006) and the employer cannot independently make changes to the date of dismissal. The employee himself has the right to do this - he can cancel the application or write another date while on sick leave.

This procedure is carried out by mail, for example, if an employee cannot come to work due to illness. When the employee recovers before the date of dismissal, then it occurs in accordance with the application.

If on the day of dismissal the employee is on sick leave:

1. the employer in the dismissal order indicates that he cannot inform the employee of the contents of the document and record his signature, because he is on sick leave;
2. the employer must send the employee a notice of the need to receive funds (salary, required compensation, allowances, additional payments), as well as a work book or obtain permission to send it by mail (Article 84.1 of the Labor Code of the Russian Federation). Starting from the day of sending such notice, the employer is not responsible for the late receipt of the work book by the employee.

Important! The work record book must be received by the employee on the day of dismissal specified earlier in the application. If he is temporarily disabled, then paragraph 2 above applies.

An employee may resign on his own initiative while on sick leave. He has the right to send the application to work by mail or take it himself if his health condition allows.

Thus, the 14 days that the employee must work in connection with dismissal will pass during his sick leave, if the period of illness exceeds these two weeks, otherwise the employee will spend the rest of the work period at work. The employee must immediately and can bring the certificate of incapacity for work (sick leave) issued by the medical institution to work after dismissal in order to receive temporary disability benefits.

Dismissal on sick leave at the initiative of the employer

Following Art. 81 of the Labor Code of the Russian Federation, the employer does not have the right to terminate the employment relationship with an employee on his own initiative when he is on sick leave or on vacation.

This can only be done under the following exceptions:

• upon liquidation of the organization;
• when closing the IP.

When the termination of an employment contract is carried out at the request of the employer and the employee is on sick leave that day, then it will be necessary to wait until he returns from sick leave to formalize the dismissal. Dismissal may occur on the first day of release. This also applies to dismissal as a result of staff reduction.

Important! If an employee is on sick leave for a long period and there is no one to work with, then the employer can employ another person under a fixed-term employment contract (Article 59 of the Labor Code of the Russian Federation), maintaining the wording “until the main employee leaves.”

Payments for temporary sick leave (sick leave)

Sick leave benefits are accrued to employees both during the employment relationship and when this relationship is terminated (Article 5 of Law No. 255-FZ of December 29, 2006).

1) If sick leave (sick leave) was opened after dismissal. This means that the person fell ill after his dismissal. For example, the date of dismissal is April 15, and the certificate of incapacity for work says “I was in the hospital from April 18 to May 3 inclusive,” i.e., April 18 is the opening day of sick leave, and May 3 is the day it closes:

The employer under such sick leave is obliged to pay the resigned employee if he fell ill within 30 calendar days from the date of dismissal - in this case, he fell ill on the 3rd day after dismissal, and the duration of the illness and the reason for leaving do not play a role.

The payment is made at the last place of work for the entire period of illness from the first to the last day (exceptions – Part 3, Part 4, Article 6 of Law No. 255-FZ) and is 60% of average earnings (Part 2, Article 5, Part 2 Article 7 of Law No. 255-FZ). The initial 3 days are paid by the insurer (i.e. the employer), the rest - by the Social Insurance Fund.

The benefit is assigned if the employee applied for it no later than 6 months from the date of restoration of working capacity (Part 1, Article 12 of Law No. 255-FZ). In the case described above, the day of restoration of working capacity is considered to be May 4, we count 6 months from May 4 - November 4 is the last day on which the employee can apply for benefits.

If this period was missed by the employee for valid reasons that have evidence, then the decision to accrue benefits rests with the territorial body of the insurer (FSS) - Order No. 74 of January 31, 2007 of the Ministry of Health and Social Development of Russia. The same body pays benefits in case of closure of an enterprise or lack of money in its current accounts. Working part-time, the employee will receive benefits for each place of work or for the last of them (Article 13 of Law No. 255-FZ).

Important! When will the employee receive benefits? The employee will receive the sick leave benefit accrued by the accounting department on the day the salary is issued - this is either the day of full payment of the salary, or the day of the advance payment in the organization (IP), so on the nearest of these days the employee will receive the money minus income tax.

2) Sick leave was opened before the termination of the employment contract:

In this situation, the benefit is calculated and paid from the beginning of the sick leave to the day it ends, inclusive, in the same amount as if there had been no termination of the employment contract, i.e. full. The basis for accrual and payment is a correctly executed sick leave certificate.

Important! Payment for sick leave opened during the period of the employment contract is made on a general basis even when the worker quits by the date of its closure.

When calculating benefits, the employee’s insurance length is taken into account (Clause 1, Article 7 of Law No. 255-FZ)

Upon expiration of the contract

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

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

The procedure for dismissing an absent employee at his request

Dismissal of an employee on sick leave in 2019 will occur as follows:

1. The employer is preparing a dismissal order. The order is issued in the usual manner. As a rule, the T-8 or T-8a form is used. But you can also draw up a document on a form developed by the company. There is no need to note in the order that the termination of the employment relationship occurs during a period of incapacity for work and the employee is absent from the workplace. The reason is stated in paragraph 3 of Article 77 of the Labor Code of the Russian Federation.
2. The final payment is made. Days when the employee is sick will not be included in this calculation. The employer will pay for them after the employee brings him a certificate of incapacity for work.
3. A work book is drawn up. Termination of the contract occurs while the employee is on sick leave, which means he will not be able to receive it on time. In order to protect yourself from possible claims from the dismissed person, the personnel officer needs to send the sick employee an information letter about the need to come for a work book.

Sick leave benefits are issued to a dismissed employee in the usual manner. Accrual occurs within three days from the date of receipt of the slip, and payment is made on the next salary date.

By agreement of the parties

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

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

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

How long will it take to dismiss a person with a certificate of incapacity for work?

If an employee is on sick leave, he can be fired at any time at his own request.

If there is no such desire, the employer will be able to fire an ill employee only due to the liquidation of the organization or the closure of the individual entrepreneur . Otherwise, you will have to pay benefits and wait for the sick leave to end. It will be possible to dismiss an employee only after he returns to work, and for this there must be a good reason specified in Art. 81 Labor Code of the Russian Federation.

The duration of sick leave depends on the severity of the disease. Typically this is 15 days, but if the person has not recovered, the certificate of incapacity for work is extended. The maximum period is no more than 10 months and 12 months in case of injuries, recovery from operations and tuberculosis (Order of the Ministry of Health and Social Development dated June 29, 2011 No. 624n).

While a person is on sick leave, the employer does not have the right to fire him on his own initiative.

Who can't be fired while on sick leave?

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

You can't fire a pregnant woman.

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

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

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

Is sick leave included in working off?

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

This is also important to know:
Notice of job reduction: sample, procedure for drawing up the document

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

Do I need to work 14 days?

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

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

IMPORTANT!

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

Taking sick leave on the day of dismissal at the initiative of the employee: legal consequences for the employer

In general, the fact that an employee goes on sick leave on the day of dismissal (or any other day while he is officially registered with the company) at his own request does not prevent the further implementation of the dismissal mechanism. That is, in this case, having gone on sick leave, the very next day the person ceases to be an employee of the company.

Having been cured and received compensation for a certificate of incapacity for work (provided within the framework of the mechanisms we discussed above), the citizen ceases to be an authorized or obligated party in legal relations with the company in which he worked at the time of going on sick leave.

It is worth noting that an employee on sick leave can withdraw his resignation letter even on the last day of the employment contract with the company. If the employer has not committed to hiring another person by that time, then after the recovered employee returns to work, he will have to continue the employment relationship with him.

How to properly file a dismissal while on sick leave

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

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

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

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

When can you quit?

Let's consider a situation: a person filed a resignation letter of his own free will. But a few days before the day of dismissal, he went on sick leave. And on the last day he did not go to his workplace.

This is also important to know:
Features of the dismissal procedure in case of bankruptcy of an enterprise

What should a manager do, does he have the right to dismiss an employee on sick leave? Yes, if the employee has not expressed a desire to cancel his application. Being on sick leave will in no way affect voluntary dismissal. After all, this is the personal initiative of the employee himself. And the Labor Code of the Russian Federation prohibits dismissing an absent person if the initiative comes from the management of the enterprise.

Therefore, a sick person has the right to expect that he will be fired on the day specified in his application. They will also transfer the final payment (excluding payment for temporary disability) and issue a work book filled out in the prescribed manner.

How to write a statement

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

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

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

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

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

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

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

Results

One of the few legal ways to terminate an employment contract while an employee is on sick leave is to submit a statement of intent to terminate the employment relationship with the company at his own request. In addition, when an employee submits this application and subsequently goes on sick leave, his employment contract is nevertheless terminated upon the expiration of the work period or the arrival of the date specified in the agreement between the employee and the employer.

Payment of sick leave upon dismissal of one's own free will occurs in the same way as in the case of compensation for an employee being treated who has not declared a desire to resign.

How to place an order

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

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

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

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

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

Is it possible to write a letter of resignation during illness?

An employee can definitely quit while on sick leave . If the decision to leave the place of work comes from the employee himself, then he will not face any obstacles. The only rule: he must know how to act competently in this situation.

Any person can resign of his own free will at any time (Article 80 of the Labor Code of the Russian Federation), and the organization in which he works has no right to interfere with him. The situation is completely different when an employer wants to get rid of an employee, but he is sick. Here the manager can only wait for the person working for him to close his sick leave and go to work. It is impossible to dismiss an employee while he is on sick leave (Article 81 of the Labor Code of the Russian Federation).

You can quit while on sick leave only on your own initiative.

What entry should be made in the labor report?

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

The employer stamps the book.

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

Terms and payment procedure

The employer finally pays the quitter on the last day of work. Absence on a certificate of incapacity for work must be paid on a general basis.

If on the last day of work the employee is not on site, payments are made no later than the day following the day when the employee made a request for payment (Article 140 of the Labor Code of the Russian Federation). The employer pays him benefits for the entire period of illness until the day he is restored to work.

There is a limit on payment of benefits. It is established by the employer with whom the employee terminated the employment contract. The limit is 60% of average earnings. The benefit is paid if the employee falls ill no later than 30 calendar days after dismissal. If he fell ill during work and did not go to work until the day of dismissal, sick leave is paid according to the general rules.

What payments are due?

On the day of dismissal, the employee must receive:

• monetary compensation for unused vacation in full;
• the unpaid part of the salary, taking into account the last working day;
• other payments provided for by the wage regulations, collective agreement or other local regulations.

Payment for sick leave issued before dismissal is made after it is closed and presented to the employer. Within 10 days, the employer calculates the payment, and the money is transferred on the next payday (Part 1, Article 15 of the Federal Law of December 29, 2006 No. 255-FZ). It does not matter whether the employee has resigned by this time or is still on the staff.

How to calculate sick leave upon dismissal

To calculate the amount of payment for a certificate of incapacity for work, you can use the following algorithm:

1. Make a sample of salaries for the 2 years preceding the desire to quit (if such a period has not been worked out at the institution, when applying for a job, the applicant provides certificate 182n, which contains information about his salary at the previous place).
2. Sum up your earnings for 2 years, divide it by 730 (or 731) - the number of days for 2 years - and in this way get the average daily salary.
3. Information about the existing insurance experience will provide information on the volume (100% (experience more than 8 years), 80% (experience 5-8 years), 60% (experience up to 5 years)) the payment should be accrued.
4. The average daily amount must be multiplied by the available % and get the sick leave calculation amount.
5. Upon dismissal, an employee must receive a certificate 182n from the accounting department. It must be given to the next employer.

IMPORTANT!

Calculations upon dismissal will be simplified by the average earnings calculator.

Calculation of sick leave: nuances

There are a number of nuances that characterize the calculation and payment of sick leave.

The maximum amount of average daily earnings that can be taken into account when determining the amount of sick leave in 2022 is 2,434 rubles. 25 kopecks This indicator is calculated based on the maximum base for insurance contributions to the Social Insurance Fund for the 2 calendar years preceding the one in which the employee went on sick leave:

• RUB 865,000 — in 2022;
• 912,000 rub. - in 2022.

For an example of calculating sick leave, see the article “Maximum amount of sick leave in 2022 - 2021” .

In 2022, the benefit cannot be less than the minimum wage per full month (in 2022, the minimum wage is 12,792 rubles).

In what cases and how the minimum wage benefit is calculated, read in ConsultantPlus. Get trial access to the system for free and go to the Ready-made solution.

As we said above, an employee has the right to receive sick leave compensation from his former employer after dismissal within 30 days. But if during this time a person found another job (that is, a new employment contract was signed during this period) and fell ill after applying for it, then the obligation to pay sick leave rests with the new employer (Clause 2 of Article 5 of Law No. 255-FZ) .

It can also be noted that an employee has the right to apply for accrual of sick leave only within 6 months after recovery. If he misses this deadline, then sick leave, if there are good reasons for this absence, can be paid by the Social Insurance Fund (clauses 1, 3, article 12 of Law No. 255-FZ).