Sick leave during the period of service before dismissal

Reasons for termination of an employment contract

When applying for a job, a new employee enters into an agreement with the organization, which is regulated by the provisions of the Labor Code of the Russian Federation. Termination of this agreement may occur for various reasons:

1. at the request of the employee;
2. at the initiative of the employer;
3. by agreement of both parties;
4. due to circumstances beyond the control of both parties;
5. when moving to a new position;
6. in case of violation of the rules of the employment contract;
7. upon expiration of the contract.

The most convenient option for both parties is mutual consent. In this case, the employee and manager can enter into an agreement that will be beneficial to both. Usually, in this case, the employee receives additional payments, and the employer guarantees that the agreement will not be canceled or challenged due to changed circumstances in the employee’s life.

Dismissal for inadequacy of the position is a rare option, as it is often difficult to prove.

An employee who does not show up for work may subsequently bring sick leave, in which case he will not be counted as absenteeism. Professional unsuitability can only be revealed in the event of a general certification that meets the requirements of the law.

The most common is leaving work of your own free will. Sometimes, even in the case of serious violations, the employer gives the person the opportunity to write a statement on his own so that dismissal under the article is not recorded in the work book.

But more often a person simply finds another, higher-paying, prestigious or convenient vacancy or moves.

Sometimes the reason for dismissal is reluctance to work under new management, unpreparedness for business trips, changes in working conditions, or deteriorating health.

After the written application, a two-week work period follows , but often people try to reduce it or avoid it altogether. Since sick leave is included in service upon dismissal, sometimes it is taken so as not to return to the place of duty. But before making hasty decisions, you need to know how many days you are supposed to work in different situations.

Total information

1. In order to leave the company, you need to write an application, which is submitted no later than 14 days before the expected date of departure. This time begins to count on the next day after the employer receives the document. The employer may not insist on working the required period.
2. When an employee, when drawing up an application, indicates that he cannot continue to work for the company because he has reached retirement age, started studying, violated the Labor Code of the Russian Federation by the employer, or failed to comply with the terms of the employment agreement, then the dismissal will be formalized by the date indicated in the application (this is the responsibility of the management) .
3. Before the warning period expires, the employee can withdraw the application even on the last day scheduled for work. The dismissal process is terminated if another person has not been invited in writing to take the place of this person (a new person cannot, by law, be refused to enter into an agreement).
4. When the working time is up, the employee may not come to work. On the last day of work, the employee is returned his work book and other documents, for the issuance of which the person will write an application. Then the full calculation is carried out.
5. If the work period has expired, but the contract has not been terminated and the employee does not insist on its termination, then the employment agreement remains in force and continues to be in full effect.

Read on the topic: Words of gratitude when leaving a job in prose or a business letter

Duration of processing

Working off is not a completely legal term. This is the name given to the two-week period given to the employee after he writes a letter of resignation under Part 1 of Art. 80 Labor Code of the Russian Federation. During these 14 days, the employee has the opportunity to reconsider his decision and transfer matters to the person who will subsequently take his place. Then the employment contract is terminated.

It happens that after writing a statement, a person changes his mind and wants to stay. In this case, you have the opportunity to pick up the document and continue working.

But if by this time a replacement has already been found for the employee, the employer does not have the right to refuse the employee taken in his place and will be forced to dismiss the one who wrote the application anyway, therefore, before officially notifying management about your departure, it is important to carefully weigh everything and understand that, if you change your mind , you can still lose your job.

Three to fourteen days

If the decision is made and the application is written, no one has the right to detain the employee for more than two weeks. During this time, he is either present on site and transfers cases, or the following situations occur:

1. working hours occur on holidays (for example, the weekend after the New Year);
2. the employee goes on his next annual leave (if he did not have time to exercise this right, compensation must be received);
3. the person is absent due to illness (sick leave is included in the pay off upon dismissal).

The work does not have to last two weeks. This period may be reduced to three days in the following cases:

1. the employee is on a probationary period;
2. the duration of the employment contract is less than 60 calendar days;
3. The contract states that the employee is hired for one season.

You must notify management of your desire to stop working by writing a statement.

Quick dismissal

Management may also release an employee earlier by agreement of both parties or in the following circumstances:

1. employee retirement;
2. enrollment in an educational institution;
3. gross violations of the employment contract;
4. moving to another region for work, health reasons or changing permanent place of residence;
5. transfer of a military spouse;
6. pregnancy;
7. caring for a child or sick relative.

For these reasons, actual dismissal may occur on the day the application is written, but it is usually required to provide evidence proving the right to leave without working time.

This may be an order for the transfer of a spouse, a health certificate, an extract from the previous place of residence and other documents appropriate to the case.

You can also go on sick leave followed by dismissal without work if the incapacity for work lasts for 14 days after the application was submitted to superiors.

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

An employee on sick leave can submit a letter of resignation to the employer in person or by sending the document to the company by mail.

If the work book for him is kept in paper form, he can simultaneously inform the employer of his consent to accept the work book upon the fact that the employer issues an order to terminate the employment contract with the employee by mail.

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

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

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

An employee who has chosen an electronic work plan is given a STD-R form upon dismissal. If it is impossible to provide a document on the day of dismissal (including due to the employee’s absence due to illness), the employer is obliged to send it on paper by registered mail with acknowledgment of receipt. From the date of sending such a letter, the employer is released from liability for the delay in providing information.

Important! Recommendations from ConsultantPlus If an employee has not received information about his work activity after dismissal, he can contact the employer in writing at any time. He also has the right to send an appeal to his email in the manner established by the employer. The employee indicates the method of issuing information in the application. The employer is obliged to provide information no later than three working days from the date of application (Part 6, Article 84.1 of the Labor Code of the Russian Federation). If the information was issued to the employee personally, we recommend... You can view the expert recommendation and a sample STD-R form in K+, receiving a free trial access.

Dismissal at the initiative of the employer

Sometimes termination of a contract occurs not at the request of the employee, but at the initiative of the organization, for example, in the event of liquidation of an enterprise, reduction of staff, or violations by an employee. In most cases, the employee must be warned 2-3 months before the upcoming dismissal, with the exception of seasonal workers, who need to be warned a week before.

In any case, at the time of termination of the contract, wages must be paid in full, as well as due compensation payments and benefits.

Sometimes an organization seeks to avoid unnecessary monetary compensation and insists on dismissing employees at their own request. However, by agreeing to this, the employee is deprived of all payments due to him, except for the basic calculation.

In case of gross violations of official duties, the offender is fired; in case of liquidation of the enterprise, all employees are fired, but when staff is reduced, management has to make a choice between specialists. Usually the most highly qualified and promising employees are retained, but besides them, there are categories of people who simply cannot be laid off. These include:

1. pregnant women;
2. parents with children under 3 years of age;
3. temporarily disabled.

In this way, it is impossible to lay off a person who is on sick leave . And since the date of dismissal is known 2 months in advance, some are tempted to take a certificate of incapacity for work for that day, so that the organization does not have the right to take away the workplace. But such actions will not lead to the desired result.

The reduction will not occur at the appointed time, but will follow immediately after the person returns to work. There will be no extension of the employment contract or even work off (it will be included in the period of sick leave). However, the date of dismissal in the order and work book will be postponed, and all payments will be made at the expense of the organization.

So, management cannot lay off an employee on sick leave on their own, since this contradicts Art. 81 Labor Code of the Russian Federation. An employee has the right to write a statement during illness and not go to work, since sick leave is included in the work off upon dismissal of his own free will. If the employer did not take this into account and did not issue an order two weeks after reading the application, and the recovered employee changed his mind about leaving, he cannot be fired at another date.

Legal regulation

The entire range of labor relations is regulated by the Labor Code.
If a person starts to get sick and takes sick leave, then you cannot fire him. Even if a person worked poorly and committed violations of labor discipline, termination of the contract is prohibited. Sick leave and simultaneous dismissal are incompatible. The rule is established by Art. 81 of the Labor Code.

Important! It is permissible to terminate a contract during a period of incapacity if the enterprise is liquidated or a private entrepreneur ceases its activities.

The situation regarding voluntary dismissal is resolved completely differently.

Sick leave payment

In all cases, except for the liquidation of the enterprise, the period of incapacity for work must be paid.
But the size of the benefit varies depending on the time of dismissal, as well as the insurance experience available to all people who have entered into an agreement and who actually work. Charges are calculated as follows:

1. 100% of salary for 8 years of experience;
2. 80% - from 5 years;
3. 60% in all other cases.

Thus, in the event of illness and the presence of a document confirming it, the corresponding payment for it occurs in full, regardless of the date on which the sick leave is closed, as well as when it expired after the date of termination of the employment contract.

Moreover, if a certificate of incapacity for work was received within a calendar month after dismissal and a new employment has not yet occurred, you can contact your former employer within six months with a demand to pay for it. But regardless of the insurance period, payments will not exceed 60% of average earnings.

How is sick leave paid if a person gets sick on the last working day?

According to Art. 84 of the Labor Code of the Russian Federation, the day of dismissal is considered the last working day. The person resigning on this day is subject to all guarantees provided for by law. Therefore, if a person wrote an application to resign from work of his own free will, brought it to his superiors and fell ill on the same day, the calculation of the employee’s disability benefits will be made according to the insurance period.

It does not matter for what reason the sick leave was opened : whether the employee himself fell ill, or his child or another incapacitated family member needed care - in any case, payment for the leave taken by the employee will be made in full for all days.

Accrual rules

If an employee notifies of his intention to resign while on sick leave, or falls ill within 14 days after writing the application, then the benefit should be calculated according to the length of service according to the rules of Art. 7 of the Federal Law of December 29, 2006 No. 255-FZ:

1. 8 years and more - 100% of average earnings;
2. from 5 to 8 years - 80%;
3. less than 5 years - 60%;
4. less than 6 months - 60%, but not more than 11,280 rubles, that is, the minimum wage.

For sick leave opened within a month from the date of dismissal, the employer will pay only 60% of average earnings.

For the calculation, two years are taken (from January 1 to December 31) before the year in which the employee fell ill or needed to care for a child. All income received from the employer during this time in connection with work is divided by 730. The amount received must be multiplied by the number of sick days - it does not matter whether before or after termination of the employment contract. This will be the amount of the benefit.

Payment period

All payments due must be given to the employee on the day of payment . The following must be paid: salary for the period worked, compensation for unused vacation, etc. On the same day, the employee must pick up a fully completed work book. But these rules do not apply to sick leave.

The certificate of incapacity for work should be submitted to the accounting department immediately after closure, even if at that moment the employee is no longer in an employment relationship with the employer. After receiving sick leave from a former employee, the administration is obliged to accrue disability benefits to him within 10 days. But the payment itself may come later - with the next salary (advance).

Severance of labor relations

Knowing all the rules that an organization follows when dismissing or severing an employment relationship, you can begin the process by writing a statement. It’s most convenient to use the company’s letterhead, but if you don’t have one, you can write the application by hand. This is done as follows:

1. in the upper right corner is indicated the full name, position of the person to whom the application is addressed, and the name of the organization (for example, General Director of Stal LLC Ivanov I.A.), as well as the initials and position of the person wishing to resign (from engineer Kotova M . IN.);
2. the title of the document (resignation letter) is written as the title;
3. the text of the document itself contains the request, the date of the last working day, special circumstances, if any, and the reason (I ask you to dismiss me at your own request on May 1, 2022, without working in connection with the transfer of my spouse to a new duty station);
4. the document ends with the full initials of its author, personal signature and date (Kotova Marina Vladislavovna, April 30, 2018).

The example considers an application requesting leave without work. If you plan to remain at work for another two weeks, they will be counted from the next day after written notification to the employer.

If the application is written on April 30, the person is completely free from all official obligations on May 15. But the deadlines are observed only when personally transmitting the document to the employer; an oral statement has no legal force, and when sending a letter by mail, the deadlines for delivering the correspondence must be taken into account.

If circumstances change, you can withdraw a previously written application.
If they have not yet managed to invite another person to this position in writing, the employer does not have the right to dismiss someone who has changed their mind from the position .
After reading the application, the manager issues an order indicating the full name of the person being dismissed, his personnel number, position and name of the unit, date and reason for leaving, and a link to the Labor Code. After the employee signs the order, the HR department will prepare a work book, and the accountant will make the accruals.

The full calculation contains payment for the entire period worked, required compensation, incentive payments, if any. Compensation most often includes payment for vacation that the employee did not have time to take. But if he was taken off work ahead of time and had to be worked off, the employee, on the contrary, will be withheld the amount owed.

The payment must be received on time, even if the person is on sick leave at that time. In case of long delays, the organization is obliged to pay a penalty. The certificate of incapacity for work will be paid after its closure, on the next day or on the nearest day of payment of salary or advance payment.

Thus, if you intend to quit, you need to carefully weigh the pros and cons and remember that this decision cannot always be reversed. If you are completely sure of the need for care, you need to know that no one will be able to keep an employee at work for more than 14 days, and sick leave is counted as working time upon dismissal. But the employer will be forced to wait until his subordinate’s certificate of incapacity for work expires, regardless of the date for which the layoff was planned.

Sick leave before layoff

Retrenchment is the termination of employment relations with an employee at the initiative of the employer and is regulated by a separate article. 81 Labor Code of the Russian Federation. Legislation maximally protects and protects the rights of workers during downsizing and liquidation of an enterprise.

Important!!! In case of layoffs, the company is obliged to notify the employee two months in writing. The employee must read the notice against signature. In this case, the employee is entitled to severance pay upon settlement. By agreement of the parties, the notice period may be replaced by a proportional payment.

If an employee is on sick leave due to illness or injury, the employer notifies the employee of the reduction in staff only after returning to work.

Important!!! Giving notice of redundancy while on sick leave is illegal.

This rule does not apply to cases where the employee is on sick leave to care for a child or relative.

Upon final payment, the employee is entitled to the following payments:

• Severance pay;
• Payment for two months of work after notification or replacement with monetary compensation;
• Sick leave payment.

If during the two-month period the employee goes on sick leave and misses the dismissal date, then the actual termination of the contract will occur on the first working day of his return to work after recovery. Temporary disability in this case is not a reason for increasing the period before the fact of reduction, but at the same time it is impossible to dismiss an employee before the end of his sick leave, since during illness, on the initiative of the employer, it is permissible to dismiss an employee only in the event of liquidation of the enterprise.

Is it possible to go to the ballot with the subsequent termination of the contract?

The answer to this question depends on the specific situation. Let's consider the options:

• In Art. 80 of the Labor Code of the Russian Federation specifies the grounds for dismissal without service. They will be discussed further in this article. If such grounds exist in a particular case, then you can safely go on sick leave and then apply for resignation. The employer will be obliged to make the payment immediately.
• If the situation fits the general rule - that is, the employer must be notified of the termination of the employment contract 14 days in advance, then you can also quit conditionally “without working off”. You will need to be registered with the organization for two weeks. But at this time you can stay at home or in a medical facility.

Let us emphasize once again that the second option, of course, involves working out. But this is the case when “the soldier sleeps, but the service goes on.”

We discussed in detail the question of whether it is possible to apply for dismissal while on sick leave here.

During 2 weeks of service

Current labor legislation allows an employee to engage in his own treatment at any time . The main thing is that, in the end, the certificate of incapacity for work is properly issued. If the work period has begun, this is not an obstacle to taking sick leave. Health is one of the highest values ​​in anyone’s life. And the legislator understood this perfectly well when he formulated the norms of the Labor Code of the Russian Federation.

In Art. 183 of the Labor Code of the Russian Federation stipulates that an employee has the right to undergo treatment without going to work, receiving, in addition, certain payments for the days when temporary disability occurred.

An employee quits voluntarily and becomes ill

The Labor Code of the Russian Federation allows citizens to resign from enterprises at their own request at any time. When writing an application, it is important for them to consider two points:

• There is a dismissal date. It is indicated in the application if it is necessary to terminate the employment contract before the expiration of the warning period (2 weeks), when the employee retires, goes to training, or for other reasons: in these cases, work is not assigned, and the manager is obliged to fire on the designated day. The date can also be specified taking into account the warning period. Its countdown begins on the day following the day of termination of the contract.
• There is no dismissal date. The date of dismissal must be present. If it is not there, the procedure may be delayed, because the manager will have to explain the procedure for terminating the contract, and the person leaving will have to rewrite the application.

Expert commentary

Gorchakov Vladimir

Lawyer

The employer’s further actions in the event that an employee falls ill depend on the date of dismissal and the duration of sick leave:

Option 1: work is assigned (2 weeks), the employee starts sick leave a week after submitting the application.

In such a situation, two scenarios are possible: if the employee manages to recover before the date specified in the application, dismissal is made on the same day. The same applies to longer sick leave falling on the date of termination: you cannot change the data specified in the resignation letter at your own request, and the employer is obliged to dismiss the employee. This rule applies even if the certificate of incapacity for work is still open. You will have to pay it in full.

Option 2: work is assigned, but the employee falls ill and withdraws his resignation letter

According to Art. 80 of the Labor Code of the Russian Federation, resigning citizens have the right to withdraw their resignation letter at any time before filling out the work book. If during the notice period an employee falls ill and is recalled, the dismissal is postponed.

What it looks like in practice:

Manager Yunusov O.V. submitted his resignation on June 10. He is assigned to work that ends on June 24: on this day, the employer is obliged to pay him in full, issue a work book and other documentation. June 18 Yunusov O.V. opens sick leave and also withdraws a previously submitted application. Therefore, it will no longer be possible to fire him on June 24. This is permitted if the employee, after recovery or during a period of illness, decides to resign again and notifies the employer in writing.

Yunusov O.V. recovers and returns to work on the 25th. They submit the application again on the same day. The manager decides not to assign him work and dismisses him on the date specified in the application - June 30.

Important! If you dismiss at your own request, the employer is obliged to terminate the contract on the date specified in the application. If sick leave is still open after leaving, it is subject to mandatory payment.

Dismissal procedure: step-by-step algorithm

A step-by-step algorithm for terminating an employment contract during an employee’s illness looks like this:

1. The employee submits a letter of resignation, the employer signs it.
2. A dismissal order is issued, which the person leaving is familiarized with under signature.
3. An employee falls ill on his last day of work, but does not withdraw his application. With him, the director pays the full salary if the money goes to the state on bank cards. The work book is filled out and the date indicated in the application is indicated. It is also important to send a notice of the need to pick up the work book and other documentation. If the dismissed person agrees to sending documents by mail, everything is sent by registered mail with acknowledgment of receipt. If there is no agreement, you will have to wait for his personal visit to the enterprise.
4. The dismissed person closes the certificate of incapacity for work and provides it to the employer. This must be done within six months, otherwise the benefit will not be paid. At the same time, educational documents and a work record book are requested if the former employee refused to be sent by Russian Post.

Let's sum it up

An employer cannot fire an employee on sick leave on his own initiative. An exception is a situation when a company is completely liquidated and, as a result, fires all employees. If an employee resigns at his own request or by agreement of the parties, his temporary disability is not an obstacle to terminating the employment relationship. The employer must pay for the first three days of sick leave closed after dismissal. If a child or another family member of a former employee was sick, the benefit is paid in full by the Social Insurance Fund.

Source: "Legal ABC"

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Payment of sick leave after dismissal is provided for by law in 3 cases:

• if a person fell ill while he was on the payroll (in this case, compensation is assigned to him according to the general scheme);
• if his child fell ill while he was still an employee of this organization;
• if illness occurs within 30 days after dismissal (in the latter case, the employer pays the former employee sick leave in the amount of 60% of the average salary).

The fact that an employee is on sick leave is not a legal obstacle to filing a voluntary dismissal.
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