What date should an employee be dismissed if he was on sick leave?

The dismissal of an employee must always be carried out according to the law, regardless of the reasons and circumstances of his departure. Sometimes it turns out that the dismissal of an employee coincides with his being on sick leave. Let's consider what date to fire an employee if he was on sick leave, or is on sick leave on the day of his dismissal. Situations are different, therefore, it is important to know what the legislation on dismissal tells us in a given case. At the same time, there are cases established by law when the dismissal of an employee who is on sick leave is not allowed at all. Accordingly, the last day of sick leave cannot be considered a working day, so if you want to fire an employee, sometimes you need to wait until he returns from sick leave.

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.

Termination of employment at the request of the employee

It happens that a person writes a letter of resignation, and then begins to get sick. Then the contract is terminated according to the usual procedure. The contract was terminated on the date indicated in the application. There will be no delays.

The issue is resolved in a similar way if an employee writes a letter of resignation and falls ill. When to fire if the contract is terminated by agreement of the parties?

The boss will have to wait until he is discharged from the hospital if he wants to fire his subordinate. Termination of the contract is possible, but only after the ballot ends.

When the specialist closes the bulletin, the HR employee will write all the necessary information in it. Then an order is issued and an entry is made in the work book.

On the day of dismissal and not a day later, a full settlement must be made with the person; no debts should remain. If the funds are not transferred on the day of dismissal, the employee will have the right to receive wages and penalties for each day of delay.

Is it possible to fire an employee on the day the sick leave ends?

In order to understand when it is permissible to dismiss an employee if he is on sick leave, let us turn to the norms of the Labor Code. Its norms allow an employee to write a letter of resignation at his own request and during the period of his temporary incapacity for work (sick leave), and at the same time, an employee may, after writing a letter, suddenly become ill. Since Article 80 obliges the employee to notify the company of his dismissal two weeks before the expected date, then, accordingly, by indicating in the application the specific date from which the employee asks to dismiss him, he has the right to be either on vacation or on sick leave during this period.

Therefore, regardless of the reasons for the employee’s excused absence from the workplace on the day of his dismissal, the management is simply obliged to issue an order to such an employee and dismiss him on the date indicated in the application, signed by the manager, and agreed upon. It is illegal to delay the dismissal of an employee in this case, unless, of course, he withdrew his application before going on sick leave, or while on sick leave. The same position is taken by the Federal Service for Labor and Employment in its clarification dated September 5, 2006 No. 1551-6. The employer has no right to demand that an employee “work out” up to the two weeks he was ill before dismissal.

Dismissal on the last day of sick leave is also permitted if there is an agreement between the parties, according to which the dismissal of the employee is planned for a certain date, and is established in a document signed by the parties. Such an agreement can be drawn up separately from the employment contract, or it can be a written addition to it. In any case, it is important that there is a written expression of the parties’ desire to terminate the employment contract. After all, there is no other way to prove that the employee was fired precisely by agreement with the employer. If there is such an agreement between the parties, then an employee can be fired both while he is on sick leave and on the last day of sick leave.

Fired, can't be left

Employers often make the same mistake. They do not issue an order to dismiss an employee if he has not yet completed his sick leave. Perhaps this is the employer’s desire to be safe in case the employee suddenly changes his mind about quitting. But, on the other hand, a delay in the timing of dismissal may also violate the rights of the employee himself. After all, perhaps, after his recovery, he should already start a new place of work. In this case, neither the calculation, nor the payments, nor the issuance of the work book can be delayed.

That is, if the reason for dismissal is the desire of the employee himself, or the liquidation of the enterprise, or an agreement of the parties, the law allows the dismissal of an employee on the last day of his sick leave, as in other matters, and on another day established by the employee, the employer or the law.

Another case when the law allows an employer to dismiss an employee on the last day of his sick leave is if the enterprise is liquidated (without legal succession) or an individual entrepreneur ceases his activities. But in this case, the entire procedure must be followed to the letter of the law. The employee must be informed (on receipt) that he is leaving due to the termination of his employer’s activities, and at least two months in advance. It is not worth reminding that the employer must pay such an employee not only vacation pay, sick leave, but also severance pay. In addition, the employee retains labor guarantees for some time.

It turns out that if an employee is notified in advance, in writing, he can be fired both on sick leave and on the day of leaving sick leave. Dismissal occurs on a date that corresponds to a two-month period (this minimum is established) from the date of written notification to the employee.

Difficult situations

It happens that a person falls ill and submits a letter of resignation. In such a situation, managers are often interested in extending the working period. But management has no right to force a person to work extra days. Two weeks may pass while a person is sick, and there will be no need to work extra time.

You can also safely terminate your contract while on vacation. The time spent in the office will not be extended.

2 possible situations upon dismissal:

1. A person writes a statement, and after one week issues a sick leave. Dismissal dates do not shift if the person manages to go to work and close the ballot before the end of the work period.
2. The person is ill, the document on incapacity for work is not closed. The contract is terminated on the date written in the application. The deadlines remain the same. The time during which the person could not work is paid.

What documents need to be submitted?

When the employee has decided that he is terminating his employment relationship with the employer, his next action is to submit the necessary documents. The algorithm of actions is as follows :

1. Write a letter of resignation and submit it to the HR department.
2. Contact a medical institution or call a doctor at home, if there are reasons, and record the fact of illness. Be sure to tell the doctor that you will need a certificate of incapacity for work.
3. Immediately inform your employer of your illness. This can be done by simply calling your office.
4. The further course of action depends on how many days the person will be unable to work. If he is ill for 14 days or more, then he will not need work, since all days on sick leave will be counted towards it without fail. If the illness lasts less than two weeks, after the certificate of incapacity for work is closed, you will have to work the remaining days before dismissal.

Example : An employee fell ill on August 10, 2015 and wrote a letter of resignation on the same day. The countdown of the required 14 calendar days begins from the next day, i.e. from 08/11/2015. Thus, the last working day falls on 08/24/2015. If the sick leave was closed on 08/20/2015, and it states that work must begin on 08/21/2015, then the employee will have to work at the enterprise for another 4 calendar days, i.e. from 08/21/2015 to 08/24/2015 inclusive.

On the last working day, you need to report to work and receive a work book, paycheck and all necessary payments and compensations. If you can’t come on that day due to illness, you need to inform your employer and either pick up the documents after the sick leave closes, or ask them to send everything by mail.

How to write an application?

The resignation letter must be submitted correctly so that later the employer does not hide this fact from the inspection authorities and the court. The application must be addressed to the head of the organization, for example, the director. Indicate from whom it is submitted - with the title of the position.

The text of the statement itself will be short: “I ask you to dismiss me of your own free will.” If there are grounds for dismissal without service, you must attach supporting documents. The text of the application must be dated and signed.

The application does not have to indicate the date of dismissal. The date of submission of the application is sufficient, since the countdown of 14 days will begin from the next day.

It is better to write the application in two copies . Next, the employee must:

1. Contact the HR department and submit your resignation letter.
2. Request that such a statement be registered. The second copy, which will remain with you, should have a mark with the date of acceptance and the incoming number.
3. If the HR employee or clerk refuses to accept your application, send it by registered mail with an inventory, return receipt requested.
   It is advisable to send them to both the actual address of the organization and the legal address, if they are different. You will have in your hands a shipping receipt and an inventory, which will confirm that you have submitted the application. But in this case, 14 days will be correctly counted from the date the employer received the letter; it will be indicated in the notification of delivery.
4. On the day of dismissal, you must report to work and formalize your dismissal.

Making an order

On the last working day, an order to terminate the employment contract is issued . It must be presented to the employee against signature. Next, a record of dismissal is made in the work book in strict accordance with the wording in the order.

A settlement is made with the employee, which includes all necessary payments and compensations. This includes compensation for days of annual leave not taken off in cash equivalent, wages in proportion to the number of days worked at the time of dismissal and payment for days of incapacity for work on sick leave.

Procedure for payment of time of incapacity for work

Sometimes the following situation arises: an employee decided to quit and then went on sick leave.
What will be the payment procedure in this case? The employer will have to pay for the ballot if the employee was working for the company when it was opened. Moreover, payment is made for the entire time of illness. Former employees also have to pay. Payment is made if the illness begins within thirty days after dismissal.

Sick leave is paid in the amount of sixty percent of wages.

3 design examples:

Example 1. Kuznetsov N.A. worked as a manager. Quit. Fifteen days later I fell ill with a sore throat. I contacted my local doctor and drew up a document on incapacity for work. The employer will have to pay. Money is transferred over a period not exceeding thirty days. If the illness continues beyond this period, there will be no payment.

Demands for payment are legal if the employee makes them no later than six months from the date of termination of the contract.

Example 2. Ledentsova I.S. worked as a secretary of the Moscow District Court. The girl resigned from her position. Two weeks after the contract was terminated, I fell ill. I created a newsletter. She brought the document to the personnel service only four months after her dismissal.

Question: Do I need to pay for sick leave for a former employee?

Answer. Yes, it is necessary, despite the fact that before her dismissal, her sick leave was not received by the personnel department. A resigning specialist has the right to present a document for payment no later than six months after his departure. In our example, the deadlines were met. So, questions about whether it is possible to receive payment for sick time after dismissal are resolved in favor of the employee, the main thing is to comply with the deadlines for the application.

Sanctions for violations

Liability for violations is established by the Code of Administrative Offences. An employee can seek protection of his rights from labor inspectors, the prosecutor's office and the court.

If the court confirms that there were violations, the employee will be reinstated, and the company will compensate for lost earnings.

Social guarantees are provided by the Labor Code of the Russian Federation. A person can exercise their right to rest and submit a resignation letter at the same time. The rule also applies to cases when a woman takes sick leave to care for a child. In any case, the contract is terminated on the date specified in the application.

Social guarantees do not depend on the reason for registering a ballot. A person can be fired both during his illness and while caring for a sick family member.

How do you pay?

Issues of payment for sick leave are regulated by Federal Law No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity”, as well as Art. 183 Labor Code of the Russian Federation.

If a person quit his job of his own free will, then fell ill and called in sick leave, then who pays the employee?

Payment for sick leave after dismissal at one's own request is provided by the former employer. However, there are some nuances.

Read the main article about paid sick leave after dismissal here.

In order for an employer to pay an employee who quit and then took sick leave, the following conditions must be met:

• the disease occurred within 30 days after termination of the employment contract (clause 2 of article 5 of Federal Law No. 255);
• the sick leave certificate was presented to the employer no later than 6 months from the date of its closure (Clause 1, Article 12 of Federal Law No. 255);
• at the time the temporary disability certificate is opened, the employee is not employed at a new place of work (since then the insurer will change and the new employer will pay for sick leave).

The reasons for dismissal do not matter for the payment of sickness benefits.

Example.

Ivanov I.P. decided to resign at his own request from Prosvet LLC. On May 25, 2019, he wrote a letter of resignation effective June 8, 2019. The employment contract with him is terminated on the designated date - 06/08/2019.

06/10/2019 Ivanov I.P. falls ill and is on temporary sick leave for 7 days, sick leave ends on June 17, 2019. Sickness benefits will be paid subject to the transfer of sick leave to the employer by December 17, 2019. For the period from 06/10/2019 to 06/17/2019, he will be paid a benefit in the amount of 60% of the average daily salary.

Important! After dismissal, compensation due to disability is paid only to the former employee; care for a sick family member will not be paid.

The procedure for receiving temporary disability benefits will be as follows:

• the employee provides the former employer with a certificate of incapacity for work, opened within 30 days from the date of dismissal;
• work book confirming the fact of absence of a new place of work;
• passport;
• application for payment for the period of incapacity;
• the employer reviews the submitted documents;
• calculates the benefit amount and pays it within 10 days.

Who pays and how much?

Regardless of the length of service, the sick days of an already dismissed employee will be paid to him in the amount of 60% of the average daily salary (clause 2 of article 7 of Federal Law No. 255 “On compulsory social insurance”).

As a general rule, the average salary for calculating the amount of disability benefits is calculated for the 12 months that preceded the illness. The procedure for calculating the average salary is established in the relevant Regulations approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922.

In accordance with clause 1, part 2, art. 3 Federal Law No. 255 sick leave is paid:

• the first three days by the employer;
• starting from the 4th and subsequent days of illness - by the Social Insurance Fund.

The former employee must provide sick leave, a work record book and a passport to the employer, who subsequently notifies the Social Insurance Fund of the need to pay benefits.

In cases provided for in Part 4 of Art. 13 Federal Law No. 255 (for example, termination of an organization’s activities and similar situations), benefits are paid by the territorial body of the Social Insurance Fund after a direct application to the Fund.

Example.

Ignatieva V.V. 10 days after the termination of the employment agreement with Rassvet LLC, she fell ill and was on sick leave for 12 days.

Work experience of Ignatieva V.V. is 15 years, however, given that temporary disability occurred after the termination of employment relations with the employer, the rule on payment of 100% of average earnings does not apply to it.

Average daily salary of Ignatieva V.V. was 1,690 rubles.

The temporary disability benefit will be calculated as follows:

1,690 * 60% * 12 = 12,168 rubles.

Earlier it was said that the payment of benefits for the first three days is made by the employer, the subsequent days of sick leave are paid from the Social Insurance Fund budget, respectively:

1,690 * 60% * 3 = 3,042 rubles must be paid to Rassvet LLC.

1,690 * 60% * 9 = 9,126 rubles - the amount of payment made from the Social Insurance Fund.

Summary

1. The Constitution and the Labor Code guarantee the prohibition of forced labor. Therefore, a person can resign from office whenever he pleases. There are no obstacles.
2. You can resign while on vacation or during illness.
3. If sick leave is issued, then we resign on a general basis. Dates are not transferred.
4. If you leave your position, you can still get money. Payment is made if you have time to apply no later than six months after dismissal.
5. When a person leaves work, the ballot is paid for a period no later than thirty days from the date of termination of the contract.
6. The documents are drawn up so that the employee leaves her position on the date indicated in the application. The working time is not extended when a document on incapacity for work is issued.