On the day of dismissal, the employee opens a sick leave certificate. Dismissal while on sick leave. If the employee continues to be sick

The employee’s relationship with the organization after his dismissal does not always completely relieve the enterprise where he was employed from performing all duties.

Evidence of this is given to the employee after he leaves his position.

Therefore, a properly documented disability of a former employee, subject to certain conditions, can be compensated in cash. Let's look at the cases in which this is possible.

Legislative regulation

The company is obliged to accept sick leave presented for payment, even after dismissal, subject to certain rules.

This situation is stated in article 183 of the Labor Code, operating in Russia. However, the article does not establish what exact calculation procedure is provided for such payments. In this case, the law refers to the norms prescribed in legal acts on social insurance in case of disability. What do they say?

For the legal regulation of any reasons related to the incapacity of workers, the following are used: legal acts:

1. Federal Law No. 255;
2. Order of the Ministry of Health No. 624n.

They regulate the procedure for registration and issuance of sick leave. The regulations guarantee the right of all workers to material compensation in the event of illness, but subject to certain conditions.

An official document that exempts you from work during health problems is a sick leave certificate. Only medical institutions can issue it in the manner approved on August 1, 2007 by Order of the Ministry of Health and Social Development No. 514. The form is issued by a doctor to insured persons who are sick. It is issued to those who are ill within 30 days from the date of leaving the employer.

If an employee is employed in several organizations at once, then for each of them he is separately given the required number of copies. For each of them, enterprises are required to pay benefits.

Terms of payment

At the legislative level, it is clearly specified payment standards compensation for lost income during treatment of workers. They are enshrined in the Regulations on the calculation of benefits for temporary disability. This legislative act was approved by Decree of the Government of the Russian Federation on June 15, 2007 N 375.

Compensation is issued in cases where an employee falls ill or is injured within 30 days from the date of dismissal. Moreover it is issued regardless on the reasons for leaving and the duration of the treatment period. However, if a former employee received a registered form from a medical institution within the same period, but in connection, then he will not be able to receive monetary compensation.

So, conditions for accepting sick leave for payment benefits after termination of an employment agreement with an employer are as follows:

1. The employee who resigned fell ill within the first month after leaving the workplace.
2. A medical document for the previous employer was completed in a timely and correct manner.
3. The treatment began even before the termination of the employment relationship, and the sick leave was presented to the organization after the dismissal.
4. The employee received a medical document for the treatment of a personal illness or injury, and not for caring for a family member (husband, etc.).
5. The medical document was presented before six months from the date of termination of the employment relationship.
6. After leaving, the specialist has not yet managed to get a new job.

If a worker presents a completed sick leave form to the organization from which he left, then he will need such copies of documents:

• Some passport pages;
• A work book to confirm the lack of employment at the new enterprise.

Time frame

Payment of compensation for sick leave is made if the opening date is within 30 calendar days after the termination of the employment relationship.

It is necessary to emphasize that the main temporary conditions to receive insurance benefits are:

• the document was opened at the medical institution within 30 days from the date of termination of the employment agreement;
• it was presented no later than six months from the date of dismissal.

Types of certificates of incapacity for work

Payment for sick leave is made only in case of personal illness from a former employee. A document from the hospital confirming incapacity for work due to illness of relatives (including a child) is not accepted for payment of compensation.

The employer is obliged to accept sick leave from a dismissed employee for calculating benefits, regardless of the period indicated on it.

From a former employee type and duration of the document presented disability status depends on the treatment option that was prescribed to him.

There may be several of them:

In difficult situations, the period for which sick leave is issued can be up to 10 months. If serious complications or tuberculosis are detected, the treatment period can be 1 year.

Payment rules

Every organization has an obligation to its socially insured employees. If they get sick and are unable to perform their work duties, the company must pay the employee compensation for the entire period of treatment. It is indicated on the sick leave certificate from the medical institution, confirming the patient’s observation by a doctor.

Payment amount calculated according to the procedure established by law.

The amount for the employee may fluctuate depending on his experience :

• from 8 years - 100% of the average daily salary;
• for 5–8 years, the benefit amount is equal to 80% of the average daily earnings;
• less than 5 years, 60% of the average daily income for work will be accrued and paid.

However, these rates apply only when calculating the payment of the insured amount for sick leave that began during a valid employment contract. It can be presented after dismissal in the first 6 months. If the document is drawn up at a medical institution after the date when the employee has already terminated the agreement, the amount of compensation will only be 60% of his average salary.

To calculate the sum insured for periods of illness throughout 2019 take such data into account:

• existing insurance experience when contributions were made to OSS;
• income from all places of work of the worker received in 2017-2018 and divided by 730 days to determine his average daily earnings.

How to be an accountant correctly perform benefit calculation, if the resigned employee fell ill before the day of dismissal or immediately after it? There are only 2 options for calculating the amount of compensation:

• If the illness arose before dismissal, then a document on treatment must be presented, as for all employed employees.
• If the employee went to the doctor the next day after the termination of the employment agreement, then compensation in the amount of 60% of the average daily earnings is due for the days of treatment.

Payment of compensation can only be made if official employment employee with the employer and the latter regularly made contributions to the insurance fund for him. This circumstance is important because Most of the money for benefits is allocated from the Social Insurance Fund, and not from the enterprise budget. The organization pays compensation for sick leave only for the first three days of loss of ability to work.

Calculation example

Economist Alekseev O.N. resigned from the Novator company on May 5, 2019. But on September 8 of the same year, when the employment contract was terminated, he brought a sick leave certificate to the Novator HR department to receive the benefits due for him.

The opening date in the document is May 30, and its closing date is September 7. To confirm that he did not find a new job and did not register with the employment center, the employee provided a copy of his work record book. Under such conditions, the former employer must accept the sick leave from the resigned employee, calculate the amount based on it and pay it in the amount of 60% of the average daily earnings.

Before his dismissal, Alekseev O.N. worked at the Novator company for 5 years and 8 months. Therefore, to calculate the average daily earnings, a two-year period is taken when this company paid him a salary before dismissal. The calculation of the total amount of income includes only those that were paid to him for the performance of his work duties. One-time incentives and periods of payment of benefits from the Social Insurance Fund are not added to them.

With this procedure, the accountant established that for 2 years the total amount of labor income of Alekseev O.N. amounted to 215,000 rubles. To determine the amount of average daily earnings, it must be divided by 730 days.

The result is:

215000 / 730 = 294.52 (rub.)– average daily salary.

• in May – 2;
• in June – 21;
• in July – 21;
• in August – 23
• in September - 5.

The amount of the insurance benefit is determined by multiplying the average daily income by the number of working days during the period of incapacity and from it an amount of 60% is calculated:

(294.52 * 72) * 60 / 100= 12,723 rubles.

The benefit should be issued within 1 month from the moment the employee applies for sick leave.

Features of registration and payment in various situations

In different situations, there are special reasons that led to the termination of the employment agreement and affect the principles of calculating compensation for the resigned employee.

Let's look at the main nuances that may affect the calculation of benefits.

At your own request

The employee’s desire to leave the organization’s staff, indicated in the application, is the most common type of termination of an employment contract. But under some circumstances, a former specialist can submit sick leave to the enterprise administration even after dismissal.

You can accept it for calculating benefits in 2 cases:

1. Departing employee falls ill during the working period (14 days) from the moment of writing the application. The contract is terminated on the day indicated by the employee, despite his illness. In this case, the certificate of incapacity for work must be opened up to and including the day of dismissal. Insurance benefits should be calculated on the same principle as other officially employed persons.
2. The employee quit and fell ill within 30 days from the moment of leaving office. Accordingly, the sick leave that the employer is obliged to accept from the former employee must be dated only during this period and submitted no later than six months from the date of dismissal. Since the contractual relationship has already been terminated, but the worker who left the organization has not yet found a new job, and he has not registered with the employment service, he is entitled to accrue and pay benefits. However, its size will already be equal to 60% of the amount that he would have received during his official work at this enterprise.

In each case, compensation for the period of illness must be paid within a month.

By agreement of the parties

Dismissal by agreement of the parties requires the signing of the relevant document by both parties. If a former specialist brings to the organization a unified document filled out by a doctor for calculating insurance benefits after leaving the enterprise, then the administration must make one of two decisions: calculate and issue benefits or refuse. Here you need to do the same as when calculating at your own request.

Staff reduction

All persons in the organization who left due to staff reduction receive severance pay. However, even if they receive it, they may qualify for insurance for days of incapacity. Payment terms are the same as described above.

Only in the event of complete liquidation of the organization, dismissed workers need to go directly to the Federal Social Insurance Fund of the Russian Federation with a certificate of incapacity for work.

Upon dismissal of a pensioner

A pensioner is the same employee as persons who do not receive a pension. Therefore he has the same rights. Each employee officially registered at the enterprise, Art. 183 of the Labor Code of the Russian Federation guarantees insurance compensation in case of temporary disability.

The regulations state that if a specialist is fired, but shortly before this event he fell ill and went to the doctor and took sick leave, then the employer must pay him the entire amount due.

When they can refuse

From a resigned employee in a former organization may not accept sick leave in such cases:

However, there are exceptions for expectant mothers. Only the following employees will be able to receive insurance for days of incapacity:

• injured;
• in case of deterioration of health due to artificial termination of pregnancy or in vitro fertilization;
• resigned for the following reasons:
• when a spouse is transferred to work in another region;
• in connection with the husband’s permanent move to his place of residence;
• an illness has been identified that is not comparable to the conditions of work or residence at the employer’s location;
• due to the provision of care to disabled people with group I, or other ill relatives.

The rules for issuing and paying for sick leave after dismissal are discussed in the following video.

Conflicts with employees must not only be resolved, but also prevented. Unfortunately, there are situations when this is quite difficult to do. For example, an employee opens a certificate of incapacity for work on the day of dismissal upon termination of an employment contract at the initiative of the employer. What to do? Should I pay benefits or is the employee considered to have resigned? What can be done to prevent such cases?

So, an unusual situation has arisen in your company. The employee is fired at the initiative of the employer under one of the paragraphs of Part 1 of Art. 81 of the Labor Code of the Russian Federation, for example, due to a reduction in staff or numbers, or for other reasons, say, under Art. 278 of the Labor Code of the Russian Federation (additional grounds for termination of an employment contract with the head of an organization). The procedure for terminating the contract was followed, the employee was familiarized with the dismissal order, he was given a work book with a record of dismissal, and payment was made. And the next day, or a week later, or, perhaps, already in court, the employee presents the employer with a sick leave certificate, opened precisely on the day of dismissal, with a demand to cancel the order of his dismissal.

The question arises, what to do in this situation? Should we satisfy the employee’s request and cancel the dismissal order, continuing the employment relationship with him, or leave everything as it is, waiting for the conflict to develop? Formally, the date of dismissal at the initiative of the employer and the date of opening the certificate of incapacity for work coincide. It would seem that there are grounds to apply Part 6 of Art. 81 of the Labor Code of the Russian Federation, which contains a ban on the dismissal of an employee during the period of his temporary disability, and cancel the controversial order.

But in judicial practice over the past few years a concept has emerged inadmissibility of abuse of rights by an employee. The Labor Code of the Russian Federation does not contain the concept of “abuse of rights by an employee.” However, it is disclosed in paragraph 27 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as the resolution of the Plenum of the Supreme Court of the Russian Federation No. 2): unfair actions of an employee to conceal temporary disability in day of dismissal.

Despite the fact that labor legislation does not establish an employee’s obligation to notify the employer about the opening of sick leave, deliberate concealment of this fact on the date of dismissal (if there is an opportunity to “disclose” it to the employer) is regarded by the courts as an abuse of the employee’s right.

Faced with such a situation, the employer needs to find out whether it was an abuse of right when the employee deliberately took sick leave, or whether he became incapacitated for reasons beyond his control. Let's take a closer look at them.

Situation one: the employee “got sick” intentionally

The employee, knowing about his upcoming dismissal “under the article,” prudently provided himself with sick leave on the day of the upcoming dismissal before completing the dismissal procedure. Let's say, just before the start of the working day, I visited a doctor and issued a certificate of incapacity for work, and while signing the dismissal order and receiving the work book, I already had a certificate of incapacity for work opened that day. In this case, there is dishonesty of the employee, i.e. the same “abuse of law” that the Plenum of the RF Armed Forces speaks about in Resolution No. 2.

The above example differs slightly from the substance of those cases that have been regularly considered by the courts since 2004. See, for example, the following judicial acts: rulings of the Moscow Regional Court dated January 12, 2012 in case No. 33-601/2012, 33-29485/2011, Moscow City Court dated June 3, 2011 in case No. 4g/6-4333, dated November 24 .2010 in case No. 4g/1-10400, St. Petersburg City Court dated September 23, 2010 No. 13190. The only difference is that in the listed judicial acts the employee has already had a certificate of incapacity for work for some time (sometimes quite a long time) at the time of dismissal. And in our case, the employee decided to provide himself with “sick leave” only on the day of dismissal. But both in the above judicial practice and in the situation we are considering, there will be dishonesty of the employee, abuse of his right not to be fired during the period of incapacity.

Thus, the cases considered by the courts and our example are characterized by the following signs of employee dishonesty:

1. IN on the day of dismissal, the employee does not present a sick leave certificate or a copy thereof. Perhaps, for some reason, the employee does not have a sick leave certificate or a copy of it with him at the time of dismissal.
2. Worker does not communicate orally, in writing, or in any other way to any of the persons conducting the dismissal procedure, or to their management about his open sick leave by the time of dismissal.
   Let us note that the regulations do not specify which representative of the employer should be informed about the presence of a certificate of incapacity for work. The court makes its conclusions based on specific circumstances.

   Arbitrage practice

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   The cassation ruling of the Investigative Committee for civil cases of the Moscow City Court dated July 22, 2010 No. 33-22024/10 states that the plaintiff informed the personnel service employees and the secretary of the general director about her sick leave. The defendant tried to refute this argument by arguing that the employee did not report her “sick leave” to the general director personally. However, the court did not take this argument into account, considering the message about the certificate of incapacity for work to the personnel service and the director’s secretary as proper notification to the employer about his sick leave. Moreover, from the circumstances of the case, the court saw that the general director avoided communicating with the plaintiff. This conclusion of the court about the absence of abuse of rights on the part of the plaintiff seems logical and sufficiently justified.

   
   It should also be noted that the employer may become aware of the employee’s opening of sick leave not only due to the actions of the employee himself. In this case, regardless of whether the employee reported his temporary disability or this became known in some other way, it can no longer be said that the employer was unaware of the sick leave.

   Arbitrage practice

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   This situation is illustrated by the ruling of the Leningrad Regional Court dated March 30, 2011 No. 33-1566/2011. In the case, we are talking about the fact that the plaintiff’s immediate supervisor reported her disability in a memo addressed to the general director of the enterprise. Thus, evidence of the employer’s awareness of the plaintiff’s open sick leave is the mention of it in this document. The trial court denied the plaintiff's claims because there was no evidence that she had self-reported her illness. However, the Leningrad Regional Court took into account the employer’s awareness of this. In this case, the court did not find any abuse of rights on the part of the employee.

   
   Another decision examined an interesting situation when on the day of dismissal the plaintiff was incapacitated for work, but neither the employee nor the employer knew about the issue of sick leave.

   Arbitrage practice

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   The plaintiff was fired on December 22, 2008, but a certificate of incapacity for work was issued to her the next day after her dismissal, December 23, 2008, but from December 20, 2008, due to the fact that on December 19, 2008 at 8 p.m. 20 minutes. she went to the emergency room for medical help. The court noted that on the day of dismissal, neither the plaintiff nor the employer knew about the employee’s temporary disability, and therefore did not accept the plaintiff’s argument about dismissal during illness. However, it should be noted that the court does not mention the abuse of rights on the part of the plaintiff (decision of the Zheleznodorozhny District Court of Ulyanovsk dated March 23, 2009).

3. The employee submits a “sick leave” after the employment relationship with him is terminated, or he “publishes” it only in court, while insisting on the illegality of his dismissal during the period of incapacity. If these circumstances exist, the employee’s actions can be considered an abuse of right.
   In such situations (if the employee makes a demand directly to the employer or in court to reinstate him at work, as well as related demands (for payment of forced absence, compensation for moral damage, etc.) and there are no violations in the dismissal procedure), the employer has every right to refuse the employee satisfying his requirements.
   When considering a case in court, taking into account the current practice, the truth will be on the side of the employer, who should not suffer due to the negative consequences of the employee’s dishonesty. However, it should be taken into account that it is the employer who will have to prove the dishonesty of the employee’s actions and the fact that he abused his right not to be fired during sick leave (clause 23 of Resolution of the Plenum of the RF Armed Forces No. 2).

   Arbitrage practice

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   As noted in the ruling of the Saratov Regional Court dated September 25, 2008 No. 33-3558, the dismissal of an employee during a period of incapacity for work is an independent basis for his reinstatement, regardless of the reasons that served as the basis for dismissal at the initiative of the employer. Therefore, you need to be especially careful when proving the fact of abuse of rights by an employee.

Thus, it is necessary to collect and evaluate the evidence base in advance on the circumstances listed above, which will confirm the dishonesty of the employee’s actions. When refusing to satisfy the employee’s demands to cancel the dismissal order, you must be sure that you will be able to prove the employee’s dishonesty if he goes to court and/or the labor inspectorate.

Situation two: sick leave is received after all documents have been completed

Let's consider a more complex and interesting situation: an employee, having gone through the dismissal procedure, received a work book, leaves his place of work. And either immediately or at the end of the working day, he goes to a medical institution and opens a sick leave sheet on the same day. Accordingly, he subsequently informs the employer of his certificate of incapacity for work with a request to cancel the order of dismissal during the period of incapacity for work. In this situation, it is more difficult to talk about the employee’s dishonesty. Some may actually need medical attention due to the stress of being laid off by their employer.

Arbitrage practice

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The ruling of the St. Petersburg City Court dated August 11, 2011 No. 33-12339 considered a situation where an employee tried to challenge the dismissal due to the fact that in the evening of the same day she was hospitalized due to deteriorating health. The court refused to satisfy the plaintiff’s demands, citing the fact that the “sick leave” was opened after the end of the working day, during the dismissal procedure she was able to work, and there were no violations in the dismissal procedure itself. The court regarded the plaintiff's application to dismiss her during the period of incapacity as an abuse of right on the part of the employee.

The Kemerovo Regional Court came to the opposite conclusion.

Arbitrage practice

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In paragraph 3 of the certificate of the Kemerovo Regional Court dated March 15, 2007 No. 01-19/150 on the practice of consideration by the regional courts of civil cases in 2006, based on cassation and supervisory data, a case is analyzed when an employee was given a dismissal order at 16.30, the working day ended at 17.00, and at 17.55 the employee applied for sick leave. The district court satisfied the plaintiff’s demands, citing only the fact that the employee was fired during a period of incapacity. But the Kemerovo Regional Court overturned the district court’s decision, noting that the court should have examined the circumstances of issuing the certificate of incapacity for work and established whether the employer was aware of the plaintiff’s incapacity for work at the time of dismissal.

What if an employee, for example, is fired in the middle of the day and released from the workplace after all formal procedures have been followed? This is often what happens in companies. Therefore, the employee manages to receive sick leave before the official end of the working day. In our opinion, in this situation it is also not worth canceling the order and reinstating the employee at work, since The dismissal procedure had already been completed by the time the sick leave was issued.

Also in this situation, it is appropriate to say that the moment of termination of the employment relationship in this case is the moment the employee is given the dismissal order and work book, and not the moment the working day ends. From now on, the employer has no obligation to maintain the employee’s position during the period of incapacity. And the employee, accordingly, has no guarantee of maintaining his job during the period of incapacity.

What can an employer do to protect itself as much as possible in the event of such “surprises” on the part of a dismissed employee? We propose the following measures:

1. on the day of termination of the employment contract, the dismissal procedure must be recorded time by time. That is, the employee must indicate the exact time of familiarization with the dismissal order, the time of receiving it in hand, the time of receiving the work book, and the payment (if it is issued at the cash desk). If an employee refuses to sign the documents or does not set the date and time, the fact of delivery of the documents and the time of their delivery should be recorded in a commission act;
2. The dismissal procedure must be carried out in the presence of witnesses, even if the employee does not refuse to receive documents and indicate the time of their receipt. Witnesses will subsequently be able to confirm the time of delivery of the dismissal documents to the employee, and the fact that during the dismissal procedure he did not present a certificate of incapacity for work, did not report his “sick leave”, and did not show critical signs of poor health;
3. after the employee presents a sick leave certificate, it is necessary to make a request to the medical institution that issued it. The request must require information about the time the employee was seen by the doctor and the time when sick leave was issued. If the case goes to court, you can petition to call as a witness the doctor who opened the certificate of incapacity for work;
4. Labor legislation does not establish a direct obligation for an employee to notify the employer about the opening of sick leave. However, from an analysis of the norms of the Labor Code of the Russian Federation, it follows that compliance with employee guarantees during a period of temporary incapacity (payment of sick leave, preservation of a job) depends on whether the employer is aware of the “sick leave”. Accordingly, a more “general” preventive measure would be to include in local regulations (for example, Internal Labor Regulations) and in job descriptions of employees the obligation to notify the employer about open sick leave directly on the opening day. This obligation will not contradict the norms of labor legislation, since it is aimed at maintaining labor discipline, because the employer must, among other things, draw up time sheets and record the employee’s sick days on them. And for the employee himself, this obligation is useful in that its fulfillment ensures the timely and complete provision of guarantees provided for by the Labor Code of the Russian Federation.

Footnotes

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Is sick leave paid after dismissal? Yes, if the employee fell ill or was injured within 30 calendar days from the date of termination of work under the employment contract (Part 2 of Article 5 of Law No. 255-FZ of December 29, 2006). That is, if an employee quit and brought sick leave, from which it follows that the illness occurred no later than 30 calendar days from the date of dismissal, then the former employer must pay such sick leave to the dismissed employee (clause 1 of the Procedure, approved by Order of the Ministry of Health and Social Development dated June 29, 2011 No. 624n ). In this case, it is not necessary that the entire period of incapacity fit within the specified 30 days; payment for sick leave after dismissal is still made for all days of incapacity.

Procedure for paying sick leave for a dismissed employee

If we talk about how sick leave is paid after dismissal from work, the main feature is that the benefit is determined on the basis of 60% of the average earnings of the former employee (Part 2 of Article 7 of Law No. 255-FZ of December 29, 2006).

Grounds for dismissal and sick leave

Payment for sick leave after dismissal is made in the manner described above, regardless of the basis on which the employment contract with the employee was terminated. The same rules apply when paying sick leave after dismissal by agreement of the parties, at their own request, due to staff reduction, etc.

That is, even if an employee was fired due to layoffs and was paid severance pay and average earnings for the duration of employment, sick leave after dismissal is still paid in the above order.

Dismissal at your own request on sick leave

As you know, an employer, on its own initiative, cannot fire an employee while he is on sick leave (Article 81 of the Labor Code of the Russian Federation). But dismissal of an employee at his own request while on sick leave is quite possible.

If an employee, for example, wrote a letter of resignation, but fell ill before the termination of the employment contract (including on the day of dismissal), the employer will have to fire him on the date indicated in the letter (Article 80, 84.1 of the Labor Code of the Russian Federation). Moreover, here, payment for sick leave upon dismissal of one’s own free will must be made without taking into account the limit of 60% of average earnings, since the employee fell ill even before dismissal. Such sick leave is paid according to generally established rules.

But for sick leave paid after voluntary dismissal, a 60% limit on average earnings is already applied.

Is sick leave considered work upon dismissal?

If an employee quits on his own initiative, he must notify his employer about this in writing no later than 2 weeks in advance - the period of so-called working off (Article 80 of the Labor Code of the Russian Federation). During these 2 weeks, the employee may get sick. So, sick leave during service upon dismissal is counted towards the period of service and does not increase it.

Certificate of earnings

The employer must provide the employee with the amount necessary to calculate future sick leave benefits upon his dismissal. If the employee does not have such a certificate, his next employer, if necessary, will calculate benefits for him based on the data he has. However, if the employee subsequently brings such a certificate to the new employer, then the benefits paid by the new employer at that time will need to be recalculated (taking into account the information specified in the certificate).

The employee’s right to terminate the employment contract with the employer at his own request is secured by the provisions of Article 80 of the Labor Code.

To exercise this right, the employee must notify the employer in writing of his desire to resign no later than two weeks*.

*The specified period begins the next day after the employer receives the employee’s resignation letter.

By agreement between the employee and the employer, the employment contract can be terminated even before the expiration of the notice period for dismissal.

In cases where an employee’s application for dismissal on his initiative is due to the impossibility of continuing his work (enrollment in an educational organization, retirement and other cases), as well as in cases of violation by the employer of labor legislation and the terms of the employment contract, the employer is obliged to terminate the employment contract on time specified in the employee’s application.

At the same time, before the expiration of the notice period for dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out unless another employee is invited in his place in writing, who, in accordance with current legislation, cannot be denied an employment contract.

Upon expiration of the notice period for dismissal, the employee has the right to stop working. On the last day of work, the employer is obliged to issue the employee a work book and other documents related to the work, upon the employee’s written application, and make a final payment to him.

If, upon expiration of the notice period for dismissal, the employment contract has not been terminated and the employee does not insist on dismissal, then the employment contract continues.

Guarantees for an employee with temporary working capacity are also established by the provisions of the Labor Code of the Russian Federation. In accordance with the provisions of Article 183 of the Labor Code of the Russian Federation, in the event of temporary disability, the employer pays the employee temporary disability benefits in accordance with federal laws.

The amount of temporary disability benefits and the conditions for their payment are established by federal laws.

Federal Law of December 29, 2006 No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity”*:

• regulates legal relations in the system of compulsory social insurance in case of temporary disability and in connection with maternity,
• determines the circle of persons subject to such compulsory social insurance,
• types of compulsory insurance coverage provided by them,
• establishes the rights and obligations of subjects of compulsory social insurance,

and also determines the conditions, amounts and procedure for providing benefits for temporary disability, pregnancy and childbirth, and monthly child care benefits for citizens subject to compulsory social insurance.

*Law No. 255-FZ does not apply to relations related to the provision of citizens with temporary disability benefits due to an industrial accident or occupational disease.

In the article we will look at the features of calculating benefits when an employee is dismissed while on sick leave, as well as cases when an employee brings sick leave that was opened after dismissal.

Sick leave is open until termination of employment

An employee who resigns voluntarily notifies the employer 2 weeks before the date of intended dismissal. At this time, he can work, be on vacation, or on sick leave - absence from the workplace does not in any way affect the employee’s right to dismissal at his own request.

At the same time, even if the employee is at work, it is quite possible that during two weeks of “working” he may get sick and not recover by his last working day.

If, at the same time, such an employee has not withdrawn his application for dismissal, despite the fact that the employee is absent on the last day of work and is on sick leave, the employer has no reason to change the date of dismissal and must dismiss him on the day specified in the application about dismissal.

Based on the provisions of Article 81 of the Labor Code of the Russian Federation, it is not allowed to dismiss an employee during the period of his temporary disability at the initiative of the employer. However, if an employee resigns of his own free will, this provision of the Labor Code of the Russian Federation does not apply, since the employer has a letter of resignation from the employee.

Explanations on this issue were given by Rostrud in a Letter dated 09/05/2006. No. 1551-6:

“An employee has the right to terminate an employment contract by notifying the employer in writing two weeks in advance.

An employee can notify the employer of dismissal not only during the period of work, but also while on vacation and during a period of temporary disability. In this case, the date of the proposed dismissal may also fall within the specified periods.

The Labor Code does not contain any obstacles to filing a resignation letter of one's own free will in any form, including by sending it by mail. Thus, the employee can send a corresponding application to the employer, for example, by registered mail.

The rule set out in Art. 81 of the Code, according to which the dismissal of an employee during the period of temporary disability and while on vacation is not allowed, applies only to cases of dismissal at the initiative of the employer.”

Accordingly, an accountant often has a question about how to calculate sick leave, which begins during the employee’s work in the organization and ends after his dismissal.

According to Part 1 of Art. 13 of Law No. 255-FZ, the appointment and payment of benefits for temporary disability are carried out by the policyholder at the place of work (service, other activity) of the insured person.

If the insured event occurred during the term of the employment contract, the benefit must be calculated and paid for the period from the start of sick leave to the day the certificate of incapacity for work is closed in the same amounts as if the employee continued to work.

Accordingly, the benefit is paid for the period from the beginning of the sick leave to the day it ends, inclusive.

The basis for the appointment and payment of such benefits is a correctly executed certificate of incapacity for work (Part 5, Article 13 of Law No. 255-FZ).

Not only the temporary disability of the employee himself, but also sick leave for child care is paid in full.

According to paragraph 40 of the Order of the Ministry of Health and Social Development of Russia dated June 29, 2011. No. 624n "On approval of the Procedure for issuing certificates of incapacity for work." A certificate of incapacity for work is not issued for care:

• for a sick family member over 15 years of age during inpatient treatment;
• for chronic patients during remission;
• during the period of annual paid leave and unpaid leave;
• during maternity leave;
• during the period of parental leave until the child reaches the age of 3 years, with the exception of cases of work performed during the specified period on a part-time basis or at home.

Based on clause 41 of the Procedure, if a child falls ill during a period when the mother (another family member actually caring for the child) does not need to be released from work (annual paid leave, maternity leave, parental leave until reaching they are 3 years old, leave without pay), a certificate of incapacity for work to care for the child (in the case when he continues to need care) is issued from the day when the mother (another family member actually caring for the child) should begin to work.

Let us recall that according to clause 1 of Article 7 of Law No. 255-FZ, temporary disability benefits, with the exception of the cases specified in Part 2 of this article, during quarantine, prosthetics for medical reasons and after-care in sanatorium-resort organizations immediately after medical treatment assistance in inpatient conditions is paid in the following amount:

• for an insured person with 8 or more years of insurance experience - 100 percent of average earnings;
• for an insured person with an insurance period of 5 to 8 years - 80 percent of average earnings;
• for an insured person with up to 5 years of insurance experience - 60 percent of average earnings.

Sick leave is open after the date of dismissal of the employee

In accordance with the provisions of paragraph 1 of Article 5 of Law No. 255-FZ, provision of temporary disability benefits to insured persons is carried out in the following cases:

1. loss of ability to work due to illness or injury, including in connection with an operation for artificial termination of pregnancy or in vitro fertilization (hereinafter referred to as illness or injury);
2. the need to care for a sick family member;
3. quarantine of the insured person, as well as quarantine of a 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;
4. implementation of prosthetics for medical reasons in a hospital specialized institution;
5. follow-up treatment in the prescribed manner in sanatorium-resort organizations located on the territory of the Russian Federation, immediately after the provision of medical care in an inpatient setting.

According to clause 2 of Article 5 of Law No. 255-FZ, temporary disability benefits are paid upon the occurrence of the above cases:

• during the period of work under an employment contract,
• carrying out official or other activities,

during which they are subject to compulsory social insurance in case of temporary disability and in connection with maternity, as well as in cases where the illness or injury occurred within 30 calendar days from the date of termination of the specified work or activity or during the period from the date of conclusion of the employment contract until the day of its cancellation.

Accordingly, an employee who is no longer working in the organization and falls ill within 30 calendar days from the date of termination of the employment contract has every right to present sick leave to his former employer, and the employer is obliged to pay for this sick leave.

The reasons for dismissal and the duration of temporary disability can be any; this does not matter in this case.

But the reason for temporary disability is important - the considered norm, clause 2, article 5 of Law No. 255-FZ, applies only to cases related to illness or injury of the insured person himself. Accordingly, if within 30 days after dismissal an employee brings, for example, sick leave to care for a child, temporary disability benefits on this basis are not assigned or paid to him.

According to clause 1 of Article 6 of Law No. 255-FZ, temporary disability benefits in case of loss of ability to work due to illness or injury are paid to the insured person for the entire period of temporary disability until the day of restoration of working capacity (establishment of disability)*.

*Except for the cases specified in parts 3 and 4 of Article 6 of Law No. 255-FZ.

According to paragraph 1, paragraph 2, article 3 of Law No. 255-FZ, temporary disability benefits are paid to insured persons (with the exception of insured persons who voluntarily entered into legal relations under compulsory social insurance in case of temporary disability and in connection with maternity, in accordance with Art. 4.5 No. 255-FZ):

• for the first three days of temporary disability - at the expense of the policyholder,
• and for the remaining period (starting from the 4th day of temporary disability) - at the expense of the Social Insurance Fund budget.

In accordance with clause 1 of Article 12 of Law No. 255-FZ, temporary disability benefits are assigned if the application is followed by no later than six months from the date of restoration of working capacity (establishment of disability), as well as the end of the period of release from work in cases of caring for a sick family member, quarantine, prosthetics and after-care.

If the application for benefits occurred after the specified period, the decision to assign benefits is made by the territorial body of the insurer if there are good reasons for missing the deadline for applying for benefits. For such reasons, according to the Order of the Ministry of Health and Social Development of Russia dated January 31, 2007. No. 74 include:

• force majeure, that is, extraordinary, unpreventable circumstances (earthquake, hurricane, flood, fire, etc.);
• long-term temporary disability of the insured person due to illness or injury lasting more than six months;
• moving to a place of residence in another locality, change of place of residence;
• forced absenteeism due to illegal dismissal or suspension from work;
• damage to health or death of a close relative;
• other reasons recognized as valid in court (when the insured persons apply to court).

According to clause 3 of Article 13 of Law No. 255-FZ, an insured person who has lost his ability to work due to illness or injury within 30 calendar days from the date of termination of work under an employment contract, official or other activity, during which he was subject to compulsory social insurance, benefits for temporary disability is assigned and paid by the policyholder at his last place of work (service, other activity).

In cases where the insured ceases to operate on the day the insured person applies for benefits, or if it is impossible for the insured to pay it due to insufficient funds in his current account, the insured person applies for payment of benefits to territorial body of the insurer.

Let us remind you that for insured persons working for several employers, temporary disability benefits are assigned on the basis of sick leave for each place of work or for one of the last places of work(services, other activities) at the choice of the insured person (Article 13 of Law No. 255-FZ).

In the event of illness, such an employee is issued an appropriate number of certificates of incapacity for work to be presented at each place of work.

Clause 2 of Article 5 of Law No. 255-FZ does not provide for any restrictions on the assignment of temporary disability benefits for part-time workers.

Thus, if an external part-time worker brings a certificate of incapacity for work before 30 days after dismissal, the former employer must accept it, determine the amount of benefits and pay the appropriate amount.

Based on clause 2 of Article 7 of Law No. 255-FZ, temporary disability benefits for loss of ability to work due to illness or injury are paid to the insured persons:

• in the amount of 60% of average earnings in case of illness or injury occurring within 30 calendar days after termination of work under an employment contract, official or other activity, during which they are subject to compulsory social insurance in case of temporary disability and in connection with maternity.

In accordance with clause 1 of Article 15 of Law No. 255-FZ, the insurer assigns temporary disability benefits within 10 calendar days from the date the insured person applies for it with the necessary documents.

Payment of benefits is carried out by the policyholder on the day closest to the date of payment of wages after the appointment of benefits.

This means that the dismissed employee will also need to be paid benefits within the above deadlines.

Dismissal and sick leave

According to Part 1 of Art. 80 of the Labor Code of the Russian Federation, an employee has the right to dismissal at any time convenient for him. As a general rule, he should notify the organization's administration about this 2 weeks before the date of dismissal.

Moreover, if an agreement is reached between the employee and the administration of the organization, then the employee can resign without prior notice or before the expiration of his term.

In practice, there are often cases when the date of dismissal falls during the employee’s illness or pregnancy. In this case, the right to dismissal cannot be limited due to the requirements of the same part 1 of Art. 80 Labor Code of the Russian Federation.

NOTE! It is impossible to dismiss an employee while on sick leave at the initiative of the organization’s administration for disciplinary violations or for other reasons (Part 5 of Article 81 of the Labor Code of the Russian Federation).

Also in practice, questions arise regarding the possibility of including a period of sick leave in the period allotted for notifying the administration of the organization. Analysis of the norms of Part 5 of Art. 81, art. 183 of the Labor Code of the Russian Federation gives a positive answer to this question. That is, within 2 weeks from the date of filing the application until the moment of actual dismissal, the employee can be not only at work, but also on vacation or on sick leave.

Guarantees for the employee and sick leave upon dismissal

According to Art. 183 of the Labor Code of the Russian Federation, in the event of illness or pregnancy, the employee is entitled to a monetary benefit, the obligation to pay which rests with the organization.

The fact of dismissal does not relieve the organization of the obligation to pay the employee sick leave, which is expressly stated in paragraph 1 of Art. 6 of the Law “On Compulsory Social Insurance...” dated December 29, 2006 No. 255-FZ. That is, the organization must continue to pay sick leave until the ability to work fully is restored, even if the person is no longer an employee of this organization.

When an employee’s ability to work cannot be restored (for example, when he is recognized as disabled), the organization is obliged to pay him sick leave for 4 consecutive months, which may fall both before and after the date of dismissal, as indicated by clause 3 of Art. 6 of Law No. 255-FZ.

NOTE! When undergoing further treatment in a sanatorium, the total period of payment for sick leave should not exceed 24 days; Moreover, the fact of dismissal does not increase or interrupt this period, as indicated by clause 2 of Art. 6 No. 255-FZ.

If an employee works on the basis of a fixed-term contract, the duration of which is less than 6 months, he can only claim payment for 75 days of sick leave, the duration of which is not increased or interrupted due to dismissal in accordance with clause 4 of Art. 3 of the specified Federal Law.

Sick leave pay after dismissal

Both current employees and those already dismissed from the organization can receive benefits while on sick leave. There is only one limitation: employees who fall ill within 1 month from the date of dismissal can count on receiving such benefits (Clause 2, Article 5 of Law No. 255-FZ).

IMPORTANT! In this case, the basis for dismissal does not matter for calculating benefits. This may be the desire of the employee, the initiative of the organization’s administration, etc.

The duration of sick pay for a dismissed or employed employee is the same. That is, an already unemployed employee of the organization who falls ill within 1 month after dismissal will also have to pay benefits until his health is restored. Exceptions to this rule provided for in paragraphs. 2-4 tbsp. 6 of Law No. 255, for workers who have become disabled, undergoing follow-up treatment in a sanatorium or who worked under fixed-term employment contracts for up to 6 months, are also preserved.

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Amounts of payments to working and dismissed employees

The amount of benefits when on sick leave for working and dismissed employees who fall ill within 1 month from the date of dismissal is determined by Art. 7 of Law No. 255-FZ.

According to paragraph 1 of this article, employees who quit while on sick leave are entitled to a benefit calculated based on the amount of insurance coverage within the following limits:

Amount of insurance period	Percentage of average earnings
Up to 6 months