Perhaps every employee is interested in whether they can be fired on sick leave. After all, health can fail at any moment. But it is unlikely that anyone would like to discover that during the time of indisposition, he was terminated labor contract. To avoid illegal actions, you need to be savvy in matters of labor law.
What does the law say?
To the question of whether they can be fired on sick leave, it is worth looking for an answer in article 81 of the Labor Code. It clearly states that the employer cannot terminate the contract with the subordinate during his period of temporary incapacity for work due to own initiative. If such a nuisance occurs, the director has the opportunity to reinstate the employee in his position and pay him sick leave in order to avoid negative legal consequences.
Otherwise, the employee may apply to the judicial authorities with a statement of claim for illegal dismissal. Having studied domestic practice, we can conclude that such cases are almost always won by the plaintiff. As a result, the defendant has to reinstate the employee in his position, pay him compensation for non-pecuniary damage, as well as wages during the time during which he was in forced absenteeism.
Sick or absenteeism?
Can they get fired on sick leave? The legislation gives a negative answer. But what if the employer did not know about the reasons for the absence of the employee? Most likely, this will be considered absenteeism, and a dismissal order will be signed. But is everything as simple as it seems at first glance?
In fact, the employer does not have the right to dismiss an employee without finding out the reason for his absence. But the employee himself has no obligation to inform his superiors about his sick leave. The fact is that temporary disability can occur on different reasons, including the most serious ones. Thus, a person may be physically unable to notify the boss of his absence. The director must independently find out the reasons for the absence of the subordinate on his own workplace.
Downsizing and liquidation
Dismissal by reduction on sick leave is impossible. If the employer does not plan to completely terminate the activities of the enterprise or branch, terminating the contract with a temporarily disabled employee is illegal. However, do not confuse reduction with complete elimination. If the enterprise or branch where the employee who was on sick leave worked completely ceases to exist, the dismissal is legal.
Voluntary dismissal of an employee on sick leave
If the employee has a sick leave open, but he expressed a desire to terminate the employment contract, such a dismissal will not have any negative consequences for company management. But a different situation may arise. For example, an employee wrote a letter of resignation, being able to work. But on the same day, he ends up on sick leave. In this case, the employee has the full right to withdraw his application. In case of refusal, dismissal on sick leave will be considered illegal.
Also, an employee can write a letter of resignation during the sick leave. In this case, the following statements are true:
- The date of dismissal can be considered the day after two weeks from the date of writing the application. At the same time, if this period is partially or completely covered by sick leave, the employee is released from the obligation to work off.
- The date indicated in the application itself, which is later than the closing of the sick leave. In this case, the employee will be required to work the prescribed 14 days.
Sick leave during probation
Can I be fired on sick leave during my probationary period? In this case, temporary disability is not an obstacle to termination of the relationship. If the boss considered that the employee did not meet the requirements of the organization or violated any official duties or norms, he can be fired, even despite the sick leave. However, there are some significant details. Notify the employee on probationary period, you need 15 days for dismissal. If this rule has not been observed, the employee may apply to the court for a refund for each day of delay in prior notice.
Disability
In some cases, as a result of temporary disability, a person may be assigned a disability. But this is not yet grounds for dismissal. The employer has the right to terminate the contract only if the medical commission has recognized the person as incapable of work. Otherwise, his job must be kept for him. Also, in accordance with the conclusion of the commission, the employer may have an obligation to transfer the employee to another position, which implies easier work.
End of employment contract
In many enterprises, fixed-term employment contracts are concluded with employees. Despite the fact that the dismissal of an employee on sick leave is prohibited by law, this rule does not apply to cases when the contract has ended. In this case, the boss may, without the onset of consequences, dismiss the temporarily disabled employee. However, this does not relieve him of the obligation to pay sick leave in in full, even if the end date is later than the end of the employment contract.
Mutual agreement
The only case when it is possible to dismiss an employee on sick leave at the initiative of the employer is the consent of the employee with such a decision. Consent must be in writing and delivered in person or through postal services. On the day of dismissal, an employee on sick leave must receive a calculation and a work book. If the employee is unable to come to the enterprise due to health reasons, he is sent an appropriate notice of dismissal, as well as an invitation to collect the required funds and documents. If, by the time of dismissal, the sick leave has already ended, the calculation is carried out on a general basis. If the employee’s illness has dragged on, then with his consent, a work book and settlement through postal services are sent to him within thirty days.
sick leave payment
Dismissal at the initiative of the employer during sick leave is considered illegal. But if the employee himself expressed such a desire, the issue of paying for a sick leave sheet becomes acute. So, if at the time of going on sick leave a person was officially considered an employee of the enterprise, payment is made on a general basis. At the same time, it should cover even the period in which the person was no longer considered an employee of the organization. Former employee has the right to pay sick leave also if the incapacity for work occurred within a month after the dismissal. But in this case, it will be equal to about 60% of earnings.
sick leave
Dismissal on sick leave is often due to the fact that the absence of an employee on the spot lasts too long. In this regard, the issue of the maximum possible duration of disability for an employee is acute. It should be noted that the maximum duration at the legislative level is not established. But here there are some subtleties.
If an employee needs outpatient treatment, a medical worker issues him a temporary disability certificate for a period of 10 days. If at the next examination it was found that additional treatment is required, the period of the document can be extended up to 30 days. To increase the period of sick leave for more than a month, a conclusion is required medical commission. If the prognosis for the restoration of working capacity is favorable, a certificate of incapacity for work is issued for up to 10 months. In severe cases (after serious injuries or operations), the sick leave is extended up to 12 months at a time with the possibility of a further increase in this period when passing a medical commission.
Reasons for taking sick leave
Dismissal at the initiative of the employer of an employee on sick leave is impossible, regardless of the reason for the disability. It may be as follows:
- for a disease requiring outpatient or inpatient treatment;
- on pregnancy and childbirth;
- to care for a disabled close relative (spouse or one of the parents);
- after dental procedures;
- after emergency hospitalization or an ambulance call;
- for child care up to 7 years (for the entire period of illness) or up to 15 years (up to 15 days).
Conclusion
Unfortunately, not all employers conscientiously fulfill their obligations regarding employees. So, there are cases when the authorities resorted to the dismissal of employees who were on sick leave. This is prohibited by the Labor Code. If such an offense has been committed against you, feel free to go to the courts. Most likely, the court will take the side of the illegally dismissed employee, who will receive the right not only to reinstatement, but also to material compensation.
Can I get fired for taking sick leave?
fired for frequent sick leave worker can not. This is directly stated in Article 81 of the Labor Code. The employer does not have the right to dismiss the employee during his temporary disability.
However, it must be understood that the frequent absence of an employee from the workplace puts the employer in a difficult position. The employer cannot accept another employee for this place, which means that the burden falls on the shoulders of others. Therefore, an employer may dismissal decision employee during the periods when he is at the workplace. To do this, there are hundreds of ways to punish an employee and subsequent dismissal under the article.
So it is better to avoid frequent sick days and try to solve their problems not at the expense of other employees.
Dismissal concerning frequent illnesses is illegal in general. This is not grounds for dismissal. Those. here a man was fired illegally. He can be reinstated through the court, and the next day after the reinstatement he can resign at will, but for the entire time, from the moment of dismissal until the moment of restoration, he will be paid as for forced downtime due to the fault of the employer.
I believe that the truth is on the side of the employee here, he needs to go to the labor inspectorate for advice and seek recognition of the illegality of the dismissal through the court.
And the point here is not how long he was on sick leave, six months or a month. Legally, this is not possible. If they do not want such an employee, then let them look for a legal basis.
By law, for frequent sick leave, of course, no one has the right to fire. But that doesn't mean it doesn't actually happen. Since what employer will like it if the employee often goes on sick leave. They can just find some other reason and fire them.
According to the law, they cannot be fired for frequent sick leave purely theoretically, but in practice it happens quite differently. After all, every person has a right get sick, this is provided for by the Labor Code. In practice, employers often want to quickly get rid of a frequently ill employee and find ways to fire them or force them to quit of their own free will.
According to the law, they have no right to fire a person for being ill for a long time and having several sick leaves, but if the company is private, then they don’t stand on ceremony, they have their own laws, the director fires. Then he sues, but the sick person does not have the strength for this, he can simply spit on it.
According to the law - they have no right, but in life - they do what they want. If this job is important to you, go and seek to be taken back. Article 81 of the Labor Code of the Russian Federation states: It is not allowed to dismiss an employee at the initiative of the employer (except in the case of the liquidation of the organization, or the transformation of the activity by the employer - an individual) during the period of his temporary disability and while on vacation. A sick leave is issued for the period that a person needs for his recovery!
It is impossible to dismiss a person because a person is too sick, at least for legal grounds. A person has the right, if I may say so, to get sick as much as he wants. The law does not provide for any punishment for this. Although too frequent sick leave can be closely monitored and can be fired for the slightest violation. But this is a completely different question.
According to the law, it is illegal to fire a person because he is often sick, especially in your case. You have to file a complaint.
But, unfortunately, this is a fairly common occurrence in life. For example, in the Army: if a serviceman or a servicewoman often goes on sick leave, then they can send him for a medical examination and if something is revealed, then they will be fired for health reasons.
And entrepreneurs don't stand on ceremony at all - if you can't work, we'll find another and fire you.
The insured person, who is recognized as disabled in accordance with the established procedure, will be paid sick leave during the year, which in the aggregate does not exceed five months, as well as four months in a row.
If a person is officially on sick leave, which is confirmed by an official document, they cannot be fired. But you need to understand that frequent sick leave puts other workers who have to perform additional functions and the employer himself, who has to look for a replacement, is in a difficult position. Therefore, you should not abuse the opportunity to go on sick leave, otherwise the employer will find an opportunity to fire you for something.
According to the law, someone does not have the right to fire a person because he is sick a lot, but to be honest these days, not everyone acts according to the law, and in many places, because a person is sick a lot, they can fire him.
Labor Code The Russian Federation says that when an employee is on sick leave, it is unacceptable to dismiss an employee. At least if there is an officially issued certificate of temporary disability. The reason for this state of affairs is irrelevant. Can they be fired for frequent sick leave in case of injury, illness, child care - we understand in this article.
The Social Insurance Fund is the main source of funds for compensating sick leave. Employers pay a certain amount to this Fund, depending on the size of the standard remuneration of an employee.
Sick leave is proof of an employee's incapacity for work
Dismissal during sick leave is unacceptable even for those subordinates who have issued temporary employment contracts. In such cases, the procedure is organized only after the citizen returns to his place. Usually this is the next day after the official expiration of the sick leave itself.
Situations often occur when management issues one or more absenteeism to an absent employee. For example, when it is impossible to get in touch with a subordinate. Or when he's in intensive care, unconscious.
To avoid such situations, the manager is advised to take contact information from relatives and other persons who are in close relationship with the citizen.
For both parties, there are several options for behavior in the event of an unexpected illness:
- Independent withdrawal of the order and restoration of the workplace. Such actions are performed by the leader. This situation does not entail any additional sanctions, you don’t have to worry about this.
- Appeal to the court by the employee. This is true when dismissal occurs due to a long lack of information. And when, upon the return of a citizen, there was no reinstatement. The manager will be obliged to compensate for moral damage, as well as the time of the sick leave itself. Forced absenteeism implies the preservation of average earnings. You can’t do without fulfilling a request to reinstate a citizen in a position.
The manager must use all available methods to obtain information regarding the reasons for the absence from the workplace.
In most cases, they are paid from the relevant social insurance fund. The employer must pay the first three days in accordance with applicable law. The specific size depends on seniority In the organisation. The larger it is, the greater the compensation.
Can they get fired for taking sick leave?
Exceptional circumstances must be present for such a decision to be made. For example:
- Liquidation of the enterprise, official closure of the IP. Then the employee must receive all the funds that are due to him. It is about compensation for the reason unused vacations, sick pay, severance pay.
- When the employee himself expresses his will in this matter. Citizens have the right to leave the workplace at any convenient time. It is enough to write an application in advance. Then you will need to transfer compensation for holidays and sick days. In this case, it becomes necessary to work for two weeks. But the presence of relevant documents will allow you to spend two weeks only on sick leave.
You need a good reason to fire an employee
The liquidation of an organization and the reduction of staff are concepts that are clearly separated in current legislation. If it is necessary to reduce the staff, it is impossible to dismiss employees who have taken temporary disability leave. takes place only after the citizen officially returns to work and when the relevant events take place, such as studying orders for dismissal, providing an opportunity to choose another vacancy, and so on.
The employee has the right to go to court to restore his rights. The courts often take the side of the plaintiffs in such circumstances. In addition, management is required to compensate for the period of temporary downtime. The average daily earnings are taken as a basis.
In the case of caring for a child, sick leave certificates are issued on a strictly certain time. This is due to the need to adjust the dimensions compensation payments. Care is allowed to be issued for long periods. If you have two children, you need one certificate of incapacity for work, three children already require the execution of two documents.
Long-term sick leave
Citizens are sometimes too often on sick leave or get sick for a long time. In such a situation, the manager gets the impression that the disease is invented, and - fake.
Long-term sick leave can be the basis for sending an employee to a medical examination
Sometimes this really happens. But most citizens try to remain honest and are really forced to stay at home due to injuries and illnesses.
The right of the employer is to contact the employees of the medical institution responsible for issuing documents. Then an official request is made regarding whether a particular citizen was treated or not.
This information does not apply to medical secrets. Therefore, the fate of the worker depends on what the medical staff will say. At the same time, not every organization has the right to officially issue sick leave.
The medical institution can give the following two answers:
- Confirmation of treatment, receipt of sick leave. Then the citizen does not have any problems, and there is an opportunity to continue to perform official duties. It is not allowed to dismiss subordinates just because they are ill for too long or too often. This is a direct violation of the rights to leave for temporary disability, the implementation of labor activity. At the same time, the employer has the right to appoint a commission so that the citizen is recognized as unsuitable for a particular position when frequent illnesses. This is especially true when other people depend on the life and health of an employee.
- Negative answer. Then there is a basis for registration of absenteeism, for which the citizen is then attracted to disciplinary responsibility. They resort to a strict reprimand or subsequent dismissal.
Conclusion
Sick leave can last up to one year, or even several years. Duration is determined individually, in each case. It is important to take into account the time of action characteristic of a particular sick leave. You will have to present the document several times if the illness is prolonged. 5, 10, 30 days are the periods that are used most often in practice.
A manager needs really good reasons to fire employees while they are on vacation due to temporary disability. Closures or organizations are pretty much the only reason to allow this behavior.
Even a reduction in staff does not give the right to dismiss subordinates. This is done only when returning to work. Finally, one of the reasons may be the manifestation of the will of the employee himself, but in practice such situations are still rarely encountered. In case of illegal actions, the second party always has the right to apply to the court.
Is a fictitious sick leave a reason for dismissal, see this story:
Question form, write your
The basis of labor relations - the Labor Code of the Russian Federation does not contain provisions that an employee can be fired for frequent sick leave. Undoubtedly, the absence of an employee slows down the work process and can negatively affect the organization. While an employee is on sick leave, it is impossible to terminate the employment contract at the initiative of the employer (in more detail, we considered the question of whether it is possible to legally dismiss an employee who is on sick leave). This rule applies regardless of the type of sick leave - for caring for a child or for one's own illness.
Even in between sick days, it is problematic to fire a sick employee. But part 5 of article 83 of the Labor Code of the Russian Federation states that the termination of an employment relationship, regardless of the will of the parties, occurs if the employee is recognized as completely incapable of work in accordance with a medical certificate issued in accordance with the procedure established by federal law. In the presence of such a conclusion, the employment relationship is subject to termination.
How to terminate a contract with a constantly ill employee?
All grounds for dismissal of an employee at the initiative of the employer are listed in Article 81 of the Labor Code of the Russian Federation. As previously mentioned, there are no such grounds for dismissal as frequent being on sheets of temporary disability in the provisions of the article, except in the case of liquidation of the organization. But nevertheless, the employer may try to resolve this issue, for example, to offer such an employee to quit by agreement of the parties.
Also if an employee does not recover for a long time, this is a reason for conducting a medical and social examination, which will establish whether the employee is able to work or whether he must be recognized as completely incapable of working. In this case, the employer may offer other vacancies to such an employee, based on his condition. If there are no such vacancies or the employee refuses to replace them, then he is subject to dismissal with the payment of two weeks' wages.
If the submitted certificate of temporary disability raises doubts about its authenticity, it is possible to take measures to verify its authenticity. Since sick leave payments after three days(which the company pays for) are now produced from the Social Insurance Fund of the Russian Federation, then you can check the sick leave number in the database of the FSS of the Russian Federation, whether it is in the status of lost or stolen.
You can also check the form visually:
- the presence of watermarks;
- background overflow;
- the quality of the letterhead paper;
- the correct name of the medical institution and its data;
- the presence of printing and protective fibers on paper;
- correct dates.
It is also worth making a formal request on behalf of the organization to medical institution whether the specified sheet was issued to the employee, and to the FSS of the Russian Federation. Deliberate provision by an employee of a fake form of temporary disability as a document of strict accountability threatens with criminal punishment under the sanction of Part 3 of Article 327 of the Criminal Code of the Russian Federation, if he knew that the sheet was false.
If payments were made on sick leave, then there is a crime under Article 159 of the Criminal Code of the Russian Federation - fraud.
Employer actions:
What should an employee do if his employment contract is terminated illegally?
If, during the period of being on a temporary disability sheet or after leaving, the employer dismisses due to frequent sick leave, then the employee has the right to appeal these actions:
Appeal to the labor inspectorate on the basis of Art. 356 of the Labor Code of the Russian Federation
In this case, please contact your local branch. labor inspectorate with a statement/appeal indicating which labor rights were violated and documents attached to substantiate the arguments confirming the fact of employment, a copy of the sick leave.
The appeal must indicate: the name of the territorial department of the labor inspectorate and the data of its head, the applicant's data, arguments about the violation of labor rights, date and signature. The appeal is subject to review within 30 days.
Based on the results of the review, the inspection makes one of the following decisions:
- issuance of an order to the company-employer with the requirement to eliminate the violations committed;
- bringing the employer to administrative responsibility;
- suspension of the work of the organization or its division;
- suspension from work of employees or individuals, in cases established by law;
- sending material to law enforcement agencies in order to bring the employer to criminal liability.
By general rule The instructions of the labor inspectorate are fulfilled within a month.
Appeal to the district court
In fact illegal dismissal for frequent sick leave, you must apply to the court within 30 days from the date of delivery of a copy of the dismissal order or issuance work book, or from the day the employee refused to receive them. At the same time, the appeal of the employee to the labor inspectorate is not a valid reason for missing the procedural deadline. Thus, you can file a claim with the court before visiting the labor inspectorate.
Claim for individual labor dispute, as a general rule, is filed with the district court at the location of the defendant - the employer. If the employee missed the procedural deadline without good reason, then the claim for an individual labor dispute will not be accepted by the court for consideration.
The provisions of Articles 130-131 of the Code of Civil Procedure of the Russian Federation regulate how to properly draw up such a statement. Copies according to the number of parties, documents confirming labor activity the plaintiff at the employer (a copy of the work book, certificates of payments, a copy of the dismissal order).
According to paragraph 1 of Article 333.36 of the Tax Code of the Russian Federation and Art. 393 of the Labor Code of the Russian Federation, the employee is exempted from paying state duty when filing claims relating to relations arising from labor or civil law relations.
Article 393 of the Labor Code of the Russian Federation. Exemption of employees from legal costs
When applying to the court with a claim for claims arising from labor relations, including regarding non-fulfillment or improper fulfillment of the terms of an employment contract that are of a civil law nature, employees are exempted from paying duties and court costs.
According to part 2 of article 154 of the Code of Civil Procedure of the Russian Federation, such disputes are considered within 2 months from the date of filing the statement of claim, for applications for reinstatement, this period is 1 month.
The court may decide to satisfy the stated claim and oblige the employer to eliminate the violations committed, to recognize the dismissal of the employee as illegal. Such a decision shall enter into force upon the expiration of the period for appeal. Entered into force judgment mandatory for execution.
Frequent sick leaves are not an official reason for dismissal, however, the employer can solve this problem by offering the employee to quit of his own free will. Dismissing an employee in such a situation without his desire, the employer risks recognizing such dismissal as illegal. The timely appeal of the employee to the territorial office of the labor inspectorate or to the district court will allow him to protect his violated labor rights.
According to the letter of the law, the employer's initiative is not allowed in relation to the dismissal of an employee who is often absent for health reasons. A prolonged illness or frequent stay on sick leave is not sufficient grounds for dismissal. In addition, there is no clause in the Labor Code of the Russian Federation that would provide for the dismissal of an employee due to a prolonged illness or frequent sick leave.
Therefore, if a person was nevertheless fired due to frequent and prolonged sick leave, then this fact is a direct violation of the law. In this case, the dismissed employee needs to consult the labor inspectorate on this matter and seek reinstatement through the court. Here, any court will be on the side of the dismissed employee. In addition, having restored to work, you can write a letter of resignation the next day after your restoration, while receiving the due penalty for downtime due to the fault of the employer. The period of disability of an employee for health reasons or as a result of an injury is not limited. The period of disability in connection with caring for a sick relative in some cases is also not limited.
Exceptions
Only in exceptional cases an illness of an employee entitles the employer to terminate the employment contract. This dismissal is based on an appropriate medical report. In article No. 77 of the Labor Code of the Russian Federation, paragraph 8 specifies the dismissal process in detail.
This article of the labor law states: the dismissal procedure is legal if there is a medical certificate confirming that an employee who, for health reasons, needs a temporary transfer to another job for a period of 4 months or more or a permanent transfer refuses this transfer or the employer does not have required vacancy.
In reality, the Labor Code is observed only for, and then until a certain time. For the sick leave payment comes from the state treasury or the state insurance compensates for everything. AT commercial organization the management does not like the employee's frequent sick leave, as the entrepreneur pays sick leave from his own pocket. And often all the “conditions” are created under which the employee is forced to write a letter of resignation.
Therefore, if there is a reason to often take a sick leave, it is better to immediately discuss this fact with the management. Surely there will be some kind of compromise, because managers are people too, and if the employee is a first-class specialist in his field, you don’t want to lose him under any circumstances.
