Labor law in most cases is on the side of the employee. And this applies to almost all areas where the interests of the employee and the employer intersect. This is especially evident in the implementation of the dismissal, when the sick leave has not ended.
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Basic moments
Since 2019, the employer is obliged to deduct monthly payments to the Social Insurance Fund. That is why he is exempted from having to pay sick leave your employee.
The disability benefit is now compensated by the FSS. That is why most companies various types stopped evading sick pay.
But there is enough a large number of most different nuances. For example, the dismissal of an employee.
You should know that the employer does not have the right to terminate the employment contract on his own initiative while his employee is on sick leave - regardless of its type (due to illness, child care or otherwise).
This moment the legislation stipulates quite unequivocally - in the Labor Code of the Russian Federation: "it is not allowed to dismiss an employee at the initiative of the employer ... during the period of his temporary disability."
There is only one exception to the rule. Dismissing an employee before leaving sick leave possible only in the event of liquidation of the employer.
But in some cases there are exceptions to this rule. They apply to the following situations:
- when an employee wrote a letter of resignation own will;
- when dismissal is carried out by agreement of the parties.
In such situations, the employee initially agrees with the very fact of dismissal. Therefore, the employer has every right to carry out the dismissal on the day indicated in the application or in the already drawn up agreement.
But in some cases there are difficulties. This applies to situations where an employee is on sick leave for a very long time.
Can they get fired
Most often, the employer, when an employee applies for a sick leave, has some questions about termination employment contract:
- due to frequent sick leave;
- the last day of sick leave;
- on the probationary period;
- at will;
- under a fixed term contract;
- for violation of the hospital regime.
In some of the above cases, the likelihood of difficult situations is high. For example, it is always unprofitable for an employer when an employee is on sick leave for too long (even if he is not even paid).
Since there is no opportunity to fire him, and hiring another specialist on an ongoing basis is simply illegal.
Due to frequent sick days
One of the most common causes dismissal from work at the initiative of the employer - frequent care on sick leave.
But according to all the norms of the labor code, as well as other provisions of the law, the head of the enterprise does not have the right to do this only at his own discretion.
All points regarding the termination of the employment contract at the initiative of the employer are announced in the Labor Code of the Russian Federation.
This is possible only if the employee for some reason refuses to transfer to another job, the basis for which is a medical certificate issued without violations in accordance with:
- federal law;
- normative legal acts RF.
They also have the right to dismiss an employee if there is an appropriate medical certificate and in the absence of a position suitable for him for health reasons. This moment is announced in the Labor Code of the Russian Federation.
Situations often arise when, by law, an employee cannot be fired due to frequent sick leave, but different ways create psychological pressure, forcing them to write a statement of their own free will.
Such situations are simply unacceptable; if they occur, you should definitely contact the Labor Inspectorate.
Thus, it is possible to "knock out" the dismissal by agreement of the parties - such an outcome is much more beneficial for the employee, since it implies the payment of two salaries in addition to wages and compensation for missed vacations.
last day
In fact, dismissal by the last day of the sick leave is impossible for one simple reason - it must be done on a working day. Besides, this operation can only be done with the consent of the employee.
It is supported by:
- statement;
- agreement.
In all other cases, it is simply impossible to dismiss an employee. In addition, even if the employee wrote a statement or agreed to the terms of the agreement by signing in the appropriate place, the employer is still obliged to dismiss him by the number indicated in any of these two documents.
Break this rule entity or the IP is simply not eligible. The relevant authorities are quite scrupulous about non-compliance with labor legislation. Therefore, it is not worth the risk, since there is a high probability of imposing a serious fine.
Dismissal on probation
According to the Labor Code, the employer has the right, before hiring an employee on a permanent basis, to appoint him a probationary period. Moreover, its duration is most often no more than 3 months.
If for some reason the employer is not satisfied with the qualifications of his employee, he has the right to dismiss him at his own discretion - writing an application or signing an agreement is not required.
But before that, it is imperative to notify the employee himself of this decision - no later than 3 days in advance. At the same time, the dismissal of an employee who is on probation and who has taken sick leave is also impossible.
Since it is completely contrary to labor laws. Thus, an employee can issue a sick leave and during the entire period of the course of the disease they will not be able to dismiss him.
It is only important to remember that in most medical institutions the maximum duration of the sick leave cannot be more than 30 days. If recovery has not occurred, then the extension of the sick leave is possible only after the employee has been examined by a special commission.
Of your own accord
Dismissal during sick leave at the initiative of the employer is impossible. But the employee himself has every right to write a letter of resignation while on vacation due to disability.
The order with the corresponding decision will be issued taking into account the date indicated in the application. But this is possible only if the employee did not recall him - he has every right to do so. At the same time, the employer cannot independently change the date of dismissal.
On the last day of the hospital, the personnel officer, as well as the accountant, must:
- calculate the employee;
- pay him wages for the period worked, compensation for vacation (if necessary);
- issue a work book;
- make an appropriate entry in the personal card.
If, for some reason, the dismissed person cannot personally pick up the work book, they must send it to him by regular mail - by registered mail with an inventory of the attachment.
On a fixed term contract
In some situations, employers various reasons conclude fixed-term contracts with their employees. All provisions of the Labor Code, without exception, apply to such employees.
That is why, at the initiative of the employer, the dismissal of an employee while he is on sick leave is simply illegal.
But regardless of the presence or absence of a valid disability certificate, the contract may be terminated in the following cases:
- the agreement was concluded for the period of performance of any work - after its completion it is automatically terminated (regardless of the presence or absence of any factors);
- the contract was concluded for the duration of the absence of any other employee - after he goes to work, the substitute leaves (regardless of the presence or absence of consent);
- the contract was concluded for one season - after its expiration it will be automatically terminated.
But despite the termination labor agreement, the employer is obliged to pay the disability certificate in the amount specified in the law.
Also, employees under a fixed-term contract are subject to the Federal Law of December 29, 2006 No. 255-FZ.
According to him, if the sick leave began to operate within 30 days from the date of termination of the employment contract, then it is paid by the employer.
For breaking the rules
In some cases, code 36 may be put on the sick leave - a violation of the prescribed hospital regimen. Many employers perceive this as absenteeism and threaten their employees with dismissal.
In fact, this is a real violation of the current legislation. This moment is regulated by the Federal Law of the Russian Federation.
According to citizens who are on sick leave, they are required to fully comply with the prescribed regimen.
In case of violation of the hospital regime, the employer must be guided by this federal law.
It states that such events (violation of the hospital regime) are the basis for reducing the amount of temporary disability benefits. But this cannot be a reason for dismissal.
What to do if the period of incapacity for work is prolonged
Also, situations often occur when an employee simply does not want to leave the sick leave, or is really seriously ill.
Previously, the Labor Code allowed the dismissal of an employee at the initiative of the employer if the sick leave was extended for more than 4 months.
This version of the Labor Code (Article No. 81 of the Labor Code of the Russian Federation) clearly states that the employer does not have the right to dismiss an employee while he is on sick leave.
The only thing that the employer has the right to do in such a situation is to send a request to the clinic that issued the disability certificate and analyze the answer, challenge the diagnosis.
How is the payment
Sick leave is paid in a standard way - an employee of the personnel department calculates the amount of the benefit, taking into account the average earnings for the last 2 years, as well as the length of service. The more seniority, the greater the amount of benefits.
Estimated payments are always paid in accordance with the current legislation. Exceptions are allowed only if there is an agreement signed simultaneously by the head of the organization and the employee himself.
IP/Host: .33.22.215-tt.onego.ru Re: how to fire a permanently ill employee Explain about the disability he was hiding. Employer scam. Continuity of sick leave (explain) #3 IP/Host: 204.136.241. Re: Re: How to dismiss a constantly ill employee it is clear that for disability registration immediately after a 3-month sick leave. At his request, no one put disability in the labor press, which he later told me “in confidence”, after I asked the question about disability “on the forehead”. #4 IP/Host: .aspol.ru Re: how to fire a permanently ill employee You have childhood problems.
Can they get fired for taking sick leave?
The rules, terms of issuance, issues of payment for disability certificates are determined by federal laws and regulations Ministry of Health. The terms for which sick leaves are issued are regulated by the procedure for issuing sick leave certificates (approved by
Order of the Ministry of Health No. 624n dated June 29, 2011). They depend on various factors. The maximum period may be:
- 15 days - if the sheet is issued to the employee by the attending physician;
- 10 days - dentist, paramedic;
- for a longer period - by a special commission, when the established time for recovery is not enough (in some cases it can reach from 4 to 10 months, and in especially difficult cases - up to a year).
IMPORTANT An employee can fall ill several times a year; there are no restrictions on the frequency of applying for a sick leave.
If an employee takes sick leave
Attention
Those dismissed of their own free will are not entitled to compensation, so if you still have to leave your position under pressure, it is recommended to write a statement by agreement of the parties. Since there are no legal grounds for terminating the contract, employers are looking for other reasons:
- Violation of discipline, systematic or single.
- Lack of valid reasons in case of absenteeism.
Women with children should always take sick leave, even if the employer promises to be loyal and turn a blind eye to the incident.
If an employee approaches the fulfillment of his obligations with responsibility and does not allow violations of the employment contract, he cannot be fired for frequent sick leave.
Can I get fired from my job for taking sick leave?
Info
Often, the authorities decide to terminate the contract and invite another employee to work, but stop labor Relations is possible only for the reasons fixed in Article 81 of the Labor Code of the Russian Federation. Legally, they cannot be fired for private sick leave, there is no such wording in the code.
Fact! Employers cannot terminate the contract with an employee while he is on treatment or has an open disability certificate to care for a child. An exception to the rule is the situation when the dismissal is carried out in connection with the liquidation of the organization.
At the same time, the boss can break the contract, even if the employee is on sick leave. Dismissal on the employee's own initiative or with the consent of both parties is possible on any day if the application and order were signed by the employee before the sick leave was opened.
What to do if an employee often takes sick leave
Important
And psychological - let the employee understand that if the company takes it seriously, then he will be a loser. An employee often takes sick leave “…One of our employees constantly takes sick leave.
The director told him that it was time to recover or have to leave. To which the employee replied that he was not going to quit and go to work sick - too. He was recently asked by a director to write a report on one business unit. And he set a deadline of two weeks. On the evening of the last day, the employee, having not completed the task, simply got up and went home.
And the next day it turned out that he was again on sick leave. We just don’t know how to influence him anymore ... ”Employers have no right to dismiss an employee because of permanent sick leave. An employee can be sick for a long time. The only limitation is maximum term sick leave. But it is too big - up to 12 months (clause 13 of the Order, approved.
What to do if an employee is constantly on sick leave
Ministry of Health and Social Development of Russia dated June 29, 2011 No. 624n). Nevertheless, there are ways to influence an employee no less effective than dismissal.
Check the employee's sick leave. If an employee often takes sick leave and this is suspicious, make sure that the sick leave was actually issued medical institution and not purchased. The easiest way is to call the medical institution indicated in the document. In addition, you can contact your branch of the FSS of the Russian Federation. Report your suspicions to the Social Security staff. This way you will also insure yourself against possible claims for the cost of benefits. The Foundation is now very scrupulous about identifying fakes. And he intends to continue to improve the results of his work. Inform your employees: to criminal liability in the form of a fine of 80,000 rubles.
Can I get fired for taking sick leave?
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. 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.
The employee often gets sick. what can be done?
In all these cases, the social insurance authority may refuse to reimburse the costs of the benefit. In case of frequent absence of an employee due to illness, you can always contact the medical organization or FSS.
What is the penalty for falsifying a disability certificate? Providing a false sick leave may result in both disciplinary and criminal liability for the employee. If a forgery is detected, it will be difficult for an employee to prove a good reason for his frequent absence from work.
The employer may apply disciplinary action, including in the form of dismissal. In addition, if the employee managed to receive sick leave benefits, losses can be recovered from him by withholding part of the earnings through the court, or by the voluntary consent of the employee.
My police officer has been sick for 2 years now, but there is no continuity, he is discharged on Friday, he starts his service on Saturday, but this is a day off, and on Monday he is again on sick leave, but in another hospital for a different reason. Notified about the upcoming dismissal in 2004, after that he does not work, it is good to have acquaintances with the court and the prosecutor's office.
All the deadlines were gone, they were fired 15 minutes before the end of the working day, he turned to the clinic and issued a sick leave officially recorded that he applied for honey. help after the end of the working day and dismissal. But the court reinstated him in the service - he was fired on sick leave. Now he hides being on sick leave, sent requests to all medical institutions to know for sure if he is sick or not, so he brought a sick leave from another city.
Home/Sick leave/Employee often goes on sick leave Employees who have lost their ability to work for some time can exercise their right to sick leave. This document confirms legitimate reason absences from work. But sometimes it is difficult to determine whether the employee was really sick, or whether the disability certificate is just a cover for personal affairs. Employers are especially concerned about cases when an employee goes on sick leave too often, or the illness has dragged on. Attention Do not torture yourself with doubts and suspicions, it is enough to study regulatory framework question and know how to verify the authenticity of a leaflet issued medical institution. Are there limits on the number of sick leaves? Labor legislation does not regulate the duration of temporary disability.
An employee often takes sick leave how to fire
An employee cannot be fired for frequent sick leave. 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, the employer may decide to dismiss the employee during those 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. Therefore, it is better to avoid frequent sick leave and try to solve your 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.
Legal help!
Moscow and region
St. Petersburg and region
Federal number
According to the labor code, no one has the right to fire a person for such a reason. But at the same time, few bosses will be delighted with such an employee. And they can be understood. If desired, your boss can find another reason for dismissal.
Moreover, with a long pass, you yourself fall out of the working rhythm, and then it’s so hard to get back into it! Therefore, take up treatment with increased enthusiasm, drink vitamins, get better!
And then take it all necessary measures to get sick less often.
The Labor Code of the Russian Federation does not provide for the right to dismiss an employee due to frequent illnesses of his child (children).
The transfer of an employee to another job at the initiative of the employer is allowed only with the written consent of the employee. Article 88 of the Law on Employment Contracts lists the grounds on which an employer has the right to terminate an employment contract with an employee in the presence of exceptional circumstances.
If you have to take frequent sick leave, can you get fired from your job? Be aware that the Labor Code does not provide for dismissal due to the length of the sick leave.
Also, you have no right to be fired if you are on sick leave. The illegality of dismissal of an employee during a period of incapacity for work or leave (both annual and without pay) is prescribed in Article 81 of the Labor Code of the Russian Federation, with the exception of cases of liquidation of an organization or termination of an individual entrepreneur.
Frequent sick leave for childcare
No, they cannot be fired for frequent sick leave, as well as for refusing to write a statement of their own free will, this is a violation of your rights.
At the same time, you have the right to appeal the actions of the employer to the labor inspectorate. Here is a list for which the employer has the right to dismiss: Article 81. Termination of the employment contract at the initiative of the employer
What to do if an employee often takes sick leave or abuses his rights
The Labor Code provides employees with a whole set of rights: guaranteed vacation pay, sick leave, compensation, bonuses, etc.
e. Sometimes, using their privileges, employees begin to go too far, believing that the law is on their side. The stories that will be discussed in this article happened in almost every company.
They are all from your letters. But no matter what situation the employer finds himself in, the best way out when a conflict is brewing is to agree in a good way.
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.
However, it must be understood that the frequent absence of an employee from the workplace puts the employer in a difficult position.
with this approach, even if non-pregnant women go to the labor office, the prosecutor's office, and others like them, diram will still not be good.
I recommend the author to answer exactly this way. Moreover, for violating labor laws, the director can also leave his post: several violations and disqualification (if I'm not mistaken) A labor inspectorate I don't care where the head office is located - in Moscow or Kzyl-Orda.
Dismissal for frequent sick leaveHome
Working moms. They want to be fired because of frequent sick days!
Help. Girls, can you give me some advice?
The question is this. I work, salary is official. For the last two months, the second sick leave. They offered to resign. You write that there is a reason for dismissal, but there is a reason.
The reason may be the frequent absence from work and personal slovenliness and really bad work. You get the employer sick, but this is not a social security service, but a commercial bank.
Can a mother of two be fired for taking frequent sick days?
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Frequent sick leave is not grounds for dismissal
According to the letter of the law, the initiative of the employer 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 on state enterprises, and then up to a certain time. For the sick leave payment comes from the state treasury or the state insurance compensates everything. AT commercial organization 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.
Can I get fired for taking sick leave?
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.
An employee cannot be fired for frequent sick leave. 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.
Also, in order to obtain the necessary extract, you need to provide the tax officer with certain information about the organization where you work: the state registration number of the company and the private taxpayer number that is assigned to the company during its registration. This information will be more than enough to find out what exactly is happening with the organization and whether its head has the right to fire a pregnant lady. Dismissal on the personal initiative of a pregnant woman A pregnant woman may demand a transfer to "light work" Completion of an employment relationship is possible at the initiative of a pregnant woman. But it may turn out that the personnel department may refuse to sign an application submitted by a woman, which indicates that she wants to stop working in the organization at will. In this case, specialists must indicate a link to the Labor Code of the Russian Federation, which prohibits the dismissal of this category of persons.
Can they get fired for taking sick leave?
The Labor Code of the Russian Federation is the main defender of this category of women, because often employers are not interested in keeping a job for a woman who will be on maternity leave.
The reasons for such actions by the employer are as follows: providing special working conditions for a pregnant lady and paying cash benefits that are due to a woman after childbirth, plus the search for a new employee who will be assigned a salary (it turns out that the employer incurs losses in terms of cash payments).
403 forbidden
- dismissal by mutual agreement of both parties;
- the contract has expired;
- the employer can initiate the dismissal;
- dismissal of a pregnant woman on her initiative;
- dismissal due to the completion of employment obligations for reasons that do not depend on the wishes of the parties;
- dismissal due to violation of the rules of the employment contract by one of the parties.
How to fire future mother? In practice, this is a very complex process that can occur in the isolated cases indicated above.
Can I get fired for taking sick leave?
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.
Is it possible to fire a pregnant woman from work
They simply do not have the right to dismiss under the article if you worked without violations.
If this still happened, just sue and ask for moral compensation.
- No, they don’t have the right to fire you (and refuse to hire you because of pregnancy, too, even if you were already employed as a pregnant woman).
On the contrary, now you need to take care of yourself, so you have every right to demand that you be transferred to easier work or work half the time, while not losing your salary.
Just don’t write a statement on your own, if it comes to that, agree with the doctor and take a sick leave (the employer is obliged to pay it, though the percentage of payment depends on the total length of service), and then you will go on vacation according to the BIR.
If the Employer presses, write everything down on the recorder and in the labor office, this will most likely ruin the relationship, but everything due payments and you will receive benefits.
By law: can an employer fire a pregnant woman?
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.
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.
Do they have the right to fire a pregnant woman?
They don’t have the right to dismiss, BUT I had such a situation, I went on maternity leave and our organization decided to change the name, as a result, supposedly the old institution was liquidated, and I was under the guise reduced! They cannot be fired, only in one case in connection with the liquidation of the enterprise! A little did not understand the question about GET? You will receive, as usual, maternity, generic, etc.
In the meantime, work as usual until 28 weeks, if not a multiple pregnancy and there will be no complications.
And you should pay about 20% of your salary for maternity leave.
Since they have no reason to fire you, they may ask you to quit of your own free will.
Under no circumstances do this. This is how employers save money. Dismissing a redundant worker, they are required to pay wages for two months in advance.
Can a pregnant woman be fired for frequent sick leave
Legal advice Under the law: can an employer fire a pregnant woman? Can a woman who is in position be fired? They can… There are a number of nuances in the current legislation regulating this area.
It is they who are guided by unscrupulous employers.
- 1 Do not worry: the law is your reliable protector
- 2 Is it possible to fire a woman who is expecting a child?
- 3 Don't let yourself be fooled
- 4 Dismissal on the personal initiative of a pregnant woman
- 5 Feel the difference
- 6 It is forbidden to fire for absenteeism
Do not worry: the law is your reliable protector Pregnant women are under the protection of the Law Women who are preparing for motherhood are under special legislative protection.
True, many owners of the company forget purposefully forget about this condition so that the pregnant woman cannot go to court to challenge this decision. It is forbidden to dismiss for absenteeism.
It is forbidden to deprive a pregnant woman of her workplace if she violates labor discipline, failure to perform their work duties or in cases of damage to property.
If there are situations when the employer violates the legal rights of a woman, she can apply for help to the commission on labor issues or to the court. In accordance with the law, such an appeal is possible within 90 days from the moment when the fact of violation of rights became known.
Can I be fired for frequent sick leave with a child
Hello! I work in kindergarten chef for six months! Now my child is often sick, I was already deprived of the bonus on March 8, explaining that I have 30 days of sick leave out of 90 working days! Did they have the right to deprive me of the bonus for this and do they have the right to fire me from work for frequent sick leave with a child? Alena city of Vladimir, 22 years old.
Lawyers Answers (2)
The employer is not entitled to dismiss you for frequent sick leave, since the Labor Code of the Russian Federation does not contain such a basis.
With premiums, things are a bit more complicated. The employee's salary general rule consists of salary compensation payments and incentive payments. Bonuses are incentive payments, often they are established by local regulations (Orders of the employer). The order of the employer indicates which of the employees is rewarded and for what reasons. To pay an employee a bonus or not is the decision of the employer. But if a bonus order has already been issued for you, then you cannot be deprecated without legal grounds. Such actions of the employer will be considered illegal.
Indeed, the employer does not have the right to dismiss you for frequent sick leave, but you yourself must understand that if the employer wishes, he can find another reason to find fault with your work and bring you under dismissal at the initiative of the employer.
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Can I get fired from my job for taking sick leave?
When you have to constantly take sick leave, many employees think about whether they can be fired from work for frequent absence from the workplace. The Labor Code secures for everyone the right to receive an unlimited number of disability certificates, but in practice there are controversial issues.
Legal aspects
Since 2015, the FSS (Social Insurance Fund) has been allocating funds for sick pay, in connection with this, the percentage of employers who refuse to pay has decreased to almost zero. Nevertheless, a long period of illness, frequent departures from work for medical reasons require a search for a temporary replacement for a vacant position.
Often, the authorities decide to terminate the contract and invite another employee to work, however, labor relations can be terminated only for the reasons recorded in Article 81 of the Labor Code of the Russian Federation. Legally, they cannot be fired for private sick leave, there is no such wording in the code.
Fact! Employers cannot terminate the contract with an employee while he is on treatment or has an open disability certificate to care for a child.
An exception to the rule is the situation when the dismissal is carried out in connection with the liquidation of the organization. At the same time, the boss can break the contract, even if the employee is on sick leave.
Dismissal on the employee's own initiative or with the consent of both parties is possible on any day if the application and order were signed by the employee before the sick leave was opened. In this case, his signature serves as confirmation of voluntary resignation from office, and in case of illness, compensation can be obtained.
Disability certificate for child care
As for situations where sick leave is caused by a child’s illness, employers warn that a disability certificate is issued for a strictly regulated period. Many are afraid, linking this restriction with a possible dismissal, but it only regulates the amount of compensation payments for one calendar year.
You can stay in hospital for long periods of time. Moreover, if there are two children in the family, one certificate of incapacity for work is issued, if three - two.
How are things in practice?
When the bosses are not satisfied with the long absence of an employee at the workplace, there are threats of dismissal due to frequent sick leave. Especially often, psychological pressure is experienced by women who are forced to leave work due to the illness of their children.
Those dismissed of their own free will are not entitled to compensation, so if you still have to leave your position under pressure, it is recommended to write a statement by agreement of the parties.
Since there are no legal grounds for terminating the contract, employers are looking for other reasons:
- Violation of discipline, systematic or single.
- Lack of valid reasons in case of absenteeism. Women with children should always take sick leave, even if the employer promises to be loyal and turn a blind eye to the incident.
- Amoral behavior.
- Being at work under the influence of alcohol or drugs.
- Incompetence and unprofessionalism.
If an employee approaches the fulfillment of his obligations with responsibility and does not allow violations of the employment contract, he cannot be fired for frequent sick leave. However, the employer can expel from office if violations are detected.
Advice! If the dismissal was unlawful, you can use Article 392 of the Labor Code of the Russian Federation and go to court. During the course of the proceedings, in addition to reinstatement, a decision on payment of compensation may be made.
Previously, the legislation allowed for the dismissal of an employee if more than 4 months have passed since the moment of going on sick leave, however, amendments were made to the Labor Code of the Russian Federation, and the only way out for an employer who wants to part with an employee is a request to the clinic where the employee opened a disability sheet. The following is an appeal against the diagnosis.
The conclusion of the medical commission
Frequent sick leave is rarely associated solely with colds, and if the health problems are quite serious, we can talk about dismissal due to medical contraindications. For this, the employee is sent for an extraordinary examination, and if occupational diseases are detected, he is fired.
When the sick leave lasts more than 12 months, a person is sent to the MSEC to establish a disability group. The examination produces two conclusions:
- The employee is unfit for work.
- A person can be offered easier types of employment.
In the second case, the authorities do not have the right to dismiss the employee, they must provide him with a position suitable for health reasons. If this type of work is not provided for in the company, the cooperation is terminated. Upon receipt of a disability, a former employee is entitled to benefits.
Can an employee be fired while on sick leave? This question interests many leaders. In this case, dismissal is possible only in the situation when the citizen decided to terminate the employment relationship on his own initiative or by mutual agreement with the employer. In another situation, the termination of the contract is not allowed, unless, of course, the enterprise is liquidated.
Not allowed
As Article 81 of the Labor Code states, termination of an employment relationship with an employee who is on sick leave is strictly prohibited. Otherwise, it will be a violation of the law and a reason for the latter to go to court.
In addition, it is impossible to fire a person if he is on vacation. There is also an exception to the rule here, since it is possible to terminate an official relationship with an employee even when he is on sick leave or on a well-deserved rest, but only if the organization is liquidated or the individual entrepreneur ceases to operate.
At the initiative of the employee
Can an employee be fired while on sick leave? This question is of interest to many leaders of organizations. Because it often happens that an employee wrote on his own initiative, and then went on sick leave. In this case, it is quite possible to dismiss a citizen on the date indicated in the document. Because the initiative here does not come from the boss, but from the employee himself. That is why the leader has the right to carry out this procedure.
At the same time, employers are concerned about the question of whether it is possible to dismiss an employee who is on sick leave, and how, in this case, to pay him due cash on the last day of performance job duties if he is at home?
In this case, you just need to prepare an order to end the service relationship and make it to a card or bank account. In this case, the work book can be sent to the dismissed employee by mail with a return receipt. At the same time, there will be no violations of the law in the actions of the leader. Especially if the citizen did not withdraw his application.
sick pay
In practice, there are also situations when a dismissed employee becomes temporarily disabled after the end of the employment relationship with the organization. In this case, he can provide his sick leave for payment within six months to the former manager. But only if he did not find a job at the time of illness in a new place.
Therefore, when the heads of enterprises ask themselves whether it is possible to dismiss an employee who is on sick leave, they should not forget that this is permissible only when the citizen himself wants to end the service relationship with the boss, or both parties come to this decision by mutual agreement. In addition, provided by a person after this procedure, must be paid by the enterprise, but only in the amount of 60%.
If the contract is urgent
In practice, there are cases when an agreement with an employee can be concluded not only for an unspecified, but also for a certain period of time. In this case, the head is guided only by Article 59 of the Labor Code. Also, during the validity of this agreement, personnel specialists are often interested in the question of whether it is possible to dismiss an employee who is on sick leave under a fixed-term contract. This can only be done if the validity period has expired. In another situation, such a dismissal would be illegal. Because a citizen who temporarily performs his official activities is the same employee as a person who interacts with an organization on an ongoing basis.
Prolonged disability
In practice, situations often occur when employers want to fire their subordinates only because the latter were not as strong in health as they were at the beginning. professional activity. In this case, the employee’s long-term incapacity for work will not be the basis for terminating official relations with him, but only if this is supported by an official sick leave. If such a document is not available, then the manager has the right to dismiss a person for absenteeism under article 81 of the Labor Code. In addition, the sick leave is paid as a percentage, the amount of payments depends on the length of service of the employee.
Many heads of organizations are interested in the question of whether it is possible to dismiss an employee who has been on sick leave for more than 4 months. This is possible only if the citizen himself wishes to terminate the service relationship with the organization, or by agreement of the two parties. According to Article 81 of the Labor Code, the termination service relations with a person is prohibited if he is on sick leave, which is supported by an official document. The exception in this case is dismissal at the initiative of the employer at the time or completion of the activity. individual entrepreneur.
Employer Violations
In practice, it happens that the head during a long-term incapacity for work of a citizen decides to terminate his official relationship with him, which is considered unlawful. Because the dismissal of a subordinate at the initiative of the boss during his sick leave is not allowed, unless, of course, the employee himself announced this. In addition, during the period of disability, a citizen retains his place and position, as well as average earnings. Nevertheless, the head asks the lawyers whether it is possible to dismiss an employee who has been on sick leave for more than 2 months. So, this can be done only upon a written application of the employee himself or by agreement of the parties. Also, this procedure will be absolutely legal if the enterprise completes its activities.
liquidation
The subordinate himself can quit at any time, even during his period of incapacity for work. The head has the right to terminate the official relationship with the employee, but only in those cases that are expressly provided for by law. Therefore, most HR specialists are thinking about whether it is possible to dismiss an employee who is on sick leave during liquidation. Yes it is possible. Because Art. 81 of the Labor Code expressly states that the boss has the right to terminate the service relationship with the employee upon or completion of the entrepreneur's activities. Therefore, there will be no violations on the part of the leadership.
In the event that a subordinate was dismissed before the termination of the organization’s activities and suffered a disease within thirty days after that, then he is entitled to receive sick leave pay, which is made through the social insurance fund.
By agreement
During a citizen's incapacity for work, an agreement with him can be terminated only at the mutual desire of the two parties or at the initiative of the citizen himself.
Nevertheless, in practice, various controversial situations often occur. This allows the manager to think about whether it is possible to dismiss an employee who is on sick leave by agreement of the parties. Yes, it is legally allowed. In addition, the initiative to terminate the employment contract for mutual agreement can come from both an employee who is on sick leave and from his manager.
If this document was drawn up before the employee became disabled, then he must be dismissed on the day specified in the agreement, with the payment of all due funds.
More than half a year
In practice, there are often situations when employees are on sick leave for quite a long time due to the fact that, due to their health, they cannot begin to perform official duties. At the same time, the manager does not have the right to terminate labor relations with a citizen only on this basis. This will gross violation law. Nevertheless, many personnel specialists are interested in the question of whether it is possible to dismiss an employee who has been on sick leave for more than 6 months. So, Art. 81 of the Labor Code states that the termination of service relations with an employee who is temporarily disabled is prohibited. And this does not depend on how many months he will be on sick leave. This is a good reason for non-performance of official duties, which is supported by an official document. Therefore, if an employer dismisses an employee just because he is on sick leave for more than 6 months, then this will be a reason for the judicial authority.
The dismissal of an employee during a period of temporary disability at the initiative of the employer is illegal. An exception is the case of voluntary dismissal or liquidation of the enterprise.
If an employee is ill, his dismissal during sick leave at the initiative of the company cannot be made. This provision is enshrined in the norm of Article 81 Labor Code, the last paragraph of which says: “It is not allowed to dismiss an employee at the initiative of the employer (except in the event of liquidation of an organization or termination of activity by an individual entrepreneur) during his temporary disability and during his vacation.” Thus, only the termination of the employer's activities can become legal basis dismissal of an employee during his illness at the initiative of the employer.
Therefore, in order to answer the question: “can they be fired on sick leave”, it is necessary to determine from whom the dismissal initiative comes. In the practice of many companies, a situation often arises when an employee applies for dismissal on his own initiative, but during the two-week notice period prescribed by law for dismissal, he suddenly falls ill and goes on sick leave. In such cases, the question becomes more relevant, will it be legal to dismiss an employee during his period of temporary incapacity for work or not?
On your own initiative - dismissal without obstacles
If an employee submits a statement in which he expresses a desire to terminate the employment relationship, then his dismissal during sick leave is possible, since the employment contract is terminated at the initiative of the employee, and not the employer. A similar solution to the problem also applies to the termination of the employment contract by agreement of the parties. However, if the dismissal initiative comes from the employer and the employee falls ill on the day when the dismissal was planned, it can only be carried out upon his recovery, since in such a situation it is illegal to dismiss an employee who is on sick leave. After the employee leaves the hospital, the employer is initially obliged to fill out a temporary disability certificate and only after that begin the dismissal procedure in accordance with the procedure established by law, that is:
- provide a reason for dismissal;
- issue a dismissal order;
- make a settlement with the employee;
- issue a work book on the last day of work.
However, there are situations when the employer requires the employee to work before dismissal for a period equal to the time during which he was on sick leave. There is an explanation for this Federal Service on labor and employment. The letter explains that the employee has the right to warn the employer about the upcoming dismissal, both during the period of work and during his stay on vacation or during illness. The day of dismissal can also fall on any of specified periods, including the possibility of dismissal on the last day of the sick leave. Therefore, in the event that the term of notice of dismissal is 14 days, the employer must make the dismissal on the day indicated in the letter of resignation at his own request.
What to do in the event of a prolonged illness of an employee
In practice, a situation may arise when an employee submitted a letter of resignation on his own initiative, but fell ill within a two-week notice period for dismissal. In the event that he leaves the sick leave before the expected day of dismissal, no problems will arise and the dismissal will be made on the day indicated in the application. But the situation can develop in another way, when a person does not have time to recover before the end of the indicated two weeks. Under such circumstances, the dismissal of an employee on sick leave is made on the date indicated in the application, since the employer does not have the right to change it without the consent of the employee. The sick leave in this case is paid after the restoration of working capacity.
According to the law, when an employee is dismissed, the employer must make a settlement with him and issue a work book on the last day of work according to the application. Thus, in a situation where an employee fell ill after he submitted a letter of resignation, but did not withdraw it, the organization must make a settlement with him on the day indicated in the application. If, on the due date, the employee did not come to receive a work book and wages, he must be notified in writing of the need to appear for work book or give permission to send it by mail. Having sent a notification, it is necessary to wait for the employee to recover and dismiss him officially, having made a calculation and issuing documents. At the same time, the accountant needs to know whether it is necessary to pay sick leave, closed after the dismissal of the employee.
sick leave payment
If at the time of opening the sick leave, the person was officially an employee of the organization, then his payment should be made in general order, even if the closure of the sick leave falls on the period when the employment relationship with the employee has already been terminated. Another important point is that, by law, the employer is obliged to pay the sick leave to the dismissed employee within a certain period of time. Former employee has the right to pay sick leave if it was issued within 30 calendar days after the termination of the employment contract. However, in this case, he can only count on receiving 60 percent of the average earnings.
Therefore, if a retired employee after some time provided a sick leave opened within a 30-day period from the date of dismissal, the organization cannot refuse to pay it. An employee has the right to present a sick leave within six months from the date of recovery. Accordingly, even if the employee fell ill a week after the dismissal, and months later came to receive benefits, the company will be obliged to make payment if the six-month period prescribed by law has not expired. In order to avoid breaking the law, every company should know how to behave in such situations, despite the fact that this happens quite rarely.
