Often, after dismissal, employees bring sick leaves to their previous employer. He refuses to pay for the period of temporary disability, citing the fact that the employee no longer works for him. However, is the employer’s position justified? Not always. Yes, with sick leave after dismissal, situations sometimes arise when it is not entirely clear how many days to pay. Maybe we should refuse it altogether? In the consultation, we will look at the most common mistakes of employers who are faced with the issue of sick pay for dismissed workers.

The main regulations governing legal relations in the system of compulsory social insurance in case of temporary disability and in connection with maternity are federal laws:

– Federal Law of July 16, 1999 No. 165-FZ “On the Basics of Compulsory Social Insurance”;

– Federal Law No. 255-FZ of December 29, 2006 “On compulsory social insurance in case of temporary disability and in connection with maternity” (hereinafter referred to as Law No. 255-FZ).

These and other regulations in this area define the circle of persons subject to compulsory social insurance and the types of compulsory insurance coverage provided to them, as well as establish the rights and obligations of subjects of compulsory social insurance and determine the conditions, amounts and procedure for providing benefits for temporary disability and pregnancy and childbirth, monthly child care benefits for citizens subject to compulsory social insurance in case of temporary disability and in connection with maternity.

Temporary disability benefits are paid to insured persons when the following cases occur during the period of work under an employment contract, performance of official or other activities:

loss of ability to work due to illness or injury, including in connection with abortion surgery or in vitro fertilization;

the need to care for a sick family member;

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;

implementation of prosthetics for medical reasons in a hospital specialized institution;

follow-up treatment in accordance with the established procedure in sanatorium-resort organizations located on the territory of the Russian Federation, immediately after the provision of medical care in an inpatient setting.

Part 2 of Art. 5 of Law No. 255-FZ determines that temporary disability benefits are paid to insured persons in cases where the illness or injury occurred within 30 calendar days from the date of termination of work or activity or in the period from the date of conclusion of the employment contract until the day of its cancellation.

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

By virtue of Part 3 of Art. 13 of Law No. 255-FZ, for 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, temporary disability benefits are assigned and paid by the insurer at his last place of work (service, other activities) or the territorial body of the insurer in the cases specified in Part 4 of Art. 13 of Law No. 255-FZ.

Do I need to pay sick leave to a fired person?

As is clear from the previous section, the employer is obliged to pay a temporary disability certificate to a former employee if the illness or injury occurred within 30 calendar days from the date of termination of work or in the period from the date of conclusion of the employment contract until its cancellation.

Moreover, the need for payment does not depend on the reason for the employee’s dismissal: both those who quit voluntarily and those dismissed for a disciplinary offense have the right to count on benefits.

Judicial practice also confirms that the employer has an obligation to pay sick leave. For example, the Moscow City Court considered an employee’s appeal against a decision of a district court that refused to collect temporary disability benefits. The court justified its decision by the fact that the employee did not provide evidence of transfer of sick leave to the employer, as well as his refusal to pay sick leave. However, when considering the case by the appellate authority, it was established that the employee resigned on 04/30/2015, and handed over the certificates of incapacity for work from 05/02/2015 to 08/10/2015 in August 2015 to the chief accountant of the employer, about which there is a certificate signed by her. But the employer did not provide evidence of payment for these slips before the trial. Since the temporary disability benefit was never paid, the city court satisfied the employee’s demands and recovered the unpaid benefit (Appeal ruling of the Moscow City Court dated July 28, 2016 in case No. 33-22374/16).

How is sick leave opened before dismissal paid?

Let's imagine a situation: an employee quit by agreement of the parties on February 13. On March 15 (30th day after dismissal) she was given sick leave for 5 days, with which she came to her former employer. How to pay for sick leave? In this case, many employers pay only March 15 - the last day of the deadline established by Law No. 255-FZ. But this is the wrong approach and all 5 days of temporary disability are subject to payment.

That is, you need to understand that the temporary disability certificate must be paid in full, even if the employee brought sick leave, opened on the 30th day after dismissal.

Another common mistake made by employers paying sick leave for dismissed employees: if sick leave is open before dismissal, the period of incapacity for work is paid depending on the employee’s length of service, but as soon as the sick leave goes beyond 30 days, the benefit is calculated based on 60% of average earnings.

As a general rule, benefits for loss of ability to work due to illness or injury, except for the cases specified in Part 2 of Art. 7 of Law No. 255-FZ, during quarantine, prosthetics for medical reasons and after-care in sanatorium-resort organizations immediately after the provision of medical care in a hospital setting, it is paid in the amounts presented in the table.

If the employee took sick leave before dismissal, payment for the time of incapacity for work is carried out based on the stated percentage. If sick leave is opened within 30 days from the date of dismissal, the benefit is paid in the amount of 60% of average earnings.

Let us conclude: it is impossible to accrue different benefits for sick days before and after dismissal. For example, an employee with 15 years of insurance experience resigned voluntarily on March 22. On the same day it was opened to him. All days of temporary disability must be paid based on 100% of average earnings. It would be a mistake to pay the last working day in the amount of 100% of average earnings, and the subsequent ones - 60%.

Note: the employer is not obliged to pay for sick leave if the employee contacts him with a corresponding request six months after the closure of the sheet (Part 1, Article 12 of Law No. 255-FZ). For example, an employee dismissed on December 20, 2016 fell ill on January 10, 2017 and was issued a certificate of temporary incapacity for work for 3 days. A former employee has the right to apply for payment of benefits until July 13, 2017. If he presents the slip later than this date, you can safely refuse to pay the benefit. This position is also supported by judicial practice (see, for example, the appeal rulings of the Moscow City Court dated December 6, 2016 in case No. 33-49232/2016, Novosibirsk Regional Court dated June 28, 2016 No. 33-6004/2016).

Do I need to pay for sick leave issued during vacation followed by dismissal?

This question arises due to the fact that when granting leave followed by dismissal, the date of dismissal and the last working day do not coincide.

According to Art. 84.1 of the Labor Code of the Russian Federation, the day of termination of the employment contract in all cases is the last day of work, with the exception of cases where the employee did not actually work, but retained his place of work (position).

On the last day of work, the employer is obliged to issue the dismissed person with a work book and other documents related to work, upon his written application, and make a final settlement with him (Article 80 of the Labor Code of the Russian Federation).

By virtue of Art. 127 of the Labor Code of the Russian Federation, upon a written application from an employee, unused vacations may be granted to him with subsequent dismissal (except for cases of dismissal for guilty actions). Then the day of dismissal is considered the last day of vacation. However, in this case, the employer is obliged to process and issue the final payment on the last working day before the vacation.

According to Rostrud, expressed in Letter No. 5277-6-1 dated December 24, 2007, when vacation is used followed by dismissal, the employment relationship with the employee is actually terminated from the moment the vacation begins. At the same time, the department explained that during illness during the period of leave followed by dismissal, the employee is paid temporary disability benefits, however, unlike the general rules (Article 124 of the Labor Code), leave is not extended by the number of days of illness.

Thus, two situations are possible:

1. The employee will open sick leave before the date of dismissal, that is, the last day of vacation. In this case, the employer is obliged to pay for temporary sick leave in the general manner - depending on the employee’s insurance length, for all calendar days of illness.

2. The employee becomes ill or injured within 30 days after the end of the leave. In this case, the employer is also obliged to pay benefits, but it must be calculated based on 60% of average earnings.

Let us give an example from judicial practice.

The crux of the matter.

The employee was on leave followed by dismissal from July 21 to September 23. On August 23, 2014, while on vacation, she was injured, which is confirmed by certificates of incapacity for work. The employee asked her employer to pay for sick leave, but was refused.

Employer's position.

The refusal to pay for sick leave is justified by the fact that the employee received it after 30 days from the date of dismissal: the last working day was July 18, and the sick leave dated August 23.

The court's position.

The district court satisfied the demands and ordered the employer to pay for temporary disability certificates. However, the appellate court overturned this decision, pointing out that since the last day of work is not the day of dismissal (the last day of vacation), but the day preceding the first day of vacation - July 18, it is from this day that the period provided for in Part 2 of Art. 5 of Law No. 255-FZ, the deadline for presenting a certificate of incapacity for payment by the employer.

The Supreme Court of the Russian Federation, considering the complaint filed by the employee, pointed out that the conclusions of the appellate court were erroneous and overturned its decision, justifying it as follows. From the provisions of Law No. 255-FZ, Part 1 of Art. 84, part 2 art. 127, 183 of the Labor Code of the Russian Federation it follows that an employee who is in an employment relationship under an employment contract is an insured person under compulsory social insurance in case of temporary disability for the entire period of work until the day of dismissal. By virtue of Part 2 of Art. 127 of the Labor Code of the Russian Federation, when using vacation with subsequent dismissal, the day of dismissal of the employee is considered the last day of vacation. This means that it is also the day of termination of labor relations. That is, the moment of their termination and the beginning of the 30-day period, during which the employer is obliged to pay for the sick leave certificate of the dismissed person, is the last day of the employee’s vacation. Therefore, sick leave is subject to payment (Definition of the Armed Forces of the Russian Federation dated November 23, 2015 No. 34-KG15-13).

Is it possible to count unpaid benefits against personal income tax withholding?

According to Art. 183 of the Labor Code of the Russian Federation, the employer pays benefits to the employee in case of temporary disability in accordance with federal laws.

By virtue of Art. 226 of the Tax Code of the Russian Federation, Russian organizations, individual entrepreneurs, notaries engaged in private practice, lawyers who have established law offices, as well as separate divisions of foreign organizations in the Russian Federation, from which or as a result of relations with which the employee received income - salary, are required to calculate and withhold from taxpayer and pay the personal income tax amount calculated in accordance with Art. 224 Tax Code of the Russian Federation.

That is, temporary disability benefits and personal income tax are two different amounts, calculated and paid (transferred) to different recipients. But sometimes employers believe that they can offset some amounts against others. Many such situations have been considered in judicial practice.

The crux of the matter.

The employee resigned voluntarily due to retirement. Upon dismissal, he was paid a salary, but the temporary disability certificate was not paid. The employee went to court.

The court's position.

The district court, refusing to satisfy the claim for payment of sick leave, proceeded from the fact that in the final settlement the personal income tax was not withheld from the plaintiff and the amount of payment for the certificate of incapacity for work was counted as personal income tax. However, the appellate court did not agree with this decision: the amount to be paid as temporary disability benefits was withheld from the plaintiff for personal income tax, and this contradicts the provisions of Art. 137 Labor Code of the Russian Federation. It was impossible to do this (Appeal ruling of the Moscow City Court dated August 20, 2015 in case No. 33-29619/2015).

Do I need to pay sick leave to care for a family member?

Often, after dismissal, employees take sick leave to care for children or sick family members. Is such sick leave payable if submitted within 30 days from the date of dismissal?

Here the opinions of experts differ.

Some believe that the employer is not obliged to pay for such sick leave. They justify their position on clause 2 of Art. 5 of Law No. 255-FZ, according to which, during work or other activities, temporary disability benefits are guaranteed in the event of the occurrence of the cases specified in Part 1 of this article (illness or injury of an employee, the need to care for a sick family member, after-care, etc. ). But after dismissal - only in cases where illness or injury occurred to the former employee himself. This position is also confirmed in judicial practice. Thus, the Moscow City Court, in its Ruling dated April 16, 2012 in case No. 33-10259, noted that the law separates benefits paid in connection with the loss of ability to work by the employee himself (clause 1, part 1, article 5 of Law No. 255-FZ), and other benefits specified in this rule of law. Therefore, after termination of the employment contract, payment of benefits is allowed only if the employee himself has an illness or injury that occurs within 30 calendar days from the date of termination of work.

Other experts believe that if an employee submits sick leave within 30 days after dismissal, for example, for child care, the benefit must be paid. They also justify their position on paragraph 2 of Art. 5 of Law No. 255-FZ: it states that an employee can apply for payment of benefits both during work and within 30 days from the date of dismissal. And this point of view also has confirmation in judicial practice. In particular, the Tomsk Regional Court, in its Ruling dated September 21, 2012 in case No. 33-2420/2014, indicated: from Law No. 255-FZ it follows that a resigned employee had the right to demand payment of a certificate of incapacity from the employer upon the occurrence of an insured event, including due to the need to care for a sick family member, within 30 days from the date of dismissal.

Unfortunately, judicial practice is not very extensive. But we are still inclined to the first position and, based on the literal interpretation of paragraph 2 of Art. 5 of Law No. 255-FZ, we believe that only sick leave issued in relation to the dismissed person is subject to payment.

As you can see, there are many questions in the situation with sick leave for dismissed workers. Moreover, Law No. 255-FZ uses phrases that allow its provisions to be interpreted differently (as is the case with paragraph 2 of Article 5). However, there are three things to remember. First: the dismissed person has the right to receive temporary disability benefits, sick leave for which is issued within a 30-day period after dismissal. Second: such sick leave is paid in the amount of 60% of average earnings. But if sick leave was opened on the day of dismissal or a little earlier and lasted after the termination of the employment contract, it must be paid depending on the insurance length of the former employee. Well, third: the employer must pay benefits only if the dismissed person is incapacitated; sick leave for child care and other reasons for issuing sick leave do not have the same meaning.

The right of every employee guaranteed by the Labor Code. But what should you do if, while on vacation, an employee gets sick and issues a worksheet? In such a situation, the legislation makes several recommendations regarding the preparation of documents, as well as the extension or postponement of vacation. However, exactly how leave will be processed in the presence of sick leave depends on many clarifying details, including what kind of leave the employee was on, whether he himself was sick or caring for a family member, etc.

Let's look at examples of the most common situations that an employer may face if an employee gets sick while on vacation.

Illness during annual paid leave

The employee's annual paid leave falls on the period from March 20 to April 16, 2016. 5 days after going on vacation (March 25), the employee fell ill and was admitted to the hospital, spending 10 days there (until April 3). After being discharged from the hospital, the employee reported the incident to the employer, presenting a sick leave certificate. The employee asked the employer to extend his vacation for the period of sick leave. What should the employer do in this case? And how to determine a new end date for vacation?

If an employee was sick while on vacation, he must provide the employer with a sick leave certificate as confirmation. Article No. 124 of the Labor Code states that under these circumstances, the period of leave due to illness can be extended or postponed to another date. In this case, the choice of one or another course of action is agreed upon between the employee and the employer. If the vacation is postponed to another time, the employee must make a written application. Extension of leave is possible either with or without a written application.

Please note: if an employee issues a sick leave outside his place of permanent residence (for example, while in another city), the start and end dates of the incapacity for work are certified by the signature of the head physician (deputy) and the round seal of the medical institution.

If there is sick leave, the employee’s vacation can be extended automatically, that is, without drawing up a corresponding order and application from the employee. In this case, the enterprise personnel officer should proceed as follows:

Determine a new end date for vacation by adding the number of sick days to the previous date (holidays recognized as non-working days at the state level are not counted as calendar days of vacation);

Issue an appropriate order to extend the vacation;

Record the changes in the time sheet, changing the days marked with the code “FROM” (vacation) to “B” (sick leave).

If the employee decides to take the vacation period during sick leave at another time, it is necessary to issue an order in Form No. T-6 and calculate vacation pay based on the new pay period. In addition, the employee must write an application to postpone the vacation. The time of the new vacation is agreed upon with the employer.

Having received the sick leave and the employee’s application, the personnel officer must perform the following actions:

Issue an order to postpone the vacation to another date;

Indicate changes in the time sheet;

Change the vacation schedule for the working year (fill in columns 8, 9 and  10).

Moreover, according to the law (Article 9 of Federal Law No. 225), if an employee loses his ability to work due to illness or while on annual paid leave, he is entitled to accrual of temporary disability benefits.

How to mark sick leave on your report card?

An employee can notify the employer of illness while on vacation orally. However, upon returning from vacation, he is required to present a sick leave certificate. Extension of leave by the number of days attributable to temporary disability is automatic. In this case, sick leave is not recorded in the work time sheet until the employee provides the relevant document. If sick leave continues after the end of the official vacation period, the employee’s absence from work is marked with the code “NN” (unexplained reasons).

During her vacation, the woman went on sick leave to care for her child.

What should an employer do if an employee goes on sick leave to care for a child while on vacation? Do I need to extend my vacation and pay sick leave?

Article 124 of the Labor Code states that annual paid leave in case of illness should be extended only if the employee himself becomes ill. Accordingly, if during the vacation period a woman went on sick leave to care for a child, the vacation will not be extended. This means that if a child fell ill during a period when the employee did not need to be released from work (was on vacation), a certificate of incapacity for work to care for the child may not be issued. This document is issued to a woman only if the child continues to be ill after the end of the vacation period.

For example, a woman’s vacation falls on the period from April 1 to April 25. This means that sick leave for child care must be issued from April 26.

If the employee hid from the doctor the fact that she is currently on vacation, and the sick leave was issued to her earlier, the days of sick leave that coincide with the days of vacation will not be paid.

Illness during maternity leave

Illness during parental leave is not grounds for issuing sick leave. If a woman hid the fact that she is on maternity leave and received sick leave, the document is not subject to payment.

The exception applies only to those cases when a woman on maternity leave for up to 3 years works from home or on reduced working hours. Under these circumstances, sick leave is issued and paid according to the general rules. However, in any case, parental leave is not increased during the period of illness.

If an employee has two or more children sick at the same time, sick leave is issued on one sick leave sheet.

Illness while on vacation at your own expense

If an employee falls ill while on vacation at his own expense, sick leave is issued from the moment the vacation ends. Days of unpaid leave granted to an employee at his request are recorded in the working time sheet with the code “BEFORE”. At the same time, sick leave issued during this vacation is not reflected in the time sheet and does not affect the duration of the vacation at your own expense. Based on this, it follows that vacation at one’s own expense cannot be extended or interrupted due to temporary disability. If an employee’s illness continues after the end of the vacation, days of illness, starting from the first working day after the vacation, are marked with code “B”.

The article talks about if an employee wrote a letter of resignation and fell ill, when to fire, and explains other subtleties of the law.

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

Sick leave and simultaneous dismissal are incompatible. The rule is established by Art. 81 of the Labor Code.

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

The situation regarding voluntary dismissal is resolved completely differently.

Termination of employment at the request of the employee

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

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

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

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

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

Difficult situations

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

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

2 possible situations upon dismissal:

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

You need to give your work book and make payments on the last working day. The law makes no exceptions. It does not matter under what circumstances the decision was made to write a letter of resignation. When a person is absent from the office, this does not mean that there is no need to submit documents. The employee is notified in writing that he should come to the office to receive documents or give the go-ahead for the document to be sent by mail. A work book is a valuable document. It can only be sent by registered mail if the person cannot receive the form himself.

Even if there are no questions about paperwork, then a financial question often arises: how is dismissal on sick leave paid?

Procedure for payment of time of incapacity for work

Sometimes the following situation arises: an employee decided to quit and then went on sick leave. What will be the payment procedure in this case?

The employer will have to pay for the ballot if the employee was working for the company when it was opened. Moreover, payment is made for the entire time of illness. Former employees also have to pay. Payment is made if the illness begins within thirty days after dismissal.

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

3 design examples:

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

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

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

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

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

Example 3. Sergeev N.S. works as a mechanic for the Tekhmontazh company. The boss doesn’t like how the specialist performs his duties, and he decided to say goodbye to the unwanted employee. Sergeev fell ill, the doctor opened a document on his incapacity for work. Termination of the contract will be possible when the sick leave is closed. In this case, the procedure established by labor legislation must be followed.

Sanctions for violations

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

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

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

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

Summary

1. The Constitution and the Labor Code guarantee the prohibition of forced labor. Therefore, a person can resign from office whenever he pleases. There are no obstacles.

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Your employee is ill and can no longer hold his position. The situation is unpleasant both for him and for the employer. But in this case, the employee is provided with some guarantees that do not allow him to be fired immediately: the opportunity to work in another place where his health allows. In the article we will consider what is the basis for transferring an employee for medical reasons, how the transfer is carried out and what to do if the employee refuses to take another position.

Medical contraindications

Let's start with the fact that for some categories of workers, the law establishes medical contraindications already upon entering work. Thus, the list of general medical contraindications for performing work with harmful and (or) dangerous working conditions is determined by clause 48 of Appendix 3 to Order of the Ministry of Health and Social Development of the Russian Federation dated April 12, 2011 N 302n (hereinafter referred to as Order N 302n). Such diseases include congenital malformations, central nervous system diseases, mental illnesses, alcoholism, drug addiction, etc.

Citizens and employees who have diseases established by Order of the Ministry of Health and Social Development of the Russian Federation dated December 14, 2009 N 984n (hereinafter referred to as Order N 984n) cannot be accepted into state and municipal services and employees cannot be employed.

A list of medical contraindications is established for persons working with information constituting state secrets, etc.

An employer can find out about the presence or absence of such contraindications from a certificate, the presentation of which is required when applying for a state or municipal position, or as a result of a mandatory preliminary medical examination established for certain categories of employees.

Thus, when applying for a federal public position in the prosecutor's office, a citizen must submit a medical certificate of health in the established form 086u. When entering municipal service, a citizen submits a conclusion from a medical institution about the absence of a disease that prevents entry into such service (Article 16 of the Federal Law of 02.03 .2007 N 25-FZ "On municipal service in the Russian Federation").

Preliminary medical examinations are mandatory when hiring a car driver, a person under the age of 18 (Article 69, Part 2 of Article 328 of the Labor Code of the Russian Federation), as well as a person entering work in harmful and dangerous working conditions (including for underground work), employees of food industry organizations, public catering and trade, water supply facilities, medical and preventive care and children's institutions (Article 213 of the Labor Code of the Russian Federation). The list of works during which mandatory preliminary and periodic medical examinations (examinations) are carried out is established by Order No. 302n.

Please note that in addition to mandatory preliminary medical examinations, employees of these categories undergo mandatory periodic medical examinations. And for state and municipal employees an annual medical examination is provided. The procedure for its passage is established by Order No. 984n.

The Labor Code specifies that employees performing certain types of activities undergo psychiatric examinations. The list of medical psychiatric contraindications for carrying out certain types of professional activities and activities associated with a source of increased danger is approved by Decree of the Government of the Russian Federation of April 28, 1993 N 377. Mandatory psychiatric examination is carried out at least once every five years in the manner established by Decree of the Government of the Russian Federation of September 23, 1993 .2002 N 695.

Note. Mandatory medical examinations (examinations) and psychiatric examinations are carried out at the expense of the employer (Part 7 of Article 213 of the Labor Code of the Russian Federation).

Among the employer's responsibilities to ensure safe conditions and labor protection is the obligation to prevent employees from performing their job duties without undergoing mandatory medical examinations (examinations), mandatory psychiatric examinations, as well as in the case of medical contraindications (Clause 11, Part 2, Article 212 of the Labor Code of the Russian Federation ). Therefore, if upon hiring it is determined that an employee has medical contraindications for working in a certain position, he should be denied an employment contract (service contract).

Note! If an employee refuses or avoids undergoing a mandatory medical examination or psychiatric examination, he must be suspended from work until such time as he has completed these procedures.

Speaking about medical contraindications, it should be noted that they can be identified not only on the basis of medical examinations organized by the employer, but also as a result of a medical examination completed by the employee independently. In addition, an employee’s health may deteriorate as a result of an injury (accident) at work. In any case, confirmation of a disease that prevents work in the position held is a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation.

Medical report

By virtue of Art. 73 of the Labor Code of the Russian Federation, the procedure for issuing certificates and medical reports by medical organizations to citizens upon their personal appeal is approved by Order of the Ministry of Health and Social Development of the Russian Federation dated May 2, 2012 N 441n. Medical reports are issued to citizens based on the results of medical examinations, examinations, clinical examinations, decisions made by a medical commission, as well as in other cases when the legislation of the Russian Federation provides for the presence of such a report.

Medical reports are issued on the basis of a medical examination of a citizen, including a commission, and contain a comprehensive assessment of health status, including:

a) description of the examination and (or) treatment performed and their results;

b) assessment of the validity and effectiveness of diagnostic and treatment measures, including the prescription of medications;

c) justified conclusions:

— about the presence (absence) of a citizen of a disease (condition), risk factors for the development of diseases;

— on the presence of medical indications or medical contraindications for the use of methods of medical examination and (or) treatment, sanatorium treatment, implementation of certain types of activities, study;

— on the compliance of the employee’s health status with the work assigned to him, the student’s compliance with training requirements;

— about the cause of death and diagnosis of the disease, including the results of the pathological autopsy;

— other information concerning the citizen’s health status and the provision of medical care to him.

Medical reports are drawn up in any form (except for cases where the legislation of the Russian Federation establishes a different procedure for issuing or another form of certificate or medical report) with the stamp of the medical organization or on its letterhead (if available), signed by medical specialists participating in the issuance of the report, by the head medical organization, are certified by the personal seals of medical specialists and the seal of the medical organization, the imprint of which must identify its full name, corresponding to the name specified in its charter. If a medical report is issued by a medical commission of a medical organization, it is also signed by the members and head of the medical commission.

Forms of medical reports include:

— a conclusion from a medical institution that conducts a mandatory medical examination of an employee, issued on the basis of the regulations on conducting mandatory pre-employment and periodic medical examinations of workers;

— conclusion of a medical institution on the presence (absence) of a disease that prevents entry into the state civil service of the Russian Federation and municipal service or its passage in the form 001-ГС/у, approved by Order N 984n;

- a certificate confirming the establishment of the disability group and the degree of limitation of the ability to work, in the form established by Order of the Ministry of Health and Social Development of the Russian Federation dated November 24, 2010 N 1031n. In addition to a certificate confirming the fact of disability, which indicates the disability group, an individual rehabilitation program is issued;

— a certificate of the results of establishing the degree of loss of professional ability in percentages in the form approved by Order of the Ministry of Health and Social Development of the Russian Federation dated October 20, 2005 N 643;

— a rehabilitation program for a person injured as a result of an accident at work or an occupational disease in accordance with Resolution of the Ministry of Labor of the Russian Federation of July 18, 2001 N 56;

— conclusion of a doctor at the antenatal clinic (Order of the Ministry of Health of the Russian Federation dated February 10, 2003 N 50 “On improving obstetric and gynecological care in outpatient clinics”).

Transfer or dismissal

So, according to Art. 73 of the Labor Code of the Russian Federation, if an employee has presented the employer with a medical report indicating that his state of health does not correspond to the work assigned to him and the need to transfer to another job, the employer is obliged to transfer the employee to another available job that is not contraindicated due to health reasons.

Such a transfer is carried out with the written consent of the employee. In this case, the employer should pay attention to the transfer period specified in the conclusion. If an employee who, in accordance with a medical report, needs a temporary transfer for a period of up to four months, refuses the transfer or the employer does not have a suitable job, then the employer is obliged to suspend the employee from work for the entire period specified in the medical report while maintaining his place of work (position) . During the period of suspension, the employee’s salary is not accrued, except in cases provided for by the Labor Code of the Russian Federation, other federal laws, collective agreements, agreements, and employment contracts. Please note that if during the period of suspension the employer has other vacancies, he must also offer them to the employee.

During a temporary transfer, the employer must send a notice to the employee offering available vacancies. Moreover, if an employee can only be provided with a lower-paid job, he retains the average earnings from his previous job for one month from the date of transfer, and in case of transfer due to a work injury, occupational disease or other work-related health damage - up to establishing permanent loss of professional ability to work or until the employee recovers (Article 182 of the Labor Code of the Russian Federation). The employee can express his consent (disagreement) with the transfer both in a separate statement and in the notification itself. Here is a sample of such a notice.

Notification

Dear Vladimir Mikhailovich!

In accordance with the medical report of the KEK series ITU-2013 N 153458 dated 05/17/2013, issued by City Clinical Hospital N 3, you are subject to a temporary transfer for a period of three months to another job that is not contraindicated for you due to health reasons. We notify you that in accordance with Art. 73 of the Labor Code of the Russian Federation You have the right:

- agree to the transfer to another job;

- refuse to transfer to another job.

The following vacancies are currently available:

— auto mechanic — salary 20,000 rubles;

- watchman - salary 10,000 rubles.

If you agree, you will be able to continue working in the organization on the terms determined by the agreement on changing the terms of the employment contract previously concluded with you No. 14 dated 05/12/2010. If you refuse, you are subject to suspension.

Please make a note of your decision on the notice.

Head Borisov Borisov A.M.

Notification received on 05/22/2013. Lozhkin Lozhkin V.M.

I agree with the temporary transfer to the position of auto mechanic.

If the employee agrees to a temporary transfer, an additional agreement to the employment contract is concluded with him, which specifies the basis, term of the transfer and the position held. In addition, the employee should be familiarized with the job description, which should be noted on the familiarization sheet or the appropriate log.

Based on the agreement, the employer issues an order for temporary transfer, which also indicates the position and period of transfer. The basis for the order will be a medical report and an additional agreement to the employment contract.

In accordance with the medical report, the employee may be recommended a temporary transfer to another job for a period of more than four months or a permanent transfer. The translation procedure is similar. That is, a notification offering vacant positions is sent to the employee, and with his consent, an additional agreement to the employment contract is concluded and an order is issued. Here is a sample agreement.

Additional Agreement No. 1
to the employment contract dated 12.05.2010 N 14

Department for Civil Defense and Emergency Situations of the city of Vladimir (Department of Civil Defense and Emergency Situations of the city of Vladimir), hereinafter referred to as the “Employer”, represented by the head Borisov A.M., acting on the basis of the Regulations, on the one hand, and Lozhkin Vladimir Mikhailovich , hereinafter referred to as the “Employee”, on the other hand, have entered into this additional agreement as follows.

1. In connection with the transfer of the Employee to another position in accordance with the medical report of the KEK series ITU-2013 N 153458 dated 05/17/2013, issued by the City Clinical Hospital N 3, amend the employment contract dated 05/12/2010 N 14 and read as follows :

Clause 1.1: “The employee performs official duties by profession as an auto mechanic.”

Clause 4.1: “The employee’s official salary is set at 20,000 (twenty thousand) rubles per month. Additional payments and allowances are paid in the manner and on the terms established by the Regulations on remuneration of the Department of Civil Defense and Emergency Situations of the city of Vladimir, approved by Order dated 09/05/2010 N 35".

2. Changes to the Employee’s employment contract, determined by this additional agreement, come into force from the moment it is signed.

In all other respects that are not provided for in this additional agreement, the terms of the employment contract remain in effect.

This additional agreement is an integral part of the employment contract dated May 12, 2010 No. 14, drawn up in two copies having equal legal force, one of which is kept by the Employer, the other is transferred to the Employee.

Employer: Employee:

Head of Civil Defense and Emergency Department

Vladimir

Borisov /Borisov A.M./ Lozhkin /Lozhkin V.M./

With the job description of an auto mechanic approved by the Order

dated June 10, 2009 N 150/I, read. Lozhkin, 05/23/2013

In case of permanent transfer, it is also necessary to make an entry in the work book.

Please note that it is possible to dismiss an employee for medical reasons only if he refused a transfer for a period of more than four months or a permanent one, or the employer did not have the appropriate job. The basis for dismissal will be clause 8, part 1, art. 77 of the Labor Code of the Russian Federation - the employee’s refusal to transfer to another job, which is necessary for him according to a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer does not have the corresponding job. We remind you that if an employee refuses a temporary transfer for a period of less than four months or there is no vacant position, he is suspended from work for the entire period.

It is possible that a medical report will declare the employee completely incapable of working. In this case, he is dismissed due to circumstances beyond the control of the parties, according to paragraph 5 of Part 1 of Art. 83 of the Labor Code of the Russian Federation (recognizing an employee as completely incapable of working in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation).

So, you have another year of work behind you, your vacation application has been endorsed by the director, and you already have the treasured vacation pay in your pocket. The vacation has begun. A whole twenty-eight days of relaxing pastime. You can go to the sea or spend your vacation at the dacha, go hiking in the forest or arrange for yourself (if possible, of course) a trip abroad. The choice is huge, if funds allow.

But suddenly something starts to go wrong. A feeling of malaise, fever, headache and other symptoms almost openly begin to tell the newly minted vacationer that he is sick, and all his dreams, at least for the first days, to put it mildly, are over. Badly? It couldn't be worse. It’s generally unpleasant to get sick, and even during a legal vacation... In addition, many questions arise. What to do in such a situation? What to do if you take a vacation and get sick? Should I lie down on the couch at home, fortunately I have enough time, or go to the clinic?

Should you go to the doctor while on vacation?

It's worth it, even very much. If you fall ill on vacation, regardless of any circumstances, the employee, even if he is currently on legal vacation, must visit a doctor.

Why visit a doctor

First, the specialist will conduct a diagnosis and make a diagnosis.

Secondly, he will open a sick leave if he gets sick on vacation and requires inpatient or outpatient treatment.

The fact that the patient is on vacation at this time does not play any role. Based on the Labor Code of the Russian Federation, at the moment, the rules of labor relations between an employee who falls ill during vacation and his immediate supervisor are clearly defined by the relevant legal norms.

The right of a sick employee

In practice this means the following. If a worker or employee, while on vacation, becomes ill or sick, then she/he has the opportunity to extend her vacation by the number of days that will be calculated according to this sheet. That is why you need to promptly and timely consult a doctor in order to receive this certificate confirming temporary incapacity for work.

How to notify your employer

If an employee falls ill while on vacation, he must, for his part, notify his immediate employer about the current situation from the moment he was granted sick leave. This can be done in any way that is most comfortable for him:

• make a phone call;
• appear in person;
• notify by letter, etc.

If it happens that a person has several jobs at the same time, then he can make inquiries directly from the doctor himself to see if he can provide several additional copies of the sick leave certificate for each job. After receiving several copies of the certificate of incapacity for work, the employee must notify each employer with whom he is directly registered, using the above communication methods.

Options for compensating lost days of rest

After notifying the employer (or employers), a person whose vacation due to objective circumstances was partially or completely lost has two opportunities to make up for the losses incurred. But no matter which of them is adopted, everything must be agreed upon with the working leadership.

If an employee falls ill while on vacation, he can recover lost days as follows:

Actions of the manager in relation to an employee who fell ill on vacation

The manager, who has received an already closed sick leave from the vacationing employee, contacts the latter either personally or through the employee directly responsible for the vacation schedule, and coordinates all issues that have arisen in connection with unforeseen circumstances.

Usually, in a situation where there is a great need for an employee (for example, if he is an estimator or chief accountant), managers prefer to resolve issues themselves. Specifically in these circumstances, there is a discussion of options for compensating for days lost by an employee if the employee gets sick while on vacation.

The employer needs to clearly decide what to do in this case. In accordance with the same Art. 124 of the Labor Code of the Russian Federation, the time that falls on paid leave can be transferred to another period if a person receives and confirms his disability. At the same time, his manager has the right to determine this period himself, but taking into account the wishes of his employee.

If an employee quits

Relationships are built completely differently if an employee is on paid leave, after which he is immediately fired. In this case, if the employee falls ill during vacation, extending the vacation is not allowed.

The employee is paid for his sick leave, but he cannot receive an additional number of days corresponding to the period of treatment. This provision is regulated in Rostrud letter No. 5277-6-1.

Application and recount

Regarding writing an application addressed to the manager in order to explain the reasons why the employee needs additional time for rest, it is worth saying that, according to paragraph 18, which is included in the set of rules on vacations, an application is not required to be written. If you get sick while on vacation, your vacation is automatically extended. The basis is the provided certificate of incapacity for work. This rule applies if you fall ill on vacation and notify your employer immediately. When a certificate of incapacity for work is presented after returning to work, the manager will ask you to write a statement about transferring days. The time and schedule of the transfer are agreed upon between the employee and the employer.

Vacation pay is also not recalculated in case of vacation extension. The only exception is the period when the vacation is postponed to another time and if at the same time there is a change in the billing period, characterized by a change in the calculation of average earnings.

In what cases are days not transferred?

A certificate of temporary incapacity for work will become the basis for transferring days only in the case of annual paid leave. If sick leave was taken:

• Caring for a small child.
• On student leave.
• On vacation at your own expense.

In such cases, this rule will not apply. In this case, the employee does not have the right to receive benefits.

How is sick leave paid?

First of all, this question interests the employee. The main legal basis for financial compensation for temporary disability confirmed by sick leave is Article 183 of the Labor Code of the Russian Federation. Unambiguously, all questions regarding the various processes of cash payments (both during the work process and while on vacation), as well as their sizes, are clearly defined by federal laws.

A document characterizing a person’s need to undergo treatment and, as a result, receive legal release from work, is a certificate of temporary incapacity for work, i.e., sick leave. It is issued at a medical institution (clinic) and is issued subject to mandatory compliance with all necessary requirements.

According to the requirements established by law, the first three days are paid by the employer, and the rest of the sick time is paid from the social insurance fund. Perhaps everyone knows that three days constitute the minimum period for which a sick leave is issued, and its longest duration is a whole year.

How is the amount of payment for sick leave calculated?

Meanwhile, for the employee himself who has received a sick leave certificate, it is difficult and even almost impossible, with all his desire, to calculate the amount he will receive on sick leave. Only an accountant with a special program can calculate this. The only thing that is available to the employee is to be aware of various indicators that will one way or another affect the final amount calculated for sick leave. It can be:

• the average salary for the last year;
• insurance period, the period during which insurance premiums are deducted.

This is carried out regardless of how many places the employee worked at the same time, one or several. Typically, the higher the insurance period, the higher the amount of cash payments will be.

It is interesting that the number of days that must be paid on sick leave may have several options for determining payments, each of which depends on a certain factor. For example, if you fall ill while on vacation, payment for a certificate of incapacity for work is carried out from the first day to the last, no matter what, even if the full duration of the illness is a year.

However, there are exceptions. As in the case if an employee fell ill during the period of paid leave, but a certain part of the period of incapacity for work exceeded its limits. In such a situation, sick pay will be paid only for those days that fall during the vacation period.

Conclusion

If an employee becomes ill or injured during annual leave and provides management with a properly executed sick leave, he has the right to payment in accordance with the general procedure. And vacation days that come during illness are transferred to another time.