Registration procedure Within 30 days from the date of dismissal, the employer is obliged to accept the former employee’s sick leave for payment, provided that the employee has not yet found a new job. Proof of loss of ability to work during the specified period will be the issuance of a sick leave certificate. The employee indicates their previous place of work as the employer. Got sick on the day of termination of the contract Actions of the enterprise administration in the case when the sick leave is opened on the last day before the layoff:
The dismissal of an employee undergoing treatment during a period of staff reduction in the enterprise should not negatively affect his financial situation. Regulatory framework The main immutable rules are reflected in the most important documents of the Russian Federation:
Labor Code of the Russian Federation Federal Law of December 29, 2006 N 255-FZ Order of the Ministry of Health and Social Development of Russia of June 29, 2011 N624n Rights of employees The administration of the enterprise, which carried out the staff reduction procedure, pays severance pay to all dismissed employees, which compensates the employees for loss of employment.
If you are an employer, then in the era of the global crisis you have probably faced the need to lay off workers. But is it possible to dismiss an employee due to staff reduction if he has sick leave? After all, while an employee is sick, according to the law he cannot be fired. Let's try to figure out what an employer should do in such a situation.
Info
Labor legislation When staffing or staffing units are reduced, the employment contract is terminated at the initiative of the employer. This issue is addressed in 81 articles, which are called “Termination of an employment contract at the initiative of the employer.” The reduction is discussed in paragraph two. Reduction in headcount and staff Before talking about how an employee is dismissed due to staff reduction, it is necessary to clarify the difference between staff reduction and reduction in the number of employees.
Attention
Day of dismissal The date of the order to dismiss an employee due to staff reduction can be:
Example: Employee of Python LLC Shmelev S.S. was notified of the upcoming reduction on July 20, 2017, i.e. no less than 2 months. September 14, 2017 Shmelev S.S. went on sick leave. The period of incapacity for work lasted until October 3, 2017. On October 4, 2017, the employee submitted sick leave to the accounting service of the organization for the calculation of benefits. Order for the dismissal of Shmelev S.S. on the basis of “reduction of staff” was issued on October 4, 2017. Sick leave after dismissal Issuing sick leave after dismissal due to staff reduction has a number of features.
Reducing staff today is a fairly common way to optimize the production process and reduce costs. This instrument involves a fairly lengthy procedure prior to the dismissal of employees. During this time, employees may go on sick leave more than once, including immediately before the termination of their employment relationship.
The staff reduction procedure involves issuing an order to terminate employment contracts with a number of employees, who must be familiarized with this document no later than 2 months before the expected date of dismissal. In addition, the management of the enterprise is obliged, in accordance with Article 180 of the Labor Code of the Russian Federation, to provide available vacancies to laid-off employees.
In addition, the employee has the opportunity to count on paid sick leave even after layoffs. This is possible if the period of temporary disability began within 30 days from the date of termination of the employment relationship and the citizen was not employed during this time. In this case, when registering a sick leave, the citizen must leave the column “Place of work” empty.
Information about the previous place of work will be entered by the former employer. It is he who is entrusted with the responsibility of filling out the second part of the sick leave certificate, as well as making the necessary calculations. To determine the amount of the benefit, it is necessary to use the average earnings of the former employee for the last two years preceding his dismissal.
The former employer does not have the right to refuse to accrue temporary disability benefits to a citizen.
It is also better to record each refusal to take an offered vacancy in writing. Notification of dismissed employees about the upcoming layoff Notification to employees must be sent in writing, and employees must sign that they received it. If an employee refuses to give such a signature, an act is drawn up, which must be signed by two witnesses from among the employees of the enterprise (or one, if the enterprise is small). Employees can be dismissed only two months after the notice is served, so the date must be indicated in the document. The same paper is sent to the regional employment service and to the trade union committee, if there is one in the organization.
Therefore, if the employer does not want to subsequently pay the employee compensation for the time of forced absence when he is reinstated at work through the court (for illegal dismissal), the employee on sick leave will not be fired. What does an employer do if sick leave during a layoff starts on the last day or several days before? - Waiting for the end of sick leave. On the first day after the end of sick leave, the employee is issued a dismissal order due to staff reduction.
Is sick leave paid after layoffs? - Yes. When disability occurred before termination of the employment contract and continues after dismissal, the employer pays sick leave according to the general rules. As established by Article 5 of Federal Law No. 255-FZ, temporary disability benefits are paid to insured persons if the illness or injury occurs within 30 days from the date termination of the employment contract.
In this case, she acts as an intermediary, paying the appropriate benefit to the citizen, after which the funds are compensated by the Social Insurance Fund. The corresponding application to the Social Insurance Fund or SZN must be sent no later than 6 months from the date of receipt of the temporary disability certificate. After the expiration of the specified period, no payment will be made.
Requirements for a sick leave certificate Due to the fact that a sick leave certificate is a document of strict accountability, a number of requirements are put forward for its execution that must be observed. If a citizen is not currently employed, but has the right to receive benefits after being laid off, then he must leave the “Place of work” column empty, and the former employer fills it out independently.
Reducing staff today is a fairly common way to optimize the production process and reduce costs. This instrument involves a fairly lengthy procedure prior to the dismissal of employees. During this time, employees may go on sick leave more than once, including immediately before the termination of their employment relationship.
The staff reduction procedure involves issuing an order to terminate employment contracts with a number of employees, who must be familiarized with this document no later than 2 months before the expected date of dismissal.
In addition, the management of the enterprise is obliged, in accordance with Article 180 of the Labor Code of the Russian Federation, to provide available vacancies to laid-off employees. The employee, for his part, can agree to the transfer and keep his job or refuse and terminate his employment relationship with this employer.
Since the notice period for employees about layoffs is quite long, the employee may fall ill during it. In this regard, questions often arise regarding the procedure for paying sick leave, as well as the procedure for postponing dismissal due to temporary disability of a person at the time of expiration of the period specified in the order.
Current legislation notes that job loss due to staff reduction should not adversely affect the financial situation of a citizen undergoing treatment. In this regard, his dismissal must be postponed until the end of his sick leave, and the due payments must be accrued in the prescribed manner.
In addition, the employee has the opportunity to count on paid sick leave even after layoffs. This is possible if the period of temporary disability began within 30 days from the date of termination of the employment relationship and the citizen was not employed during this time. In this case, when registering a sick leave, the citizen must leave the column “Place of work” empty. Information about the previous place of work will be entered by the former employer.
It is he who is entrusted with the responsibility of filling out the second part of the sick leave certificate, as well as making the necessary calculations. To determine the amount of the benefit, it is necessary to use the average earnings of the former employee for the last two years preceding his dismissal. The former employer does not have the right to refuse to accrue temporary disability benefits to a citizen.
According to Part 6 of Article 81 of the Labor Code of the Russian Federation, a citizen cannot be dismissed from an enterprise on the initiative of the employer while he is on sick leave or on vacation. Exceptions in this case include periods of temporary disability associated with caring for sick relatives and children, as well as leave to care for a newborn. In these situations, employment relations with employees may be terminated in accordance with the general procedure.
If the termination of the employment contract of an employee on sick leave has been postponed, then employees of the accounting department must calculate the amount of benefits under the temporary disability certificate before dismissal. For this, as in the usual manner, the amount of the employee’s average earnings for the previous 2 years is used.
The procedure for calculating sick leave does not differ from the general one either during the staff reduction procedure or after termination of the employment relationship, if the leave was provided within 30 days from the date of dismissal. Even if in fact this person no longer carries out labor functions at the enterprise, the employer and his authorized employees are obliged to make the necessary calculations and subsequently submit the document to the Social Insurance Fund.
After the final settlement with the employee and the transfer of all due payments, including compensation, the employer retains this obligation. He does not have the right to refuse to pay an employee benefits for a temporary disability certificate, since these payments are financed from other sources and are a state guarantee.
Carrying out the final calculation and accrual of this benefit are not mutually exclusive events. Even if a citizen received a compensation payment in the amount of average earnings for two months upon dismissal. Temporary disability benefits are insurance protection for a citizen and are covered by the Social Insurance Fund.
According to Part 2 of Article 7 of Federal Law No. 255-FZ of December 29, 2006, when determining the amount of sick leave benefits paid after an employee is laid off, all calculations are made based on 60% of the average daily earnings. In this case, his length of service or other factors that normally increase this indicator do not matter.
To determine the average daily earnings of a former employee, the accountant will need to take into account all the remuneration received by this person for work, from which insurance contributions were made to the Social Insurance Fund. The resulting value is multiplied by the number of days indicated on the sick leave certificate.
When calculating temporary disability benefits, the former employer also acts as a tax agent. Therefore, he must withhold the required tax fee of 13% from the payment amount and transfer it to the Federal Tax Service.
If a citizen turns to his employer, including his former one, to pay for sick leave, then he will be the one who will make the accrual. The necessary funds must be transferred to the former employee no later than 10 days from the moment the management of the enterprise receives his sick leave.
Subsequently, these funds will be compensated to the enterprise from the Social Insurance Fund. However, this procedure for receiving benefits is used only if the former employee has not taken any action to obtain employment.
If he is registered with the Employment Center and received the status of unemployed, then in accordance with Part 1 of Article 28 of the Federal Law “On Employment of the Population in the Russian Federation”, he is paid the appropriate allowance in the prescribed manner. In case of temporary loss of ability to work, the citizen submits a duly issued sick leave certificate to the Employment Service at the place of registration. In this case, additional payments for sick leave will not be accrued, but this will be a valid reason for absence from the central health center.
If the enterprise was liquidated, the citizen has the right to receive benefits for temporary disability that occurred within a month from the date of dismissal from the Social Insurance Fund. To do this, he will need to provide the department of this service with a sick leave certificate, work book and passport.
In addition, he has the right to submit a similar application to the social welfare service. In this case, she acts as an intermediary, paying the appropriate benefit to the citizen, after which the funds are compensated by the Social Insurance Fund.
The corresponding application to the Social Insurance Fund or SZN must be sent no later than 6 months from the date of receipt of the temporary disability certificate. After the expiration of the specified period, no payment will be made.
Due to the fact that a sick leave certificate is a document of strict accountability, a number of requirements are put forward for its execution that must be observed. If a citizen is not currently employed, but has the right to receive benefits after being laid off, then he must leave the “Place of work” column empty, and the former employer fills it out independently.
In this case, the accountant or HR employee must indicate in the “Special Notes” column information about the termination of the employment relationship with this employee due to a reduction in staff at the enterprise. The corresponding line indicates an order or other document recording the dismissal of this employee:
All other columns of the temporary disability certificate are filled out in the general order. In this case, the employer must use a gel or fountain pen with black ink. It is not allowed to use ballpoint pens when filling out these documents.
According to the laws of the Russian Federation, sick leave is paid not only to working people, but in some cases also to those who have undergone a layoff procedure.
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You should know in what situations people can rely on.
In most cases, it is impossible to fire a person who is on sick leave. But nevertheless, the legislation specifies situations that allow termination of an employment contract in such conditions.
At the same time, employers and employees must take into account that the legal connection between them does not end immediately after termination of the contract, but continues in connection with the responsibilities of the company’s management.
They are associated with the need to pay benefits for the period of incapacity, to which dismissed employees have every right.
Also, sick leave will not be paid if it was received in connection with an attempted suicide or intentional self-harm.
Payments for most sick leave, which are payable after an employee is laid off, are made by the social insurance fund.
This applies to both those certificates of incapacity for work that were opened before dismissal, and those that the citizen received after the termination of the employment contract. But in some cases, other organizations may also be payers.
If a pregnant woman was laid off, then in this case she will be paid by the social support service.
The size of the payment will differ significantly even from the minimum payments that working women receive, unfortunately, to a lesser extent.
Those employees who, after dismissal, managed to register with the employment center, have the right to receive sick leave benefits from the reserves of this service.
Well, those employees who found a new job and fell ill after that bring their certificate of temporary incapacity for work to the new management.
Payment for sick leave during staff reductions is carried out in different ways. If a person falls ill while still at work, the amount of his benefit will depend entirely on the length of insurance coverage and the average salary.
In this case, the minimum amount must be equal to or exceed the minimum wage adopted in the region where the citizen lives and works.
In cases where a person falls ill after termination of an employment contract, a benefit is paid in the amount of sixty percent of the average salary for the two years preceding the occurrence of the insured event.
But even here the final amount should not be less than the minimum wage.
For those workers who, after being laid off, managed to contact the employment center, a payment will be established equal to the amount they receive as unemployment benefits.
If a pregnant woman has been laid off, then when she goes on maternity leave, she can receive maternity benefits, the amount of which in 2019 is 581.73 rubles for one month of sick leave. N
o a woman can refuse this payment and prefer to receive child care benefits from the moment of his birth, and not after the end of the sick leave received due to pregnancy and childbirth. In this case, the payment will be higher.
The legislation of the Russian Federation protects the interests of pregnant women.
Therefore, according to the Labor Code, they can be fired from work while they are expecting a baby only in two cases:
In the first case, a woman cannot claim benefits for sick leave related to pregnancy and childbirth, and in the second case, she has the right to receive a small compensation from the social security service.
In order to be retrenched, the employee must indicate his former place of work as the employer.
After receiving the document, he must contact the accounting department if the company is still operating, or the Social Insurance Fund if it has already been liquidated.
In addition to the sick leave certificate, the citizen must submit:
The employer must pay the employee sick leave after layoffs if the employee falls ill before the termination of the employment contract.
Good afternoon
Article 81 of the Labor Code of the Russian Federation states in the very last paragraph that the dismissal of an employee at the initiative of the employer (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur) is not allowed during the period of his temporary disability and while on vacation.
In your case, staff reduction is a reorganization of the unit, which means you do not have the right to fire you while you are on sick leave.
If you are fired, immediately contact the labor inspectorate and the court, and do not forget the deadlines for filing applications, that if the dispute is about dismissal, you have a period of a month. And you know, I don’t envy this organization, because... cases in the courts, even if it is clear that it is a win for the former employee, can be considered by a judge for up to six months, it’s just that the procedure is such that the judge cannot resolve the dispute in one meeting, and therefore, when the decision is in favor of the employee, the organization is forced to reinstate the employee and pay for the forced absenteeism, and forced absenteeism is not counted as working days that you would have worked, but calendar days with all weekends and holidays, and companies are forced to pay such huge sums for forced absenteeism.
In Novosibirsk, a trial that lasted two years recently ended, the employee was reinstated and the organization was forced to pay for forced absence for the entire two years, and that came out to 400 thousand, imagine what a heart attack the general director of this company had.
so fight for your rights. And you can immediately send a statement to your organization with a link to Article 81 of the Labor Code of the Russian Federation, stating that they do not have the right to fire you, because the organization is not liquidated, only if the organization was liquidated you could be fired. And the liquidation process is labor-intensive; it is rare that any organization will undertake it, especially to fire an employee who is on sick leave.
In addition, there is Article 179 of the Labor Code, which states that with equal labor productivity and qualifications, preference in remaining at work is given to: family - if there are two or more dependents. This article can also be included in the application that you send to your company.
And the most important advice, an application from you with links to the articles of the Labor Code of the Russian Federation, which I indicated to you, must be sent by mail, registered, valuable (since you will make an inventory of the attachment) and also with a notification that they received it is yours statement. If you simply hand it over to the office or take it there yourself, they may tear it up and say that you didn’t come, there was no statement from you, because... Rarely does any organization register applications submitted to employees. In general, according to the requirements of office work, any application by an employee must be registered, it is assigned a number and it is entered into the journal, but rarely anyone does this, there is simply too much paperwork in organizations. But, accordingly, this is not used by clean employers, there was no employee, he did not write an application. Do everything right, mail the application.
And if they come up with something else, then go immediately with a complaint to the State Inspectorate, to the court, to the prosecutor’s office. Believe me, now monetary penalties for organizations and even criminal liability are too severe.
As you know, the Labor Code clearly stipulates the procedures that must be followed by the manager when reducing the number (staff) of employees.
Thus, one of the articles of the code suggests that the employee is warned about layoffs in advance, more precisely 2 months before the day of dismissal.
Each employee is introduced personally and against signature.
ATTENTION. The employer needs to take into account that preventive actions must be taken not only in relation to the employee, but also in relation to trade union organizations operating within the institution - 2 months before the expected day of dismissal, and 3 months before in case of mass layoffs.
In addition, labor legislation imposes a number of restrictions, including the following: an employer cannot fire an employee if he is on vacation or on a certificate of incapacity for work - outside of work.
But neither the Labor Code nor other labor standards contain anything regarding the illegality of actions to notify an employee who is on sick leave. In other words, there is no prohibition and preventive actions will not be punishable by law.
During the entire period while the employee is on sick leave, the employer cannot fire him. This, however, does not in any way affect the ability to notify an employee of an upcoming dismissal due to reduction.
Therefore, if, say, an employee has been sick for 2 months, and he was warned in a timely manner when opening a certificate of incapacity for work, then he will be fired the next day after the closure of the sick leave. That's why it's like that It is important to use even sick time for notification procedures.
We have found that it is legal to serve a layoff notice on an employee during the period of his temporary incapacity for work. This is now beyond doubt.
But the question arises: how to give notice of layoff if the employee is on sick leave?
After all, being at home due to illness, he does not perform labor functions, which means he cannot be called to work by the employer.
Since labor legislation does not provide specific methods for notifying an employee of layoffs while on sick leave, the employer should consider the following options that could allow him to act within the legal framework:
IMPORTANT! The notice delivery commission is a temporarily created structure consisting of employees appointed by the employer.
Whatever method the management chooses, it is necessary to remember what the notice of layoff on sick leave should consist of. We will not list details. We will only indicate the key points of the text that should be reflected in the document.
These points are a guarantee that the employer will inform the employee about the dismissal in accordance with all the rules provided by law.
REFERENCE. It would not be amiss to mention in the document that the trade union and the employment service were notified of the reduction, respectively. This will eliminate unnecessary problems at the output.
Now you know whether it is possible to issue a layoff notice on sick leave and how to do it correctly.
Notifying an employee of dismissal due to layoff while on sick leave is not the easiest task, but it can be solved.
All you need to do is inform him in a timely and competent manner so as not to contradict the norms of labor legislation.
And this can be solved thanks to the data in our article.
