Dismissal at will during sick leave

General provisions

Termination of labor relations at the request of the worker is regulated by Article 80 of the Labor Code of the Russian Federation. It says the following:

Any worker has the opportunity to terminate his employment relationship with the organization unilaterally.
You must notify your intention to terminate your employment relationship no later than 14 days in advance. In separately specified cases, this period can be reduced to three days, or it may be absent altogether.
If management does not insist on working off the job, then the person can leave work on the day the application is submitted.
A resigning person has the right to change his decision at any time, before the termination of his employment obligations, even on the last day of going to work. An exception will be the case when another person has already been invited to the position by way of transfer.
Even if the dismissal documents are not completed on the last day of the employment contract, the person has the right to stop performing labor functions starting from the day following the one indicated in his application.
On the last day of work, the former employee must be given the work book and a full payment must be made.

Neither this article of the Labor Code of the Russian Federation, nor other acts of labor legislation indicate that a person cannot be fired at his own request if he is not present at the workplace. Accordingly, it is possible to resign on sick leave at your own request.

Work upon dismissal while on sick leave

If the work certificate is received before the expiration of two weeks from the date of termination of work indicated in the application, work is required.

It is possible to avoid work in accordance with Article 80 of the Labor Code of the Russian Federation under existing special circumstances, but documentary evidence will be required. For example, deterioration in health and the need to leave the region of residence as indicated by doctors, as well as a serious illness that interferes with the performance of official duties, if documented, are considered special circumstances.

When can you quit?

Let's consider a situation: a person filed a resignation letter of his own free will. But a few days before the day of dismissal, he went on sick leave. And on the last day he did not go to his workplace.

This is also important to know:
Dismissal under an article: why you can be fired

What should a manager do, does he have the right to dismiss an employee on sick leave? Yes, if the employee has not expressed a desire to cancel his application. Being on sick leave will in no way affect voluntary dismissal. After all, this is the personal initiative of the employee himself. And the Labor Code of the Russian Federation prohibits dismissing an absent person if the initiative comes from the management of the enterprise.

Therefore, a sick person has the right to expect that he will be fired on the day specified in his application. They will also transfer the final payment (excluding payment for temporary disability) and issue a work book filled out in the prescribed manner.

Is it possible to quit while on sick leave?

At the legislative level, there is no prohibition on dismissal during sick leave, and each employee can apply to terminate the contract without going to work. However, there are several nuances here:

If, after the certificate of incapacity for work is closed, days of compulsory work remain, you will still have to return to the workplace.
Payment for the period of illness is made in full, even if it stops after leaving the company.

To consider the issue in detail, it is enough to familiarize yourself with two practical examples:

Example 1: Dismissal during illness.

Citizen Sazonov L.D. I took sick leave from May 1, 2018. The application was submitted by him on May 3, 2018, the warning period begins the next day (Part 1 of Article 80 of the Labor Code of the Russian Federation). Thus, he was supposed to go to work on May 18, 2018, but the certificate of incapacity for work was closed only on May 19, and he did not have to work off. The contract was terminated on May 18, 2018, but the remaining sick day was paid according to the law.

Example 2: Leaving the enterprise before opening a certificate of incapacity for work.

Olkhovsky O.N. submitted a resignation letter to the employer on his own initiative on July 10, 2018, he was assigned two weeks of work until July 25 inclusive. He took sick leave on July 15, 2018, the certificate of incapacity for work was valid for 10 calendar days and was closed on July 25, 2018. Thus, Olkhovsky O.N. I had to work the days from July 10 to July 14 inclusive, the rest was counted towards the warning period.

Important

Establishing a notice period is not an obligation, but a right of the employer. If necessary, you can try to negotiate with him about dismissal in one day. If the resignation is caused by the impossibility of continuing activities, the director is obliged to terminate the contract within the period specified in the employee’s application.

Dismissal during illness

Let's consider the question - is it possible to resign during sick leave at your own request? Another nuance that may raise questions is a situation when a person falls ill and only then brings his application. Should the employer accept such a statement? How to resign correctly in this case? Labor legislation does not regulate this situation in any way. Accordingly, a person has every right to submit an application while on sick leave.

In this case, the processing time will remain unchanged. The application must be submitted no later than 14 days before the expected date of termination of the employment relationship. This period can be reduced in the following cases:

The person leaving is on a probationary period or a fixed-term employment contract has been concluded with him. In this case, the warning period is reduced to three days.
A person has the right to resign on the day the application is written. This is possible if a person has entered full-time study, is drafted into the armed forces, retires, etc.
The head of the organization agrees to shorten the warning period.

These rules apply in any situation.

Terms of dismissal

The manager does not have the right to dismiss an employee on a date other than the one indicated in the documents, even if he is sick. According to the law, the director cannot change the day of termination of the contract at his discretion if the person resigns of his own free will.

Even if an employee is sick for more than 14 days, the employer must still terminate the contract with him on the day specified in the resignation letter.

Important! If the termination of the employment relationship occurs by agreement of the parties, then the manager must wait for the person to recover.

Refusal to accept resignation letter

What to do if the employer refuses to accept an application from a sick employee, citing the fact that the person is not currently performing his job duties and should not be at work.

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In this case, you need to do the following:

Draw up the document in two copies.
Register it with the secretary.
The employee must keep one copy and there must be a mark on it that the document has been accepted and the date of acceptance.

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If a company representative refuses to register a document, you can send an application by mail. It is better to do this not just by registered mail, but by sending it with an inventory. In this case, the sender will have in his hands a document confirming that the envelope actually contained an application for dismissal at the initiative of the employee.

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Otherwise, the employer may claim that the letter did not contain any document, or that it was a paper containing other information and not a letter of resignation. It must be borne in mind that this method extends the working period. The regulated 14 days will begin to count only from the moment the employer receives the letter.

How to write an application for termination of an employment contract in such a situation?

Above, we have already answered the question of whether it is possible to write a letter of resignation while on a certificate of incapacity for work, and whether it is possible to fire such an employee.

It must be taken into account that the rules for writing a resignation letter at the initiative of an employee, if it is written by him on sick leave, will be similar to the rules for writing one for able-bodied employees.

How to compose it correctly?

There is no unified form for a resignation letter at the employee’s initiative, so it is written in free form.

However, the application must include the following information:

Full name is indicated in the header. and the position of the head of the company, as well as full name. and the position of the departing employee;
the title of the document ( “
Statement
”
) is written in the center;
The following is the essence of the request: dismissal at the initiative of the employee, preferably indicating the date of termination of the employment contract, 14 days from the date of writing the notice;
you can add a link to the norms of labor legislation - clause 3 of part 1 of Article 77 of the Labor Code of the Russian Federation or Article 80 of the Labor Code of the Russian Federation, however, the lack of regulatory justification is not an obstacle to satisfying the employee’s request;
the date of writing and the personal signature of the employee are mandatory, since the signature indicates the good will of the person, and the date is a necessary attribute of any official document, in addition, when indicating a specific day of dismissal, it is counted from this date.

Reference. In a voluntary resignation letter, there is no need to mention temporary disability or the expected date of closure of the sick leave.

There is no need to justify the decision to terminate the employment relationship, except in cases where the employee needs to resign before the end of the two-week period.

How can I transfer it to my employer?

If an employee is on sick leave, he can submit a resignation letter to the employer at his own request in the following ways:

Appearing in person at the organization if your health condition allows. In this case, it is worth preparing two copies of the document, asking to put a mark on its receipt on the second one.
Send by registered mail with notification of its receipt by the addressee. To avoid questions regarding the contents of the postal item, the employee should draw up an inventory of the attachment.
Send an application with a request to terminate the employment agreement at your own request by e-mail , if the company provides electronic document management. The document must be signed with the electronic signature of the applicant.

It must be taken into account that when submitting a document requesting termination of an employment contract, it is important for the employee to confirm that it was received by the employer.

Working off

In the Labor Code of the Russian Federation, the notice period for dismissal is set in calendar days.

Fact
The working period begins to count the next day after submitting the application. The fourteenth day is also the day the work ends.

But at the same time, not a single regulatory act states that during the warning period the employee must fulfill his work duties. Accordingly, if an employee is dismissed while on sick leave, the employer does not have the right to demand an extension of the notice period. As, for example, this happens with a probationary period.

This means that the manager’s demand for work after the end of the illness is unlawful. This is true for a situation where the day of dismissal falls during a period of illness.

If a person who has expressed a desire to resign during illness ends up with a certificate of incapacity for work before the date of dismissal, he is obliged to return to the workplace.

This rule can create unpleasant situations for the employer. If an employee is on sick leave, the employer cannot force him to come to work to hand over official documentation. Even if there are shortcomings in the documents.

This is also important to know:
Dismissal under a fixed-term employment contract: procedure and features of the procedure, working period

An exception is the situation when the employee is a financially responsible person or especially important documents are handed over to him for signature (strict reporting forms, originals of statutory documents, etc.).

Can an employee quit while on sick leave?

In case of illness or the need to care for a family member (illness of a child), the employee is obliged to contact a medical institution to prescribe treatment.

In different life situations, an employee may have a desire to vacate his position in the organization during the period of treatment. In this case, the following questions justifiably arise:

Is it possible to quit while on sick leave?
How to submit a letter of resignation while being treated in a hospital?
Do I need to work 14 days after leaving sick leave?
Will sick leave be paid if an employee falls ill after filing an application?

The procedure for dismissing an absent employee at his request

Dismissal of an employee on sick leave in 2019 will occur as follows:

The employer is preparing a dismissal order. The order is issued in the usual manner. As a rule, the T-8 or T-8a form is used. But you can also draw up a document on a form developed by the company. There is no need to note in the order that the termination of the employment relationship occurs during a period of incapacity for work and the employee is absent from the workplace. The reason is stated in paragraph 3 of Article 77 of the Labor Code of the Russian Federation.
The final payment is made. Days when the employee is sick will not be included in this calculation. The employer will pay for them after the employee brings him a certificate of incapacity for work.
A work book is drawn up. Termination of the contract occurs while the employee is on sick leave, which means he will not be able to receive it on time. In order to protect yourself from possible claims from the dismissed person, the personnel officer needs to send the sick employee an information letter about the need to come for a work book.

Sick leave benefits are issued to a dismissed employee in the usual manner. Accrual occurs within three days from the date of receipt of the slip, and payment is made on the next salary date.

Dismissal at will during sick leave article of the Labor Code of the Russian Federation

Quite common practice is to leave work during illness. The employer must know that it is impossible to fire an employee while he is ill. This is prohibited by law, namely Article 81 of the Labor Code of the Russian Federation. But in order to leave the place of work, a person can independently submit a letter of resignation from work, while being sick.

The boss carries out the dismissal on the date indicated in the application

And in this case, it is important for management to know that wages will be calculated according to normal standards; the rule of 60% of wages does not apply here. The amount for this period will be paid after the person’s illness

In the case where an employee went off sick on the day of his departure, the salary is calculated taking into account average earnings and total length of service.

It is important for the employee to know that in order to receive a payment after he has been ill for some time, he must have his passport and work experience book with him to confirm the fact that he has not taken a new job. We must remember that payment will be made exclusively for sick leave due to illness, injury, but not due to maternity leave or caring for a relative

We must remember that payment will be made exclusively for sick leave due to illness or injury, but not due to maternity leave or caring for a relative.

Sick leave during service upon dismissal of one's own free will

Often, lately, far from amicable partings with their management have developed. Therefore, the boss forces you to work for the required two weeks during suspension. In this case, the employee has the right to take a ballot and be sick for two weeks.

Release from office during sick leave at one's own request is prescribed by Articles 80 and 84.1 of the Labor Code of the Russian Federation. The employer is obliged to pay the person all compensation for unused vacation, including sick leave, which is included in the length of service.

Sick leave before voluntary dismissal

For another reason, it is impossible to resign when ill. An employer does not have the right to dismiss an employee when he is sick. Only with his consent.

In order to terminate a contract with the management of a company, a person must write a statement two weeks before leaving work. If after writing the application the employee falls ill, the period of work will not be extended. Management is obliged to dismiss an employee on the exact day specified in the application.

Sick leave after dismissal at the retiree’s own request

As Art. 80 of the Labor Code of the Russian Federation, a person who has already received a pension has the right to dismissal at his own request without working for two weeks. The whole procedure is exactly the same as with the dismissal of an ordinary employee, not a pensioner. The boss must let him go exactly when the person asks.

There is a situation in which a pensioner first got a job, but then decided to leave. Then he needs to comply with the law and notify his superiors two weeks before dismissal. If the management does not mind, then they will be able to dismiss the pensioner without working off.

Most often, a retired employee is released without work. Since the fines for illegal actions are substantial.

Calculation of sick leave after voluntary dismissal

There is a certain procedure for paying an employee. Every company is obliged to comply with it.

Based on the length of service, the employee is paid different amounts of earnings:

An average salary of 100% is paid for more than 8 years of experience;
80% - from 5 to 8 years;
up to 5 years – 60% of average earnings.

Such accruals apply when sick leave is provided for work for six months. Then the payment will be only 60%. More information on sick pay after voluntary dismissal in 2020 can be found here.

In order for the accountant not to get confused when making calculations, there are only two calculation options:

When providing sick leave before dismissal, payment is made in the same way as for all other employees.
If sick leave is opened after dismissal, only 60% of the amount is paid.

These rules apply exclusively to official employment.

Payment of sick leave to a dismissed employee

The employer pays sick leave in the usual manner:

The amount of the benefit will depend on the length of service.
To calculate the base for sick leave, the two previous calendar years are taken.
The employer pays for three days of sickness, the rest of the benefit comes from the Social Insurance Fund.

All sick days are subject to payment: both those that occur before the date of dismissal, and those that occur during the period when the person is no longer an employee of the company.

Do I have to pay for a certificate of temporary incapacity for work?

If a person wrote a letter of resignation and went on sick leave or submitted a request for resignation when he was already sick, then the employer must pay for a certificate of temporary incapacity for work.

According to the law, monetary compensation must be issued for the period of illness if the date of opening the certificate of incapacity for work falls on the time when the person was still listed as an employee of this organization.

Is it necessary to confirm that the employee is actually sick?

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The manager cannot demand confirmation from a person that he is sick until the certificate of incapacity for work is closed. Moreover, the legislation does not oblige the sick person to report that he is sick. This responsibility can be reflected in the company’s local documents.

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This is also important to know:
What to do if you are not paid your salary upon dismissal and where to go

To make sure that the dismissed employee is actually sick, you can contact a medical institution.

Additional grounds for dismissal

On what other grounds is dismissal possible while on sick leave? As noted above, the legislator establishes a ban on the dismissal of a worker who is on the ballot only if the initiative comes from the company’s management.

This means that a sick person can be fired not only at his request, but also for reasons beyond the control of the parties. Or, on the contrary, on the basis that is possible if both parties come to an agreement.

This includes cases:

End of the employment relationship.
Death of an employee or employer classified as an individual entrepreneur.
Prohibition for medical or other reasons from holding a position and lack of possibility of transfer.
Agreement between the parties.

Let's take a closer look at various situations of dismissal in the absence of a person at the workplace:

The employee's initiative, that is, his own desire. In this case, the procedure for terminating the contract is carried out as usual. The employee is fired on the date specified in his application, even if he is absent on that day.
Long-term disability. Labor legislation preserves a sick person’s job. Therefore, a long-term illness cannot become a basis for terminating the employment relationship. Accordingly, if an employee does not express a desire to leave on his own initiative during a long illness (or did not express it before its onset), he cannot be fired. The only thing an employer can do if an employee is often sick or his sick leave lasts long enough is to send the person for a medical examination in order to determine the employee’s suitability for the position held.
Liquidation of the enterprise. This is an exceptional case when a sick person can be fired in his absence from the workplace. In this case, he will receive temporary disability benefits from the Social Insurance Fund.
Staff reduction. In this case, dismissal of the absent person is impossible. If the employer has carried out the entire layoff procedure and the last day of work falls during the person’s absence, then the dismissal is postponed to the first day the person returns to work.
For absenteeism. The law does not allow dismissing people at the initiative of the employer if they are absent from the workplace (except for liquidation). Moreover, the employer does not have the right to classify an employee’s absence as absenteeism until this is established by an internal audit. Before this, the code “nn” is entered on the report card - failure to appear for unknown reasons.

Will sick leave be paid if a person gets sick after termination of the contract?

It also happens that a person falls ill after leaving work. In accordance with Federal Law No. 255 of December 29, 2006, a former employee can receive monetary compensation for the period of his incapacity for work, but the following conditions must be met:

The person became disabled within 30 days from the date of termination of the contract with the employer.
The subordinate did not find a new job.
The employee provided sick leave no more than 6 months from the date of closure.
The person provided a Russian passport and work book.

After the employer receives a document confirming the employee’s temporary disability, he must schedule payment of compensation 10 days from that moment. The subordinate receives this compensation on the day the salaries are transferred to the employees.

Important! If the manager refuses to pay compensation, you can sue him or contact the labor inspectorate. According to the Federal Law “On the procedure for considering appeals from citizens of the Russian Federation,” the response must be sent to the applicant within a month.

If a subordinate was ill several times within 30 days after termination of the employment relationship, then the director must assign compensation for all certificates of incapacity for work that were issued during this period.

Employer's liability

The legislator prohibits the dismissal of a person on sick leave at the initiative of the employer. If the latter violates this rule of law, the employee can challenge the termination of the employment contract. This is especially true when staffing is reduced.

This is also important to know:
Termination of an employment contract at the initiative of the employee, procedure, deadlines, grounds for challenging it in court

In addition to reinstating the person to the workplace and paying for forced absences, the employer is subject to a fine. The fine for a legal entity varies from 30,000 to 50,000 rubles. If an official or an individual entrepreneur is punished, the amount of the fine is much less, 1000 - 5000 rubles.

Dismissal while an employee is on sick leave: judicial practice

The precedent reflected in the cassation ruling of the Moscow City Court dated July 22, 2010 No. 33-22024/10 is noteworthy. The employee, having learned about the upcoming layoff, attempted to resign early due to layoffs in the manner prescribed by Art. 180 Labor Code of the Russian Federation. But the employer each time refused to accept his statement of consent to early dismissal.

One day (at that time, the 2-month period from the date of notification of the employee about the layoff had not yet passed), the employee fell ill and left work about 1.5 hours early due to poor health. I immediately went to the doctor and took out sick leave. The employer, however, fired him for absenteeism and did not reinstate him even after sick leave was granted.

Can an employee on sick leave be fired for absenteeism, according to the courts?

This procedure is highly likely to be considered illegal. The court in this dispute ruled that the employer’s actions were unlawful because:

at the time of dismissal the person was on sick leave;
there was no evidence that the employee deliberately concealed his illness;
Leaving work 1.5 hours early is not considered absenteeism.

As a result, the employer was charged:

amount for forced absenteeism of a dismissed employee (more than RUB 399,000);
compensation for moral damage (RUB 5,000).

Can a person on sick leave be fired for failure to timely submit a certificate of incapacity for work to the employer?

The answer to this question is reflected in the ruling of the Moscow Solbsud dated January 25, 2012 No. 33-601/2012. There is also talk about the dismissal of an employee who is on sick leave.

The employee was laid off. He was warned 2 months earlier, but the employer committed a number of violations (discovered by a literal reading of the Labor Code of the Russian Federation):

did not offer the employee alternative vacancies;
did not provide the employee with a work book immediately after layoff;
dismissed an employee while on sick leave.

In connection with these circumstances, the employee filed a lawsuit against the company, demanding reinstatement at work, compensation for simple and moral damage. The court of first instance, notably, sided with the employer because:

the employee was not offered any vacancies due to the absence of any (this was confirmed by the company’s staffing table);
the employee, according to the court, used sick leave, abusing his own right, without informing the employer that he was going on sick leave (with his knowledge that a reduction would be made during the period of sick leave).

In addition, the court took into account that after returning from sick leave, the employee did not show up for work, but went to another area for a month, that is, he did not immediately provide a certificate of incapacity for work.

The cassation upheld the decision of the trial court.

Thus, whether a full-time employee can be fired while on sick leave is not in all cases determined by a direct reading of labor legislation.

FAQ

What is the date to dismiss a sick employee?

The order to terminate the contract will contain the date that the person indicated in his application. That is, this date will not shift by the number of days on the ballot, even if it falls during the period of incapacity for work.

Is the employer required to pay for a ballot that began after the employee left?

According to current legislation, a person has the right to receive benefits from a former employer if the period of incapacity for work began within 30 days from the date of termination of contractual obligations.

What will be the entry in the work book if a person was fired during his absence?

When filling out the work book, there is no need to note that the termination of the contract occurred during the person’s absence. The grounds for dismissal are entered in accordance with the Labor Code of the Russian Federation (own desire, agreement of the parties, etc.).

Disability and temporary disability benefits

A certificate of incapacity for work (sick leave) is a document confirming the legality of absence from work, as well as giving the right to receive temporary disability benefits.

Expert opinion

Novikov Oleg Tarasovich

Legal consultant with 7 years of experience. Specializes in criminal law. Member of the Bar Association.

Depending on the severity of the disease, the employee is determined by the treatment regimen - outpatient (at home) or inpatient (isolation of the patient and placement in a hospital).

This is important to know: An example of filling out sick leave from the minimum wage in 2020

The employer is obliged to pay the employee temporary disability benefits due to his illness (Article 183 of the Labor Code of the Russian Federation). It is worth noting that temporary disability benefits are paid not at the expense of the employer, but at the expense of insurance contributions to the compulsory health insurance fund.