Dismissal by reduction if a person is ill. Is it possible to lay off an employee who is on sick leave. Is it possible to lay off a reduction during sick leave?
The payment of sick leave after the dismissal of a redundant employee worries many, since the disease can appear immediately after leaving work. At the same time, due to temporary incapacity, a person cannot look for a new place for some time. Consequently, there are financial problems, especially if the treatment turns out to be expensive. Therefore, you need to know whether it is possible to go on sick leave with a reduction, whether it is paid.
Dismissal during sick leave
Reduction of an employee during the period of illness is impossible, and the employer has to wait until the person is able to perform his duties again. Then it can be shortened. Because of this, it is not uncommon for employers to wait weeks or months for a person to be treated.
But it is a completely different matter if the employee has already been informed of the intention to dismiss, and after that he received a certificate of incapacity for work. The employer must understand that even after the reduction, the legal connection does not immediately disappear. If a person falls ill after being fired from work, then he is entitled to monetary compensation for the period of disability. However, he will need to contact a medical institution to get such an opportunity.
dismisseda person can go on sick leave within 30 days from the moment of reduction. You don't have to be employed to do this. It is enough that the citizen left work no later than 30 days ago. In this case, you can call a doctor or go to him personally to fix the fact of malaise.
Receipt of document
Even if a person has left work and has not yet managed to get a new one, he has the right to receive a disability certificate within a month. In order to open it, you need to consult a doctor who will conduct an examination, require tests, and then confirm the presence of an ailment.
Separately, it should be noted the situation when a pregnant woman lost her job. The organization cannot reduce the girl during the childbearing period. But sometimes the company is liquidated, the individual entrepreneur ceases to operate. In this case, the pregnant woman should not worry, as she will be able to get sick leave, and the state will pay for it. It is enough to contact the authority about the approach of childbirth. Then you can go on the prescribed leave associated with pregnancy and the birth of a child.
It should be noted that a reduced employee who applied to a medical institution at the right time is issued a disability certificate on a general basis. After all, it is believed that a person due to an illness cannot get a job in a new place. It is one thing if the recovery period takes about a week, but quite another if a month or longer. Because of this, the financial situation can seriously suffer, and it will be extremely difficult to do without payment.
People who have left the organization can apply with a disability certificate to different places. Under normal conditions, one part of the document is filled in by the doctor, and the other by the boss. But a different situation arises if a person decided to quit or was laid off. He can visit his former place of work, go with sick leave to the Social Insurance Fund or the employment service.
The period of incapacity for work will be the length of time it takes for a person to recover. Therefore, a person who quits cannot reduce it only because of leaving work. A sick leave after dismissal due to a reduction in staff can be issued for a week, or for several months, or even for a year. The doctor or medical committee must decide how much a person needs to be treated.
Payment
However, the payment of sick leave after the reduction is different and depends on some circumstances. A person should be prepared to reduce the amount that was given to him during the period of performance of labor duties. Experience in this case does not play a role, so it does not matter how long a person has worked.
Important! The minimum amount cannot be lower than the minimum wage adopted in a particular region. It can be more, but not higher than the maximum allowable.
The amount of payment depends on the following:
- If a person goes on sick leave before being fired, then the amount will be calculated depending on the length of service and the average salary for the last two years - in other words, the usual calculation rules are used.
- If a citizen falls ill after terminating the employment contract, the benefit will be paid in the amount of 60% of the average salary for two years. Experience doesn't matter.
- If the employee managed to apply to the employment center, the payment is equal to the amount that the person receives for unemployment.
- If a pregnant girl is laid off, the allowance will be 613 rubles per month.
Therefore, the payment of sick leave directly depends on the situation in which the person has fallen. But in any case, he will be able to claim a payment if the reduction in the number of staff occurred no later than a month ago. It is enough to collect the necessary documents and bring them to the previous place of work or to the FSS.
You must have a sick leave filled out by a doctor, a work book and a passport. It is important that there are no errors in the disability form, as their presence leads to the fact that the payment is denied. The person must check whether the medical officer has entered the information correctly. If there are errors, they cannot be corrected independently. You need to go to the hospital to get a duplicate of the document with the correct information.
There are many different situations at work. For example, staff reduction, dismissal of one or more employees for certain reasons. At the same time, the dismissed employee may be on sick leave at the same time. What to do and how to keep records reduction of an employee on sick leave? We'll tell you what not to miss.
Illness after work
With this scenario, the law is on the side of the employee. The employer is obliged to pay sick leave and carry it out in his accounting not only if this document falls on the date of dismissal, but also within a 30-day period after it. It does not matter how the employee was fired: to reduce staff or not. But it is worth clarifying that this rule applies only to sick and injured former employees who did not have time to find a new job.
We also clarify that sick leave is accepted for payment only for the employee himself, and not for care or other reasons, grounds. These provisions are reflected in:
- in Article 5 of the Law on Compulsory Social Insurance No. 255-FZ (hereinafter - Law No. 255-FZ);
- order of the Ministry of Health and Social Development of June 29, 2011 No. 624n (hereinafter - order No. 624n).
Paying an ex-employee
The calculation of the amount of the benefit due to a former employee is made taking into account the average salary taken for the two years preceding the year in which the illness or injury occurred.
EXAMPLE
If an employee was fired in May 2016 and fell ill within a month, then the salary for 2014 and 2015 is taken into account.
If an employee was fired in December 2015, and fell ill in January 2016, then the average salary of 2014 and 2015 is taken into account.
Keep in mind: according to article 7 of Law No. 255-FZ, only 60% is paid, regardless of the length of service at the time of illness.
Special situations
Since receiving sick leave during staff reduction occurs at a time when a person is actually already unemployed, in practice, the medical institution that issued the sick leave may not indicate the organization in which he previously worked. This is not grounds for refusing to apply for disability benefits.
The organization has the right to independently enter its name on the sick leave for reporting. The only thing is that for this it is necessary to use a gel, capillary or fountain pen, as is customary on many other official forms. The color of the entry must be black. This rule is reflected in clause 65 of order No. 624n.
Another non-standard situation is when an employee, who was notified of the reduction within the 2-month period established by law, fell ill and is on sick leave exactly on the date of the planned dismissal. This means that the employer must carry out the dismissal later - on the date the employee leaves the sick leave or the next day. This procedure is regulated by Art. 81 of the Labor Code of the Russian Federation.
The algorithm of actions of insured persons and their employers (including former ones) when grounds arise for the payment of a hospital benefit is prescribed in the law “On Compulsory Social Insurance” dated December 29, 2006 No. 255-FZ. The procedure for issuing and filling out a sick leave is regulated by the order of the Ministry of Health and Social Development of the Russian Federation of June 29, 2011 No. 624n.
Sick leave issued after dismissal due to staff reduction: who will pay for it?
In part 2 of Art. 5 of Law No. 255-FZ establishes the obligation of the employer to appoint and pay a former employee temporary disability benefits. To exercise this right, an individual must meet several conditions:
- the former employee writes to the former employer with a request to reimburse him for the period of sick leave after dismissal;
- provides the original sick leave, which is open within the first month after the date of dismissal (30 days in calendar terms);
- the former employee, after the termination of cooperation with the employer to whom he applies, is not in official labor relations with other employers.
These conditions also apply to employees laid off due to staff reduction.
If a former employee who falls ill within 30 days after the date of dismissal brings the employer sick leave due to injury, illness or maternity, benefits will be paid, but if the sick leave is related to caring for a sick family member, these days are not payable. The right to present a sick leave for payment is retained for six months after the occurrence of an insured event (illness).
How is sick leave paid for downsizing? Like a regular sick leave, i.e. according to the average value of earnings, calculated for two years, for which social security contributions were accrued. The two-year interval for the formation of the calculation base is formed from the periods that precede the year of the insured event (the year in which the person fell ill).
A distinctive feature of the calculation of social benefits in connection with illness after the date of dismissal is that after the termination of the employment relationship, the employer always accrues sick leave in the amount of 60% of the average daily earnings of the former employee. After the termination of the employment contract, when paying for temporary disability, the worker's length of service does not affect the amount of this adjustment percentage (the rule is enshrined in Part 2 of Article 7 of Law No. 255-FZ). The employer must pay the benefit to the former employee within 10 days after his application.
If a sick leave is presented by an employee during a reduction in staff, while all the conditions are met, but the name of the employer is not entered in the document, this is not considered a mistake. The employer can enter the name in black ink in block letters.
When calculating the social benefit in case of illness, the standard percentage of income tax must be deducted from the calculated amount (not deducted from maternity sick leave). The role of the tax agent for personal income tax is performed by the former employer, despite the actual absence of labor relations between the parties at the current time.
It is possible that a reduction is being carried out at the enterprise, and one of the employees to be laid off is on sick leave on the date of termination of the contract. In this case, the employer does not have the right to implement the termination of the employment relationship on the previously scheduled date. The day of dismissal will coincide with the date on which the person will go to work after the disability sheet is closed (Article 81 of the Labor Code of the Russian Federation).
To assign benefits, along with the original sick leave, you must submit the following documents:
- statement;
- a copy of the completed pages of the passport;
- a copy of the work book, according to which you can track the periods of employment.
How sick leave is paid after reduction by example
Example 1
The accountant was fired due to redundancy on July 20, 2018. In the period from August 3 to 9, he was ill, which is confirmed by a disability certificate. The citizen turned to his former employer for social benefits on August 15. In the interval from July 21 to the current date, an individual was not employed anywhere. The amount of the allowance will be calculated in the following order:
Calculation intervals are determined. Since the disease began in 2018, the income for 2017 and 2016 must be taken as the basis.
The average daily salary is displayed. In 2016, the employee's taxable income was at the level of 548,652 rubles, in 2017 - 705,654 rubles, these data do not exceed the maximum limits of the calculation base (718,000 rubles in 2016 and 755,000 rubles in 2017 .). The average earnings will be 1718.23 rubles. per day ((548 652 + 705 654) / 730).
The benefit will be credited within 7 calendar days. A reduction factor (60%) must be applied to the average earnings.
The total amount of the benefit is 7216.57 rubles. (1718.23 x 60% x 7 days).
Withheld personal income tax from the amount of benefits - 938 rubles. (7216.57 x 13%).
The former employee will receive 6278.57 rubles in his hands. (7216.57 - 938).
Example 2
The employee was laid off on July 10, 2018, and on August 13 he fell ill. In this case, the former employer is not obliged to pay the sick leave opened on August 13, since more than 30 calendar days have passed since the dismissal.
The employee was warned about the reduction of her position - 09/05/2014. Everything would have been fine, but unfortunately, outside of working hours, she fell on the street and received a severe fracture of her arm. Doctors say that the sick leave will be for two months, since the age of the worker and her state of health are not very good. That is, at the time of the reduction in the position, she will be on sick leave. As far as I understand, an employee on sick leave cannot be fired on the basis of a reduction, even if she was warned. The date of dismissal will be the date of entry to work after sick leave - the first working day. For example: the date of entry to work is conditionally 09/23/2014. She is the date of dismissal, despite the fact that the position is no longer there. Accordingly, the calculation of months for severance pay upon reduction and for the second and third (upon submission of documents) is also considered from this date - 09/23/2014. Thank you in advance.
Answer
In general, you correctly described the procedure to follow if an employee falls ill during the layoff procedure. However, it is impossible to reduce the position of an employee before her dismissal.
It is impossible to dismiss an employee at the initiative of the employer, including reduction, during the period of his temporary incapacity for work. If on the day when he should be reduced, the employee is still on sick leave, then he cannot be fired. The dismissal must be made, in this case, on the day the employee goes to work after the sick leave. This is confirmed by judicial practice (see paragraph 1 of the appendix to the answer).
| From the book you will learn: to whom and when they issue a certificate of incapacity for work; how to calculate temporary disability benefits; how to pay sick leave in different situations; how to check and fill out sick leave. Let's take a look at specific examples when you can fire an employee on sick leave; how to pay sick leave in difficult situations. As well as special materials from the magazine’s experts: “Electronic sick leave: checking the readiness for a new project of the FSS of Russia”, “An employee brought a sick leave: the actions of a personnel officer”, “The length of service for paying sick leave: what periods to take into account”. |
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It should be noted that during the period of his temporary incapacity for work, his place of work (position) is retained for the employee, since he only temporarily does not work due to illness. Despite the illness, he still has the right to provide him with a job stipulated by an employment contract. This follows from Part 1 of Article 22 of the Labor Code of the Russian Federation. Therefore, the exclusion from the staff list of the position of an employee, before his actual dismissal, is unlawful (see clause 2 of the appendix to the answer).
Otherwise, you correctly described the procedure for reducing an employee on sick leave. On the day the employee goes to work, the employment contract with him is terminated due to the reduction. The amended staffing table with the excluded position of the reduced employee comes into force on the day after the dismissal of the employee. The right to all payments due to the employee upon reduction begins from the day the employee is actually dismissed. Including, the period of employment of the employee, during which the employee retains the average earnings. This follows from part 3 of Art. 84.1, Art. 178 of the Labor Code of the Russian Federation.
Details in the materials of the System:
Situation: When the new staffing table should come into force, if on the scheduled day of the reduction, individual employees who were on sick leave or on vacation were not fired.
The legislation does not provide a clear answer to this question.
The staffing table, as a rule, is introduced no earlier than the expiration of a two-month period from the date of written notification of employees whose positions are subject to reduction.
The presence of individual employees on sick leave or vacation should not prevent the employer from making changes to the staffing table or approving a new staffing table, because employees can be on sick leave or on vacation for quite a long time.
Since, until the moment of dismissal, the reduced employees who are on sick leave and on vacation retain their place of work, the positions they hold should be provided for by the staffing table during these periods (, Labor Code of the Russian Federation). The absence in the new staffing table that has come into force of positions of employees who have not been dismissed due to being on sick leave or on vacation can formally become the basis for attracting the employer to ().
This position is also supported by case law. So, the amended staffing table, from which the positions of reduced employees are excluded, may enter into force the next day after the dismissal of the relevant employees ().
Situation: Whether it is necessary to extend the two-month notice period for the employee about the upcoming reduction for the duration of his illness or vacation.
There is no need.
About the upcoming dismissal due to a reduction in the number or staff of employees, the employer is at least two months before the dismissal (). Thus, a minimum notice period has been established, which the employer must comply with. An increase in the two-month period in any special cases is not provided for by law. Therefore, it is not required to extend the minimum period of notice of reduction for the period of illness or vacation of the employee.
At the same time, the dismissal of an employee at the initiative of the employer during a period of temporary disability or being on vacation is prohibited with the exception of (). Therefore, the employer has the right to dismiss an employee for reduction only after he returns to work. The legality of this position is also confirmed by the courts (see, for example,).
Ivan Shklovets, Deputy Head of the Federal Service for Labor and Employment
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Many employees, and even accountants, have questions about what to do if an employee falls ill in the last days before being laid off for a reduction or after the dismissal. Whether to postpone the date of termination of the employment contract, if sick leave taken in the last days before the reduction?
Is sick leave paid after reduction ? After all, the employee received severance pay.
The answer to the first question is already in the article. In a nutshell, let me remind you that termination of an employment contract at the initiative of the employer during disability is not allowed, except in the event of liquidation of the organization. Therefore, dear employers, if you do not want to pay compensation to the employee later for the time of forced absenteeism for illegal dismissal, do not do this! And I advise employees to go to court in case of such dismissal. 100% win the case, and even get the money.
What to do if the sick leave during the reduction began on the last day or a few days before? We are waiting for the end of the sick leave! In the report card we put "NN" until the employee provides sick leave. Be sure to call the employee and let them know that he is not fired, and he needs to come on the first day after the end of the sick leave to process the dismissal.
What for? So that he does not think that he was automatically fired. The employer cannot fire such an employee until the time of incapacity for work ends, and the employee may not know about it and simply will not appear until he finds time. You won’t be able to fire him for absenteeism, since he was warned about the reduction, which means that there is no position anymore, there is no place to work, he does not play absenteeism.
The dismissal is made after the end of the sick leave.
Is sick leave paid after the reduction?
As established by Article 5 of Federal Law No. 255-FZ, temporary disability benefits are paid if the disease or injury occurs within 30 days from the date of termination of the employment contract. At the same time, the payment of this benefit is not made dependent on the payment of redundancy benefits, just as the payment of severance pay is not dependent on temporary disability benefits.
A severance pay is compensation to an employee for the loss of a job, and a disability benefit is an insurance cover that is guaranteed to him by law. Therefore, an employee who is laid off due to a reduction in staff and falls ill within 30 days after the dismissal is entitled to both.
However, it must be remembered that this applies to temporary disability due to illness or injury. Sick leave is not paid for caring for a sick child, etc.
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Dismissal for
