Is it possible to close sick leave early? This question is relevant for both the HR specialist and the accountant. The legislation of Russia does not contain a direct ban on reducing the sick leave regarding the terms that were set by the doctor as the most likely initially, but there are also nuances in the implementation of the procedure this abbreviation enough.

How is sick leave closed in general?

If an employee has caught one of the common diseases, for example, SARS, then he will most likely go to see only one doctor - his local therapist - and will be entitled to a regular sick leave, the duration of which will not exceed 15 days.

Such a sick leave is closed by the decision of the doctor, as soon as the patient, following the results of the examination at a scheduled appointment, is recognized as able-bodied.

Another thing is if an employee becomes ill seriously enough, as a result of which a sick leave is issued to him medical commission(or carries out the extension of the disability certificate, initially opened by the attending physician). It is quite possible to subsequently issue several certificates of incapacity for work in accordance with the terms of treatment. Its duration can be up to 10-12 months.

The sick leave sheet formed by the medical commission is closed, as a rule, after a reliable determination of the citizen's ability to work (this may require several examinations from different doctors).

Is it possible at the same time early (relative to the expected date of the patient’s discharge or the appointment at which this discharge is highly likely to be carried out) sick leave and for what purpose it can be initiated?

Is it possible to close sick leave early?

If the sick leave is issued by the attending physician for a common disease, then at the request of the patient, and also on the condition that his state of health meets the criteria for recognizing a person as able-bodied, in principle, he can close the disability certificate ahead of schedule.

But the patient should understand that the doctor, in the event of discharge of an undertreated patient when his health condition worsens due to an illness that has not been completely cured, may be held liable within the framework of the legal mechanism defined by Art. 1068 and 1081 of the Civil Code of the Russian Federation - when a medical institution compensates for the proven harm to the patient, and subsequently issues a recourse claim for compensation to the doctor who treated this patient.

Moreover, on June 21, 2016, the State Duma adopted in the 1st reading bill No. 1093620-6, which establishes additional legal mechanisms for the responsibility of medical workers at the level of the Code of Administrative Offenses of the Russian Federation. These mechanisms involve the imposition of heavy fines on officials and legal entities, as well as the suspension of the activities of legal entities for up to 90 days.

If the fact of disability was established by the medical commission, then it will be much more difficult to close the sick leave ahead of schedule. To do this, the patient will have to convince each of the doctors who are part of the commission of his recovery. Given that each of them will be responsible for the possible consequences, it is extremely unlikely that the patient's request will be granted in this case.

Payment by the employer of temporary disability benefits is carried out according to the actual period given in the reduced sick leave.

Called to work from sick leave: how to close a disability certificate ahead of schedule?

Actually, for what purpose may early closure of the sick leave be required?

The most common reason here is the need for the patient to come to work, for example, to implement a very important and urgent project. By law, an employer has no right to recall an employee from sick leave. If he does this, he will violate the norms of Art. 2 of the Labor Code of the Russian Federation on the prohibition of forced labor.

If the labor inspectorate reveals such a fact, it will fine the employer on the basis of the provisions of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation. The amount of the fine can be up to 5,000 rubles for officials, up to 50,000 rubles - for the organization as a whole (or suspension of activities for a period of up to 90 days).

However, being an adherent of the high values ​​that have developed within the corporate culture of the company, the employee has the right to use the options we have discussed above with the early closure of the sick leave.

Some employees, having not received consent from the attending physician or the medical commission for the early closure of the disability certificate, come to work with an open sick leave. What obligations in this case are assigned to the employer and in what amount will he pay for the work of the employee who has come?

How do you get paid to go to work while on sick leave?

Returning to work during the period of disability, reflected in the sick leave, is a violation of the treatment regimen. In the sheet itself, this action of the employee corresponds to code 25 in the line “Notes on violation of the regime” (paragraph 58 of the order of the Ministry of Health and Social Development dated 06/29/2011 No. 624n). If this code is indicated on the sick leave, the employer pays disability benefits in the minimum amount (subparagraph 1, paragraph 1, 2, article 8 of the Law "On Compulsory Social Insurance" dated December 29, 2006 No. 255-FZ), provided that the reason for the violation by the employee treatment regimen is not recognized as valid.

It is up to the employer to in due course recognize the reason for the violation as valid or agree with the employee that he will not tell the doctor about attending work during the sick leave. In both cases, the noted legal mechanism, which implies a reduction in benefits, will not be launched. If an appropriate agreement is reached, the employer will pay sick leave in the usual manner, as if the employee did not go to work.

The issue of applying to the FSS for the purpose of reimbursement of benefits in this case belongs to the moral and ethical area. Formally, the employer will not violate anything by requesting the appropriate reimbursement with the presentation of a standard sick leave, and will receive compensation. But in fact he will receive, and it is possible that for the most part free, state-compensated work of an employee. There is a clear corruption motive, therefore, it is reasonable for the employer in this case not to present the sick leave for reimbursement.

Results

So, is it possible to close the sick leave ahead of time?

The legislation of the Russian Federation does not regulate the closure of the sick leave earlier than the expected period, which is established by the doctor or the medical commission. But one way or another - does not prohibit the implementation this action, for example, at the initiative of the employee. If the employee can agree on a reduction in sick leave with a doctor, then the employer will pay him an allowance in accordance with the period of incapacity for work, which is reflected in the document.

You can learn more about the specifics of issuing sick leave in the framework of various legal relations in the articles:

• “Is the sick leave (sick leave) subject to personal income tax?” ;
• "Maximum sick leave in 2019" .

Hello! I work in the penitentiary system as a security inspector with a work schedule every three days. I went on sick leave, and upon leaving it, am I obliged to work several days a day before my shift, and then go for a day? Or can I go straight to my day? Thank you in advance.

Michael

There's an answer

Responsible

Rustamova Veronika ViktorovnaLawyer

According to part 2 of Art. 103 of the Labor Code of the Russian Federation during shift work, each group of workers must work during the established working hours in accordance with the shift schedule. Part 4 of Art. 103 of the Labor Code of the Russian Federation, it is established that shift schedules are brought to the attention of employees no later than one month before they are put into effect. Deviations from the shift schedule are allowed, for example, due to temporary disability of the employee, annual leave. All deviations from the shift schedule are recorded by the employer in the time sheet (part 3 of article 91 of the Labor Code of the Russian Federation).

According to paragraph 61 of the Procedure for issuing sick leave certificates, approved. By order of the Ministry of Health and Social Development of the Russian Federation of June 29, 2011 N 624n, the disability certificate indicates the date of restoration of working capacity the next day after the examination and recognition of the citizen as able-bodied. From this date, the employee is obliged to go to work on the shift that begins no earlier than the date of restoration of his ability to work. The employer, in turn, does not have the right to allow the employee to work earlier than the date of restoration of the ability to work, indicated in the sheet of ability to work (since the work shift began before the date of restoration of the employee's ability to work).

Thus, an employee whose sick leave expired, for example, on April 23, 2016, is not required to go to work on April 24, 2016. at 00.00 hours. He is obliged to start work on the next shift - in accordance with the shift schedule. An employee who replaces an absent employee is not entitled to stop working in a shift if the temporary incapacity for work of the replaced employee ends during his shift, and is obliged to work out such a shift in full.

ON THE. Martynyuk, tax expert

Work on sick leave: what to pay and in what amount

The court decisions mentioned in the article can be found: "Judicial practice" section of the ConsultantPlus system

A person has a sick leave for temporary disability or child care, and he went to work: he worked a day or two - and again at home. If the sick leave is long, there may be several such exits and they may be longer.

And it happens that, having started to fall ill and opening a sick leave “just in case”, a person still finds the strength to work for a day or a few days, but then he still “falls down” and then sits at home on the basis of an already open disability sheet.

And finally, one more case: having healed, a person goes to work even before the doctor closes his sick leave.

As a result, the accounting department receives a certificate of incapacity for work, several days of which - at the beginning, at the end and / or in the middle - were worked out. We figure out what to do with it, and tell the manager what difficulties the organization may have due to people going to work during sick leave.

What to accrue for sick days worked - salary or allowance

Both that and another cannot be accrued for each such day, since the allowance is compensation for lost during the period of incapacity earnings part 1, paragraph 1, part 2, art. 1.3, paragraph 1, part 1, art. 2, part 1, 2 art. 3, part 1, art. 5 of the Law No. 255-FZ of December 29, 2006 (hereinafter - Law No. 255-FZ); sub. 2 p. 1, p. 1.1 art. 7 of the Law of July 16, 1999 No. 165-FZ. What is the employee entitled to for sick days worked?

Many are convinced that benefits are due because:

• the employer is obliged to pay it for the entire period of incapacity for work and Art. 183 Labor Code of the Russian Federation. And this is the entire period indicated in the hospital m preamble to the Order of the Ministry of Health and Social Development of June 29, 2011 No. 624n. Only a doctor determines whether a person is able to work or not pp. 1, 2 art. 59 of the Law of November 21, 2011 No. 323-FZ (hereinafter - Law No. 323-FZ). Therefore, the fact that the employee went to work does not cancel his disability on these days;
• sick leave confirms release from work Clause 5 of the Procedure for issuing disability certificates, approved. Order of the Ministry of Health and Social Development dated June 29, 2011 No. 624n (hereinafter referred to as the Procedure); p. 17 Letters of the FSS dated October 28, 2011 No. 14-03-18 / 15-12956. That is, on the days indicated on the sick leave, there was no obligation to work. The employer is not obliged to pay for voluntary work in his free time. Indeed, for example, if someone works on their own initiative on their day off or during vacation, then the salary for this is not due.

However, for days worked on sick leave, it is necessary to accrue wages, because:

• in our situation, a person worked at a time that is working for him according to the rules of internal work schedule(PVTR) or under an employment contract with Art. 100 Labor Code of the Russian Federation- in contrast to voluntary work during leisure (on vacation or on a day off). Open sick leave, of course, confirms release from work but ban to work is not paragraph 3 of Art. 5 of Law No. 323-FZ; Art. 3 Labor Code of the Russian Federation. Everyone decides for himself whether to use this exemption or not and to what extent - in whole or in part;
• work must be paid paragraph 3 of Art. 37 of the Constitution; Art. 56 Labor Code of the Russian Federation. Therefore, an employee who, in his work time was at his workplace and did his job, has the right to remuneration for work, that is, to the timely and full payment of wages for the days worked articles 2,, 129 of the Labor Code of the Russian Federation.

Do I need to double pay for days worked on sick leave or provide time off? The time of release from work due to disability does not apply to the time of rest. Therefore, work on sick leave is not work on a day off and is not paid twice. articles 107, 152, 153 of the Labor Code of the Russian Federation.

And since wages have been accrued for the days worked, the allowance for these days is not due answers to questions on the website of the regional branch of the FSS for the Chukotka Autonomous Okrug and its non-payment will not be a violation of the Labor Code of the Russian Federation.

What happens if you still pay benefits instead of wages

It would seem that nothing will happen - it’s enough not to show in the report card that some days on sick leave have been worked out. However, an employee who received a small allowance for the days worked instead of a large salary can file a complaint with the labor inspectorate.

How can an inspection make sure that a person has worked? Surely there will be witnesses or some traces of his presence at work: perhaps on this day he corresponded, signed documents, received materials from the warehouse or money under the report, returned unspent accountable money to the cashier, processed waybill, interacted with representatives of the company's business partners, signed the security journal for the keys to the office, etc. Particularly prudent employees even make screen copies of e-mail correspondence.

Administrative fines are provided for non-payment of wages Art. 5.27 of the Code of Administrative Offenses of the Russian Federation. In addition, if, after a complaint from an employee, you are forced to pay him a salary, you will have to recalculate the allowance, reducing it taking into account the days worked. If it was set off against the payment of insurance premiums, there will be arrears, interest on it and a fine.

How to deal with sick leave

During sick leave, people work both at the request of management and on their own initiative. In the latter case, everyone has their own motive, but most often it is monetary. For the days worked, people expect to receive a salary instead of a benefit (sometimes significantly less), they strive to earn a bonus, which depends on the results of work to a certain period, etc. At the same time, in some organizations, work on the hospital management is welcomed in every possible way, in others it is very undesirable. In this regard, the following questions arise.

Is it possible to call employees from sick leave "due to production needs"

Of course not. The employee has the right not to work during the period for which the sick leave confirming his temporary disability is issued. Engagement to work during release from work due to temporary disability is a violation for which a fine is imposed Art. 5.27 of the Code of Administrative Offenses of the Russian Federation. Forced labor is prohibited Art. 4 Labor Code of the Russian Federation.

TELLING THE MANAGER

Anything can happen to a sick person in the workplace, and it will already be work injury. And if, as a result of a call to work, an employee on sick leave happens complication of the disease he can try to get compensation from the organization for harm to his health articles 22, 232, 233, , 220 of the Labor Code of the Russian Federation.

However, few of the leaders come to mind to issue an order to call from the sick leave. More often, management understands that being hired while on sick leave is illegal, and we are talking about an informal call. For going to work during the sick leave, the management promises a reward in addition to the allowance for the days when the employee was sick at home, and to the salary for the days on which he, despite the open sick leave, will work. And to figure out how to arrange such a reward, instructs the accounting department. Usually, as compensation for working on sick leave, an employee receives:

• <или> financial assistance. It does not raise questions - the person is sick, you need to help him. You can issue at any time, even before the presentation of a closed sick leave, and in any amount. Within 4000 rubles. per person per year is not subject to personal income tax and contributions and paragraph 28 of Art. 217 of the Tax Code of the Russian Federation; p. 11 h. 1 art. 9 of the Law of July 24, 2009 No. 212-FZ (hereinafter - Law No. 212-FZ); sub. 12 p. 1 art. 20.2 of the Law of July 24, 1998 No. 125-FZ; Letter of the Ministry of Finance of October 22, 2013 No. 03-03-06/4/44144. "Profitable" expenses do not include paragraph 23 of Art. 270, paragraph 2 of Art. 346.16 of the Tax Code of the Russian Federation;
• <или> premium. If only a few days have been worked on a long sick leave, then it is better to accrue a bonus for the period following the sick leave or for some previous “labor success”. Otherwise, it may turn out that the bonus was issued for the period in which the person was predominantly absent from work, which casts doubt on its validity as a tax expense. Also, the award must comply with the provision on bonuses. If it does not contain suitable grounds, it will have to be supplemented and observed in the future.

It also happens that management negotiates with an employee who agreed to go to work while on sick leave about "informal" days off in the future. After closing the sheet (immediately or after a while - by agreement with the employee), they put an appearance in the report card for as many days as worked on the sick leave, and they charge wages for these days, and the employee rests these days.

They also often do this: they return a sick leave to an employee, do not show absenteeism in the report card and pay wages for the entire period of the sick leave - even though it is costly for the organization if the sick leave is long and only a few days have been worked.

Is it possible to prevent employees who are on sick leave from work?

This question arises if the employees themselves want to work while on sick leave, and for some reason the company's management does not like it.

TELLING THE EMPLOYEE

For some complex medical examinations and procedures, the medical commission may issue "Discrete" sick leave - only for the days of the procedure clause 21 of the Order. A sick leave for nursing can be closed before the child's recovery, if another relative continues to take care of him (usually the clinic asks to write a statement about this).

Some firms believe that it is enough to fix in labor or collective agreements, as well as in the PWTR or other LNA, the provision that employees with an open sick leave are not allowed to perform work duties. And for violation to provide disciplinary action, premium reduction. This is justified by articles 76 and 212 of the Labor Code of the Russian Federation, according to which the employer is obliged not to allow the employee to work if, in accordance with the medical report, contraindications for the performance of his labor duties are identified. Is it possible? There are two approaches.

APPROACH 1. You can't do that. This provision will not be valid as worsening the position of the employee in comparison with the established law. Art. 8 Labor Code of the Russian Federation. After all, the employer is obliged to provide work stipulated by the employment contract. Art. 22 Labor Code of the Russian Federation. The list of grounds on which the employer should not allow the employee to work is given in the Labor Code of the Russian Federation Art. 76 Labor Code of the Russian Federation. And the presence of an open sick leave does not appear there.

Sick leave is not the medical conclusion referred to in Art. 76 of the Labor Code of the Russian Federation as a reason not to allow work (such a conclusion is a separate document pp. 2,, 12, 13 Order, approved. Order of the Ministry of Health and Social Development of 02.05.2012 No. 441n). Yes, and until the sheet is closed and presented, you know about it only from the words of the employee, you have no documentary evidence. And the employer is not entitled to demand to undergo a medical examination (if its mandatory is not established by law) or to submit documents on the state of health Art. 88 of the Labor Code of the Russian Federation; Appeal ruling of the Vladimir Regional Court dated 06.09.2012 No. 33-2581/2012.

In case of unlawful deprivation of the employee of the opportunity to work, the employer is obliged to compensate him for the earnings not received by him to articles 234, 139 of the Labor Code of the Russian Federation.

APPROACH 2. An employee with an open sick leave may not be allowed to work. Such explanations were given to us in Rostrud.

FROM AUTHENTIC SOURCES

Deputy Head Federal Service for work and employment

“ When an employee himself, and not under compulsion by the employer, wants to work during a period of temporary disability, one should not be guided by the principle “everything that is not prohibited or prescribed by law is allowed”. How can an employer know what an employee is ill with - suddenly, for example, he has viral disease and he will infect half the collective.

You need to convince the employee not to go to work, explaining that:

• if a sick leave is open, wages for work during the period of illness will not be accrued and paid;
• going to work on sick leave means a violation by the employee of the treatment regimen, which may lead to incomplete payment of the sick leave.

Also, if an employee, having missed one or more working days, went to work and did not present a sick leave, the employer has the right to start the procedure to find out the reasons for the employee's absence from work. After all, the reason for the absence in the previous days has not been confirmed (absences for unknown reasons are in the report card). This gives reason to require the employee to provide written explanations for absence from work. Art. 193 Labor Code of the Russian Federation. After the employee writes that a sick leave is open to him, you need to hand him a written notice against signature that he must comply with the hospital regime and is not allowed to perform work duties.

If no measures are in effect for the employee and he insists on his admission to work, his entry to work should be recorded with an act of arbitrary form and a copy of the act should be sent to medical institution to notify the employee of a violation of the treatment regimen.

According to Art. 22 of the Labor Code of the Russian Federation, the employer is obliged to provide work stipulated by the employment contract, that is, on the conditions stipulated by the employment contract. However, under the terms employment contract the employer undertakes to comply with the mandatory social insurance in accordance with the legislation m Art. 57 of the Labor Code of the Russian Federation. Thus, the employer is not only entitled, but also obliged to prevent the employee from going to work during his illness.

Only this should be done in ways that do not give the employee the opportunity to accuse the employer of violating his other rights. For example, you should not give the guard an order to take the employee out of the territory of the enterprise. It is recommended that internal local regulations provide for the impossibility (prohibition) of employees to go to work during the period of illness, confirmed by a sick leave. This can also be provided for in the internal labor regulations. This will raise the issue of bringing such employees to disciplinary responsibility.

If it turns out that the employee was involved in work during illness, the labor inspectorate will fine the employer.

Alternatively, you can ask an employee who is determined to work on sick leave to go to the clinic and close the sheet. Moreover, the employee has the right to refuse. If then suddenly it will be necessary to "get sick", he will have to apply for a new sheet.

We draw up documents

To allow an employee on sick leave to work or not is decided by management, not accounting. Accounting remains to draw up a fait accompli. And if it turned out that the employee worked during the illness, the question arises of how to show this in the documents.

Often, employees write a statement with something like this: “Due to illness, I was issued a sick leave sheet No. ... for 12 calendar days from 10/05/2015 to 10/16/2015. But in fact, I worked on October 8, 9, 15, 16, 2015. I ask you to consider these 4 days as workers and pay them to me based on my salary, and consider the remaining 8 days as sick days and pay sick leave benefits for them.

This will not be superfluous, but it is not necessary either. The very fact of working these days is already a sufficient basis for calculating wages.

In the report card for each day of sick leave we put turnout. The remaining days after the presentation of the sheet are marked as days on sick leave. Both cannot be done in one day. The time sheet keeps records of actually worked and unworked hours and Art. 91 of the Labor Code of the Russian Federation; Instructions (form No. T-13), approved. Decree of the State Statistics Committee dated 05.01.2004 No. 1.

In the sick leave, in the column “Benefit due for the period: from ... to ...”, you need to indicate only the period of disability in which the person did not go to work. This is not a problem if you have worked several days in a row at the end or at the beginning of the sick leave. And if some days were worked in the middle? Then:

• indicate in this column the entire period of sick leave from the first unworked day until going to work, after which the sheet was closed; in our example, this is the period from October 5 to October 14;
• in the calculation of benefits attached to the sheet, make an explanation that the benefit is not due for all these days. For the example above, it would be:

From the period indicated in the column “Benefits due for the period: from ... to ...”, for the purpose of calculating benefits, 8, 9, 15, 16 October 2015 are subject to exclusion, since these days were worked out. The allowance is due for the following days: 5, 6, 7, 10, 11, 12, 13, 14 October 2015

Do not forget that the benefit for the first 3 days of temporary disability is paid at the expense of the employer Part 1, Clause 2, Art. 3 Law No. 255-FZ. How to determine these days in our situation? We count the first 3 days in which the employee was sick at home. For example, an employee worked on the first and third days of sick leave. Then the organization pays benefits for the second, fourth and fifth days at its own expense, and the subsequent unworked days go at the expense of the FSS.

There should be no problems with the inclusion of wages for days worked on sick leave in tax expenses for the OSNO and for the USNO. These are reasonable expenses. paragraph 1 of Art. 252, paragraph 2 of Art. 346.16 of the Tax Code of the Russian Federation for wages and Art. 255 Tax Code of the Russian Federation because you are obligated to pay this salary.

Whether to reduce benefits for the days after returning to work

If an employee, without a valid reason, violated the regimen prescribed by the attending physician, the employer is obliged to reduce his allowance from the date of the violation. That is, calculate it based on the minimum wage for a full calendar month (taking into account the district coefficient a) p. 1 h. 1, h. 2 art. 8 of Law No. 255-FZ.

In the form of a certificate of incapacity for work there is a column “Marks of violation of the regime”, and among the codes provided for it there is code 25 “Coming to work without an extract and” Information approved. Order of the Ministry of Health and Social Development dated April 26, 2011 No. 347n; clause 58 of the Order. Most likely, the employee will bring you a sheet without code 25 in this column. And it is not surprising - doctors indicate this code in other cases: when a patient, before recovery, requires that he be issued a sick leave certificate for presentation to the employer, motivating this with the intention to go to work. Then the doctor cannot fill in the “Get to work” column. since it has no right to recognize an unhealthy person as able-bodied. He puts code 31 “Continues to get sick”, but does not issue a continuation of the sick leave, but instead indicates code 25 “Going to work without discharge”.

To mark non-compliance with the regimen prescribed by the attending physician, there is code 23. But it is unlikely to be on the sheet, even if the doctor believes that going to work for a day or for several days is a non-compliance with the regimen prescribed by him. After all, the doctor does not know, cannot find out and is not obliged to check or find out in any way whether his patient was sitting at the time of the hospital home or went to work.

But you know for certain that there was a job, and there is documentary evidence - a report card and payroll for the days worked. Should you reduce benefits? This question arises when the days were worked at the beginning or in the middle of the sick leave.

Social Security may push for lower benefits

It is likely that the social insurance during the check will proceed from the fact that the benefit in this situation should be reduced. There is even a court decision on the dispute between the organization and the Foundation in support of the latter Fr. But, as you can see, it is quite old - adopted in 2011.

Workers successfully challenge employer's benefit cut

The courts of general jurisdiction have a different position, to which employees filed a lawsuit against employers who reduced their benefits in similar situations. The courts consider that without a doctor's note about the violation of the regime, the employer is not entitled to reduce the allowance, even if he knows about the violation and see, for example, Appellate rulings of the Court of the Yamalo-Nenets Autonomous District dated February 10, 2014 No. 33-242/2014; Armed Forces of the Republic of Khakassia dated May 10, 2012 No. 33-8482012; Murmansk Regional Court dated 08/07/2013 No. 33-2640-2013; Decisions of the Zheleznodorozhny District Court of Ulyanovsk dated 01/23/2015 No. 2-47/2015(2-2811/2014;)~M- 2733/2014 ; Lomonosovsky District Court of Arkhangelsk dated 01/22/2015 No. 2-142/2015(2-4475/2014;)~M- 4441/2014 .

And it is right. The allowance is calculated on the basis of a certificate of incapacity for work and Part 5 Art. 13 of Law No. 255-FZ. Therefore, the basis for the reduction is not the report card, but the presence of a mark on the violation of the regime on the sheet. The column for marking is located in that part of the sheet that the doctor fills out - only he has the right to put any code there clause 58 of the Order; pp. 1, 2 art. 59 of Law No. 323-FZ the employer does not have the authority to do so.

If the doctor has not recorded a violation of the regimen, then this column remains empty. clause 58 of the Order, and then the sheet gives the employee the right to receive full benefits from you.

We evaluate the possible consequences and choose an option

It is up to the director to decide whether to reduce the allowance or not. Your job is to outline to him the different options and their possible consequences.

OPTION 1. Don't reduce benefits because for this no legal grounds(We have just given the arguments).

Effects. There is a risk that social insurance will recalculate the allowance during the check, reducing it on its own. If you applied to the Fund for reimbursement of this benefit, then the case will be limited to refusing to reimburse the difference. If you have previously credited the allowance against the payment of current contributions, then the Fund will accrue arrears on insurance premiums in the amount not accepted for offset, penalties and fines that have accumulated since then sub. 3 p. 1 art. 11 of the Law of July 16, 1999 No. 165-FZ; Part 4 Art. 4.7, part 1, 2 art. 4.6 Law No. 255-FZ; Part 2 Art. fifteen ; Part 1 Art. 25, part 1, art. 47 of Law No. 212-FZ.

Will it be possible, on the basis of the decision of the FSS, to withhold from the employee the amount not credited by the Fund? The law allows you to do this only if the employee presented you with documents with knowingly false information for the assignment of benefits and Part 4 Art. fifteen ,. That is, if the employee knew that the information in the sheet was not true, and still submitted it. However, a leaflet without a mark of violation of the regime (even if we assume that it should be there) cannot be considered as obviously unreliable. After all, the procedure for filling out the sheets is addressed medical organizations and the employee has full right not to know what codes and in what cases are affixed to the part of the sheet filled out by the doctor.

Therefore, the amount not credited by the FSS will remain with the employee. And the Fund will regard it as paid under the employment contract, accrue additional contributions to it and calculate penalties Part 1 Art. 7 of Law No. 212-FZ; Letter of the Ministry of Health and Social Development of August 30, 2011 No. 3035-19. True, this could be challenged in court. The argument is that such an amount, although not credited by the FSS, still remains a payment in connection with an insured event under compulsory social insurance (and not a payment under labor relations) and should not be subject to contributions and Art. 9 of Law No. 212-FZ; Decree of AS UO dated September 29, 2015 No. F09-6879 / 15.

Thus, you need to be prepared for the fact that during the check the Fund may calculate the arrears for you and you will either have to pay it with penalties and fines, or challenge the Fund's decision in court.

OPTION 2. agree that there was a breach of the rules, but allowance doesn't matter do not lower because the reason violations I'm respectful p. 1 h. 1, h. 2 art. 8 of Law No. 255-FZ. After all, even if there is a mark on the sheet, the employer is obliged to reduce the allowance only if the reason for the violation is not valid.

Respect is determined not by the FSS, but by the head on the basis of the conclusion of the social insurance commission created in the organization or, if the company is small, solely pp. 1.1-1.3 of the Model Provision, approved. FSS 15.07.94 No. 556a; clause 10 of the Regulations, approved. Government Decree No. 101 dated February 12, 1994 (hereinafter - Decree No. 101). The commission must obtain from the employee written explanations for going to work during the sick leave, consider them and draw up a protocol with its conclusion. On its basis, the director issues an order to pay the allowance in full. pp. 10, 11 Regulations, approved. Decree No. 101; pp. 1.1, 2.2 of the Model Provision, approved. FSS 07/15/94 No. 556a.

What can be considered a good reason? For our situation, no guidelines in regulations no. It may well be, for example, the difficult financial situation of the employee, the presence of children on support, and the fact that sick leave benefits are lower than wages.

Effects. The FSS does not have the right to review the decision of the employer clause 10 of the Regulations, approved. Decree No. 101. However, it still happens that the Fund does not agree, and then you have to argue with him in court Decree of the Presidium of the Supreme Arbitration Court dated February 14, 2012 No. 14379/11.

As you can see, this option will not fully insure you against a dispute with the Fund, but it may reduce its likelihood by giving an additional reason not to reduce the allowance. And if a dispute does arise, you can always connect the arguments from option 1.

OPTION 3. Reduce benefits to not had to argue with the Foundation. To do this, you need to draw up the same documents as in option 2, as well as an order from the management that the reason for the violation of the regime is disrespectful and the allowance is subject to reduction.

The Law does not say anything about how many days of sick leave it is necessary to reduce the allowance. p. 1 h. 1, h. 2 art. 8 of Law No. 255-FZ. Does this mean that you need to reduce it for all the time after the first entry to work? And if the first few days of the sick leave are worked out - recalculate the entire allowance based on the minimum wage?

For example, the sheet is open on November 1, its first continuation is from November 16 to November 30, the second is from December 1 to December 12, and work begins on December 13. The employee worked on 12 and 13 November.

If we calculate, based on the minimum wage, the allowance for most of the sick leave (for November 14, 15 according to the initial sheet, for November 16-30 for its first continuation and for December 1-12 for the second continuation), then this, of course, is completely exclude any disputes with the Fund.

However, this would not be consistent with the position formulated by the EAC. He pointed out that it is impossible to automatically reduce the allowance for the entire period until the end of the sick leave - one should proceed from the proportionality of the violation of the regime and the amount by which the allowance is reduced. Decree of the Presidium of the Supreme Arbitration Court dated February 14, 2012 No. 14379/11.

How to maintain proportionality? For example, reduce the allowance for the same number of days that was worked out on sick leave (in our example, for 2 days). Another option tested in court is for the period from the date of the violation to the end of the month in which it was committed Decision of the Arbitration Court of the Khabarovsk Territory dated May 12, 2009 No. A73-4225 / 2009 (Attention! PDF format) , in our example - from 14 to 30 November.

The fact that you act in accordance with the position of the BAC reduces the likelihood of a dispute with the Fund, but does not completely eliminate it. You are guaranteed to avoid a dispute only if you ignore the position of YOU and reduce the benefit for all days from the moment of the violation until the end of the sick leave.

Effects. In any case, an employee who does not agree with the reduction may complain:

• to the labor inspectorate Part 1 Art. 4.3 Law No. 255-FZ. She will not accrue the allowance, but she uses the complaint as a reason for checking;
• in the FSS. The Fund is likely to agree with the reduction in benefits. But, like the labor inspectorate, it can take advantage of the fact that, according to the Law, an employee’s complaint is the basis for an unscheduled on-site inspection at the employer and p. 4 h. 1 art. 4.3, part 3 of Art. 4.7 of Law No. 255-FZ.

The employee has the right to sue. As we have already said, the courts support workers who have had their benefits reduced without being marked on the sheet.

In some firms, a sheet is immediately returned to the employee without a mark on the violation of the regime as containing false information. p. 1 h. 2 art. 4.3 Law No. 255-FZ- for the employee to apply for it to the medical organization. However, the doctor is not required to make such a note at the direction of the employer. And the employee has the right to refuse. After all, for the appointment and payment of benefits by the employer, it is enough to submit a leaflet issued by a medical organization in the prescribed form and in the prescribed manner. ; p. 12 of the Guidelines, approved. Decree of the FSS dated 05/21/2008 No. 110. In general, it would be correct to argue with the Fund, since in similar cases he should not refuse to offset (reimburse) the employer, but deal with the medical organization Decree of the Presidium of the Supreme Arbitration Court dated 11.12.2012 No. 10605/12.

Also, the employee can challenge the decision of the employer about the disrespectful reasons. There were cases when the employer regarded the reason for the violation of the regime as disrespectful, and the court did not agree with him Decision of the Kirovsky District Court of Yekaterinburg dated June 17, 2015 No. 2-4630/2015~M-3590/2015; Decision of the Oktyabrsky District Court of Penza dated May 27, 2015 No. 2-1112/2015~M-1374/2015.

OPTION 4. Reduce the allowance for offset (reimbursement) at the expense of the FSS, and give the employee a full allowance, paying the difference from the funds of the organization. No disputes are expected here: both the employee and the Fund are satisfied.

Effects. The amount of the "additive" will have to be charged insurance premiums- how to pay an employee in the framework of labor relations Part 1 Art. 7 Law No. 212-FZ.

If your employment contracts (collective agreement) provide for additional payments to benefits up to average earnings, then this amount is taken into account in “profitable” and “simplified” expenses x paragraph 25 of Art. 255, sub. 6 p. 1,

Another option is to transfer all the days worked at the beginning and in the middle of the sick leave in the report card to the end of the sick leave. Then the question of reducing the allowance will disappear, since the entire period for which it is due will fall on the time before the violation of the regime. This will only work if:

• the sheet is closed and presented until the end of the month in which the sick days were worked out. Otherwise, you will not be able to accrue and pay salaries for them on time;
• from the documents that the labor inspectorate and the Fund look at during inspections, it is not clear that the employee actually went to work on other days (there was no issue of money under the report, advance reports, etc.).

As you can see, in almost every option, someone is dissatisfied: either the employee, or the Fund, or the employer, who has to pay part of the allowance at his own expense. Because of this, many simply do not show in the report card when they are on sick leave, they pay the entire allowance for all the days indicated on the sheet, and the days worked, by oral agreement with the employee, are compensated in some other way (for example, financial assistance, bonus). Keep in mind: in such cases, we are talking about the illegal expenditure of FSS funds for benefits for days worked on sick leave. These days are paid wages, not benefits. In addition, later, in the event of a conflict, the offended employee may try to prove through the labor inspectorate or the court that he worked on sick leave and demand re-payment for the days worked.

Special situation: you will learn about the exit of an external part-time worker from the FSS

It happens that employees external part-timers for one place of work they take sick leave, and at another they continue to work. And often there is no dishonesty in this. For example, a mother takes sick leave to care for a child for her main job and takes care of him during the day. And when dad comes home from work, he goes to work part-time. Or a broken arm excludes working as a driver at the main job, but in no way prevents working as a part-time watchman.

TELLING THE EMPLOYEE

In case of contacting a doctor after the worked shift at the request of the patient, a leaflet can be issued from the day following the day of admission and Clause 15 of the Order.

When checking the company that paid the sick leave, the FSS compares its report card with the report card of the second employer and comes to the conclusion that there is a violation of the regimen prescribed by the attending physician. Therefore, he reduces the allowance to the one calculated based on the minimum wage. p. 1 h. 1 art. 8 of Law No. 255-FZ, removes the offset of the difference, accrues interest on the resulting arrears and, possibly, a fine.

This is, of course, unfair. The employer does not know that the employee is working somewhere else during the sick leave, and he does not have the authority to obtain this information. And he is obliged to pay the sick leave presented to him. paragraph 5 of Art. 13, paragraph 3, part 2, art. 4.1 Law No. 255-FZ. Despite this, there is an old court decision, which, having considered a similar case, agreed with the reduction in benefits in such a situation and with the refusal of the employer to offset the difference Decree of the FAS UO dated 04/20/2011 No. Ф09-1302 / 11-С2.

If you find yourself in this situation, you can try to challenge the denial of benefits. One argument is given above: without a doctor's mark, the allowance is not subject to reduction. Here's another one. The employee, upon presentation of the sick leave, is obliged to notify the employer of the circumstances affecting the conditions for the provision and the amount of the benefit. pp. 1, 2 h. 2 tbsp. 4.3 Law No. 255-FZ. If the employee has not fulfilled this obligation, then the FSS has the right to recover the damage caused to him by the payment of benefits from the employee and Part 3 Art. 4.3 Law No. 255-FZ. At the time of presenting the sheet to you, you did not know and could not know about those facts that the Foundation later regarded as a violation of the regime.

The only case of working on sick leave that does not entail problems is if only the first of the days indicated on the sick leave is worked out. Everyone understands that an employee could feel unwell and consult a doctor after the end of his working day. Then the allowance is due for the period starting from the second day of sick leave.

If the employee fell ill before the termination of the employment contract, then the amount of the sick leave payment depends on the insurance period and average salary employee for the previous 2 years. When opening a sick leave after the date of dismissal, but not more than 30 days later, the calculation of the amount of payment does not depend on the length of service. You can read more about this on our Internet portal. We read about the maximum sick leave in 2018 in this article. The table shows the procedure for terminating an employment relationship while on sick leave Actions Details 1. A citizen writes an application for sick leave. Together with him (or after) a letter of resignation is drawn up. It must be written "by own will". 2. The employer examines the submitted documents. From this moment begins the countdown of 2 weeks.

Sick leave occurred on the date of dismissal

Attention

It is worth noting the fact that the employer does not have the right to refuse to dismiss the employee at his own request. The Constitution of the Russian Federation guarantees every citizen the right to freedom of choice of type labor activity(Article 37). Article 80 of the Labor Code of the Russian Federation regulates the procedure for terminating an employment contract: the employee must notify the employer of his desire to quit 2 weeks before the expected term of dismissal.

According to the law, in case of damage or loss of a document confirming temporary disability, you can get a duplicate of the sick leave. We clarify how to get a duplicate of the sick leave. The nuances of the dismissal procedure during sick leave Despite the fact that the listed options for dismissal on sick leave are legal, there are some nuances that must be observed. Additional Information Special attention should be paid to dismissal during the probationary period.

What is the date for the dismissal of an employee after sick leave?

The application for dismissal can be withdrawn Before the expiration of the term of the notice of dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not made if in his place is not invited to writing another employee who, in accordance with the Labor Code of the Russian Federation and other federal laws the conclusion of an employment contract cannot be refused (part 4 of article 80 of the Labor Code of the Russian Federation, subparagraph “c” of paragraph 22 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2). If the day of dismissal falls on a holiday general rule Regardless of the grounds for dismissal, the day of termination of the employment contract is the last day of the employee’s work, and not a day off (Art.

Is it possible to quit on the day the sick leave is closed?

The employee is sick, who should work? If the business suffers significantly from the absence of an employee, then someone must perform the functions of the absent employee. What is permissible for an employer to do, because it is not yet possible to dismiss an employee:

• temporarily assign the duties of a sick person to other employees with the appropriate qualifications (by external combination or combination of positions, with the preparation additional agreement to an employment contract)
• hire another employee by entering into a fixed-term employment contract with him, in which the wording “until the permanent employee leaves the hospital” must be entered.

When sick leave is endless Poor health or feigning workers, or perhaps a mother with a frequently ill baby is too often and for a long time unable to work? This situation is extremely unprofitable for the employer, despite the fact that sick leave is not paid out of his pocket.

Features of the procedure for dismissal of one's own free will during sick leave

In this case, on the first working day on a sick leave, the specialist goes to work and on the same day the termination of labor relations is formalized with the implementation of all measures established by law (issuing a calculation and required documents). If the first working day on sick leave falls on a weekend, then the dismissal is issued on the first weekday after that. Is it possible to dismiss an employee during the validity of the sick leave or issue a dismissal on the last day of the sick leave? The current legislation provides for the following provisions regarding the issue under consideration:

1. As a general rule, it is not allowed to cancel labor relations at the initiative of management during the period of illness of an employee
   6 art. 81 of the Labor Code of the Russian Federation). At the same time, the law provides for exceptions when dismissal during the sick leave period is also possible at the initiative of the management.

Dismissing an employee during sick leave. is it possible to?

This must occur at least 14 calendar days before the expected date of termination of the employment contract. After submitting the application to the responsible personnel matters employee, a 2-week period begins, otherwise called working off. The term "working out" does not appear in the Labor Code of the Russian Federation. 2 weeks is only the period during which the employer must find a replacement for the departing employee.
Find out what seals should be on the sick leave here. After 14 days, the organization issues an order stating that the employee has been fired. This document is given for review to the leaving employee under a personal signature, or, in the case of a territorial remoteness of a citizen, is sent to him by mail with acknowledgment of receipt.

Is it possible to get fired while on sick leave?

The dismissal of an employee must always take place in accordance with the law, regardless of the reasons and circumstances of his departure. Sometimes it turns out that the dismissal of an employee coincides with his being on sick leave. Consider how many to dismiss an employee if he was on sick leave, or is on sick leave on the day of his dismissal.

Situations are different, therefore, it is important to know what the legislation on dismissal tells us in one case or another. At the same time, there are cases established by law when the dismissal of an employee who is on sick leave is not allowed at all. Accordingly, the last day of the sick leave cannot be considered a working day, therefore, if you want to fire an employee, sometimes you need to wait for him to leave the sick leave.

What is the date for the dismissal of an employee if he was on sick leave

After obtaining consent from the employee in writing, documents can be sent by mail. What is the number to fire an employee after sick leave? Formally, after an employee goes to work after a sick leave, he can be fired on any day, any number. At the same time, it is necessary to pay attention to various nuances:

1. If the first day of work according to the sick leave falls on a weekend, the dismissal must be made on the next weekday.
2. In the event that prior notification of the employee is required for dismissal, the termination of the employment relationship is made after the required period from the moment of notification has expired.

Dismissal on the day of closing the sick leave

If a vacant position there is no proper qualification or the employee does not agree to it, the dismissal will be absolutely legal.

• It is necessary to pay attention to the institution that issued the disability certificates. Perhaps it does not have such rights. An employee cannot provide sick leave issued by:

• sanatoriums;
• mud baths;
• donor center;
• emergency care;
• forensic bureau.

• You can check if the employee provided real sick leave. To do this, you need to send a request to the medical institution about the official nature of the issued sick leave.
  The information is not secret, and the answer will be received. If sick leave this person was not issued within the specified time frame, there is absenteeism and a peremptory reason for dismissal.

Is it possible to quit on the day the sick leave is closed

• the desire of the worker (part 1 of article 80 of the Labor Code of the Russian Federation);
• mutual expression of will of the parties (Article 78 of the Labor Code of the Russian Federation);
• under other circumstances.

As a general rule, an employee cannot be fired during the sick leave at the will of the management (part 6 of article 81 of the Labor Code of the Russian Federation). At the same time, there is an exception to this rule. Dismissal is possible if the organization is liquidated. Dismissal at the request of the worker during the period of sick leave of the Labor Code of the Russian Federation allows.

Info

In this case, the termination of the employment relationship is carried out according to the general rules. Important! When dismissing on their own initiative, the worker is obliged to notify the management in advance. As a general rule, the notice period is 2 weeks.

This term flows even while the employee is on sick leave.

It is said that the days of treatment should be paid for by temporary disability benefits.

The management of the company should not allow employees to enter the workplace, in cases where there is a doctor's opinion on this. Organizations that fail to comply with these requirements may be subject to fines. in accordance with article 76 of the Labor Code of the Russian Federation. In such cases, the existence of an agreement, and even the consent of the worker, does not matter.

Attention. Performance of work duties during this period is a violation of the rights of the employee in any of possible situations and, as a rule, leads to negative consequences for both the company and the employee.

When starting work with outstanding sick leave, the worker must remember the following:

• the amount of the benefit may be reduced in cases of violation of the treatment regimen;
• hours spent at work cannot be paid.

Is it considered illegal?

Going to work and, accordingly, appearing at the workplace while on sick leave should be considered as non-compliance with the treatment regimen and regarded as a reason for reducing the disability payment to an amount not exceeding the minimum wage for a full calendar month (Article 8 of Law No. 255-FZ).

Such situations are recorded by the attending physician in the sick leave itself and are accompanied by a mark in the corresponding field with code 25 (going to work without discharge). From the moment of violation of the regime, the reduction of disability benefits begins.

As practice shows, such violations are not always reflected in certificates. In such situations, the management of the company itself may consider the actions of the worker as a violation and have grounds for reducing the amount of payment. Evidence must be an hour book, magnetic entry-exit devices, or documents signed by employees during the period of sick leave.

Allowance or salary - what is paid?

When the question arises of calculating payments, you need to understand that an employee will not be able to receive both disability benefits and wages because one is meant to compensate for the other.

Most often, benefits are paid, since the employer is obliged to pay it for the entire time of sick leave (Article 183 of the Labor Code of the Russian Federation). The presence at the workplace during the period of the current sick leave does not cancel the conclusion about the incapacity for work of the attending physician.

Article 183 of the Labor Code of the Russian Federation. Guarantees to the employee in case of temporary disability

In the event of temporary disability, the employer pays the employee temporary disability benefits in accordance with federal laws.

The amount of benefits for temporary disability and the conditions for their payment are established by federal laws.

In addition, the fact of issuing a sick leave confirms the release of the employee from work during this period, but does not prohibit his voluntary stay at the workplace.

If the management allowed the employee to work during illness, often Employees write a job application of the following type:

“Due to the deterioration of my health, I was issued a sick leave sheet No. ... for the period from 04/05/2017 to 04/13/2017. In fact, I was present at work on April 7, 8, 10, 2017.

Please consider these 3 days as working days and charge for them based on the salary. I ask you to consider the remaining days as sick days and pay benefits, according to the disability certificate.

This statement can be considered additional document, because according to article 100 of the Labor Code of the Russian Federation, the rules of internal labor regulations, as well as paragraph 3 of article 37 of the Constitution of the Russian Federation - the very fact of labor activity is considered the basis for calculating and paying wages.

IMPORTANT! When making a report card, turnouts mark the days of going to work, the rest of the days - days of sick leave. The sick leave notes the days of absence due to illness.

In cases where the days of going to work were dispersed throughout the entire sick leave period, in addition to the sheet, in the calculation of benefits, it is necessary to explain for which specific days it is necessary to make an accrual.

Such payments are considered reasonable, as they are used to pay for work, so there should not be any difficulties with inclusion in tax expenses.

What to do if an employee left the sheet ahead of schedule?

According to the law, only the attending physician can close the sick leave before the due date. based on the health status of the patient.

If an employee, due to various circumstances, is forced to go to work a day before the closing of the sick leave, the employer may recognize the reason for leaving as valid and not launch a legal mechanism to reduce benefits. In agreement with the management, the employee can write a statement of this kind:

“Having a certificate of incapacity for work No. ..., for the period from 25.03 to 5.04, in fact, I started work on 4.04. In connection with this situation, I ask you to consider 4.04 as a working day.

In the report card, put down the appearance of the employee on that day, and in the disability certificate in the column “Benefits due for the period: ...” do not include the dates 4.04 and 5.04 for the payment of benefits.

What if the boss makes you work during treatment?

Obviously, it is impossible to force an employee to go to work from a sick leave (Article 5.27 of the Code of Administrative Offenses of the Russian Federation). In the event of disputes in the field of coercion to work, a worker who is undergoing treatment may apply to the labor inspectorate with a statement (complaint), which may lead to further penalties on the employer.

Many are afraid of possible dismissal if they refuse to go to work, but even here the law is in favor of the sick person. says that it is impossible to dismiss an employee during a period of temporary incapacity for work. Forcing the employer to sign the employee's letter of resignation, in this case, may serve as an appeal to the prosecutor's office.

If the manager's call was more of an informal request, backed up by the promise of rewards, employees sometimes go to work. As a reward, the employer may provide a bonus or time off.

Conclusion

It should not be forgotten that going to work during treatment is considered non-compliance with treatment and in terms of labor code is illegal. Therefore, it can lead to certain problems for both the employee and the employer.

So The best decision for an employee on sick leave, stay at home until full recovery and start working with renewed vigor.