Going to work while on sick leave. Dismissal during sick leave. Early exit of pregnant women

16.05.2020

During the sick leave, the employee went to work full time. How should wages be paid? According to the sick leave or according to the time sheet?

Answer

Answer to the question:

During the period of his illness, the employee does not fulfill the labor duties stipulated by the employment contract, and, accordingly, the sick leave is a document confirming his illness. At the same time, the employer pays him temporary disability benefits in accordance with federal laws. This provision is enshrined in Art. 183 Labor Code RF.

Thus, being on sick leave and going to work at the same time seem to be mutually exclusive events.

In the above situation, when the employee already went to work in the presence of sick leave, it seems that all the days of temporary incapacity for work of your employee, indicated on his sick leave, follow as a period of temporary incapacity for work of the employee, in order to avoid holding the employer liable for violation of labor laws, as well as disputes with the Social Insurance Fund.

"For" the approach, when only sick leave is paid for the period of sick leave without payment for working time (salary), the following arguments are given:

In the situation under consideration, going to work during illness is the employee's own initiative. At the same time, the employer has no reason not to allow the employee to work until he presents a sick leave certificate. The organization also has no obligation to check whether the employee has recovered or not. Therefore, in such a situation, an analogy with the unauthorized exit of an employee to work during a vacation or during a weekend will apply. The employer pays for this work. Moreover, the employer can contact medical institution and complain about an employee’s violation of the regime and obtain a reduction in the amount of hospital benefits.

In addition, if the employer reflects that he allowed the sick employee to work (i.e., for the same period, the employee will receive both benefits and salary), then claims may arise against the organization both from the inspectors from the FSS of Russia and from by labor inspectors. In particular, the auditors from the FSS of Russia, upon discovering such a fact, will check the validity of issuing a certificate of incapacity for work. If it turns out that the employee was able to work, then the funds of the fund were spent illegally. Then the disability certificate can be canceled, and the costs of paying benefits on it are excluded from the amount reimbursed by the fund. If it turns out that the employee went to work, but was still sick, then the auditors will report this to the labor inspectorate. And if such a fact is confirmed, it is likely that they will try to attract the employer to art. 5.27 of the Code of Administrative Offenses of the Russian Federation.

As for the remuneration of the employee for the period of work, we recommend that this issue be resolved in agreement with the employee. If possible, you can compensate for the work by paying a cash bonus to an employee (for example, a one-time bonus not provided for by the remuneration system).

Details in the materials of the System:

Is it necessary to pay sick leave if, after violating the regime, the employee went to work and closed the sick leave after a week of work

There is no unequivocal answer to this question in the current legislation. In practice, there are two points of view on the payment of sick leave in a similar situation.

The first is that the amount of the sick leave benefit on the sick leave, which contains marks of violation of the regime, but the employer does not have the right not to pay the sick leave at all. At the same time, going to work without an extract (closing a sick leave) is one of the types of violation of the regime (, Regulations, approved, Procedure, approved).

To establish the validity of the reasons for violating the regime and assess the reasons for the employee’s work until the sick leave is closed, create a social insurance commission ( model provision approved). In addition, the head of the organization himself has the right to assess the validity of the reasons for the violation of the regime by the employee (Provision, approved). If the commission (or the head of the organization) recognizes the reasons for these violations as valid, the employer has the right not to reduce the amount of temporary disability benefits. The legitimacy of this approach has been confirmed and judicial practice(see, for example,).

As for the salary, which may have already been paid to the employee for the week of his work, the employer is not entitled to deduct this amount, since the employee, despite the violation of the regime, performed labor function, therefore, received the right to pay for the specified time (, Labor Code of the Russian Federation).

The second approach boils down to the fact that the employer is obliged to pay temporary disability benefits, and not to pay for the time spent on sick leave. The arguments are as follows: in the situation under consideration, going to work during illness is the employee's own initiative. At the same time, the employer has no reason not to allow the employee to work until he presents a sick leave certificate. The organization also has no obligation to check whether the employee has recovered or not. Therefore, in this situation, an analogy with the unauthorized exit of an employee to work during a vacation or during a weekend will apply. The employer pays for this work. Moreover, the employer can apply to a medical institution and complain about the employee’s violation of the regime and achieve a reduction in the amount of hospital benefits.

It is also important to note the fact that if the employer reflects that he allowed the sick employee to work (i.e., for the same period, the employee will receive both benefits and salary), then claims may arise against the organization both from the inspectors from the FSS of Russia and by labor inspectors.

In particular, the auditors from the FSS of Russia, upon discovering such a fact, will check the validity of issuing a certificate of incapacity for work. If it turns out that the employee was able to work, then the funds of the fund were spent illegally. Then the disability certificate can be canceled, and the costs of paying benefits on it are excluded from the amount reimbursed by the fund. If it turns out that the employee went to work, but was still sick, then the auditors will report this to the labor inspectorate. And if such a fact is confirmed, it is likely that they will try to attract the employer to the Code of the Russian Federation on administrative offenses. These circumstances also testify in favor of the second approach.

At the same time, due to the lack of official clarifications and judicial practice on this issue, each organization independently decides which approach to follow. In order to minimize such cases, it is recommended to inform employees about the prohibition of unauthorized work during illness and explain the consequences of such an exit: non-payment of wages for unauthorized work and a reduction in the amount of sick leave.

Nina Kovyazina,
Deputy Director of the Department of Education and Human Resources of the Ministry of Health of Russia

THE FEDERAL LAW
dated December 29, 2006 No. 255-FZ

On compulsory social insurance in case of temporary disability
and in connection with motherhood
(as amended on November 25, 2013)

Article 8. Grounds for reducing the amount of temporary disability benefits

1. The grounds for reducing the amount of temporary disability benefits are:

1) violation by the insured person without good reason during the period of temporary incapacity for work of the regimen prescribed by the attending physician;

2) non-appearance of the insured person without good reason at the appointed time for a medical examination or for a medical and social examination;

3) illness or injury resulting from alcohol, narcotic, toxic intoxication or actions related to such intoxication.

2. If there are one or more grounds for reducing the temporary disability benefit specified in paragraph 1 of this article, the temporary disability benefit is paid to the insured person in an amount not exceeding for a full calendar month minimum size remuneration established by federal law, and in regions and localities in which regional coefficients are applied to wages in the prescribed manner - in an amount not exceeding the minimum wage, taking into account these coefficients:

1) if there are grounds specified in clauses 1 and 2 of part 1 of this article, from the day when the violation was committed;

2) if there are grounds specified in paragraph 3 of paragraph 1 of this section - for the entire period of incapacity for work.

Answer:Who pays sick pay
Legal framework:Federal Law No. 255-FZ dated December 29, 2006
Legal framework:Decree of the Government of the Russian Federation of June 15, 2007 No. 375

GOVERNMENT
RUSSIAN FEDERATION

if there are grounds specified in " and , - from the day when the violation was committed;

if there are grounds specified in, - for the entire period of disability.

In these cases, if the calculated allowance for temporary disability for the period from the day when the violation was committed, or for the entire period of disability in the calculation for a full calendar month, exceeds the minimum wage (in established cases, taking into account district coefficients), the amount of daily allowance is determined by dividing the minimum wage (in established cases, taking into account district coefficients) by the number of calendar days in the calendar month in which the corresponding period of temporary disability falls, and the amount of the benefit payable is calculated by multiplying the daily allowance by the number of calendar days falling on the corresponding period of temporary disability in each calendar month (the paragraph was supplemented from January 1, 2010 by a Government decree Russian Federation dated October 19, 2009 N 839

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A sick leave certificate is issued to a person in case of temporary disability due to illness.

Until it closes, the employee must strictly adhere to the treatment regimen prescribed by the doctor. Going to work during sick leave is considered a gross violation of the rights of the employee.

According to the law, the employer does not have the right to pay sick leave to the employee and accrue at the same time wages.

If the social security authorities find out that the employee went to work during the sick leave, they will impose a fine on the management of the organization.

Consequences of non-compliance with the treatment regimen

Can I go to work while on sick leave? No. Work in this case is recognized as a violation of the treatment regimen. From the point of view of the law, this is the basis for reducing the amount of disability benefits.

Fixing violations

If an employee goes to work without an extract, code 25 is put on his sick leave. In order to document the violation of the treatment regimen, a commission must be assembled at the enterprise from administrative staff and representatives of the trade union, who are elected at the general meeting.

The law does not require everyone entity create such a committee. However, in the absence of it, the labor inspectorate may invalidate the determination of a violation of the sick leave by an employee, as well as the subsequent reduction in the amount of benefits.

Attention! There is no specific regulation according to which the employer must document violations of the treatment regimen by an employee.

Enough to stick general rules office work. All actions related to the calculation and payment of temporary disability benefits must be confirmed by the decision of the commission and the order of the management.

Evidence of illegal employment

There are times when the employer forces you to work during sick leave.

In the event of a disputed dismissal, a person can disclose this fact in court, requesting compensation.

Evidence of the fact of illegal involvement in work during a period of temporary disability documents signed by a person during the period of illness can serve.

Another option is to provide the court with information about the dates and times when the magnetic pass was triggered.

Payment

To influence an employee who own will goes to work during illness, the employer can inform the doctor about the violation of the treatment regimen. To do this, he must provide evidence. In this case, the doctor will put an appropriate mark on the sick leave.

The employer on this basis will reduce the amount of temporary disability benefits, guided by Art. 8 of Federal Law No. 255. The amount of payments in this case will not exceed the minimum wage for a full calendar month. The allowance will be accrued from the date of fixing the violation of the treatment regimen.

Often, the employer himself is interested in the fact that the employee, while on sick leave, went to work. The only way to pay in this case will be a bonus. There are no legal grounds for calculating the salary of an employee who works on sick leave.

Early exit from sick leave

By law, work on sick leave is not allowed. However, the situation is quite common when people seek to start their duties ahead of schedule.
For example, the sick leave ends on 02.07, and the employee wants to work already on 01.07. The question arises: what needs to be done so that the last day of the sick leave is entered in the time sheet of working days?

Until the sick leave is closed, the employee is disabled. If an employee went to work while on sick leave, this is considered a violation of the treatment regimen, even if only one day is left before it ends.

By agreement with the employer, a person can write a statement with the following content: “Having a certificate of incapacity for work No. ... before 02.07, I actually started work on 01.07. In this regard, I ask you to consider 01.07 as a working day.

This statement serves only to inform the employer.

The day actually worked by an employee can be compensated with a day off or a bonus.

However, it is important to understand that such actions are illegal.

Forced work

In the presence of a sheet of temporary disability, a person is released from work, because he needs treatment. If an employee went to work during a sick leave under duress, there are two options. The first is to agree. However, the days worked on sick leave are not counted as working days, and therefore cannot be paid legally.

If an employee does not want to work on sick leave, it is impossible to force him to work during this period - this is a direct violation of the labor code. A person should voice his position to the employer. In the event of a conflict, he can apply to the labor inspectorate. According to article 76 of the Labor Code of the Russian Federation, an employer who requires an employee to work on sick leave is fined.

Some worry that if they refuse to go to work while on sick leave, they may be fired. Such fears are unfounded. According to Art. 81 of the Labor Code of the Russian Federation, the dismissal of an employee during his temporary disability is not allowed. If the employer forces you to sign a resignation letter, the employee has the right to file a complaint with the prosecutor's office.

A sick leave is a document that confirms a person’s temporary disability. For the entire period of treatment, the employee is released from his labor duties, and the employer pays him the appropriate allowance.

Officially, if an employee worked on sick leave, then he cannot receive a salary for this.

By agreement with the authorities, some go to work, and the employer in this case resorts to pay tricks.

It can be time off and bonuses. However, the fact that a person who is on sick leave leaves is a violation of the treatment regimen.

It entails a reduction in benefits for the employee and a fine for the employer.

Thus, the answer, is it possible to work during sick leave is simple and concise. It is forbidden. It is better to use this time to recover and prepare for work.

In the work of an accountant and a personnel officer, one has to deal with various ambiguous and problematic situations. One of them occurs when an employee has a sick leave, but at the same time goes to work on the days falling on the period of temporary disability. Maybe the employee is indispensable, and the management of the company in connection with production necessity urged him to do so. Or maybe the employee himself wanted to show zeal and went to work without telling anyone about the sick leave, but when it was closed, he presented it for payment. Regardless of the reasons, the same question arises: how in this case to pay for work and sick leave? Can I pay both amounts or do I have to choose one? Is going to work during a period of temporary incapacity for work grounds for refusing to an employee both sick leave and wages?

Commentary to the Letter of the Ministry of Finance of Russia dated 04.06.2012 N 03-03-06/4/57 "On the issues of social security of employees and accounting for labor costs during a period of temporary disability for the purposes of taxation of profits"

The organization asked

In the commented Letter, the employing organization asked a very specific question, citing the actual circumstances of the case. And they are. The employee was issued for the period from February 2 to February 27, 2012.
However, from February 2 to February 6, 2012, the employee was at the workplace, as evidenced by the time sheet, as well as the work performed by the employee.
It is quite natural that the accountant had a question: in what order should the employee receive temporary disability benefits? The organization considered two options:
- pay benefits for the entire period from February 2 to February 27, 2012 in accordance with federal law dated 29.12.2006 N 255-FZ "On compulsory social insurance in case of temporary disability and in connection with motherhood";
- for the period from 2 to 6 February 2012 and only from 7 to 27 February 2012 - allowance.
Moreover, in the second case, an additional question arises: is it possible to take into account the wages paid to an employee for the period from February 2 to February 6, 2012 in expenses when calculating the tax base for income tax?

The financiers explained, but ... did not answer

Unfortunately, the financiers once again did not give a direct and concrete answer to the questions posed.
First of all, they recalled that in accordance with the Regulations of the Ministry of Finance of Russia (approved by Order of the Ministry of Finance of Russia dated March 23, 2005 N 45n), the department does not consider on the merits the appeals of organizations for clarification (interpretation of norms, terms and concepts) of the legislation of the Russian Federation and the practice of its application, on the practice of applying the normative legal acts of the ministry, on the examination of contracts, constituent and other documents of organizations, on the assessment of specific economic situations.
Nevertheless, officials considered it necessary to pay attention to the following norms of legislation.
Firstly, in case of temporary disability, the employer pays the employee temporary disability benefits (Article 183 of the Labor Code of the Russian Federation).
Secondly, for the appointment and payment of benefits for temporary disability, for pregnancy and childbirth, the insured person submits (clause 5, article 13 of Law N 255-FZ):
- certificate of incapacity for work issued medical organization in the form and in the manner established by the federal executive body responsible for the development of state policy and legal regulation in the field of social insurance;
- a certificate (certificates) on the amount of earnings from which the allowance should be calculated, from the place (places) of work (service, other activities) with another insurant (with other insurers).
Thirdly, as explained in paragraph 17 of the Letter of the FSS of the Russian Federation of October 28, 2011 N 14-03-18 / 15-12956, the disability certificate performs a dual function, being a financial document that serves as the basis for the appointment and payment of benefits, and certifies the disability of citizens confirming their temporary release from work.
Fourthly, the basis for reducing the amount of temporary disability benefits is a violation by the insured person without good reason during the period of temporary disability of the regime prescribed by the attending physician (clause 1, clause 1, article 8 of Law N 255-FZ).
Finally, on the basis of par. 48.1 p. 1 art. 264 of the Tax Code of the Russian Federation, other expenses related to production and sale include the employer's expenses for the payment of temporary disability benefits in accordance with the legislation of the Russian Federation (with the exception of accidents at work and occupational diseases) for sick days of an employee, which are paid at the expense of the employer and the number of which is established by Law N 255-FZ. Payment is made only in the part not covered by insurance payments made to employees by insurance organizations under contracts with employers in favor of employees in case of their temporary disability.

What is the difficulty?

In fact, the question raised in this Letter is quite ambiguous. And the problem is aggravated by the fact that there are no specific official explanations from the FSS of the Russian Federation, as well as from the Ministry of Finance of Russia, the Ministry of Health and Social Development of Russia and other departments on this issue. Therefore, it remains only to analyze the letter of the law, arbitration practice and rely on common sense.
And most importantly, this issue is multifaceted, and a number of nuances will have to be taken into account.
First, it is necessary to understand that the temporary disability benefit is not just one of the guarantees provided for by labor legislation, and not just compensation payment on the basis of the presented sick leave.
Yes, the allowance is referred to exactly as guarantees in Art. 183 of the Labor Code of the Russian Federation. And in paragraph 1 of Art. 1.3 of Law N 255-FZ, we are talking about the fact that the insurance risk for compulsory social insurance in case of temporary disability is recognized as a temporary loss of earnings or other payments and remuneration by the insured person in connection with the occurrence of an insured event (including temporary disability of the insured person due to diseases or injuries, except for accidents at work and occupational diseases).
But the thing is that the payment of benefits is "tied" by law not just to the fact of having a sick leave, but to the fact of temporary disability.
So, in pp. 1 p. 1 art. 5 of Law N 255-FZ emphasizes that the provision of the insured person with benefits is carried out in the event disability due to illness or injury. And from paragraph 1 of Art. 6 of Law N 255-FZ, it can be logically concluded that the allowance should be paid in case of disability due to illness or injury for the entire period of temporary disability until the day of recovery(or until the day the disability is established), with the exception of some special cases.
Thus, only the employee who was actually temporarily disabled during the relevant period can claim the benefit. If a person worked, the condition of disability is not met. In other words, despite the presence of a sick leave, the employee was not disabled, since he could go to work.
Secondly, in paras. 1 p. 1 art. 8 of Law N 255-FZ, among the grounds for reducing the amount of benefits, a violation by the insured person without good reason during the period of temporary disability of the regime prescribed by the attending physician is mentioned. In such a situation, from the day the violation was committed, the allowance is paid not on the basis of average earnings, but on the basis of the minimum wage (taking into account the district coefficient). Of course, logically, cases of an employee returning to work, whose sick leave was not yet closed (that is, who, according to the doctor, was unable to work), should be considered a violation of the regime.
However, according to the rules prescribed in the Procedure for issuing sick leave certificates (approved by Order of the Ministry of Health and Social Development of Russia dated June 29, 2011 N 624n), only medical worker(for example, the attending physician). The employer cannot arbitrarily enter such information on the sick leave. And since there is no mark of violation of the regime in the temporary disability certificate presented by the employee, formally the employer has no reason not to pay such sick leave, and the FSS of the Russian Federation does not have the right to refuse to reimburse (offset) the corresponding amounts.
But this is all in theory. But in practice, it can turn into significant problems.
For example, the Federal Antimonopoly Service of the Far Eastern District, in Decree N F03-A59 / 08-2 / 2902 dated 03.10.2008, stated that the administration of the company allegedly had the obligation to check disability for the payment of benefits. It pays it, and only with the proper fulfillment of this obligation does the organization have the right to reimburse the funds at the expense of the FSS of the Russian Federation (and the latter has the obligation to accept the amounts paid for offset).
Another interesting dispute was considered in the Decree of the Federal Antimonopoly Service of the Urals District dated April 20, 2011 N Ф09-1302 / 11-С2.
The employee worked in one organization and part-time in another company. He took a sick leave and did not go to work in the main organization during the period indicated in it, but he worked for another employer (part-time) as usual. But in the certificate of incapacity for work, no marks were made about the violation of the regime. Later, when checking (already after the sick leave was presented and paid by the "main" employer), the FSS of the Russian Federation discovered this fact. The fund qualified such actions of the employee as a violation of the regime and, despite the absence of a corresponding note from the attending physician on the sick leave, considered that the amount of the allowance at the main place of work should have been reduced (and, as a result, did not accept part of the paid allowance as offset).
But the main employer believed that, since at the time of payment he did not know and could not know about the violation of the regime, he lawfully paid the sick leave on the basis of the documents presented by the employee and the entire amount should be offset.
The court concluded that the FSS of the Russian Federation quite rightly did not take into account the costs of paying part of the benefit (i.e., the difference between the amount accrued and the amount due to the employee, taking into account the reduction in the amount of benefits in accordance with Article 8 of Law N 255-FZ).
The facts of abuse by the insured person of his rights were established (he really worked for another employer during the period of the sick leave and, therefore, violated the regime). And this means that the costs of paying sick leave in such a situation were made by the insured in violation of the norms of the current legislation.

How to be...

Of course, if the judges are so strict with the main employer in cases where his employee violated the regime by going to work part-time during the period of illness, they clearly will not show leniency in a situation where the employee, while on sick leave, goes to his main job .
Moreover, in this case, we will no longer just talk about a violation of the regime and the need to reduce the amount of benefits, but in general about the non-assignment of benefits to the employee. Indeed, in fact, going to work during an illness means that the employee has not lost either his ability to work or his earnings.
Therefore, if during the entire period of the temporary disability certificate the employee worked, as usual, it is definitely impossible to pay both wages for the hours worked and the sick leave allowance (neither in full nor in a reduced amount).
Actually, in such a situation, it makes no sense at all for an employee to take a sheet of temporary disability in a medical institution. And if it was nevertheless taken, it should not be presented for payment.
However, if an employee has a sick leave, and he worked during illness, not only the employee himself, but also his employer can “punish with a ruble”. After all, as already noted, the ability to take paid sick leave is a guarantee provided for by labor legislation (Article 183 of the Labor Code of the Russian Federation). And it means that if the employer allowed an employee who is on sick leave to work, he violated labor law. The Labor Inspectorate has every right to apply appropriate sanctions to such an employer. And that means that if an employee who was asked to work during a sick leave holds a certificate of temporary disability in his hands, he can at any time contact the labor inspectorate and declare his violated rights.
Somewhat harder to find the right decision in a situation similar to the one described in the question in the commented Letter - if the employee went to work only on certain days, that is, he still “got sick” part of the sick leave, and worked out the other part.
There are several options here.
On the one hand, there is an opinion that in accounting and tax accounting it is necessary to reflect those operations that were actually performed. This means that for the time worked, you need to accrue wages (and only wages), and for the time that the employee was actually treated and did not work, accrue benefits.
Moreover, strictly speaking, the amount of the allowance should depend on the specific circumstances. If the employee worked at the beginning of the period of temporary disability (as, for example, in the situation described in the Letter), then there was a violation of the regime, and, therefore, those days of illness when the employee did not go to work should be paid based on the minimum wage (with taking into account the regional coefficient). But if at first the employee was sick (he was treated and did not go to work), and already at the end of the sick leave he went to work, those days of illness that preceded the violation of the regime (going to work) must be paid in full according to general rules, because the reduction in benefits due to a violation of the regime is made only from the date of the violation.
But, as already emphasized, a health worker, not an employer, should put a mark on the violation of the regime. If the employer does not inform the medical institution that the employee goes to work (there is no obligation to “knock on the employee” by law), there will be no marks on the sick leave. Therefore, formally, the employer has no reason to reduce the amount of benefits. Although, as already emphasized above, the judges may well conclude that he was nevertheless obliged to calculate the allowance based on the minimum wage, since he knew for sure that a violation had occurred.
On the other hand, some advise to neglect the "reality" of operations and use a "gray" scheme - nowhere to reflect the fact of work during the sick leave, to make notes on the illness in the report card and pay the sick leave in full according to the general rules, and pay for the actual work performed " in an envelope" or "disguise" it as a bonus, financial assistance and other payments.
Or in the future, you can provide the employee with time off (working days will be put in the time sheet, pay will be charged, and in fact the employee will rest on these days). But "gray" schemes, as we all understand, are also fraught - and simply illegal.
So, of course, it is best not to involve workers in the periods when they are on sick leave, and not to allow them to be zealous and voluntarily go to work on these days. This is not only easier in terms of sick pay, but also safer in terms of labor law enforcement.
If, nevertheless, for some reason, the employee "combined" illness and work, the head and accountant of the organization will have to make a decision regarding the procedure for paying for such work and sick leave, taking into account the norms of legislation discussed above and arbitration practice.

15.05.2017 print

In the list of complex cases of accruing temporary disability benefits, an employee’s return to work during a period of illness is far from the last place. And according to the “cunning”, ambiguity and unpredictability of the reaction of inspectors and judges to such situations, he is the undisputed leader at all.

It seems that even the widespread introduction planned for July this year is unlikely to solve this problem completely. Since a smart electronic machine is not at all obliged to go into moral and ethical subtleties and find out: did the ailing manager Petrov order his immediate superior to go to work, or did Petrov himself find a place for a feat? Was his labor impulse sincere zeal for the good of the company, or is it pure slyness, in the sense that the sick "workaholic" hopes to receive for his zeal either a normal salary instead of a small allowance, or both?

We do not rule out that everyone was delighted with the appearance of the ill Petrov at work - the authorities, subordinates, contractors of the company. Only one accountant was upset, who had to decide how to pay for these labor accomplishments and miracles of endurance. Moreover, this decision should coincide with the position of the FSS of the Russian Federation. And in the FSS of the Russian Federation they believe that it is impossible to legally pay for work during sick leave. So turn around, accountant, as you want.

Since the solution to the problem one way or another lies in the conflict plane, is it not easier to “deploy” Petrov at the office doorstep and send him for aftercare? You are, they say, dear to us, like a memory, we all love you. Go, dear, drink tea with raspberries and listen to Rosenbaum: love - love like that, walk - walk like that. Hurt - so hurt.

note

The ability to take paid sick leave is a guarantee provided for in Article 183 of the Labor Code of the Russian Federation). Allowing an employee on sick leave to work is a violation of labor law.

No, it’s not easier ... Petrov, as already noted, could come not on a whim - for a long ruble, but, like a genie, at the call of management, who, for accounting problems - yeah ..., from a high bell tower. Moreover, the employee was called, most likely, not by any written order, but simply in words. It is possible that he was also promised an additional reward. So "force methods" do not work here.

In addition, to find out that a sick employee worked on such and such days, the accountant can already after the fact, when he will be honored with an honorably closed sick leave. In which, by the way, there is no mark on the violation of the hospital regime, since the "workaholic" Petrov observed secrecy and showed up on time for appointments with the doctor.

And what should an accountant do? To dedicate Petrov to the intricacies of social insurance is also somehow not the right time. On the one hand, since a person worked, he was not supposed to be “unable to work” and he was not entitled to benefits. But these are all high words. Such arguments can lead to the FSS, but Petrov on them, by and large - yeah ... the same thing, from a high bell tower. The sick leave is in his hands, and it is impossible to brush aside this fact by paying the sick Petrov the traditional salary, as well as to the healthy Petrov. More precisely, it is possible, but this fact may backfire in the future. In court, for example, where unpaid sick leave can be a good argument. Or during inspections, where discrepancies in the accounting of working hours will be revealed.

Another option - to pay benefits instead of wages - is also, to put it mildly, not without drawbacks. An employee who received a small allowance for the days worked instead of a large salary can file a complaint with the labor inspectorate. And the evidence that the employee worked like a galley will be found. In general, as it was said, a problem on a problem.

And another moment, from which the “headache” should no longer be with the accountant, but with the director: even the manager Petrov, who sits all day on a chair at the computer, can, as they say, “feel bad”. And if Petrov works not as a manager, but as a turner? After all, if something happens to him at the workplace, this is already an industrial injury, with all the consequences both for himself and for his employer. negative consequences. And if, as a result of a call to work, an employee on sick leave develops a complication of the disease, he may try to receive compensation from the organization for harm to his health (Articles 22, 232, 233, 237, 220 of the Labor Code of the Russian Federation).

Pay sick leave or pay a salary?

Regardless of the reasons for going to work (an urgent request from the employer, one's own initiative due to the objective need to submit a report), the question arises of how to pay for working days and sick leave in this case. Can I pay both amounts or do I have to choose one? Is going to work during the period a reason for refusing to an employee both sick leave and salary payments?

One of the organizations asked a similar question to the Russian Ministry of Finance, describing in detail the circumstances. They were as follows.

Salary or allowance?

The most difficult situations arise if the employee went to work only on certain days, that is, he still “got sick” part of the sick leave, and part worked. On the one hand, in accounting and tax accounting, it is necessary to reflect those transactions that were actually performed. So, according to the logic of things, for the time worked, you need to accrue only and for the time that the employee was actually treated and did not work, accrue benefits.

Moreover, strictly speaking, it should depend on the specific circumstances. If an employee worked at the beginning of a period of temporary disability (as, for example, in the situation described in the above letter from the Ministry of Finance of Russia), then there was a violation of the regime, and, therefore, those days of illness when the employee did not go to work should be paid based on ( taking into account the regional coefficient). But if at first the employee was sick (he was treated and did not go to work), and at the end of the sick leave he went to work, those days of illness that preceded the violation of the regime (going to work) must be paid in full according to the general rules, because the reduction benefits due to violation of the regime are made only from the date of violation.

But, as already emphasized, a health worker, not an employer, should put a mark on the violation of the regime. If the employer, contrary to the advice of Rostrud of the Russian Federation, does not inform the medical institution that the employee goes to work, there will be no marks on the sick leave. Therefore, formally, the employer has no reason to reduce the amount of benefits. Although, as already emphasized above, the judges may well conclude that he was nevertheless obliged to calculate the allowance based on the minimum wage, since he knew for sure that a violation had occurred.

So, with a probability of 99.9%, we can assume that our “workaholic” will not have any marks of violation of the hospital regime. Is it necessary to reduce the allowance if days were worked at the beginning or in the middle of the sick leave? The FSS will most likely answer this question (if you ask it for some reason) in the affirmative. But from the courts, if an employee who is annoyed by such a turn of events complains about you, you can expect anything. In particular, the verdict 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 (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 January 22, 2015 No. 2-142/2015(2-4475/2014;)~M-4441/2014; appeal rulings of the Yamalo-Nenets Court autonomous region dated February 10, 2014 No. 33-242/2014).

note

The time of release from work due to disability does not apply to the time of rest. Consequently, 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). If a salary is accrued for the days worked, then the allowance for these days is not due and its non-payment will not be a violation of the Labor Code of the Russian Federation.

So the employer on this account has complete freedom of action with a whole bunch of all kinds of consequences. We choose the best of the worst. For example, we are guided by the position of the courts and do not reduce. True, at the same time, it is likely that the FSS will do it on its own - refusing to reimburse you.

By the way, do not forget about the decision of the Presidium of the Supreme Arbitration Court dated February 14, 2012 No. 14379/11, which says that 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. The supreme arbitrators, in turn, referred to clause 1 of part 1 and part 2 of article 8 of Law No. 255-FZ. Respectfulness 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, alone (subparagraphs 1.1–1.3 of the Model Regulation, approved by the FSS on 15.07.94 No. 556a; clause 10 of the Regulation, approved by the Decree Government dated 12.02.94 No. 101). In general, we keep in mind the decision of the supreme arbitrators and look for good reason for non-decrease. And, of course, we find it (the difficult financial situation of the employee, the presence of young children, etc.). This option will not completely insure against a dispute with the fund, but it may reduce its likelihood.

A decrease, having insured against disputes with funds, can provoke a conflict with an employee. An employee who does not agree with the reduction can both complain (she will not accrue the allowance, but uses the complaint as a reason for checking), and go to court.

There is also a compromise option: reduce the allowance for offset (reimbursement) at the expense of the FSS of the Russian Federation, and give the employee a full allowance, paying the difference from the organization's funds. True, the amount of the "additive" will have to be charged insurance premiums- as a payment to an employee in the framework of an employment relationship.

In the twenty-first century, events are changing too fast to afford to be left behind. And even more so - to hurt. But what if a person is still ill and in the midst of treatment, the boss calls him and demands to urgently go to work? A huge number of citizens, frightened of losing their jobs, are returning to work. Usually nothing good comes of it.

Legal rationale

According to the current norms of the law in Russia, any sick person has the right to be released from work for the duration of treatment and stay at home or in a hospital until he recovers. A sick person can not worry about his position or income - all this will wait for a person at work until his full recovery. And when the latter comes, the final word is up to the treating specialist.

Everything related to the issuance of sick leave and compensation for illness is regulated by Federal law, as well as the norms of the Labor Code, namely:

Federal Law No. 255-FZ;
Order of the Ministry of Health No. 624n;
Art. 183 TK.

If you read all these sources from beginning to end, you will be convinced that there is not a single rule that allows a merchant to order someone to return to job responsibilities until full recovery. But there is no prohibition to stop treatment ahead of schedule either.

Early exit to work

At the first visit of a citizen, after listening to complaints and conducting an examination, the doctor determines at least five days of the bulletin. Maybe more if something serious was found - but a maximum of two weeks. If a person's condition is such that even after two weeks of treatment it is too early to talk about recovery, the bulletin is extended by the medical control commission.

Theoretically, if a person feels so good before the appointed time that he could even work, he can ask for a treating specialist earlier and return to work duties. This is possible only upon agreement with the doctor and if the recovery has really already begun and nothing further threatens the state of the citizen.

With a severe, especially contagious illness, not a single health worker, being in of sound mind, will not take such a step.

Exceptions

pregnant women;
caring for family members with severe chronic illnesses or HIV infection;
parents of seriously ill children.

They will have their ballot closed upon request at any time, including retroactively. However, the employer does not have the right to force them to leave early (Article 4 of the Labor Code).

Early exit of pregnant women

Workers sitting on the ballot due to childbirth are categorically not recommended to leave ahead of schedule (Letter Federal Service on labor No. 1755-TZ, 2013). And it's not just the risk to her and the baby. If a woman decides to take such a step, the duty of the employer is to withhold from the subordinate part of the allowance paid to her!

If the company does not have a valuable specialist, from the category of irreplaceable, different situations are possible. To the point that the business can stall. If the director knows that the sick person is able to receive calls and talk, he can call him and clarify the necessary details or to which person he transferred the cases before the illness. But to require the patient to return to work during illness is illegal and threatens the head of the company with serious responsibility. Under no circumstances does the boss have the right to deprive a sick person of his position, or lower his salary.

The question arises of what to do with those who work under a civil contract. In this case, the director, of course, can fire him, and nothing will happen to him for this. And the ballot itself is not paid. But it should be remembered that an incomparably more valuable thing is at stake - life. That is why interrupting the bulletin and going to work earlier than expected is highly discouraged, no matter what happens.

Important! This is the case if the subordinate himself fell ill. If he is forced to sit with a child or a bedridden relative, you can ask him to leave early in case of emergency. But this is possible only by consent, coercion is unacceptable.

Is the director entitled to dismiss for refusing to leave the sick leave early?

Working on employment contract you can not take the director's threats seriously - they are not threatened with demotion or salary. A sick worker can lose his job in two cases:

he himself made such a decision (Article 77 of the Labor Code);
the organization goes bankrupt and ceases to exist.

Any dismissal must be justified; the simple desire of the head of the company is not enough for this. Especially when it comes to disability.

As for the payment for the ballot, the head of the company has no right to refuse to compensate for it. Provided, of course, that the document is executed without violations. The latter include:

corrections, retouching;
not completed column of the time of entry to work;
inaccurate information about specialists, institutions;
inconsistency of the text in the columns and on the prints of the seals;
empty mandatory columns;
fake form;
, for example, if a person went to a doctor in one city, and closed the sheet in another;
lack of seals of doctors and medical institutions.

No other reason gives the employer the right to refuse compensation.

The best option for any sick person is to calmly recover and fully recover, get to work. Excessive zeal will not be appreciated. Rather, it will bring trouble:

such a bulletin is not expected to be closed. An unclosed sheet is considered invalid and will not be compensated;
the doctor will put a mark on the violation of the hospital regime;
inefficient work - it is illogical to expect high results from a person weakened by an illness;
the risk of infecting other workers;
allowance will be reduced to the minimum wage.

All this makes no sense compared to the main threat - death, which is likely even with a seemingly harmless cold.

Find out what temporary disability benefits are due, based on

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

To ban a person from unnecessary heroism in the form of an early exit from work, the director is not only able, but also obliged. It should be remembered that in any case, the employer is responsible: if someone notifies the labor inspectorate of a violation, this is fraught with a fine (Article 5.27 of the Code of Administrative Offenses). If a sick employee who interrupted the treatment receives irreparable harm to health or dies - criminal liability and suspension of activities.

Therefore, in such a situation, the director is obliged to warn the subordinate of his intention to inform the FSS.

If an employee interrupted sick leave - what payments are due

A person who leaves work because of his own illness or the illness of a family member is entitled to standard sick leave compensation. It is clear that this will affect the salary - after all, the calculations are based on average earnings. The time frame of the disease in the bulletin and in the report card must match, otherwise the Social Insurance Fund will regard this as a violation.

If this nevertheless happened - the person went to work earlier and nothing bad happened to him, the director still does not have the right to record the day of exit as a full-fledged worker. The law does not prohibit bonuses to employees, regardless of their health, and here the employer simply writes out a bonus or adds a salary “in an envelope”. However, it is important for both the boss and the subordinate to remember that such a situation is illegal.

What to do if the boss forces you to go out during illness?

If the director demands to leave during an illness, especially if he threatens to fire him, you should be ready to defend your rights.

Step 1. If such a request was received by phone, you should try to record the dialogue on a voice recorder. Even if it didn’t work out, it’s okay - if the director considers himself entitled to demand such a thing, let him send an official request to the sick subordinate with a notification under his personal signature. This is what the employee should voice in a dialogue with the employer.

Step 2 Prepare evidence for labor inspection or court. You will have to prove your position and words alone are not enough. Violations may be evidenced by:

audio, photo and video materials;
documents signed at the time when you should have been on sick leave;
testimonies of colleagues, experts.

Step 3 Warn the director - petty tyrant about the readiness to apply to supervisory authorities.

Important! It is also best to do this in writing.

Step 4 Write an application to the labor inspectorate in two copies and wait for the acceptance mark on both, after which you keep one for yourself - in case of possible litigation. If it is written and sent online, you should make sure that the document was accepted.

Step 5 Wait for the end of the illness and close the bulletin with the same specialist and in the same institution where it was opened.

It is important to follow the main rule! Do not go to work officially and do not violate the hospital regime. To the corresponding question, you can answer that you went to the office to clarify the situation, but not for work.

What is the risk of non-compliance with the hospital regime

A person who falls ill and goes to the bulletin must strictly follow all the recommendations of health workers, attend, according to the prescribed schedule, all the prescribed procedures and examinations. If the commission has decided that a citizen needs to go to a hospital, it is necessary to stay there until the moment of discharge.

Violation of the hospital regime is considered:

non-compliance with the prescribed treatment regimen;
failure to appear for an appointment.

From this moment on, the responsibility for the health of a person lies only with him. The time remaining until the proposed closing of the ballot will not be paid.

The director, if he did not put his demand to leave ahead of schedule in writing, more often manages to avoid responsibility. If a subordinate, frightened by threats, came to workplace and did what was required, usually the issue is decided by a bonus. If not complied with, the director simply reports the violation to the FSS, stating that for some reason the employee left the sick leave earlier.

Decor

In order to document the violation, the director creates a special commission, which, in addition to members of the management team, must include representatives of the trade union. Not a single law obliges the director to create such a commission and generally ask what the trade union thinks about what happened. But this is highly recommended, otherwise the employee will be able to complain to the labor inspectorate about the violation and the reduction in benefits will be considered unlawful.

Codes

If a person violates the hospital regime and goes to work before recovery, they put a code on the sheet that will tell the accountant or director what kind of incident took place.

This can be understood from the table:

The code	What happened
23	Inconsistent care, treatment and consultations in another area without a referral from a treating specialist
24	Schedule violations, untimely appointments with specialists
25	Return to work before recovery and closing of the ballot
26	Refusal to undergo medical and social examination
27	Late appearance for examination at the ITU
28	Other reasons

This is fraught not just with reduced benefits and early retirement. If there was an incident with a medical and social examination, that is, under codes 26 and 27, a person is not legally recognized as a disabled person. He will not receive any guarantees and release from work, too. Even if he really has and confirmed severe pathologies.

Thus, it is quite clear that the request of the authorities to interrupt the sick leave can and should be refused. Moreover, you should not do it on your own desire. Such a step will not bring benefits anyway, but troubles are guaranteed to follow. And is it worth risking your health and life for the sake of any work?