Often, conflict situations with a subordinate take a variety of forms. For example, a boss talks with an employee, asks him to give his best and work more productively. Despite this, it gets the exact opposite effect.
The employee stops communicating with colleagues, does his work poorly and does not respond to management’s comments, or even goes on sick leave for an indefinite period of time. As you know, it is the certificate of incapacity that completely ties the hands of the authorities.
The person is on the payroll, sick leave is paid, but the work stops because the subject does not appear at the enterprise or company office. Can you be fired for frequent sick leave?
Can a person who often goes on sick leave be fired?
When a subordinate is on paid sick leave for a long time, the employer does not know what is best to do.
Usually, all attempts to appeal to conscience, make a reprimand, or dismiss are nipped in the bud due to the elementary absence of a citizen from his workplace. In such a situation, the Labor Code categorically prohibits the application of any sanctions in relation to a specific subject.
Citizens who have temporarily lost their ability to work can exercise their right to sick leave. This document confirms the legal reason for absence from work. However, it is often very difficult to find out whether a subordinate was really sick or whether the certificate of incapacity for work is a simple cover for personal matters.
Employers are especially often concerned about cases when an employee goes on sick leave quite often or his illness is prolonged. You should not torment yourself with suspicions and doubts, but simply study the regulatory framework of the issue and know effective ways that will help verify the authenticity of a sick leave certificate issued by a medical institution.
The Labor Code of the Russian Federation provides for the possibility of terminating an employment contract in the event of absence from work for more than four months in a row due to temporary incapacity for work (this does not include maternity leave), unless current legislation establishes a longer period for maintaining a job in case of a certain illness.
So can you fire someone for taking frequent sick leave to care for a child?
If an employee is absent from his workplace due to caring for a sick family member, then management does not have the right to dismiss such a subordinate. Among other things, there are certain guarantees for representatives of the fairer sex raising minor children.
If the contract with the company ends before the employee's youngest child reaches the age of five, management must enter into a new contract for at least twelve months.
Dismissal of an employee while on sick leave
There are different situations, sometimes it is simply necessary to fire a frequently ill employee, but it is very difficult to do this without breaking the law. In an educated society, almost every person knows their rights and is ready to defend them.
All the nuances of labor relations must be spelled out in the contract, which in no case should contradict the norms of the Labor Code of the Russian Federation. The law obliges the employer to pay compensation to the employee for the entire period of his temporary disability (if there is a corresponding document from a medical institution) and does not allow the dismissal of the employee.
Several years ago, it was possible to fire an employee who was constantly on sick leave, but only if his absence from work exceeded four months. Today, an employee may not go to work due to illness for an indefinite amount of time. Unfortunately, many unscrupulous employees take advantage of this amendment to the law in order to avoid showing up for work for a long time, but at the same time receive cash payments.
Of course, it is not profitable for any boss to keep an employee who is always absent and even pay him money. However, he is forced to do this, since there are not so many legal ways to get rid of such a specialist.
It is worth noting that we are not talking about people who, for some reason, are actually forced to undergo long-term treatment; they can easily confirm their legal right to pay for sick leave. This refers to those employees who simply do not want to work, hiding behind certificates of incapacity for work.
You can dismiss an employee who is constantly on sick leave in the following cases:
- upon liquidation of an enterprise or firm;
- by agreement of the parties;
- if the contract term has expired;
- at the employee’s own request;
- if a forgery or illegal issuance of a sick leave certificate is detected.
There are no other legal ways to get rid of a frequently ill employee. Of course, you can apply psychological pressure to an employee and force him to leave, but this is not entirely legal and can greatly harm the employer in the event of litigation.
How to legally fire a frequently ill employee?
When dismissing a subordinate, the employer may face unpleasant consequences of his actions, for example:
- even if the employee was dismissed legally, he has the right to file a complaint with the labor inspectorate. If, when checking the correctness of dismissal, errors are revealed in the preparation of employment documents (orders, work book), then a large fine will be imposed on the employer;
- if the salary was paid to a subordinate in an envelope and the employee was not officially registered at his workplace, then he has the right to file a complaint. In the case when the information specified by the subject is confirmed and sent to the tax service, the Pension Fund and the Social Insurance Fund, the authorities may face new taxes, insurance premiums, and fines.
Persons who systematically go on sick leave are not always able to fully perform their main job responsibilities, which can negatively affect the performance of the entire company. There are often unscrupulous subordinates who use their right to sick leave for other than its intended purpose.
In such difficult situations, management has to look for legal ways to solve the problem and in most cases the only way out is dismissal. Previously, the current legislation had a provision allowing for separation from a subordinate who has been ill for more than four months.
At the moment, there is an amendment to the Labor Code that termination of an employment contract during illness is strictly prohibited if the initiative comes only from the employer. In this case, the latter has to prove the fact that the particular subject was not ill while on sick leave.
In a situation where a citizen brings a fake certificate of incapacity to work to his management, a disciplinary sanction in the form of dismissal may be applied. It is important to follow the entire procedure in accordance with the basic requirements. So how to fire an employee who is constantly on sick leave?
In addition to the employer’s initiative, the Labor Code contains other possibilities for terminating an employment contract, which are not prohibited during the illness of the subject, they are as follows:
- At the moment, one of the most common grounds is the initiative of a subordinate. A person must write a letter of resignation of his own free will;
- management has the right to terminate the employment contract with the subject by agreement of the parties. In this case, both parties can fix all the conditions for terminating the contract, including reaching a general consensus regarding compensation payments for the subordinate;
- expiration of the employment contract. For this reason, sick leave is not an obstacle. This is due to the fact that these circumstances do not depend on the parties;
- the citizen refuses to continue working in working conditions that have changed slightly. If you offer a subject a change in the terms of the employment contract with which he does not agree, and the management does not have any other work for him, then you can terminate the employment relationship even in the event of a person’s temporary incapacity for work. However, it is important to act in accordance with the law.
An employee who has been ill for a long time. Is it possible to fire?
One of our employees has been sick for several months (sick leave). Because of this, the work “costs”, and we cannot accept another specialist.
Is it possible to fire such an employee? How to do it right?
According to Art. 6 of the Federal Law of December 29, 2006 No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity” temporary disability benefit
in case of loss of ability to work due to illness or injury,
it is paid to the insured person for the entire period of temporary incapacity for work
until the day of restoration of ability to work (establishment of disability).
To assign and pay benefits for temporary disability, the insured person submits a certificate of incapacity for work
, issued by a medical organization (clause 5 of article 13 of Law No. 255-FZ).
The procedure for issuing certificates of incapacity for work
approved by order of the Ministry of Health and Social Development of the Russian Federation dated June 29, 2011 No. 624n.
For outpatient treatment of diseases
(injuries), poisonings and other conditions associated with citizens’ temporary loss of ability to work,
the attending physician
alone
issues
certificates of incapacity to citizens for a period of
up to 15 calendar days
inclusive.
With deadlines
temporary disability
exceeding 15 calendar days
, a certificate of incapacity for work is issued and extended by decision
of the medical commission
appointed by the head of the medical organization.
Clause 3 art. 59 of the Federal Law of November 21, 2011 No. 323-FZ “On the fundamentals of protecting the health of citizens in the Russian Federation”
It has been established that
the extension of a certificate of incapacity for work for a longer period
(but no more than fifteen calendar days at a time)
is carried out by decision of a medical commission
appointed by the head of a medical organization from among doctors who have been trained in the examination of temporary disability.
According to the Order... within the time limit
temporary disability
exceeding 15 calendar days
, the decision on further treatment and issuance of a certificate of incapacity for work is carried out by a medical commission.
Doctors licensed for medical activities, including work (services) for the examination of temporary disability, for a period of temporary disability exceeding 15 calendar days, send
a citizen
to a medical commission
at a medical organization at the place of his attachment or registration at the place of residence (at the place of stay, temporary residence) to extend the certificate of incapacity for work.
By decision of the medical commission, with a favorable clinical and work prognosis, a certificate of incapacity for work may be issued
in the prescribed manner until the day of restoration of working capacity, but
for a period of no more than 10 months
, and
in some cases
(injuries, conditions after reconstructive operations, tuberculosis) -
for a period of no more than 12 months, with an extension period
by decision of the medical commission at least after 15 calendar days.
Citizens with persistent limitations in their ability to live and work and in need of social protection are sent for a medical and social examination
(hereinafter referred to as MSE)
based on the conclusion of a medical commission
, in particular
:
– obvious unfavorable clinical and labor prognosis, regardless of the duration of temporary disability, but no later than 4 months from the date of its start;
– a favorable clinical and work prognosis no later than 10 months from the date of the onset of temporary disability in conditions after injuries and reconstructive operations and no later than 12 months in the case of tuberculosis treatment, or the citizen is discharged to work.
If disability is established, the period of temporary incapacity for work ends
the date immediately preceding the day of registration of documents at the ITU institution.
Temporarily disabled persons for whom disability has not been established
, the certificate of incapacity for work
can be extended
by decision of the medical commission
until the restoration
of working capacity with the frequency of extending the certificate of incapacity for work by decision of the medical commission at least after 15 days or until re-referral to medical examination.
If a citizen refuses to be referred to ITU
or his untimely appearance at the ITU for an unexcused reason,
the certificate of incapacity for work is not extended
from the date of refusal to be sent to the ITU or registration of documents at the ITU institution; information about this is indicated in the certificate of incapacity for work and in the medical record of the outpatient (inpatient) patient.
Art. 81 Labor Code of the Russian Federation
It is established that
of an employee at the initiative of the employer
is not allowed except
in the case of liquidation of an organization or termination of activities by an individual entrepreneur)
during the period of his temporary disability
.
That is, in this case, the legislator established a direct ban on dismissal
.
However, if the medical commission
gives the employee a medical certificate stating that due to health reasons he
needs a temporary transfer to another job
for a period of more than 4 months or a permanent transfer, and
the employee refuses
such a transfer or the employer does not have such a job, then the employment contract with the employee may be terminated in accordance with
paragraph 8 of Art.
77 Labor Code of the Russian Federation and
Art.
73 Labor Code of the Russian Federation .
By the way, the Constitutional Court of the Russian Federation
believes that such grounds for dismissal as the employee’s refusal to transfer to another job, which he needs in accordance with a medical report, or the employer’s lack of relevant work (
clause 8, part 1, article 77 of the Labor Code of the Russian Federation
), are provided in order to prevent the employee from performing work that is contraindicated for health reasons is aimed at protecting the employee’s health, and therefore cannot be considered as violating the employee’s rights (Definition No. 887-O-O dated July 14, 2011).
How often can you take out a certificate of incapacity for work so as not to be fired from your job?
The current labor legislation does not regulate the duration of temporary disability. The Labor Code of the Russian Federation only obliges management to pay appropriate sick leave benefits.
The timing of issuance, rules, and issues of payment for sick leave certificates are determined by federal laws and various regulations of the Ministry of Health. The periods for which sick leaves are usually issued are strictly regulated by the procedure for issuing certificates of incapacity for work.
The maximum period is:
- if the certificate is issued to a subordinate by the attending doctor, then the sick leave cannot last more than fifteen days;
- sick leave issued by a dentist or paramedic is valid for 10 days;
- For a longer period of time, sick leave is issued by a special commission when the established period for recovery is not enough. There are often cases where an employee is sick for up to ten months. There are difficult situations in which the subject is on sick leave for up to twelve months. This is only possible in the presence of dangerous pathological conditions.
A citizen has the right to go on sick leave up to several times a year if the need arises. There are no restrictions regarding the frequency of applying for sick leave. In addition to the illness of the subordinate himself, there are other reasons for temporary disability: caring for close relatives, pregnancy and childbirth, aftercare, prosthetics, and so on.
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