Sick leave after reduction. Dismissal to reduce staff the employee is on sick leave

Problems related to sick leave accruals during the period of downsizing of the organization always arouse the keen interest of workers due to their complexity and versatility.

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What does the law say?

Russian legislation regulates the working relationship between an employer and an employee during the period of temporary disability of the latter.

The dismissal of an employee who is on treatment during the period of reduction of the state of the enterprise should not negatively affect his financial situation.

Normative base

The main immutable rules are reflected in the most important documents of the Russian Federation:

• The Labor Code of the Russian Federation defines the main provisions and concepts.
• The Federal Law (No. 255-FZ of December 29, 2006) regulates the occurrence of conditions for sick leave payments.
• The procedure for issuing and obtaining disability certificates is determined by Order No. 624n.

Workers' rights

The administration of the enterprise, which carried out the procedure for reducing the staff, pays all dismissed employees a severance pay, which compensates employees for deprivation of employment.

Disability benefit is identified with insurance protection guaranteed by the state.

An ill employee who is subject to reduction is entitled to receive sick leave compensation and.

BL payment terms

Employees who fall under the “downsizing” article upon dismissal are guaranteed sick leave pay, with some exceptions:

Upon dismissal after a reduction, an employee can count on sick leave pay in two cases:

• during the reduction procedure;
• after a layoff due to redundancy.

Disability list during reduction in 2020

Registration procedure

The employee must be notified of the upcoming dismissal due to staff reduction at least two months before the scheduled date.

The fact of familiarization is confirmed by the employee's handwritten signature on the form.

The sick leave received during the reduction is the basis for extending the employee's validity until the moment of restoration of working capacity.

According to the Labor Code of the Russian Federation, registration is postponed to the date of closing the disability certificate.

The employee was warned and left for treatment

The administration has documented evidence of familiarization of the employee with the upcoming reduction.

When approaching the date of issuing an order for dismissal, several options for the development of events are possible:

• the staff reduction process takes place as planned if the employee provides a closed sick leave;
• execution of the order is postponed at the time of the employee's recovery.

Notified during illness

If the employee is on sick leave and is absent from the workplace due to illness, in this case he is notified of the upcoming dismissal by sending a notice by registered mail with mandatory confirmation of receipt.

The text of the notification notes that the fact that the employee is familiar with the upcoming reduction is confirmed by the employee's signature in the notification of receipt of a registered letter.

What about the B&R allowance?

Russian law prohibits the termination of labor relations by decision of the employer with pregnant employees.

A sick leave received during the reduction period prevents the legal reduction of an employee who is in a position, except in the following cases:

• going through the process of liquidation of the enterprise.

When reducing a specific position, a pregnant woman should be offered another job that matches her physical capabilities.

The amount of the benefit for paying for pregnancy according to the issued sick leave received during the reduction period is paid by the enterprise on time and in the amount approved by law.

Example:

The planned staff reduction in Princip LLC is scheduled for September 30, 2016. The organization no longer needed the position of a sales manager. However, an employee Matrosova V.I., who was listed as a manager of the sales department, handed over a sick leave to the accounting service of Princip LLC for the calculation of maternity benefits with the opening date of 29.09.16. - 4 years. For the period 2020-2015, the employee was accrued 275 thousand rubles.

Calculation of compensation to pay for pregnancy:

• Average salary for calculation: 275,000 rubles / 730 days = 376.71 rubles.
• Calendar days for calculation - 140.
• Amount to be received: 100% * (376.71 rubles * 140 days) = 52739.40 rubles
• There is no personal income tax.
• Allowance to be received by an employee 52,739.40 rubles.

Documentation

To receive temporary disability benefits, the employee provides a sick leave issued on a general basis.

The form must comply with the legally established form, confirming:

• the fact of a justified release of an employee from production duties in a certain time period;
• financial legitimacy of calculating temporary disability benefits.

Terms of granting BL

After recovery and closing the sick leave, the employee, within the first days after going to work, transfers the document to the economic services of the enterprise.

The disability certificate is being checked for the purpose of further accrual of benefits.

Payouts

Within 10 days, temporary disability benefits are accrued, which are issued to the employee as soon as possible for cash settlements.

The amount of the accrued benefit depends on the insurance period of the employee and its amount for the previous two years.

day of dismissal

The date of the order to dismiss an employee due to staff reduction can be:

• the last day of the illness, fixed in the sick leave;
• the first "working" day after leaving the hospital.

Example:

Employee of LLC "Python" Shmelev S.S. was notified of the upcoming reduction on July 20, 2020, i.е. not less than 2 months.
September 14, 2020 Shmelev S.S. went on sick leave. The period of incapacity for work continued until October 3, 2020.
On October 4, 2020, the employee submitted a sick leave to the accounting service of the organization for the calculation of benefits.
The order to dismiss Shmelev S.S. on the basis of "downsizing" was issued on October 4, 2020.

Sick leave after dismissal

Making a sick leave after dismissal due to staff reduction has a number of features.

Registration procedure

Within 30 days from the date of dismissal, the employer is obliged to accept the sick leave of the former employee for payment, provided that the employee has not yet settled in a new job.

The proof of disability in the agreed period will be the issuance of a sick leave.

As an employer, the employee indicates the previous place of work.

I fell ill on the day of termination of the contract

The actions of the enterprise administration in the case when the sick leave is opened on the last day before the reduction:

• an order for dismissal to reduce staff for a disabled employee is not issued;
• in affixed "NN";
• the employee is warned about the mandatory attendance at the enterprise after the sick leave is closed, because he cannot be fired automatically.

Is there a sheet?

A dismissed employee has the right to receive a disability certificate by contacting a medical institution within a month after the dismissal.

The column "Special marks" reflects the following information about the administrative document for layoffs:

• date of,
• base,
• number.

The remaining columns of the sick leave are filled in in the generally established manner.

What about the B&R allowance?

It is prohibited by law to dismiss a pregnant woman for downsizing.

The validity of the employment contract must be extended until the period specified in the sick leave issued for receiving maternity benefits.

Dismissed pregnant employees retain their right to receive B&D benefits for 12 months after the liquidation of the enterprise.

Documentation

To receive temporary disability benefits, a former employee must submit:

• identity document;
• with a record of dismissal due to staff reduction;
• application addressed to the head of the enterprise.

Payment

In accordance with Federal Law No. 255-FZ, the employer is obliged to ensure payment according to documents on temporary disability within a month after the dismissal.

All compensation must be made, regardless of the grounds for termination of the employment contract and the period of duration of the employee's disability.

A dismissed employee receives a benefit not exceeding 60% of the originally calculated amount.

The calculation takes into account:

• the insurance experience of the former employee;
• the size of the average salary for the preceding two calendar years;
• the value of the minimum wage adopted in the region for a given period.

The calculated amount of sickness benefit must not be lower than the limits determined by the minimum wage.

Sick leave issued for the care of disabled relatives is not accepted for payment.

Sickness benefit is calculated within 10 days from the date of submission of documents by the insured person.

In the absence of financial resources for the payment of benefits, the enterprise must apply to the territorial body of the Social Insurance Fund.

The dismissed employee retains the right to receive temporary disability benefits for six months from the date of recovery.

Example:

The administration of Vympel LLC planned a staff reduction procedure for October 25, 2020, which was carried out successfully. Former employee of the enterprise Zverev A.P. On November 18, 2020, he provided a certificate of incapacity for work for the period from November 7 to November 17, 2020. Insurance experience Zvereva A.P. - 12 years old. For the period 2020-2015, the employee was accrued 255 thousand rubles.

Sickness benefit calculation:

• Average salary for calculation: 255,000 rubles / 730 days = 349.32 rubles.
• The number of calendar days of illness from November 7 to November 17, 2020 is 11 days.
• Benefit amount: 60% * (349.32 rubles * 11 days) = 2305.51 rubles.
• Personal income tax: 13% * 2305.51 rubles. = 300 rubles.
• The amount of the allowance to be received by A.P. Zverev: 2305.51 rubles. - 300 rubles. = 2005.51 rubles.

Withholding personal income tax

The obligation of the employer, as a tax agent, remains after the redundancy procedure.

Therefore, from the calculated amount of disability benefits to a former employee, the company is obliged to withhold personal income tax.

According to the law, maternity benefits are not subject to personal income tax.

Who pays compensation?

The algorithm of actions of insured persons and their employers (including former ones) when grounds arise for the payment of a hospital benefit is prescribed in the law “On Compulsory Social Insurance” dated December 29, 2006 No. 255-FZ. The procedure for issuing and filling out a sick leave is regulated by the order of the Ministry of Health and Social Development of the Russian Federation of June 29, 2011 No. 624n.

Sick leave issued after dismissal due to staff reduction: who will pay for it?

In part 2 of Art. 5 of Law No. 255-FZ establishes the obligation of the employer to appoint and pay a former employee temporary disability benefits. To exercise this right, an individual must meet several conditions:

• the former employee writes to the former employer with a request to reimburse him for the period of sick leave after dismissal;
• provides the original sick leave, which is open within the first month after the date of dismissal (30 days in calendar terms);
• the former employee, after the termination of cooperation with the employer to whom he applies, is not in official labor relations with other employers.

These conditions also apply to employees laid off due to staff reduction.

If a former employee who falls ill within 30 days after the date of dismissal brings the employer sick leave due to injury, illness or maternity, benefits will be paid, but if the sick leave is related to caring for a sick family member, these days are not payable. The right to present a sick leave for payment is retained for six months after the occurrence of an insured event (illness).

How is sick leave paid for downsizing? Like a regular sick leave, i.e. according to the average value of earnings, calculated for two years, for which social security contributions were accrued. The two-year interval for the formation of the calculation base is formed from the periods that precede the year of the insured event (the year in which the person fell ill).

A distinctive feature of the calculation of social benefits in connection with illness after the date of dismissal is that after the termination of the employment relationship, the employer always accrues sick leave in the amount of 60% of the average daily earnings of the former employee. After the termination of the employment contract, when paying for temporary disability, the length of service of the employee does not affect the amount of this adjustment percentage (the rule is enshrined in Part 2 of Article 7 of Law No. 255-FZ). The employer must pay the benefit to the former employee within 10 days after his application.

If a sick leave is presented by an employee during a reduction in staff, while all the conditions are met, but the name of the employer is not entered in the document, this is not considered a mistake. The employer can enter the name in black ink in block letters.

When calculating the social benefit in case of illness, the standard percentage of income tax must be deducted from the calculated amount (not deducted from maternity sick leave). The role of the tax agent for personal income tax is performed by the former employer, despite the actual absence of labor relations between the parties at the current time.

It is possible that a reduction is being carried out at the enterprise, and one of the employees to be laid off is on sick leave on the date of termination of the contract. In this case, the employer does not have the right to implement the termination of the employment relationship on the previously scheduled date. The day of dismissal will coincide with the date on which the person will go to work after the disability sheet is closed (Article 81 of the Labor Code of the Russian Federation).

To assign benefits, along with the original sick leave, you must submit the following documents:

• statement;
• a copy of the completed pages of the passport;
• a copy of the work book, according to which you can track the periods of employment.

How sick leave is paid after reduction by example

Example 1

The accountant was fired due to redundancy on July 20, 2018. In the period from August 3 to 9, he was ill, which is confirmed by a disability certificate. The citizen turned to his former employer for social benefits on August 15. In the interval from July 21 to the current date, an individual was not employed anywhere. The amount of the allowance will be calculated in the following order:

Calculated intervals are determined. Since the disease began in 2018, the income for 2017 and 2016 must be taken as the basis.

The average daily salary is displayed. In 2016, the employee's taxable income was at the level of 548,652 rubles, in 2017 - 705,654 rubles, these data do not exceed the maximum limits of the calculation base (718,000 rubles in 2016 and 755,000 rubles in 2017 .). The average earnings will be 1718.23 rubles. per day ((548 652 + 705 654) / 730).

The benefit will be credited within 7 calendar days. A reduction factor (60%) must be applied to the average earnings.

The total amount of the benefit is 7216.57 rubles. (1718.23 x 60% x 7 days).

Withheld personal income tax from the amount of benefits - 938 rubles. (7216.57 x 13%).

The former employee will receive 6278.57 rubles in his hands. (7216.57 - 938).

Example 2

The employee was laid off on July 10, 2018, and on August 13 he fell ill. In this case, the former employer is not obliged to pay the sick leave opened on August 13, since more than 30 calendar days have passed since the dismissal.

If you are an employer, then in the era of the global crisis, you must have faced the need to lay off workers. But is it possible to dismiss an employee to reduce staff if there is a sick leave? After all, while an employee is sick, according to the law, he cannot be fired. Let's try to figure out what the employer should do in such a situation.

Labor law

When reducing staff or staff units, the termination of the employment contract occurs at the initiative of the employer. 81 articles are devoted to this issue, which is called “Termination of an employment contract at the initiative of the employer”. The reduction is discussed in paragraph two.

Downsizing and downsizing

Before talking about how a layoff is made, it is necessary to clarify the difference between a layoff and a reduction in the number of employees.

In the first case, positions are excluded from the staff list. For example, the enterprise had a junior sales assistant, a sales assistant and a sales floor administrator. As a result of the decision of the management, the post of administrator was abolished - this will be a reduction in staff.

In the second case, a decision is made to reduce the number of people working in one position. For example, in the same enterprise, the schedule includes five junior sales assistants, seven sales assistants, and two sales floor administrators. By decision of management, for example, in order to save money from a certain date, the enterprise will have three junior salesmen, four consultants and one administrator.

Dismissal of employees due to reduction in the number of staff or positions

The very procedure for terminating an employment contract occurs according to the standard scheme:

• employee statement;
• company order;
• settlement with the employee on the last working day.

But there is one significant difference: when an employee is released from work duties in connection with the abolition of his position, he must be warned about this in advance, namely two months before the dismissal.

It should also be remembered that it is impossible to decide to reduce the ranks of employees simply because the manager wanted it so, there must be a rationale, and it must be indicated in the dismissal order.

Who can't be cut?

When deciding which employee will have to leave, you need to keep in mind that some categories of citizens are protected by labor laws and can only be fired at their own request or in the event of liquidation of the enterprise. This:

• pregnant employees;
• single parents with children under fourteen;
• underage workers;
• mothers of children under three years of age;
• parents who have a disabled child who is under eighteen.

How do you decide to downsize?

If the company has free vacancies, for example, eight salespeople are indicated in the schedule, and in fact only six people work in these positions, it is these two unoccupied units that should be reduced first.

The next step for an employer downsizing its staff is to expel those employees who, by law, cannot be fired. Then you need to choose from the remaining workers, guided by their experience and qualifications. At the same time, the employer needs to be prepared to prove that those laid off are indeed less qualified and valuable than those who remain at the enterprise. At the same time, if you need to part with one of the two employees, the first of which is highly qualified and experienced, and the second is a pregnant woman who has graduated from an educational institution for only six months, and has only been working in the organization for the second month, the first employee will have to be fired.

But before that happens, employees need to be encouraged to move to other vacancies in the organization. The proposed positions may require less knowledge and experience, be less paid - the law does not prohibit this. The employer should offer to switch to work in another locality only if this is provided for in the internal documents of the organization. Each refusal to take the proposed vacancy is also better recorded in writing.

Notifying laid-off workers of upcoming layoffs

Notice to employees must be sent in writing, and employees must sign that they received it. If the employee refuses to give such a signature, an act is drawn up, which must be signed by two witnesses from among the employees of the enterprise (or one if the enterprise is small).

Employees can be fired only two months after the notice was served, so the date must be indicated in the document. The same paper is sent to the district employment service and to the trade union committee, if there is one in the organization.

Reduction warning for an employee who is on sick leave

p> According to the same article 81 of the Labor Code of the Russian Federation, it is impossible to dismiss an employee if he is on vacation or is on sick leave.

But the trick to redundancy is that the employee is warned about it two months before the upcoming event. And the legislation does not say anything about the fact that a notice of redundancy cannot be sent to those who are on vacation or temporarily disabled.

The only difficulty that awaits an impatient employer is that the notice must be signed by the employee, and if the document is sent home, the employee can always say that he did not receive it, even if it is a registered letter that the post office employee is obliged to hand over under painting. And even if the employer has evidence that the notice was handed to the employee, he may simply not sign it, and it will not be possible to draw up an act about this.

And, of course, in no case should you send a notice to an employee whose temporary disability is related to pregnancy, childbirth and caring for a child before he reaches the age of three.

Reduction of the position in the staff list during sick leave

As mentioned above, those who are temporarily unable to work cannot be fired, but an agreement to terminate the employment contract for reduction is reached long before the day of dismissal, and the date of the last working day has long been determined. Nevertheless, what should an employer do if his employee falls ill on the eve of dismissal?

Hello.

In addition to the answers of colleagues - a generalization of judicial practice.

ON THE APPLICATION OF THE LABOR CODE OF THE RUSSIAN FEDERATION BY THE COURTS OF THE RUSSIAN FEDERATION:

28. A circumstance that is important for the correct resolution of claims for the reinstatement of persons whose employment contract was terminated in connection with the liquidation of the organization or the termination of activity by an individual entrepreneur (clause 1 of part one of Article 81 of the Labor Code of the Russian Federation), the obligation to prove which rests with the defendant, in in particular, is the actual termination of the activities of the organization or individual entrepreneur.
The basis for the dismissal of employees under paragraph 1 of part one of Article 81 of the Code may be a decision on the liquidation of a legal entity, i.e. a decision to terminate its activities without the transfer of rights and obligations by way of succession to other persons, adopted in the manner prescribed by law (Article 61 of the Civil Code of the Russian Federation).
29. In accordance with part three of Article 81 of the Code, the dismissal of an employee due to a reduction in the number or staff of employees of an organization, an individual entrepreneur is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (as a vacant position or a job corresponding to the qualifications of the employee , and a vacant lower position or lower-paid job) that the employee can perform, taking into account his state of health. The courts should keep in mind that the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. When deciding whether to transfer an employee to another job, it is also necessary to take into account the real ability of the employee to perform the work offered to him, taking into account his education, qualifications, and work experience.
At the same time, it must be borne in mind that termination of an employment contract with an employee under paragraph 2 of part one of Article 81 of the Code is possible provided that he did not have the preferential right to remain at work (Article 179 of the Labor Code of the Russian Federation) and was warned personally and against signature of at least than two months before the upcoming dismissal (part two of Article 180 of the Labor Code of the Russian Federation).
If the employee was dismissed under clause 3 of part one of Article 81 of the Code, then the employer is obliged to provide evidence proving that the employee refused to be transferred to another job or the employer was not able (for example, due to the lack of vacancies or jobs) to transfer the employee with his consent to another job available to this employer (part three of Article 81 of the Labor Code of the Russian Federation).
32. The courts need to keep in mind that dismissal under paragraph 4 of part one of Article 81 of the Code in connection with a change in the owner of the property of an organization is permissible only in relation to the head of the organization, his deputies and the chief accountant.
At the same time, it should be borne in mind that termination of the employment contract on the named basis is possible only in the event of a change in the owner of the property of the organization as a whole. These persons may not be dismissed under paragraph 4 of part one of Article 81 of the Code when the jurisdiction (subordination) of the organization changes, unless there is a change in the ownership of the organization's property.
The change of ownership of the property of an organization should be understood as the transfer (transfer) of ownership of the property of an organization from one person to another person or other persons, in particular during the privatization of state or municipal property, i.e. when alienating property owned by the Russian Federation, constituent entities of the Russian Federation, municipalities, into the ownership of individuals and (or) legal entities (Article 1 of the Federal Law of December 21, 2001 N 178-FZ "On the privatization of state and municipal property", article 217 of the Civil Code of the Russian Federation); when the property owned by the organization is converted into state property (the last paragraph of paragraph 2 of Article 235 of the Civil Code of the Russian Federation); when transferring state-owned enterprises to municipal ownership and vice versa; when transferring a federal state enterprise to the ownership of a constituent entity of the Russian Federation and vice versa.
Since, in accordance with paragraph 1 of Article 66 and paragraph 3 of Article 213 of the Civil Code of the Russian Federation, the owner of property created at the expense of contributions from the founders (participants) of business partnerships and companies, as well as produced and acquired by business partnerships or companies in the course of their activities, is a company or partnership, and the participants, by virtue of the second paragraph of clause 2 of Article 48 of the Civil Code of the Russian Federation, have only liability rights in relation to such legal entities (for example, to participate in managing the affairs of a partnership or company, to take part in the distribution of profits), a change in the composition of participants (shareholders) cannot serve as a basis for termination of the employment contract under clause 4 of part one of Article 81 of the Labor Code of the Russian Federation with the persons listed in this norm, since in this case the partnership or company itself remains the owner of the property of the business partnership or company and there is no change in ownership of the property.