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Everyone can get sick, as you know. But if the employee is sick often and for a long time, then the employer has, first, doubts - and not "fool" him, and secondly, the logical question - who will perform the work of the eternally ill? We will talk about how to verify these doubts and what can be done about such an employee.

How long can an employee be sick?

Neither the Labor Code nor the rules of compulsory social insurance limit the possibility of absenteeism for work by any deadline. There are only restrictions that are associated with the payment of the period of incapacity for work. For example, hospital childcare for 7 to 15 years is paid up to 15 calendar days for each case and not more than 45 days during the year. But this does not mean that the sick leave can not be issued for a longer period.

From January 1, 2012, a doctor can single out a sick person for illness or injury for a period of no more than 15 calendar days (a medical assistant or dentist - no more than 10 days), further extension (up to 30 days) is possible only upon the decision of the medical commission. As you can see, these terms are set for medical institutions. You have the right to only verify their compliance with the calculation of benefits. For example, if you see that the doctor has individually extended the disability sheet for more than 15 days, then it is an excuse to send an employee to the clinic for getting a properly issued sick-list. After FSS expenses for such a sheet of incapacity for work will not be accepted, and the court will support it.

If the prognosis for the patient is unfavorable, then no later than 4 months after the onset of the illness, it should be sent to the ITU (for the receipt of the disability group). If favorable - then no later than 10 months (12 - with tuberculosis) the patient should be discharged. However, the employer does not have the right, on the basis of these terms, to require the employee to stop being ill. In addition, the employee who is discharged can legitimately open a new hospital (for care or for another disease), etc. If all the hospitals are properly organized, then the organization must accept and pay for them.

We tell the head

The employer has no right to demand that the employee cease to be ill. If all the hospitals are properly decorated, then they will have to be accepted and paid for.

When is an employee required to submit sick leave to an employer?

As soon as he leaves for work. An employee is interested in this because:

1) the period of incapacity for work without a registered hospital will not be paid (and after 6 months from the closing date - not paid and issued);

2) the hospital is needed to justify absence at work.

But no matter how much the employee is sick, you must not ask him to give you sick leave or otherwise confirm the fact of illness. Just put in the time-table the code "NN" for the whole period of absence. When you finally receive the sick leave, correct the entries for the sick-list codes - "B" or "T".

How to verify the legality of the hospital?

All issued by the hospital are registered by the medical institution itself (indicating the number, dates of issuance and renewal, an extract for work, information about the direction of the citizen to another medical organization). Therefore, in the first place, you can call the clinic and make sure the hospital number is registered under the appropriate number. You can also specify whether the doctor who signed the document is working in this clinic. Perhaps the hospital was included in the database, but the doctor who issued it "for friendship" or for money, did not want to take risks and put not his own, but a fictitious surname.

Note that the responsibility of medical institutions to respond to such requests is not regulated. However, it is important for them to follow the procedure for issuing sheets of disability, because they are responsible for its violation. Therefore, medical institutions, as a rule, do not refuse. Perhaps the clinic will require a written request from you, but it's even better. After all, if it turns out that the hospital is issued with irregularities or forged, then in any case you will need a written response from the medical institution in order to reasonably deny the employee payment of the sick-list.

If the medical institution that issued the "suspicious" sick leave card still refuses to cooperate with you, then contact Roszdravnadzor or the FSS so that they can check it themselves.

Recall that the allowance must be appointed within 10 calendar days from the date of submission of the necessary documents by the employee and paid to the nearest payday after the appointment. Therefore, if the answer to the legality of the hospital is drawn, then the allowance must be paid in order not to fall under the sanctions. You'll have to deal with the worker afterwards.

What sanctions can be applied to a worker for a fake hospital?

1. Disciplinary responsibility.

If the employee does not explain his absence at work by other valid reasons, then he can be annotated or reprimanded or fired for absenteeism.

In all cases, it is necessary to follow the disciplinary procedure (draw up an act of absence from the workplace, request a written explanation from the employee, etc.). In addition, you must be sure that the employee has actually submitted a fake. For example, the FSS will indicate this in the decision to refuse compensation for the allowance, or the medical institution that allegedly issued the sick leave will refuse to give it in writing. As for filling errors, the employee does not answer for them. Even if in the end they result in non-payment of the disability allowance, the reason for absence at work will be considered respectful (the code "T" is inserted in the table). The employee can not be dismissed because of an error in the design of the hospital doctor admitted by the doctor.

2. Liability.

If the fake payment has already been paid, you have the right to demand that the employee return the money. In the event of a refusal, the amounts paid are withheld from the salary on the order of the manager or are collected in court if the employee has already resigned<14>.

3. Criminal liability.

You can also file an application with the police (with the attachment of all supporting documents), since the use of a forged document is a crime. An employee may be punished, in particular, by forced labor for up to 2 years or by arrest for up to 6 months.

In case of forgery by the employee of the sick leave sheet, he will have to return the allowance paid to him. He can also be dismissed for absenteeism and brought to criminal liability.

How to check whether the worker was sick?

Suppose that the employees submitted by the hospital are not a fake, they are correctly registered and the insurer does not refuse to reimburse the costs of their payment. The accountant can be calm, but the manager is overwhelmed with doubts. The employee is bursting with health, and the "ballot paper" regularly. And comes to work so rested and tanned ...

Independently to prove that temporary incapacity for work as such was not and the hospital was issued unreasonably, the administration will not work. But it is possible to complain about the specific doctor who issues the sick to such an employee, the management of the polyclinic, as well as in the FSS or Roszdravnadzor. The verification of the validity of the issuance of sheets of incapacity for work is referred to their competence. By the way, the written request of the employer is the basis for an unscheduled inspection of the medical organization. If as a result of the investigation, abuses are detected, the doctor will be punished and the channel for obtaining "additional leave" for the unscrupulous worker will be blocked.

Is it possible to dismiss a permanently sick worker?

This can be done, although in itself a long-term hospital is not the basis for parting with the employee. Legal dismissal for health reasons is possible in two cases:

1) if the employee is completely disabled (according to the ITU conclusion);

2) in case of permanent or temporary (more than 4 months) unfitness of the employee to the work performed by him (which was revealed as a result of a medical examination or other medical examination). In this case, the employee must first offer another job suitable to him in accordance with the medical report. If he refuses it, or if there is simply no such work in the organization, the employment contract is terminated.

In other situations, the employee "for health" can not be dismissed, even if he does not get out of the hospital. Moreover, during the period of illness it is impossible to dismiss on the grounds that are referred to the "initiative of the administration" (reduction, service discrepancy, disciplinary violations, etc.), except for cases of liquidation of the organization. Nevertheless, the sick leave is not an obstacle to the termination of the employment contract on all other grounds:

(or) at will;

(or) by agreement of the parties;

(or) in circumstances that do not depend on the will of the parties, for example, with the deprivation of a special right for a period of more than 2 months, if this entails the impossibility of work<21>. So, the driver of the organization, temporarily deprived of rights for violation of traffic rules, was dismissed during the period of incapacity for work;

(or) in connection with the expiry of the term of the contract;

(or) on special grounds. For example, for a repeated violation of the charter of the educational institution within 1 year.

As a rule, workers do not refuse to replace a sick colleague, if it is a question of several days. But a long absence requires an organizational decision from the employer:

(or) agree on the performance of duties eternally ill with another employee (employees) for an additional fee and with his (their) written consent;

(or) accept a new employee on a fixed-term employment contract.

In the latter case, with each recovery of the sick worker, his "changer" will either have to be dismissed or transferred to another job. Therefore, this option is more suitable for situations when it is reliably known about the long term of the illness and, possibly, the subsequent dismissal (for example, in connection with obtaining a "non-working" group of disability).

In the fight against imaginary patients, please refer to the help of the FSS - they are also interested in suppressing abuses with hospital patients. If a person is really weak in health or has no one to leave sick children with, then you can try to negotiate with him. For example, transfer it to another job, allowing homework.

The Labor Code provides employees with a whole set of rights: leave, sick leave, compensation, co-payment, etc. Sometimes, using their privileges, employees begin to bend the stick, believing that the law is on their side. The stories, which will be discussed in this article, occurred in almost every company. They are all from your letters.

But in whatever situation the employer turned out, the best way out when the conflict is brewing is to negotiate in a good way. Talk personally, find out the motives of the employee. In situations where it is impossible to negotiate, it is better to part. If the employee does not leave at his own will, then he will be dismissed with the consent of the parties.

Let's say an employee does not agree to leave the company on any terms. Then apply other measures. First of all, legal. They are, although some do not know about them. And psychological - let the employee understand that if the company takes seriously, then it will be the loser.

An employee often takes a sick leave

"... One of our employees constantly takes a sick leave. The director told him that it was time to cure or have to part. At that the employee that he is not going to quit and go to work sick - too. I recently asked him to write a report on one business unit. And set a deadline - two weeks. In the evening on the last day the employee, without completing the assignment, just got up and went home. And the next day it turned out that he was again on sick leave. We simply do not know how to influence it ... "

The rights to dismiss an employee because of the regular hospital from employers do not. An employee can be sick for quite some time. The only restriction is the maximum term of the sick-list. But it is too big - up to 12 months (paragraph 13 of the Order, approved by the order of the Ministry of Health and Social Development of Russia on June 29, 2011 No. 624n). Nevertheless, there are no less effective than dismissal, ways to influence the employee.

Check the employee.If an employee often takes a sick leave and this causes suspicion, make sure that the sick leave was actually issued by a medical institution rather than bought. The easiest way is to call the medical institution indicated in the document.

In addition, you can contact your FSS RF. Report your suspicions to the staff of the Social Security Department. So you also insure yourself against possible claims to expenses for the payment of benefits.

The fund is now very sensitive about identifying fakes. And he intends to further improve the results of his work. Inform your employees: to criminal liability in the form of a fine in the amount of 80 000 rubles. attract not only sellers of hospitals, but also workers who bring fakes to the company.

But even if the ballots turned out to be real, contact the fund with a written request to verify the validity of their issuance. In this case, FSS employees will conduct an in-depth check of these sheets in the medical facility.

Take the conscript.In place of a permanently ill employee, you can take a person on a fixed-term employment contract (Article 59 of the LC RF). True, this option is suitable if the employee is sick for a long time. Otherwise, the conscripts will have to renew the agreement too often as the employee recovers and a new illness occurs.

Shorten the post.If the employee does not want to leave himself, his position can be reduced. The main thing is to strictly observe the procedure, in Chapter 27 of the Labor Code of the Russian Federation. And let the employee know: human resources specialists perfectly understand that first of all they reduce the low-value employees. Moreover, if someone calls to your company and asks for recommendations, then tell us about the permanent hospitals as they are.

The employee brought the sick leave after absenteeism

"... The employee was fired for absenteeism. A month later we receive a statement in which this person through the court demands to restore him at work because of illegal dismissal, pay for the time of forced absenteeism and allowance. He claims that on the day of his dismissal he was ill and he has a leaflet of disability open on that day. But we all remember that on the last day he was in the office and looked great ... "

The employee really can not be dismissed on the initiative of the employer during illness (part 6 of article 81 of the Labor Code of the Russian Federation). Except for the situation when a company or a non-resident organization is liquidated. But in order to prove the legitimacy of dismissal, it is necessary, first, to check the sick leave (how to do this, read above). And secondly, to gather evidence that on the day of dismissal the employee was healthy. Then the judges recognize the claims against the employer as illegal (the Supreme Court's ruling of December 19, 2013 in case No. 33-4307 / 2013, of the city court of August 11, 2011 No. 33-12339).

Confirm the fact that the employee on the day of dismissal was in the office, can testify, a report card, any other documents that he signed on that day (order, checklist, receipt of a work book). Also, you can technically track when the last time an employee did something on the work computer. You can ask the employee how he felt when he was sick. Of course, he can not answer. And if he answers, then compare his morbid state with activity in social networks that day.

It is possible that the employee simply did not go to work on the last day, they say, they have already been fired anyway. In such a situation, given that the parting was a conflict, it is safer not to leave this truancy unnoticed. Write it in a written statement. This will help to prove that you were trying to track down an employee and nobody knew in the company that he was sick.

If the employer can not refute the employee's illness in any way, the dismissal is considered illegal (the Moscow City Court's judgment of September 18, 2013 on case No. 11-31168). The employee must be restored and paid his wages for the time of forced downtime.

Employees constantly take leave for one or two days

"... Our employees have a lot of accumulated vacations. To reduce them, the director allowed to take on account of last year's vacation for one to two days, when necessary. In the end, it turned out that everyone took 14 days, and the rest of the days were broken. And now on Fridays and Mondays at work you will not find. Accounting only has time to make out the documents and calculate vacation pay. Are we allowed to stop this practice? .. "

The Labor Code of the Russian Federation really allows employees to go on short holidays. The main thing is that one part per year should be not less than 14 days. The rest can be taken and a week, and a day, and even half a day (Article 125 TC RF). But there is one secret weapon that will help the director to cut massive one-day days off. This is an annual holiday schedule. It is mandatory for both the employer and employees (Article 123 of the LC RF). And if in it for a particular employee vacation is not broken down into days, the company has every right not to let this employee go.

The employee changed his mind about quitting

"... We have one employee who believes that he is underestimated. Once he filed but the director persuaded him to stay, promoted, added a salary. The employee decided, apparently, that such extortion works. And six months later he told his superiors that he had found a well-paid job and was leaving. The director no longer began to stand on ceremony and signed a statement. And the employee changed his mind ... "

The employee has the right to withdraw his application for leave within two weeks before his dismissal (Article 80 of the RF Labor Code). Even can change his mind on the last day. And the company is obliged to leave the employee in the state in such a situation (part 4 of article 80 of the Labor Code of the Russian Federation).

True, there is one situation where an employee still has to leave, if another person has been invited to take his place, who can not be denied the employment contract. These are employees who are invited as a transfer from another employer. If this is your situation, it is better that arrangements for transfer are recorded on paper or at least in electronic letters. In the event of a dispute with a cunning employee, you will have evidence that the company could not refuse the new applicant by virtue of the law.

Paid training to the employee, and he resigned

"... The director went to meet one of the employees and paid for his studies at the university. Under the terms of the contract, the employee was required to work at the company for at least three years. But as soon as he graduated from high school, he immediately quit. I do not want to return money, he says that he does not have them. How do we now recover the costs? .. "

The employee has the right not to return the money for studies if he leaves after the deadline set in the training agreement at the employer's expense. Either before this date, but for a good reason (Article 249 of the LC RF). Therefore, first check whether there are specific reasons in the company's local documents or in the agreement that the employer or the parties decided to consider respectful. If the list is there, but none of the reasons are relevant to the situation with your employee, then he is obliged to return the money. Another thing is that he actually can refuse. In this case, there is only one way to collect the debt - through the court.

The legislation does not say which reasons are considered valid. Representatives of Rostrud explained that the employer in each case can decide for himself whether the reason given by the employee is considered respectful or not. Therefore, for the future, it is necessary to list in the employment contract a list of specific reasons why an employee should not return money for training (letter No. 852-6-1 of October 18, 2013). So, for example, a good cause can be care for a sick relative, but on condition that the disease is confirmed by a medical certificate.

We often receive questions from the employers who are interested in the question: "Is it possible to fire an employee who has been sick for a long time? After all, the frequent and prolonged absence of an employee at work slows down the work of the entire organization."

To dismiss for a long stay on the sick-list it is impossible

At once we will answer the put question: to dismiss the worker for a long or frequent stay on the sick-list it is impossible, as dismissal on a state of health at the initiative of the employer is not supposed. Among the grounds for the termination of the employment contract, a long illness is not mentioned. At the same time, the duration of the period of temporary incapacity for work is not limited.

But in a number of cases the worker's illness still allows the employer to fire the employee. So, the state of health as the basis for the dismissal of an employee is stipulated in clause 8 of Article 77 of the Labor Code of the Russian Federation. In this article, it is said that this basis is applied when there are two conditions simultaneously:

• the employee needs, in accordance with the medical certificate, to be temporarily transferred to another job for a period of more than four months or a permanent transfer;
• the employee refused to transfer to another job or the employer lacks the necessary work.

Please note that if an employee needs a temporary transfer to another job for a period of up to four months, but refuses to transfer or the employer does not have a suitable job for him, then he can not be dismissed. Such an employee should be removed from work with the preservation of the place of work (position) (Article 73 of the Labor Code of the Russian Federation).

Features of the dismissal of leaders for health reasons

For cases of dismissal under paragraph 8 of Article 77 of the Labor Code of the Russian Federation, the leaders of the organization (branches, representative offices or other separate structural subdivisions) have slightly different rules. Terminate the employment contract with these employees, regardless of the length of the transfer in accordance with the medical report.

Do not dismiss and leave their work is only allowed with their written consent. But in this case they are suspended from work for a period determined by the agreement between the employee and the employer.

Recognition of an employee completely incapacitated

Another reason for dismissal for health reasons is paragraph 5 of Article 83 of the Labor Code of the Russian Federation. This basis is applied in case the employee is declared completely incapable of working in accordance with the medical conclusion.

When an employee falls ill or is forced to take care of a close relative (for example, to care for a child), he must contact the medical facility as soon as possible, where he will be issued a hospital. After recovery, the employee is issued a sick leave sheet, which he is obliged to provide to the employer in confirmation of spent on sick time. According to this document, the employee is assigned a hospital allowance. But sometimes there is a situation when the employee decided to quit his job during treatment. When he can do it, and can I quit while on sick leave?

How do I send an application for dismissal while on sick leave?

Here, it is immediately necessary to make a reservation that the employer can not dismiss the employee on sick leave on any pretext. But on the initiative of the employee himself, the dismissal procedure is possible. And she is granted the same rights as the usual dismissal of her own free will, except for the difference in several points.

In case of any dismissal from their own initiative, the employee is obliged to notify the tenant in writing of the desire to terminate the employment agreement. Being at work, the employee provides this document in person, but due to the illness such an opportunity the employee does not have. Therefore, it would be advisable to send the application by registered mail with the delivery notification. In this case, the application must be in writing, there can not be any calls to the employer or to the personnel department on the sick leave sheet, because the oral statement has no legal force.

In what terms do you fire a worker during a hospital?

According to the generally accepted requirement, the application for dismissal is filed 2 weeks before the desired day of release from office, and comes into force on the first day following the day of notification to the employer. However, the letter can come with a delay of several days. Therefore, in order to speed up the process of issuing documentation related to dismissal, you must also send a copy of the document by e-mail. While the original document reaches the head, the human resources department will be able to prepare all documents for dismissal, and the accountant will make payroll calculations.

But the timing may vary depending on the situation, according to the paragraph. 2 and 3 of Art. 80 of the Labor Code of the Russian Federation:

• if agreed with the employer for earlier terms of termination of the employment contract;
• if it is impossible in connection with the disease to carry out labor activity.

That is, an earlier term of dismissal is possible by agreement of the parties on early termination of the employee's work activity, where the reasons for dismissal (illness or other circumstances) were stipulated.

The very process of firing an employee is carried out after his recovery. On the same day, the head is obliged to fill out the sick leave sheet and then only draw up the dismissal, and issue all the necessary documents. But there are also special cases, for example, maternity leave, when on a sick-list a woman decides to terminate the employment contract. In this case, the documents are processed immediately.

Do I need to work out after the hospital?

With the standard dismissal of an employee on his initiative, he must work for 2 weeks. But, being this term on the sick-list, the employee leaves without working off. If the term of the sick-list is less than 14 days, then the remaining time will have to be worked out. For example, an employee drafted a dismissal application and went to the hospital for 10 days (or, on a sick leave, wrote an application 10 days before recovery), so he still has to work for 4 days. That is, the days of the employee's employment on the sick-list are taken into account in the time allotted for working off.

An exception to the rules is the case when the employee is on probation. Then during the hospital period, the testing period is suspended, and after going to work, it resumes. Therefore, the employee should work out, in addition to the generally accepted 14 days, even days spent on sick leave.

How are social benefits paid during dismissal during an open sick leave?

On the day of the termination of the employee, the employer is obligated to pay all the monetary obligations to the applicant in full. When applying to a hospital worker, the calculation is made not only for work or unused vacations, but also for the period of incapacity for work. This payment is called a temporary disability allowance and is paid by the employer for the entire period of the employee's employment in the treatment or care of the patient, even after the term of dismissal.