Disputes with employees who are on sick leave for an excessively long time

Is it possible to go to work on sick leave?

From a legal point of view, a person cannot be sick and work at the same time. Sick leave means the employee’s temporary incapacity for work, so calling him to work is a gross violation of his rights.

If we consider the situation outside the official regulations, then it is quite possible. For example, an employee is on sick leave with a child, but on some days one of his relatives sits with him, which gives him the opportunity to work. This is illegal, but is possible with the agreement of management. The issue of payment remains to be resolved.

If the manager is not interested in a sick employee coming to work, and this happened, then he informs the doctor about the violated treatment regimen with relevant evidence. A special mark appears in the document, and the benefit is paid in a smaller amount.

How to identify a malingerer

And yet, what to do if an employee is constantly on sick leave? An employer does not have the right to request information from a medical institution about what a person is so sick with - this is a medical secret protected by law. But the organization has every right to either check the sick leave on its own - through online services, or contact the regional branch of the Social Insurance Fund with a request to confirm the validity of issuing sick leaves to a specific employee. Indicate in your request the periods of incapacity for work of the employee and the numbers of certificates of incapacity for work provided to him.

Upon receipt of such a request, the Foundation conducts a thorough check at the medical institution. Based on its results, they will answer you: whether the issuance of certificates of incapacity for work was justified or not, or that such certificates were not issued by the medical institution at all and the employee brought you a fake. In the latter case, the employee’s actions are criminally punishable and will be dealt with by the relevant authorities. And for the administration, the question of how to fire an employee who is constantly on sick leave moves from the abstract to the practical plane. Since the grounds for an employee’s absence are fictitious, such an employee can be dismissed for absenteeism (without forgetting to comply with all the formalities of such dismissal).

If a sick leave is issued without proper grounds, the doctor who issued it is liable. How to deal with an employee depends on the situation. If you really want to fire, consult with an experienced lawyer. But perhaps you will be told that the sick leave was issued to the employee quite legally. Even if this is not the case, and the doctor who issued the certificate of incapacity for work simply fabricated and documented everything well, do not consider that you wasted your time. Nobody likes inspections and trials. Next time, even the best friend or relative will most likely refuse to issue a “fake” sick leave to an employee who has such a vigilant and principled manager.

Pay for work while on sick leave

It is illegal to pay sick leave for one period and at the same time pay wages. The employer does not have such a right.

There is one loophole for remuneration on sick leave - a bonus. An employer can reward a hardworking employee for the amount that he actually earned. In this case, everything is official, if no one reports the current state of affairs.

In practice, things are different. Many organizations adhere to a gray salary policy, so the employee officially receives accruals during illness, and receives remuneration for work during this time in an envelope. The employer does not have to look for a replacement, and the employee remains in the black.

What are the consequences of non-compliance with the hospital regime?

If an employee does not comply with the sick leave regime, then unpleasant consequences are possible:

• Showing up for work with a serious illness can make your condition worse. In this case, the question concerns your own health.
• If there is a viral, infectious or other contagious disease, there is a risk of infecting other employees. This way we can reach the epidemiological situation.
• If the boss is not interested in the work of a sick employee, then he reports such a violation to the doctor, providing evidence. The consequences in this case are expressed in a reduction in benefits. In total for the month it will not exceed the minimum wage. Such changes will be legal from the date of the recorded violation. For this purpose, a special mark is placed on the sick leave.
• There is another aspect of the situation when an employee worked while on sick leave, and management was not interested. In this case, the employee will not see payment for his work. There is no point in complaining about this to the labor inspectorate - violations will be recorded on both sides.
• If an employee is forced to go to work, then the employer is violating the labor code. The employee must contact the labor inspectorate about this. In this case, the employer will face a fine.

What to do if you are forced to work while on sick leave?

Unfortunately, workers' rights are often violated. It is not uncommon for an employee to be called back to work while on sick leave.

Every employee should know that sick leave is an important document. This is confirmation of temporary disability. During this period, exemption from labor duties is fixed by law.

If you are forced to work while on sick leave, you should know what to do:

• Explain your position to the employer. It is worth first trying to solve the problem without conflict.
• Contacting the labor inspectorate. Forcing someone to go to work on sick leave means a gross violation of the labor code. The employer will be fined.
• You should not be afraid of being fired while on sick leave if you refuse to go to work during it. The Labor Code states (Article 81) that a temporarily disabled employee cannot be fired. Read more about dismissal while on sick leave here.
• Another situation is when dismissal threatens immediately after leaving sick leave. Unscrupulous employers always find reasons to fire an employee. Often employees are forced to write a statement themselves so that they are not fired under the article. In this situation, it is important to know your rights - you cannot sign a statement under duress, you need to contact the prosecutor’s office with this fact.

It is not always possible to defend your rights. An employer may find or invent work violations that could cause an employee to be fired. The employee should protect himself - any modern telephone has a voice recorder, so the resolution of controversial issues should be recorded. Words alone are not enough to prove that you are right, but recording a conversation is an undeniable argument.

General information

The Social Insurance Fund is the main source of funds for sick leave compensation. Employers pay a certain amount into this Fund, depending on the size of the standard remuneration of a particular employee.

This is important to know: An employee brought sick leave: what to do next

A sick leave certificate is proof of the employee’s incapacity for work.

Dismissal during sick leave is unacceptable even for those subordinates who have signed temporary employment contracts. In such cases, the procedure is organized only after the citizen returns to his place. Usually this is the day after the official expiration of the sick leave itself.

Situations often occur when management issues one or more absences to an absent employee. For example, when it is impossible to get in touch with a subordinate. Or when he is in intensive care, unconscious.

To avoid such situations, the manager is recommended to take contact information from relatives and other persons who are in close relationships with the citizen.

For both parties, there are several options for behavior in the event of an unexpected illness:

1. Independent revocation of the order and restoration of the workplace. Similar actions are performed by the leader. This situation does not entail any additional sanctions; you don’t have to worry about this.
2. Appeal to court by an employee. This is relevant when dismissal occurs due to a prolonged lack of information. And when upon the citizen’s return there was no reinstatement. The manager will be obliged to compensate for moral damage, as well as the sick leave itself. Forced absenteeism presupposes the preservation of average earnings. It is impossible to do without fulfilling the request to reinstate the citizen in his position.

The manager must use all available methods to obtain information regarding the reasons for absence from work.

Sick leave in most cases is paid from the appropriate social insurance fund. The employer must pay for the first three days in accordance with current legislation. The specific size depends on length of service in the organization. The higher it is, the greater the compensation.

What should an employer do if an employee wants to work on sick leave?

By law, if an employee decides to go to work on sick leave, the employer must inform the doctor. In this case, the hospital regime is violated. The violation is noted on the sick leave certificate, and the disability benefit is reduced.

In practice, if both parties are interested in the employee going to work, then all that remains is to agree on the details. Such work cannot be officially celebrated - it is a violation of the law. Thus, the fact of an employee working on sick leave cannot appear in any documents.

Employers should remember that it is illegal for an employee to work on sick leave. This may result in a fine. In addition, an employee’s unhealthy condition can worsen his health - in this case, a work-related injury or worse consequences are quite possible.

If both parties have agreed that the employee will work during sick leave, then the question of remuneration arises - it cannot be officially fulfilled. In this case, there are several options:

• Prize. In this case, the remuneration should be issued in a different period - payment of a bonus during illness is very suspicious.
• Time off. In this case, the employee receives full compensation for the period of incapacity. In the future, the employee periodically takes time off, but in the report card he is given the shift he worked and is paid a salary for it.
• Material aid. This option is possible if the employee earned no more than 4,000 rubles on sick leave. From the point of view of the law, financial assistance is possible, and the employer is attracted by the fact that there is no need to pay contributions for this amount.
• Envelope. Payment for days worked can be made unofficially. Naturally, this is not legal, but it does not change the fact that a considerable part of organizations practice gray wages.
• Another illegal option is not to pay for sick leave and not to indicate the fact of its existence anywhere. This option is acceptable for the employee if sick leave payments are small.

Working while on sick leave is possible, but it is illegal for both parties. In this case, you also have to decide the issue of payment. In practice, such situations occur often, but not always by agreement of both parties: in this case, one of the opponents will definitely face punishment.

Time limits for an employee to remain on the ballot

Paragraph 11 of Order No. 624n determines that a certificate of temporary incapacity for work is issued for a period not exceeding 15 calendar days . If after the specified time the person has not been cured, he is sent to a medical commission. In such cases, sick leave can be extended to 10 months.

The period of exemption from work can be increased to a year if a person suffers from tuberculosis, is recovering from surgery, or has received a serious injury (Part 3.p. 13 of Order No. 624n). The patient will need to go to the doctor to evaluate the condition and extend the sick leave every 15 days.

If treatment does not bring results and the prognosis is unfavorable, then the patient is sent for a medical and social examination within 4 months and may be recognized as disabled.

If the patient refuses to undergo a medical and social examination with an unfavorable prognosis, the sick leave will be closed (clause 4 of Article 59 of the Federal Law of November 21, 2011 No. 323-FZ “On the fundamentals of protecting the health of citizens of the Russian Federation”).

Separate rules are established for persons with a working disability group . According to paragraph 3 of 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”, benefits to such employees are paid for no more than 4 months continuously or 5 months in total during the year.

This limitation is due to the fact that they receive a disability pension. Regardless of the status, the maximum duration of treatment is determined by the commission individually in each specific case.