How to take sick leave during a probationary period? And what consequences might there be? Is an employer required to pay sick leave to an employee on probation? And in what order can a sick employee be dismissed? These and other questions of concern to employees who fell ill during the trial period will be answered in this article.
Sick leave for a probationary period.
No person is immune from health problems. If an employee falls ill, according to labor law, he has the right to go on sick leave. And the employer has no right to interfere with this. During the period of illness of an employee, his workplace is retained. He is also paid according to the presented certificate of incapacity for work.
Illness during the trial period is no exception. Such employees have the same rights as employees who have passed the test.
Legislative regulation
This right is regulated by law. As with any employer-employee relationship, in this case the Labor Code of the Russian Federation is also the basis. Legislative regulation of sick leave pay during the probationary period includes many laws, articles, and acts.
If you get sick
Here are some of them:
- Article 183 of the Labor Code of the Russian Federation on guarantees to citizens in case of temporary disability.
- Law No. 255-FZ, which covers issues of social insurance when determining temporary disability.
- Order of the Ministry of Health of the Russian Federation dated June 29, 2011 No. 624n, it describes the procedure by which sick leave certificates are issued.
- Letter of Rostrud No. 520-6-1 dated 03/03/2011. “On establishing the conditions for testing...”
These and other legislative acts provide a guarantee of sick leave during the probationary period.
Is sick leave paid during the probationary period?
The period of incapacity must be paid to any employee, including the one who is undergoing testing. Calculation of sick leave for all employees is carried out according to general rules. The amount of sick leave is affected by:
- General experience;
- Average daily earnings.
Since, to calculate the average daily earnings, the employee’s earnings for the last two years are taken into account, he needs to bring a salary certificate from his last place of work. And, if he does not do this, the calculation will be made based on the minimum wage.
For how long is it issued?
Let us recall that the most common reasons for dismissal during the probationary period are failure to complete tasks issued by management, inability to cope with the work, non-compliance with the rules adopted in the organization (“Dismissing an employee who has not completed the probationary period”).
The fact that an employee took sick leave during a probationary period is not a motivated reason for dismissal. The duration of sick leave is determined by the doctor depending on the patient’s condition. For some, three days may be enough to get better, while for others it may take a week or more. Naturally, a person cannot be discharged if he is still ill, so the employer cannot object to anything regarding periods of incapacity for work.
However, the law regulates the maximum permissible periods. For example, you can be treated as an outpatient for up to 15 days, and then you will have to convene a commission to decide whether to discharge the person or not. But there is no specific period of time in the hospital, and you can stay there as long as there is a need for it. Consequently, an employer may “lose” its employee even for several months if he ends up in the hospital.
Some people are interested in whether sick leave is paid during the probationary period. Yes, a person has the right to receive money due to the fact that he is temporarily unable to work. Moreover, the general rules for calculating the amount apply.
Note that you will need to determine the average income for the last two years. In this case, you will need to take salary data from the organization where the person previously worked. But if his experience is less than six months, then he will have to take the minimum allowable salary for calculation. It is based on this factor that the amount for the period of illness will be paid.
The final amount will depend on how many days the person has been sick. Because the average daily salary will be multiplied by the number of days spent on treatment. It is also important to take into account your overall work experience.
What percentage of salary can you receive:
- Experience up to 5 years – 60% of the average daily salary.
- Experience from 5 to 8 years - 80% will be paid.
- 8 years of experience – 100% of daily income.
All of these factors form the final amount that a person can receive. But you also need to understand that taxes will be deducted from it. As a result, they will give you the amount taking into account taxes and other deductions.
Can they be fired for going on sick leave during a probationary period?
Employees who fall ill during their probationary period are very concerned about whether they can be fired for going on sick leave. This is impossible, since the dismissal of an employee at the request of management is, in any case, only possible if there are grounds expressly provided for by law. The employer must justify its decision to terminate the employment relationship. And if it is not justified, or does not comply with the law, the employee can easily challenge it and be reinstated at work.
It might be interesting!
When can a sick leave certificate be refused?
Test for new employees
The possibility for employers to establish a preliminary screening period for new employees is formalized. Thus, Article 70 of the Labor Code of the Russian Federation contains information about the possibility of the parties signing an employment contract, which will contain information about the existence of a test. They, in turn, need to recognize a certain period of time during which the director of the organization, as well as other authorized persons, will observe the employee’s work and draw appropriate conclusions.
The trial period is characterized by one important feature, namely, throughout the entire period of verification, the employer will have the legal right to dismiss the employee by unilateral decision. This right can be exercised by the director only if the employee really performs poorly the professional obligations assigned to him. The lack of necessary qualifications will also be a valid basis for a unilateral severance of professional relations.
It should be remembered that the employer’s desire to establish a preliminary inspection period will not be enough. If the director really wants to observe the work of an employee, the procedure for establishing a preliminary check must be carried out in full accordance with the existing procedure. First of all, all important information regarding the timing of the inspection, as well as other important features, should be recorded in the main document - the employment contract.
In most cases, the maximum duration of the inspection is three calendar months. This rule applies to a huge number of employees. The exception to this situation would be employees of the management apparatus. They may be subject to a longer trial, the total period of which reaches 6 months.
Another important nuance will also be the list of special categories of employees in respect of whom a preliminary check cannot be established under any circumstances. This may include, for example, pregnant women, young workers whose age has not yet reached adulthood, etc.
Despite the fact that the probationary period is a special period in professional relations and is always limited in time, at the time of its completion the employee will always have absolutely all full rights on an equal basis with his colleagues. Moreover, the employer himself has the right to make full demands on the newcomer regarding the high-quality performance of professional functions.
Since the employee has all full rights during the probationary period, this means that he will have the opportunity to take paid leave, as well as go on sick leave. In the latter case, the employer will have important obligations to provide the employee with monetary compensation for the entire period of treatment. The payment procedure itself will be carried out here in a standard manner, on the basis of the main document - a sick leave certificate, which is provided to a subordinate after his recovery.
Does the Labor Code allow the employee to resign during a probationary period during illness?
The Labor Code of the Russian Federation establishes that in order to quit a job during a probationary period, it is enough to submit an application for this 3 days in advance. The employee is not required to explain the reasons for such a decision. In the application, it is enough to indicate “your own desire” as the basis.
An employee's being on sick leave does not prevent him from filing a resignation letter. Moreover, an employee has the right not to go to work after illness if he does not have time to recover before the date of dismissal.
However, the employee will still have to come to work in order to receive payment and pick up his work book.
Expert advice:
Natalia
Labor expert
If for some reason you cannot come to work to pick up your paycheck and work book, send your employer a letter along with your application requesting that you pay your paycheck to your bank account and send your work book by mail.
Temporary disability benefits after dismissal
Dismissal of an employee who is on a probationary period will be possible for several reasons:
- by unilateral decision of the authorities. In this case, such a decision can be made by the director only if he has good reasons;
- at the employee's own request. During the probationary period, the employee will retain the right to dismiss at any time.
Regardless of the initiator of dismissal, in practice situations may arise in which an employee becomes ill after leaving the organization. In this case, the employer will still be obligated to accrue and subsequently pay monetary compensation. True, these obligations will exist only for 60 days after the official dismissal of the subordinate. In addition, in such a situation, the employee can count on accruing compensation only in the minimum amount. It will be equal to 60% of the employee's total earnings.
The probationary period is extended for the duration of the sick leave.
The testing of employees is established so that the employer can evaluate their business qualities, and the employees themselves can evaluate the working conditions of this employer. However, this cannot be done fully if the newly hired employee spends some time on sick leave. That is why the legislator established the condition that in such cases, the probationary period is extended for the period the tested employee is on sick leave.
Example: Employee Ivanova was hired on January 29, 2020. with the condition of a three-month trial, the last day of which is 04/28/2020. However, during her probationary period she fell ill and was on sick leave for two weeks. Thus, her probationary period is automatically extended and expires on May 12, 2020.
Is it possible to take it?
- releasing an employee from work in cases provided for by law (paid in full, partially or unpaid);
- suspension from work (unpaid);
- being in custody, administrative arrest;
- conducting a forensic medical examination;
- downtime (except for exceptions provided by law).
On the first day of returning to work, the employee is required to submit a medical document to the HR department for registration. The responsible person who keeps the attendance sheet at the enterprise marks the days of absence of the employee according to the sick leave and transfers the document to the accounting department.
- notify the manager about the fact of temporary absence (possible by telephone);
- call a doctor at home on the same day or go to the clinic to see a local doctor;
- on the same day, open a certificate of incapacity for work, issued by a medical employee on an official form (since 2020, it can be issued electronically) in compliance with all requirements;
- make sure that the work capacity sheet indicates the name of the medical institution, as well as the date of opening (and subsequently closing) of the document;
- at the end of the illness, receive a certificate certified by the seal of the doctor and medical institution.
Any person can take sick leave, regardless of whether he is on vacation, on a probationary period, or working under a fixed-term employment contract.
Citizens of the Russian Federation can apply for a certificate of temporary incapacity for work if they themselves become ill or if their close relatives require care.
Sick leave during the probationary period is paid on a general basis.
When calculating benefits, accounting must take into account the following circumstances:
- duration of sick leave;
- average salary for the two years preceding the insured event;
- general insurance experience.
First, you need to understand what insurance experience is.
It is somewhat different from the labor one, since it only includes those periods when the employer paid contributions to the social insurance fund for its employee.
It is the duration of these payments that will determine the size of the temporary disability certificate benefit:
- If a person’s work experience does not exceed six months, then in this case he will be given an allowance based on the minimum wage.
- In cases where contributions were paid from six months to five years, compensation is provided in the amount of sixty percent of the salary for two years.
- For those people whose insurance experience exceeds five years, but has not reached eight, a benefit is paid in the form of eighty percent of the average salary.
- Employees whose service exceeds eight years are entitled to receive benefits in the amount of one hundred percent of the average salary for two years.
In cases where the average salary is less than the minimum wage in force at the time of the end of sick leave in the employee’s region of residence, the employee is entitled to payment of benefits equal to the minimum wage.
Registration of sick leave for pregnancy and childbirth is carried out in the manner prescribed by law.
What is the insurance period for sick leave? Read here.
Is personal income tax withheld from sick leave for pregnancy and childbirth? Detailed information in this article.
An employee who is on a probationary period should remember that he has the right to take sick leave at any time - if necessary.
Since the following legislative framework applies to employees working in this way:
- Art. No. 217 and Art. No. 255 of the Tax Code of the Russian Federation;
- Article No. 124 and Article No. 183 of the Labor Code of the Russian Federation;
- Resolution No. 375 of June 15, 2007 “On approval of the Regulations on the specifics of the procedure for calculating benefits”;
- Order of the Ministry of Health of the Russian Federation No. 624n dated June 29, 2011;
- Law No. 323 of November 21, 2011
We suggest you read: How to return life insurance on a car loan if you repay the loan early
According to the provisions outlined above, an employee undergoing a probationary period has the right to receive sick leave in full, depending on the average salary for the last 2 years.
| more than 8 years | 100% of average earnings |
| from 5 to 8 years | 80% of average earnings |
| less than 5 years | less than 5 years |
A probationary employee can receive sick leave not only on the basis of a certificate of incapacity for work issued to him personally due to illness, but also in the following cases:
- pregnancy and childbirth;
- due to the need to care for a child or close relative;
- undergoing additional treatment in a hospital or in a sanatorium.
The duration of sick leave, regardless of its type, is limited only by law and other factors. The employer himself cannot influence sick leave in any way.
| 70 days | before giving birth |
| 70 days | after childbirth |
Also, the duration of this type of sick leave can be increased if the following factors are present:
- multiple pregnancy;
- complications;
- other.
Labor relations of this type do not provide for monetary contributions to the Social Insurance Fund. Accordingly, a certificate of incapacity for work, even if it is drawn up according to all the rules, is not paid.
But if the employment relationship is formalized accordingly, then there should be no problems with obtaining sick leave.
Sick leave during study leave is discussed in the article:
sick leave during study leave
.
You can find out whether you can be fired if you take frequent sick leave in this article.
Sick leave issued by an employee undergoing a probationary period must be paid. But only if the employer makes appropriate contributions to the Social Insurance Fund.
The fact is that relatively recently reform was carried out in this area of the relationship between employee and employer.
At the moment, the payment for sick leave is actually carried out by the Social Insurance Fund, but with some nuances:
- the employer independently calculates the amount of disability benefits and pays it;
- if the sick leave is issued correctly, then the Social Insurance Fund accepts it and the individual entrepreneur or legal entity receives a tax deduction.
Despite this, sometimes employers try to avoid paying disability benefits in various ways. In this case, you must contact the Labor Inspectorate for appropriate advice, and then go to court.
In such a situation, the minimum wage should be used for calculation. In 2019 it is 5,965 rubles.
If salary certificates were provided after the employee received monetary compensation for disability, then the employer is obliged to recalculate and pay the remaining amount if necessary. At the same time, he has no right to recover overpaid amounts.
That is why, if you fall ill, you should not be afraid to take out a certificate of incapacity for work and submit it to the personnel department. The employer is obliged to pay it.
Is sick leave paid during the probationary period? This article explains:
How is sick leave paid?
.
You can see an example of filling out a sick leave here.
How to correct an error made by the employer on a new sick leave certificate is described in the link.
Do I need to make changes to the contract when extending the probationary period due to sick leave?
As a rule, employers, when establishing a probationary period for new employees, limit themselves to general wording in the employment contract, indicating only the duration of the probationary period. For example, that it is set for 3 months.
But sometimes, employers, among other things, indicate a specific end date for such a period, for example, 04/28/2020. In this case, is it necessary to conclude an additional agreement with the employee amending the employment contract, indicating a new end date for the probationary period? We believe that this is not necessary, and it is quite sufficient for the employer to issue an order to extend the probationary period for the period the employee is on sick leave.
Thus, while on probation, an employee has the right to go on sick leave, which must be paid in full by the employer. The employer does not have the right to prevent an employee from going on sick leave, nor does he have the right to fire him due to going on sick leave or while on sick leave. The employee himself has the right to declare his desire to terminate his employment relationship with the employer, without explanation, 3 days before the date of dismissal.
It might be interesting!
Can an employer fire you during a probationary period?
Questions for a labor law expert:
How to fire an employee who has not passed the test if he went on sick leave?
Natalia
Labor expert
Question to the expert
Hello! We hired an employee under the condition of a one-month probationary period. However, after working with him, it became clear to us that he had not passed the test and would no longer be able to work for us. We did not have time to notify him about this. He went on sick leave. The test period ends tomorrow. How can you fire him if he is still on sick leave? (Konstantin Andreevich, Moscow)
Dear Konstantin Andreevich! At the moment, you will not be able to fire an employee, because the labor code prohibits dismissing an employee who is on sick leave. At the same time, the probationary period does not expire while the employee is on sick leave. It is extended for the duration of his absence due to illness, and, therefore, you will have time to fire him in a shortened time after returning to work.
Features of registration of sick leave
A hospital document is drawn up according to standard rules. There are no differences from other officially employed workers. It is issued on the day of incapacity for work and includes all time away from work, both on weekdays and weekends.
In an accredited medical institution, a hospital document is issued by a doctor (up to 15 working days) or a medical commission (for a longer period). Employees of ambulance and blood transfusion stations do not have the right to issue such a document.
Sheet design
The actions of a temporarily disabled employee correspond to the general algorithm:
- Notify management of illness orally.
- Visiting a medical facility (doctor).
- Registration of a certificate of incapacity for work from the first day according to the established rules: with the name of the enterprise, full diagnosis, date, signature, stamps.
- Information about the probationary period is not included.
To register a document, the Ministry of Health and Social Development of the Russian Federation has approved a specially designed form. Since July 1, 2020, another format for processing hospital documents in electronic form has been added (No. 86-FZ). A properly completed certificate of incapacity for work is submitted to the HR department on the first working day after illness.
Payment for sick leave during the probationary period is made on a general basis. The guaranteed amount is accrued within the legal deadlines. Accrued funds are paid if the document is submitted no later than six months from the date of registration. Otherwise, refusal is possible.
We invite you to familiarize yourself with a sample response to a complaint on how to correctly respond to a complaint
Amount of payments
Payments are made according to general calculations, taking into account average earnings for the previous two-year period.
Sick leave payment
- number of days of official disability
- salary (its average) for the previous two years
- insurance period as a whole (time of payment of contributions to the fund)
The insurance period includes only those time periods when contributions to the insurance fund took place. It is calculated according to the order of the Ministry of Health and Social Development No. 91 and is confirmed by the work book.
In percentage terms, payments depend on the length of service.
With over 8 years of experience, 100% of earnings are paid (average amount for the last 2 years). From 5 to 8 years of experience – 80%, up to 5 years – 60%, respectively.
If the work experience is less than six months or its complete absence, the amount of the established minimum wage is used for accruals, taking into account the coefficients. This is 7800 rubles. from July 2020.
The minimum wage value is used when calculating benefits:
- if the employee has not yet received a salary
- if the average earnings are below the minimum wage
Article 70 of the Labor Code guarantees disability leave for citizens undergoing a probationary period with legally regulated payment of benefits. Such employees are subject to labor laws. You must use your rights skillfully.
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Registration of sick leave during the probationary period follows the same scheme as during official employment:
- in case of loss of incapacity for work, the employee either visits the clinic or is sent for inpatient treatment (by calling an ambulance or on his own);
- if any deviations in health are identified, due to which a person cannot carry out work, he is placed on inpatient or outpatient treatment, and at the same time he is registered in a medical institution or a sick leave is opened;
- after recovery, the employee provides documentary evidence of his illness - a sick leave certificate issued in accordance with all requirements;
- The timekeeper (accountant, accountant or employer personally) makes a corresponding note in the timesheet stating that the employee was absent from work for a valid reason.
In the event that an employee was absent due to caring for a child or a sick relative (who is unable to care for himself), a corresponding note is made on the sick leave sheet and it is also provided to the place of work (in this case, during a probationary period).
When calculating the amount due for payment for a period of illness, accountants use standard formulas for general cases (in accordance with Federal Law No. 255 of December 29, 2006):
- the calculation is made based on the average income per day worked;
- the percentage of the average daily payment assigned to accrue the period of temporary disability will also be taken on the basis of length of service (if it does not exceed 5 years, in which case - 60% of its value). In this case, take the number of days of incapacity, multiply by the average payment for one day and the corresponding percentage.
We invite you to familiarize yourself with the period for appealing the actions of officials in court
