Sick leave. Voluntary dismissal for health reasons

Labor Code and others regulations govern all issues of dismissal, payment of compensation, establishment of the required benefits and guarantees upon termination.

Grounds for sick leave

Termination of work for health reasons can be made for the following reasons:

1. If the health condition of the worker does not allow him to continue, and he refuses to be transferred to another job suitable for health reasons. When the employer cannot provide another job.
2. The employee is recognized by the ITU as completely incapacitated for work labor activity. The employment relationship with the employee is terminated only on the basis of a certificate of disability, or medical opinion medical commission on the compliance of the employee's health with the assigned work. The procedure for issuing a medical report is regulated by the order of the Ministry of Health and Social Development of the Russian Federation of May 2, 2012 No. 441n.

Dismissal due to illness in connection with the establishment of complete disability

The basis for dismissal is a certificate of disability with the note "Disabled" or Extract from the examination certificate. Certificate of incapacity for work with a group of disability and the date of its establishment. without a certificate, the ITU does not give the right to establish benefits and guarantees due to a disabled person. From this follows the conclusion:

• the above documents are required. After receiving the certificate, a termination order is issued in the form T-8. The date and wording of the dismissal are affixed in strict accordance with the Labor Code of the Russian Federation, with reference to paragraph 5ch1 of Article 83. The employee gets acquainted with the order against signature on the day of its publication. A full calculation is made, with the inclusion of all types of amounts due at the time of dismissal, a two-week average earnings.

In the list issued to the dismissed employee documents include:

1. order (at the written request of the employee);
2. The issuance of a certificate of two calendar years preceding the dismissal is mandatory (FZ No. 255-FZ of December 29, 2006);
3. Other documents necessary for the employee or their copies at the written request of the employee.

Dismissal under paragraph 8 of part one of Article 77 of the TKRF

The procedure for dismissal is the same as for the conclusion of complete disability. The difference is that at first all available vacancies suitable for health reasons are offered. Dismissal due to illness is carried out only as a last resort, when all the possibilities for providing the sick employee with the necessary work have been exhausted.

The offer of vacancies can be issued in the form of an order or notification, with which the employee gets acquainted with the signature. An employee's refusal to transfer must be made in writing. A convenient option would be to draw up an act. When the impossibility of providing work comes from the employer, the notice must be in writing, indicating the reasons.

Difficulties encountered during dismissal

In practice, dismissal due to illness, due to complete inability to work, often comes down to the correct determination of the date of termination of employment. for all types of dismissals (part 3 of article 84.1) determined the date of dismissal - the last day of work.

The termination of the employment relationship should be considered the day preceding the establishment of disability. It happens when an employee presents a certificate some time after the examination. If the employee continued to work after the establishment of disability, then the day will be the date of presentation of the ITU certificate.

To avoid negative consequences, it is recommended reflect the date of provision of the certificate by an act that is attached to the order. Disputes complex nature arise when other work is provided or denied. In such cases, you can contact a specialist for advice.

Strictly speaking, it is not necessary to draw up an application for dismissal for health reasons. In the Labor Code of the Russian Federation, such a basis - dismissal for health reasons - is absent. At the same time, in Art. 77 of the Code contains a different wording - the employee's refusal to transfer, which is necessary in accordance with the officially received medical opinion, or the employer does not have a job corresponding to such a person.

If a person has not received an officially issued medical certificate (on the assignment of disability and the degree of disability), such a basis will not work. In such cases, you can only apply. How is dismissal for health reasons and what may require a corresponding statement - this article is about this.

Sample letter of resignation for health reasons

For an individual entrepreneur

P.D. Savelieva

seller-cashier

shop "Light"

Rasskazova Valentina Sergeevna

Resignation for health reasons

I ask you to dismiss me from my position for health reasons in accordance with paragraph 8 of part 1 of Art. 77 Labor Code on the basis of a medical report dated 05/02/2017, issued by the City Clinical Ophthalmological Hospital of Tomsk, according to which the position of a sales assistant-cashier is contraindicated for me for a permanent period. From the vacancies offered to me by IP P.D. Savelyeva refuse.

Application:

1. Help city clinical hospital Tomsk No. 2587614678 dated 02.05.20147

May 11, 2017 V.S. Rasskazova

How to prove that you are not fit for the job

The basis for the transfer or dismissal are official medical documents:

• the conclusion of a medical and social examination, in accordance with which the employee was assigned a disability and limited ability to work, a certificate of disability.
• certificate of the degree of loss of professional ability to work (also based on the results of the ITU).
• a program of rehabilitation as a result of an accident at work and an occupational disease.
• the conclusion of a medical institution based on the results of a mandatory medical examination.
• the conclusion of the doctor of the antenatal clinic.

These documents are presented to the employer. He is obliged to carry out the following actions: if it follows from the doctor’s opinion that the employee cannot perform the labor function in his position temporarily for up to 4 months, he is suspended from work without payment wages. And if more than 4 months - he is transferred to another position with the consent of such an employee or fired.

On the day of dismissal, the employee is required to issue a work book, severance pay in the amount of 2-week average earnings. You can apply in advance with a statement - they can come in handy.

When to write a letter of resignation for health reasons

It is important to understand that if an employee wishes to continue working with this employer, there is a high probability of detecting violations in the dismissal procedure on this basis. Namely, the proposed work. The employer is obliged to offer all available positions suitable for the employee. And not only in the same branch (for example). In such cases, the employee may file a claim for reinstatement, compensation for non-pecuniary damage.

But if the employee is not at all interested in continuing to work, both with this employer and in principle, he can apply for dismissal under paragraph 8 of part 1 of Art. 77 of the Labor Code of the Russian Federation. At the same time, he can be fired while on sick leave. Also, in accordance with the application, he can be provided with subsequent dismissal (by agreement with the employer). Also, an employer may ask for a letter of resignation for health reasons if he does not have any vacancies at all, in order to further protect himself from or.

In some cases, a situation may arise when the employer will need to dismiss one or more employees for professional incompetence. In this case, it is necessary to comply with the established standards of labor legislation as strictly as possible, since illegal termination of an employment contract can entail large costs for the organization to pay fines and compensation to the employee. At the same time, the Labor Code of the Russian Federation contains accurate information on how to properly conduct dismissal due to incompetence in various cases, including health reasons.

Dismissal due to unsuitability - what is it, legal framework

First of all, considering the issues of dismissal due to incompetence, it should be noted that such a concept as “incompetence” in Russian legislation is found only in a few departmental documents. At the same time, labor legislation as a whole does not contain such a term and its explanation. However, in practice, the concept of unsuitability is used quite often, and it is professional unsuitability that can be the reason for dismissal. In this case, the types of professional incompetence should be divided:

• By absence , knowledge, skills. In this case, unsuitability is provided either by the personal qualities of the employee, or simply by the inconsistency of his existing qualifications and skills with the required ones to perform work in his position. From the point of view of labor legislation, in the case of the indicated unsuitability, dismissal is carried out at the initiative of the employer.
• For medical reasons and Dismissal due to unsuitability for health reasons assumes that the employee has been issued a medical certificate, according to which he is prohibited from engaging in activities in his previous position. At the same time, labor legislation directly allows for the possibility of terminating an employment contract in this situation, subject to a certain established procedure.

In this case, both employers and employees should pay special attention to the provisions of the following articles of the Labor Code of the Russian Federation, which consider dismissal due to unsuitability:

• Article 73 of the Labor Code of the Russian Federation. The provisions of the aforementioned article regulate not the issues of dismissal due to unsuitability for health reasons, but the transfer of employees. However, it is also in the aforementioned article of the Labor Code that the possibility of dismissing an employee for medical reasons is considered if it was not possible to transfer him to another job.
• Article 77 of the Labor Code of the Russian Federation. The provisions of the aforementioned article regulate the procedure for dismissal for professional incompetence, as well as other possible grounds for the dismissal of employees. It is the aforementioned article of the Labor Code of the Russian Federation with the indication of paragraphs and subparagraphs that must be referred to as the basis for dismissal when fixing an entry in work book.
• Article 81 of the Labor Code of the Russian Federation. The norms of the said article regulate all cases of dismissal, which is carried out at the request of the employer. And the incompetence of an employee, not related to his health, but related to insufficient qualifications or failure to comply with established labor requirements, refers precisely to such cases.

How to conduct dismissal due to unsuitability of an employee at the initiative of the employer

If an employee fails to fulfill his official duties, or if he does not have qualifications or education sufficient for work, the employer has the right to dismiss him for unsuitability. In this case, first of all, the employer is obliged to prove the fact of the lack of professional suitability of the employee. Such a fact can be expressed both in matters of compliance with formal requirements - for example, if the legislation provides for the mandatory presence of a certain education for employees in specific positions, and in the actual non-fulfillment or incomplete fulfillment of the duties assigned to the worker.

The procedure for dismissal due to unsuitability, in accordance with Article 81 of the Labor Code of the Russian Federation as a whole, should be as follows:

1. The employer receives the grounds for initiating the dismissal procedure. This may be reporting, which reflects the employee’s failure to comply with the standards, a complaint from clients, other employees or third parties, an entry in the complaint book, an order from the labor inspectorate, or other documentary evidence of the fact of unsuitability.
2. Based on the evidence of unsuitability, the employer issues an order to dismiss the employee. This worker must be familiarized with the order without fail, and a separate act must be drawn up on familiarization - it will be required if the employee wants to challenge the entire dismissal procedure. The act is drawn up in the presence of two witnesses, who must also sign it, and if the employee refuses to familiarize himself with the order, then they must sign an act of refusal to familiarize themselves. If necessary, the employee has the right to require the employer to issue a copy of the order to him.
3. Based on the order, on the day of dismissal, the employee is issued his work book with a record of dismissal for a reason, or. Also, the employee is issued a certificate of income.
4. After the issuance of the work book, it is also necessary to ensure the final settlement with the employee - to issue the salary and compensation due to him unused days holidays.

It should be noted that the specific procedure for dismissal due to incompetence may differ, since professional incompetence may mean different grounds for dismissal:

1. Position mismatch. In this case, the employer is obliged to ensure that the employee's qualifications are tested, and the employee himself has the right to undergo such a test on his own in an attestation center accredited for the indicated procedure.
2. Gross violation labor discipline. These may include being in a state of work and other serious misconduct.
3. Repeated violation of labor discipline. If disciplinary sanctions were issued against the employee earlier, then the second disciplinary action in the form of a reprimand or remark within one year is a legitimate reason for dismissal.

Some categories of workers cannot be dismissed for unsuitability. In particular, they include pregnant women. Women raising children under 3 years of age also have certain restrictions on dismissal, as well as minor employees - their employer can only dismiss them if these actions are coordinated with the commission on minors' affairs.

Dismissal due to unsuitability for health reasons

If the work is harmful or dangerous, and also contains certain other factors that establish health restrictions for the employees performing it, the deterioration in the employee's health may be the basis for dismissal. So, if an employee has received a medical certificate confirming his unfitness for work, the employer's procedure in this case will be as follows:

• The employer is obliged to offer the employee to transfer to another position in the enterprise.
• If the period during which the employee will have medical contraindications to activity is less than four months - in case of refusal to transfer, or if there are no positions at the enterprise, the employee should be suspended from activity without pay. Dismissal in this case is prohibited by the norms of labor legislation.
• If the employee must be transferred for a period of more than 4 months, or permanently - due to a long-term change in the state of health or the impossibility of treatment, then in case of refusal to transfer to another position or in the absence of positions suitable for him in terms of health and qualifications at the enterprise , he can be fired by the employer.
• It should be noted that professional unsuitability for health reasons must be confirmed by a medical certificate. At the same time, such a conclusion can be either voluntarily provided by the employee to the employer, or be demanded by the employer, if local regulations or the law requires an employee to undergo a periodic medical examination or an extraordinary medical examination.

Due to unsuitability for health reasons, various categories of employees can be dismissed. This dismissal is not considered to be initiated by the employer, therefore, the restrictions that are in force by law on the dismissal of certain categories of workers in this case do not apply. However, getting rid of a pregnant employee in this way still does not work - the employer does not have the right to fire her, even if her position does not allow her to work.

The employer should confirm the fact that the employee has familiarized himself with the positions available at the enterprise and record his refusal to be employed in these positions if the dismissal procedure is carried out due to unsuitability due to health conditions. Otherwise, the employer will not have actual evidence in case the employee may challenge the dismissal procedure.

Possible consequences of dismissal due to unsuitability for an employee

Dismissal due to incompetence is an extremely unpleasant phenomenon for an employee, at least if professional incompetence is not due to medical reasons. Due to the fact that a record of dismissal is affixed in the work book with a description of the full wording, the fact of non-fulfillment job duties or violation of discipline can become an extremely negative aspect in matters of subsequent employment, significantly spoiling the labor and career path the employee himself.

At the same time, in practice, you can get rid of this wording in the work book in several ways:

• Quit . Many employers themselves offer their employees, in case of disagreement, to write a letter of resignation by own will. However, in this case, the employee almost completely loses the opportunity to subsequently challenge the dismissal and protect their rights in court.
• Dismissal . In this case, the employer may enter into an agreement with the employee. This entry in the work book, on the contrary, indicates the contact of the employee and is not negative. At the same time, the agreement itself can establish almost any possible conditions for terminating the employment contract.
• Establishment of a new . Despite the fact that keeping two work books is not a good practice, the law also does not prohibit employees from having several such documents.
• Challenging dismissal in court. The court may recognize the dismissal as unlawful - however, in this case, the burden of proof lies directly with the parties to the employment relationship. By a court decision, an employee can achieve both reinstatement in the workplace with payment of compensation, or simply a change in the wording of the entry in the work book.

All the basics that are associated with dismissal for health reasons are spelled out in the following provisions of the Labor Code:

A “limited health condition” that prevents an employee from performing their duties is determined by the healthcare facility, not the employer.

Therefore, before dismissing an employee, the employer needs to familiarize himself with the medical report that the employee has lost his health. The reasons for such a loss can be, for example, trauma, chronic illness, harmful working conditions, etc.

There are 3 groups of disability in the Russian Federation, which differ in the severity of the disease, as well as the state of the employee's ability to work. It:

1. Group I - non-working, in which there is a complete loss of ability to work. Dismissal is made without working off under paragraph 5 of Art. 83 of the Labor Code of the Russian Federation;
2. II group - partial ability to work. Dismissal is made in two cases: transfer to another position is impossible, because there are no relevant vacancies (clause 8, article 77 of the Labor Code of the Russian Federation) and the employee’s refusal to transfer to new position(clause 8 of article 77 of the Labor Code of the Russian Federation);
3. Group III - the availability of working capacity under certain working conditions.

IMPORTANT! The employer does not have the right to personnel decisions without a medical opinion from KEC or MSEC, tk. such action is illegal in the Russian Federation.

In what cases can not be removed from office?

The employer does not have the right to dismiss employees in the following cases:

Regarding the last point, there are a number of features that the employer must comply with so that there are no consequences.

Step-by-step algorithm of actions

When dismissing an employee due to disability, the following procedure must be observed:

Medical examination

These are preventive measures., which help to identify violations of the health status of workers and medical contraindications to the implementation of work. The employer organizes and allocates funds for this event. The medical opinion is given by the institution with which the employer has concluded an agreement.

IMPORTANT! For this procedure, a health passport and a medical card of an outpatient client are issued.

Translation offer

The employer may offer positions that meet the requirements of the medical certificate. The application for transfer is made in writing., in duplicate. The transfer is carried out within the framework of one enterprise.

The act of refusal to familiarize with the proposed vacancies

In this case, an act of refusal is drawn up, which is part of the document flow of any organization. The document is free form, but must contain:

• date of drawing up the act;
• Name and position of the constituent;
• Name and position of the employee;
• Name and position of the witness;
• reason for refusal to familiarize with vacancies;
• painting on both sides.

If the employee does not agree with the action of the document

The document is drawn up by an employee of the personnel department when an employee refuses to be transferred to another position. The name of the company is written at the top of this document., the presence of 3 people is required, indicating their full names. It is noted that the administration of the organization offered to transfer to another vacancy (to whom, position, number), but the employee refused. Below - signatures, names and date.

Suspension order for a specified period

How to write this document correctly? For this, it is important to know that it contains the following items:

1. Name of the organization;
2. the word "ORDER";
3. date;
4. Full name position and term of suspension from work;
5. base;
6. Name, position and signature of the employer;
7. Full name and signatures of persons familiarized with the document.

Notice of termination of the employment contract

Drawing up such a notice is a mandatory procedure for any employer. Arranged randomly. Be sure to indicate the reason for the preparation, information about the persons between whom the contract was concluded. The document is signed by the employee of the personnel department and the dismissed employee.

It is drawn up in 2 copies: one is given to the employee, the second remains with the employer. This is proof of lawful action and helps prevent possible conflicts.

Order to terminate employment contract due to ill health

This document is in writing and contains the following main points:

Resignation for health reasons

This application is made by the employee in the event that he is not interested and does not intend to transfer to another vacancy(clause 8, part 1, article 77 of the Labor Code of the Russian Federation).

1. the word "Statement";

Entry in the workbook

It is important to make the following entries:

• record number;
• the date;
• the reason for the termination of the employment contract (link to the conclusion of the medical commission and clause 5, part 1, article 81 of the Labor Code of the Russian Federation);
• two signatures: the employer and the resigning employee;
• registration data of the order - date and number;
• the signature of the leaders and the wet seal of the enterprise.

The picture shows a sample entry in the work book about dismissal for health reasons:

What payments are provided?

(Article 178 of the Labor Code of the Russian Federation).

If an employee used his vacation "in advance", then the amount of this amount is reduced. At the same time, it can be increased at the request of the manager for the achievements and contribution of the employee.

Responsibility of the employer for dismissal for health reasons without a conclusion medical commission.

Article 5.27 of the Code of Administrative Offenses

Attention! When dismissing for health reasons, it is important for both the employee and the employer to comply with all laws and procedures of this process so that there are no problems in the future.

There is no sample and specific actions in the Russian legislation when drawing up an application, but there are a number of points that are mandatory:

• appeal to the head of the company (full name and position);
• the word "Statement";
• request for dismissal due to deteriorating current state the health of a person who does not allow him to work under the same conditions;
• a link to the conclusion of the MSC, which is attached to the application in the original version (the employee must keep a duplicate certified by a notary public);
• date, signature and transcript of the person submitting the application.

What should be reflected in the work book?

It is important to make the following entries:

What payments are provided?

When leaving for health reasons the employee must be paid an amount not exceeding the amount of two weeks' earnings(Article 178 of the Labor Code of the Russian Federation). If an employee used his vacation "in advance", then the amount of this amount is reduced. At the same time, it can be increased at the request of the manager for the achievements and contribution of the employee.

If an employee has “non-vacation leave”, then he can use it or receive material assistance.

Employer liability

Article 5.27 of the Code of Administrative Offenses provides for the liability of the employer if he dismisses the employee without the conclusion of a medical examination:

• administrative fine - from 1 to 5 thousand rubles;
• a fine of up to 5 thousand rubles. or suspension of activities for 90 days (for individual entrepreneurs who have not formalized their activities as a legal entity);
• a fine of 30-50 thousand rubles. for legal persons;
• disqualification for 1-3 years if the employer has already been subjected to a similar penalty.

When dismissed for health reasons, it is important for both the employee and the employer to comply with all laws and procedures for this process so that there are no problems in the future.

Many workers, when ill, prefer to carry the disease "on their feet" without informing their employer about it. This is due to the fear of being fired for health reasons. We will understand this problem and consider the reasons why, for health reasons, an employee can be transferred to another position or fired. The state of health of an employee can be a reason for transferring him to another position and even dismissal. The employer and employees of the personnel department must be guided by a medical certificate that confirms the state of health; in its absence, the transfer or dismissal is considered illegal. A medical report is issued by a clinical expert commission (CEC) of a medical institution or a medical and social expert commission (MSEC), which also issues a disability rehabilitation card for a disabled person. KEK and the trade union center MSEC send documents to the employer about the state of health, work injury, occupational disease, and other health conditions. MSEK establishes a disability group, and also decides on the degree of disability and the possibility further work. There are three degrees of disability: I - decrease in professional ability to work (III group of disability), II - complete loss of professional ability to work without the need for constant outside care (II group of disability), III - complete loss of professional ability to work with the need for constant outside care (I group of disability) .It should be noted that not every state of health serves as a basis for transfer or dismissal. The employment contract is terminated only if the employee is recognized as completely disabled, or his state of health prevents the proper performance of work previously performed by this person, or it is contraindicated for him this work, or performing work in this state of health is dangerous for other employees or persons served. The Labor Code of the Russian Federation discloses the reasons for the transfer or dismissal of an employee for health reasons. Let's consider them in more detail. According to Art. 81 of the Labor Code of the Russian Federation, the dismissal of an employee during a period of illness (temporary disability) is not allowed, except in the case of liquidation of the organization or termination of activity individual entrepreneur. And if the medical report recognizes the employee as completely incapable of work, then in accordance with Art. 83 of the Labor Code of the Russian Federation, the employment contract is terminated due to circumstances beyond the control of the parties, that is, dismissal. On the basis of Art. 73 of the Labor Code of the Russian Federation of an employee who needs to be transferred to another job in accordance with a medical report, with his written consent, the employer is obliged to transfer to another job available to the employer that is not contraindicated for the employee for health reasons. When an employee refuses temporary transfer for another job for a period of up to four months or if the employer does not have a relevant job, the employer is obliged to suspend the employee from work for the entire period specified in the medical report, while maintaining the place of work (position) without payroll. If the employee refuses to transfer for a period of more than four months or in a permanent transfer or if the employer does not have a relevant job labor contract terminated in accordance with paragraph 8 of Article 77 of the Labor Code of the Russian Federation. On the basis of Art. 178 of the Labor Code of the Russian Federation, upon dismissal, an employee is paid a severance pay in the amount of two weeks of average earnings. In accordance with Art. 182 of the Labor Code of the Russian Federation when transferring an employee to another lower-paid job with this employer, he retains his previous average earnings for one month from the date of transfer, and when transferring in connection with an industrial injury, occupational disease or other damage to health associated with work, up to establishing a permanent loss of professional ability to work or until the employee recovers. There are common cases when employees, having become ill, do not advertise this fact, enduring the disease “on their feet” in order not to “fly out” from work for health reasons. It is categorically impossible to do this, because there is a high probability of worsening the state of health even more. However, many believe that they can cope with the disease on their own. Employees should be more attentive to their health. This will help to reduce the likelihood of industrial injuries and improve the quality of the performance of their duties by employees.