Dismissal of an employee due to health reasons. If you can no longer work due to health reasons

The Labor Code and other regulatory documents regulate all issues of dismissal, payment of compensation, establishment of required benefits and guarantees upon termination.

Grounds for dismissal due to illness

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

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

Dismissal due to illness due to determination of total incapacity for work

The basis for dismissal is a certificate of disability marked “Unable to work” or an extract from the examination report. A certificate of incapacity for work with the disability group indicated and the date of its establishment. Without a certificate, ITU does not give the right to establish the benefits and guarantees due to a disabled person. This leads to the following conclusion:

The above documents are required. After receiving the certificate, an order is issued in form T-8 to terminate. The date and wording of the dismissal are entered in strict accordance with the Labor Code of the Russian Federation, with reference to Article 83, paragraph 5.1. The employee gets acquainted with the order against signature on the day of its publication. A full calculation is made, including all types of amounts due at the time of dismissal, two-week average earnings.

In the list of items handed out to a dismissed employee documents include:

order (at the written request of the employee);
The issuance of a certificate for the two calendar years preceding dismissal is mandatory (Federal Law No. 255-FZ of December 29, 2006);
Other documents necessary for the employee or copies thereof upon the employee’s written request.

Dismissal under clause 8 of the first 77th article of the Labor Code of the Russian Federation

The procedure for dismissal is the same as for a finding of total 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 possibilities for providing the sick employee with the necessary work have been exhausted.

A job offer can be issued in the form of an order or notification, with whom the employee gets acquainted with signature. The employee’s refusal to transfer must be 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 correctly determining the date of termination of the employment relationship. for all types of dismissals (Part 3Article 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 continues to work after being diagnosed with disability, then the day will be the date of presentation of the ITU certificate.

To avoid negative consequences, it is recommended the date of provision of the certificate is reflected in the act attached to the order. Disputes of a complex nature arise when another job is provided or refused. In such cases, you can contact a specialist for advice.

In an organization that is an employer, either the most common situation can occur, when an employee submits an application and indicates that he wants to resign of his own free will, or an atypical situation, when an employee needs to be fired for other reasons or at the initiative of the employer. The head of the organization, personnel officer and lawyer need to act in such a way as to avoid mistakes in this process. The cost of a mistake is quite high - the court reinstates the employee at work and pays him compensation for forced absence, as well as possible complaints from the inspection authorities. The employee’s task is to submit those documents that will allow him to quit his job at the right time and without conflict with the employer. Dismissal for health reasons is one of the complex legal situations in an enterprise.

How to properly fire an employee for health reasons

There are two options for dismissing an employee in this situation:

Dismissal at your own request,
Dismissal due to circumstances beyond the control of the parties to the employment contract.

In the first case, everything is done simply and habitually. The employee submits a resignation letter for health reasons. The HR department employee accepts it and registers it. An employment contract can be terminated on the day the employee applies if the work he performs can no longer be performed by him according to a medical report. If the employee’s state of health allows him to perform his job function, then the employment contract can be terminated with him within two weeks, starting from the day the application is submitted. In practice, the employee is fired immediately on the day the application is submitted. If an employee does not want to be fired for health reasons, then voluntary dismissal is the best option for him. In this case, the work book will contain a link to Article 80 of the Labor Code of the Russian Federation.

In the second case, the dismissal procedure is different. The basis for dismissal is a medical report indicating that the employee has become completely incapable of working. Usually, he is assigned 1 disability group. However, in some cases, an employee may retain general ability to work, but be unable to work in his profession/specialty or in his position. In this case, the employer’s task is to first offer the employee any job he has that does not require full working capacity, which will not be hampered by the employee’s health condition. Dismissal of an employee is possible if he refused all types of work offered or the employer did not have such work. For example, a driver for a transport company may have partially lost his vision and become unfit to work in his previous position. But he can remain with the same employer to work as a dispatcher. Therefore, in this case, dismissing him without offering options for another job would be hasty.

If dismissal does occur, then there is no need to obtain a statement from the employee. His consent to dismissal is also not required. The employer issues a dismissal order containing data from a medical report on the employee’s state of health. A copy of the medical report is placed in the personal file of the dismissed person. On the day of termination of the employment agreement, settlement is made.

If an employee has a complete disability and cannot perform any work, then offering him other types of activities and positions does not make sense. The work book contains a link to Article 83, clause 5 of the Labor Code of the Russian Federation. Payment is made immediately upon termination of the employment contract.

Other issues related to the employee’s incapacity for work

One of the common questions that concerns employers and employees alike is whether it is possible to fire an employee who was absent from work for health reasons for absenteeism? If an employee has a medical certificate that at the time of his absence from work he was incapacitated, then his dismissal on the basis of absenteeism is considered illegal. The employee must be reinstated even if he is still unable to work.

Sometimes employers have to reinstate disabled people and immediately dismiss them for health reasons. This is important for the employee, since dismissal for absenteeism is dismissal for faulty reasons, while dismissal for health reasons is not.

Getman Elena Nikolaevna, expert consultant
Legal support department of the company PRAVOVEST

The reason for transfer to another position and even dismissal of an employee may be the state of his health. Let's consider the questions that often concern employers and personnel services: how to deal with persons who, based on the conclusion of a medical examination, are not allowed to work in a certain profession, how to transfer an employee to another position for health reasons or terminate an employment contract with him?

In their actions, the employer and personnel officers must be guided by a medical report. It is issued by a clinical expert commission (KEC) medical institution or medical and social expert commission (MSEC), whose functions also include issuing a disability rehabilitation card for a disabled person. The EEC conclusion is certified by the seal of the medical institution, signed by the chairman and members of the commission and entered into the medical history.
The KEC and the MSEC trade union center send the employer documents on the employee’s state of health, work injury, or occupational disease. MSEC determines permanent loss of ability to work (disability group) and makes a decision on the possibility of further work for a particular person, as well as on establishing one of three degrees of disability.
A transfer or dismissal is considered illegal in the absence of a medical report, although it does not in every case serve as a basis for transfer or dismissal. KEK establishes the employee’s health status and the need for his transfer to easier work, and MSEC determines occupational disease or disability. The reasons for the transfer or dismissal of an employee for health reasons are disclosed in detail in the Labor Code of the Russian Federation.

The employee refuses to be transferred to another job for health reasons in accordance with a medical report. Based on Part 2 of Art. 72 of the Labor Code of the Russian Federation, the employer is obliged, with his consent, to transfer an employee who needs another job to another available job that is not contraindicated for him due to health reasons. If the employee refuses the transfer or the organization does not have the relevant work, the employment contract is terminated in accordance with clause 8 of Art. 77 of this Code.

The employee is not suitable for the position held or the work performed due to his state of health according to a medical report. In this case, it is necessary to establish the fact that the employee is not suitable for the position or work, that is, the employee made mistakes (defects) when performing his job function. In case of termination of the employment contract under paragraphs. "a" clause 3 of Art. 81 of the Labor Code of the Russian Federation, the employer is obliged, in particular, to provide evidence confirming that the employee’s health condition, in accordance with the medical report, prevented him from properly performing his job duties.

It should be borne in mind that if an employee properly performs his job duties, however, it turns out that he needs to be provided with other work due to the fact that the work performed is contraindicated for him or is dangerous for the team of workers or the citizens he serves, by virtue of Part. 2 tbsp. 72 of the Labor Code of the Russian Federation, if an employee refuses to be transferred to another available job that is not contraindicated for him due to health reasons, or if there is no relevant work in the organization, the employment contract with the employee is terminated on the basis of clause 8 of Art. 77 Labor Code of the Russian Federation.
In this case, the employee is transferred to easier work, special working conditions are created for him, or he is fired under clause 8 of Art. 77, pp. "a" clause 3 of Art. 81 of the Labor Code of the Russian Federation (if the organization does not have a job that corresponds to the employee’s health condition or there is no possibility of transfer to another position).

Let's clarify: transfer is possible only with the consent of the employee.

Moreover, when transferred to a lower-paid permanent job in a previous organization, this person is paid his average earnings within one month from the date of transfer (and in the case of a work injury, occupational disease or other work-related health damage - until permanent loss of professional ability to work is established or until employee's recovery).
An employee dismissed in accordance with paragraphs. "a" clause 3 of Art. 81 for health reasons, severance pay is paid in the amount of two weeks' average earnings. Money cannot be deducted from him for unworked days of vacation used in advance. In this case, the article of the Labor Code of the Russian Federation, on the basis of which the employee is dismissed, plays a significant role: clause 8 of Art. 77 or paragraphs. "a" clause 3 of Art. 81. In accordance with Art. 178 of the Labor Code of the Russian Federation upon dismissal of an employee under paragraphs. "a" clause 3 of Art. 81 of the Labor Code of the Russian Federation, he is entitled to severance pay in the amount of two weeks’ average earnings, and upon dismissal under clause 8 of Art. 77 of the Labor Code of the Russian Federation - no.

The employee is declared completely disabled in accordance with a medical report. In this case, dismissal is carried out under clause 5 of Art. 83 of the Labor Code of the Russian Federation, because according to the conclusion of MSEC, the possibility of continuing to work is completely excluded, and transfer to easier work is unacceptable. This is an objective circumstance that does not depend on the will of the parties. In this case, severance pay is not paid.

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 formulation - the employee’s refusal to transfer, which is necessary in accordance with an officially received medical report, or the employer does not have a job suitable for such a person.

If a person has not received an officially issued medical certificate (on the assignment of disability and the degree of loss of ability to work), such a basis will not be suitable. In such cases, you can only submit. How dismissal for health reasons works and why a corresponding application may be required - this article is about that.

Example of a resignation letter for health reasons

For an individual entrepreneur

P.D. Savelyeva

salesperson-cashier

store "Svetly"

Rasskazova Valentina Sergeevna

Application for dismissal due to health reasons

I ask you to dismiss me from my position for health reasons in accordance with clause 8, part 1, art. 77 of the 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 cashier salesperson is contraindicated for me for a permanent period. From the vacancies offered to me by IP P.D. I refuse Savelyeva.

Application:

Certificate of the Tomsk City Clinical Hospital No. 2587614678 dated 05/02/20147.

05/11/2017 V.S. Rasskazova

How to confirm that your health condition is unsuitable for your job

The grounds for transfer or dismissal are official medical documents:

conclusion of a medical and social examination, according to which the employee is assigned a disability and his ability to work is limited, a certificate of disability.
certificate of the degree of loss of professional ability to work (also based on the results of the ITU).
rehabilitation program as a result of an industrial accident and occupational disease.
conclusion of a medical institution based on the results of a mandatory medical examination.
conclusion of a doctor at 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 conclusion that the employee cannot perform a labor function in his position temporarily for a period of up to 4 months, he is suspended from work without payment of 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 must be given a work book and severance pay in the amount of 2 weeks’ average earnings. You can apply in advance - they may come in handy.

When to submit a resignation letter for health reasons

It is important to understand that if an employee wishes to continue working for a given 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 that are suitable for the employee. And not only in the same branch (for example). In such cases, the employee may file a claim for reinstatement and compensation for moral damages.

But if the employee is not at all interested in continuing to work, both with this employer and in principle, he can submit a letter of resignation under clause 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. He may also be granted, in accordance with the application, with subsequent dismissal (by agreement with the employer). Also, an employer may ask for a resignation for health reasons if there are no vacancies at all, in order to protect themselves from or in the future.

Termination of the employment relationship between employer and employee is common, but dismissal of an employee due to illness must be justified and legal. This situation is resolved by paragraph 6 of Article 42. Labor Code of the Russian Federation, which states that the basis for dismissal of an employee of an enterprise may be incapacity for work, the period of which exceeds 4 months.

There are exceptions to this rule. This applies to the period of maternity leave, as well as some serious illnesses that require long-term treatment. In this case, the job must be retained by the employee for more than four months. For example, if an employee is sick with tuberculosis, he can return to work after 12 months.

Patient's rights

Those employees who have been injured and are forced to sit at home, having stopped working, usually ask the same question: can I be fired if I am on sick leave? If an employee of an enterprise is injured at work or acquires a disease, the development of which was influenced by his professional activities, he can count on the fact that he will not be fired. They are required to maintain this job until their health status is fully restored or until they receive the disabled status. This rule is valid regardless of who is responsible for the injury or occupational illness.

Dismissing an employee who has been on sick leave for more than four months can be difficult. This point is spelled out in Russian labor legislation. If in production there is no urgent need for a certain specialist to appear at the workplace, it can be reserved for the employee who is undergoing treatment or diagnosis. If the employee's illness is treated successfully and he will be able to return to work in the near future, there should be no dismissal. In case of emergency, management has the right to hire a temporary employee. However, as soon as a permanent employee returns from sick leave, he must be immediately reinstated in his previous job.

If it is necessary to terminate an employment contract with a sick employee, the employer must provide an alternative to continue working. Also, two weeks before dismissal or transfer, notification must be received by the trade union committee.

Reasons for dismissal

An employee who has been on sick leave for a long time can be fired for several reasons. This becomes possible if the employee’s health condition does not allow him to return to his previous place and perform duties as before. For example, if the incorrect performance of one person’s duties can threaten the health and life of the entire team.

The employer is obliged to provide an alternative location where an employee in poor health can cope with assigned tasks. Special conditions must be created here to make it easier for the employee to cope with his task. If an employee refuses such an offer, he may be fired.

In case of transfer to a lower-paid position, the first salary must be no less than what the employee received before the transfer.

If a medical examination finds a person completely incapacitated, the employer has the right to terminate the employment relationship with him.

However, this is possible if you have a certificate confirming your disability status.

What can you expect when leaving due to illness?

After the employment contract with a sick employee is terminated, he can receive sick pay. The employee can receive money for the missed period if a new job has not been found. All these days count towards the insurance period.

If a person is laid off, but the company is not liquidated, the employee can count on paid sick leave. To receive the required payments, you must contact your previous employer. A company does not pay sickness benefits to employees if it is declared bankrupt. In this case, it is possible to receive a payment from the Social Insurance Fund.

If an employee resigns of his own free will, he remains entitled to paid sick leave. This is especially true if the disease prevents you from getting a new job. The employer does not have the right to refuse this type of payment. The amount is calculated based on the amount of earnings and insurance coverage of the former employee. If a person has worked for less than six months, the minimum wage in the region is taken as the basis.

Dismissal process

Dismissal of an employee on sick leave is impossible, unless the company is facing liquidation. In the latter case, employment contracts are terminated with all personnel.

If a person who is on sick leave intends to resign on his own initiative, he may well do so by agreement of the parties.

The Labor Code does not have clear deadlines within which a notice of resignation must be submitted. For this reason, a sick employee has the right to terminate the employment relationship while he is on sick leave. The two-week period required for mandatory work upon dismissal will be counted even in the event of absenteeism.

Enterprises and individual entrepreneurs are required to comply with the requirements of the legislation of the Russian Federation. Otherwise, you can get a lot of fines that follow the violation of the established procedure.

Sometimes an employer has problems determining the date of dismissal when an employee is completely disabled. The Labor Code states that this date is the last day before disability is determined. It can be determined by a certificate, which must be provided to the hirer as soon as possible. If a person who has been recognized as disabled continues to work, then the date of his dismissal will be the date when the medical examination certificate reaches the management’s desk.

To avoid various troubles and misunderstandings, it is worth reflecting the date of dismissal of the employee in a special act that is attached to the order.

Dismissal due to the death of an employee

Russian labor legislation provides for absolutely all situations that may arise in the process of labor relations between an employer and his subordinate. The death of a company employee was no exception.

The death of an employee serves as the basis for the employer to terminate the employment contract. This procedure is carried out in full compliance with the legislation of the Russian Federation. The employer draws up a dismissal order in a special form, prepares the necessary documentation, and also makes a full payment, including compensation payments. All required entries are made in the work book of the deceased employee.

Dismissal must be made on the basis of documents such as a death certificate or a forensic report declaring a person dead. One of these documents is a prerequisite for the termination of the employment contract. In the column where it is necessary to indicate the reason for dismissal, it is written “due to death.” This is also indicated in the work document, which is then transferred to the relatives of the deceased.