What violations of the regime may be reflected in the sick leave certificate?
If we consider the provisions of Art.
8 of the Law “On Compulsory Social Insurance” dated December 29, 2006 No. 255-FZ in correspondence with the order of the Ministry of Health and Social Development of Russia dated April 26, 2011 No. 347n, then the following options for violation of the treatment regimen by an employee on sick leave can be determined: 1. Non-compliance with the treatment regimen ( This violation corresponds to code 23, recorded on the certificate of incapacity for work).
2. Failure to show up for a scheduled examination with a doctor (code 24).
3. Failure to appear for a planned medical and social examination (code 27).
4. Refusal from ITU (code 26).
5. An employee goes to work with unpaid sick leave (code 25).
In addition, sick leave may indicate illness due to intoxication (code 021).
Violations in paragraphs 1–5 are recorded in the column “Notes of violation”, code 021 - in the column “Additional notes”.
How to calculate payment to an employee for sick leave if it contains a note indicating a violation of the regime prescribed by the doctor? The answer to this question is in ConsultantPlus. Study the material by getting trial access to the K+ system for free.
All of these violation options can be combined with each other in any way. But only 1 of them is enough for the legal consequences of their commission to occur. Let's explore what they can be.
You can learn more about the codes recorded on sick leave certificates in the article “What do disability codes mean on a sick leave certificate?”
Additional marks
For a number of cases of closure of a sick leave certificate associated with the issuance of a new one, recognition of the patient as able to work or unable to work for objective reasons, additional codes must be indicated on the sheet:
- 31 – issuance of a new certificate of incapacity for work if the illness continues;
- 32 – determination of disability;
- 33 – change of disability group;
- 34 – death of the patient;
- 35 – refusal of the patient to conduct a medical and social examination;
- 36 – failure of the patient to appear for the next appointment and recognition of him as able to work at the next visit to the doctor;
- 37 – referral for follow-up treatment immediately after hospitalization.
They are indicated in the “Other” line, immediately after the “Get to work” line. For codes 32, 33, 34 and 36, the date of establishment or change of the disability group, the date of death or the date of appearance as able-bodied are indicated, respectively.
The sick leave note indicates a violation of the regime: legal consequences
If 1 or more of the above codes includes sick leave, the consequences of violations of the treatment regimen that correspond to these codes will most affect the interests of the employee who committed these violations.
The fact is that his allowance for temporary working capacity in this case will be calculated at a minimum amount - based on the minimum wage. In this case, the moment of committing the action that gives rise to sanctions may be important, as well as the basis for reducing benefits based on the fact that:
1. For violations with codes 23, 24, 25, 26, 27, sick leave is calculated in the minimum amount from the date of the violation.
2. If there is code 021 on the certificate of incapacity for work, the benefit is calculated in the minimum amount for the entire period of temporary incapacity for work.
An example of calculating sick leave when an employee violates the regime from ConsultantPlus Romantsova I.M. sick leave was issued in connection with being in hospital due to illness (cause of disability code “01”). The sick leave was issued for the period from January 21 to January 25, 2021 (5 days). Due to the fact that the employee left the hospital without permission, the doctor entered the code “23” in the line “Notes on violation of the regime” and indicated the date of the violation - 01/22/2021. Explanations about the reasons for violating the regime of Romantsov I.M. didn't introduce it. Payments for the billing period for which insurance premiums for VNiM are calculated - RUB 1,204,500. The employee's insurance experience is 19 years and 5 months. The calculation of temporary disability benefits until the day of the violation is as follows... You can view the full example in K+, having received free trial access to the system.
At the same time, the employer, before reducing sick leave, must have evidence that violations under paragraph 1 were committed by the employee without a good reason.
The fact that certain codes are indicated on the sick leave is only the basis for calculating sick leave in a reduced amount, but does not give the company the right to unconditionally apply the appropriate mechanism for reducing the amount of benefits.
Let's consider how an employer can determine whether an employee's violation of a treatment regimen is due to a valid reason or not.
New position
However, now FSS specialists have reconsidered their position and withdrawn the June letter No. 14-15/7710-2216l. The new letter dated 01.09.20 No. 14-15/7710-2216l states that sick leave benefits should be calculated as follows:
- for the period from April 17 to April 20 - according to the general rules, that is, based on average earnings.
- for April 21 - based on the minimum wage;
Calculate your salary and benefits taking into account the increase in the minimum wage from 2021 Calculate for free
But for the period from April 22 to April 24, benefits are not provided at all. The fund department believes that the days following the date when the employee was supposed to see a doctor (that is, from April 22 to April 24) can be considered:
- or absenteeism (subparagraph “a”, paragraph 6, part 1, article of the Labor Code of the Russian Federation), if the reason for failure to appear was considered disrespectful;
- or absence from the workplace for a good reason (if the explanations and supporting documents provided by the employee prove, in the opinion of the head of the organization, the presence of a good reason for absence from work).
Therefore, the days following the date when the employee was supposed to appear for an appointment with a doctor do not apply to the period of temporary incapacity for work and are not subject to payment, according to the Social Insurance Fund department.
How to pay for sick leave, taking into account the need to justify the amount of benefits
The best option is if the decision on whether or not the employee’s violation of the treatment regimen is due to valid reasons is made collectively in the company. For these purposes, the organization can establish a special commission on social insurance issues - permanent or temporary (convened from time to time).
This commission may decide to recognize the reasons for the violation as valid:
1. Based on the content of the explanatory note requested from the employee. At the same time, since the formation of this note is not regulated by the Labor Code of the Russian Federation, the employee may refuse to provide it.
2. Based on information provided in writing by other employees (including if the employee refuses to provide an explanatory note).
3. Based on the actual circumstances of the violation established by the commission.
4. Taking into account the proportionality of the actual violation (taking into account the identified circumstances of its commission) and the employee’s possible material losses (which may be much greater than the employer’s losses - due to the fact that the main part of the sick leave is paid by the Social Insurance Fund).
We remind you that starting from 2021, the employer accrues and pays benefits only for the first 3 days of sick leave due to illness or domestic injury. The rest of the benefit amount is calculated and paid to the Social Insurance Fund employee, and some benefits are paid by the fund 100%. For more information, see our guide to direct benefit payments.
At the same time, even if the decision is made in favor of the employee, the Social Insurance Fund, nevertheless, based on the fact that the sick leave contains violation codes, may refuse full payment of disability benefits if it recognizes the commission’s conclusions as unfounded.
This decision of the commission, one way or another, is important to document. Alternatively, in a special act. Let's study its features.
Finding out the circumstances
To draw up the document flow and determine the amount of insurance compensation, the enterprise must find out the reason that led to non-compliance with the regulations of the medical institution and recognize it as valid or disrespectful. Social insurance documents do not define what exactly constitutes a violation.
It is possible to establish that this is indirectly based on the list approved by the Order of the Ministry of Health and Social Development of the Russian Federation dated January 31, 2007. No. 74. According to the list, the following are considered respectful:
- force majeure circumstances (natural disasters);
- long-term illness exceeding 6 months;
- change of place of residence;
- serious illness or death of a loved one of the 1st degree of relationship.
The list is not an official document of the FSS, therefore it is advisory in nature. During inspections, fund specialists are forced to accept the arguments of the permanent commissions (authorized) and, without a court decision, unilaterally not accept the accrued amounts for offset.
Confirmation was given by the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 14, 2012. No. 14379/11, which directly indicates that FSS specialists do not have the right to review and challenge the commission’s decision on their own initiative.
- How many days of sick leave is given: duration of stay on BC
In practice, inspectors accept as valid reasons for non-appearance due to unfavorable weather conditions, the need to babysit a young child, minor domestic accidents, deterioration of physical condition without documentary evidence (calling an emergency ambulance team, a doctor at home) and, if properly documented, do not create problems.
What does a sample act of violation of hospital regulations look like?
The act of violation of sick leave, which must necessarily contain one of the above codes, may reflect, in particular:
1. Information about the circumstances of the employee’s violation of the treatment regimen, which are known to the commission (taking into account the codes entered by the doctor on the certificate of incapacity for work - there should be no obvious discrepancies between these circumstances and the decoding of the code).
2. The substantive content and details of the employee’s explanatory note, as well as the fact that it is attached to the act.
3. Information about the composition of the commission.
4. Information about employees from whom the commission received useful information about the circumstances of the employee’s violation of the treatment regimen.
5. Information about the sources of data on the circumstances of the violation that were at the disposal of the commission.
4. Formulations reflecting the decision of the commission - to recognize or not to recognize as valid the reasons for the employee’s violation of the treatment regimen (as a consequence - the presence of legal grounds for the employer to reduce temporary disability benefits).
You can report a violation of sick leave by an employee on our website - click on the link below.
Documenting
Within ten days from the date of receipt of the temporary disability certificate, the social insurance commission is obliged to hold a meeting and record its findings in writing. To do this, it is compiled in stages:
- Explanatory note from the employee. The form of writing is free with a specific explanation of the circumstances and the attachment of confirmations. For example, if a visit to the doctor was prevented by the child’s illness and the need to call the local pediatrician, then the issued certificate is attached. If the obstacle was a breakdown of the plumbing, then the application is a report drawn up by specialists.
- Minutes of the commission meeting. The descriptive part indicates the agenda, the operative part indicates the debate between the parties if it arises and a reasoned decision based on the study and analysis of the information provided.
- Leader's order. An internal order is created on the basis of the protocol and conclusions of the commission. If the reason is recognized as valid, then the order stipulates not to equate the amount of compensation payments to the minimum, but to pay based on average earnings. If the arguments are considered unconvincing, the number of days for payment at a reduced rate and the number of days for deprivation of benefits at all are reflected.
The order signed by the manager with primary documents is transferred to the accounting department for calculating insurance compensation. This list is required for document flow on this issue.
If you want to protect yourself as much as possible when communicating with inspection structures, the commission (authorized) for social insurance can draw up an act on violation of the hospital regime, a sample filling includes:
- species recorded by the medical institution;
- circumstances leading to non-compliance with the schedule;
- objectivity of arguments.
The essence of the drawn up act comes down to proof of the impossibility of the patient fulfilling the requirements of the medical organization not of his own free will, but due to the prevailing circumstances. The background is a medical error in establishing the fact of non-compliance with the prescribed routine and the unspoken cancellation of a negative mark.
In order to avoid financial sanctions, an enterprise must complete a package of documents to the maximum extent possible, which will make it easier to prove the objectivity of the reasons. If the employee was paid a benefit in an unreduced amount due to an incorrect interpretation, then he will have to answer to the Social Insurance Fund, otherwise a fine from the labor inspectorate is inevitable.
Results
If one or another code is entered on the sick leave certificate, reflecting the fact that the employee has violated the treatment regimen, then the employer can pay him disability benefits in a reduced amount. However, before making a decision to reduce payments, the employer is obliged to establish the fact that there are no valid reasons for the employee committing a particular violation of the treatment regimen.
You can learn more about issuing sick leave within various legal relationships in other articles in our special section.
You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
