What to do if the Social Insurance Fund delays sick leave payments

E. A. Yurova author of the article, Askon labor law consultant

Disability is one of the most common cases of abuse of rights by certain categories of workers. Such workers, having a history of a stable disease, carefully study all the signs of its exacerbation and go to various medical institutions, endlessly providing the employer with many certificates of incapacity for work. After receiving the next sick leave, the employer asks questions: can the employee actually perform work duties, how to stop the series of sick leaves, whether these documents are justifiably issued...

If paid by the employing organization

In regions that have not been transferred to the pilot project of direct payment of sick leave by the Social Insurance Fund, sick leave for the employee is paid by the employer. Such subjects of the Russian Federation include:

• Moscow;
• Saint Petersburg;
• Krasnodar and Perm regions;
• Moscow, Sverdlovsk and Chelyabinsk regions.

To find out why the payment of sick leave is delayed, a citizen should contact the accounting department of the enterprise. The payment terms are established by Federal Law No. 255-FZ of December 29, 2006. After receiving a certificate of incapacity for work from an employee, the employer is obliged to make a calculation within 10 calendar days and, no later than the next day the salary is transferred, pay it in full.

IMPORTANT!

From 01/01/2021, all regions will switch to direct payments from the Social Insurance Fund. The draft decree of the government of the Russian Federation “On amendments to the decree of the government of the Russian Federation dated April 21, 2011 No. 294” was prepared by the Ministry of Labor of Russia, project ID - 01/01/10-20/00109499.

ConsultantPlus experts discussed how to calculate and pay temporary disability benefits. Use these instructions for free.

Loss of sick leave due to the fault of the employer

If an employer loses a document confirming an employee’s incapacity for work, a special commission created by order of the head of the organization makes a decision on the situation.

If the cause of loss or damage to the report is recognized as unforeseen circumstances in the form of a flood, fire, or other natural or industrial disaster, then a protocol describing the situation is drawn up for transmission to a medical institution. With the specified document and his own passport, the employee turns to the attending physician for a duplicate confirmation of disability.

If the ballot is lost at the enterprise, the employee receives the due payment amount based on the provided replacement form (duplicate) if the ballot was not taken into account by the accounting department (FSS letter No. 15-03-11/12-7761, 07/17/2013).

A new form will not be issued to replace the one accepted for registration and subsequently lost by the employer. According to the law, a replacement ballot is issued if erroneous entries are found in it or if it is lost by the employee himself, but not in a situation where problems with the document are detected by the employer.

Confirming certificates from medical institutions are not financial documents, and therefore cannot be accepted as confirmation of social insurance expenses (Federal Law No. 165 of July 16, 1999, FSS letter No. 15-03-11/12-7761).

Obtaining a duplicate sick leave certificate is available only to the employee himself and only until the moment when the accounting department of the enterprise carries out the recording of the disability certificate. After this procedure, a replacement sheet will not be issued, since the FSS will not accept these expenses and will not compensate them.

Taking into account the rules for organizing archival affairs in the country, primary documents must be preserved for at least 5 years after the annual reporting period (Federal Law No. 402, 12/06/2011). If, during an inspection carried out by the Social Insurance Fund, it is discovered that there is no valid reason for sick leave, the costs of paying for them are not taken into account.

To avoid suspicion that the employer intentionally lost sick leave to refuse to pay benefits, you can require a receipt from the employee receiving the form indicating receipt of the document indicating the position, date and his handwritten signature. If there is a receipt, the offending employee and the employer may be held administratively liable (Article 192, Article 236 of the Labor Code of the Russian Federation).

By the way! Judicial practice shows that reimbursement of benefits is possible in the absence of an original or duplicate sick leave certificate. The decision of the Supreme Court of the Russian Federation No. 305-KG16-17521 (December 28, 2016) confirmed the impossibility of issuing a replacement certificate if the employer lost it and the legality of calculating payments upon presentation of certain documents, which may include letters from a medical institution (indicating the details of the form of the lost copy, data of the citizen, information about the disease) and copies of the stubs of the issued certificates of incapacity for work.

Direct transfers of benefits from the Social Insurance Fund

With direct payments from the Social Insurance Fund, sick leave is paid in two stages:

1. The first three days are paid by the employer.
2. Subsequent days of incapacity for work - Social Insurance Fund.

IMPORTANT!

The employing organization pays for the first three days only if the employee himself is ill. All other benefits (care, pregnancy and childbirth) are paid in full by the Social Insurance Fund.

It depends on what part you have been delayed and where to go if your sick leave payment is delayed. - to the employer or the Social Insurance Fund. For the first three days of illness, the employer accrues and pays for sickness to the employee himself, at his own expense. Accrual is made within 10 calendar days, and payment is made no later than the first deadline established for transferring salaries to the organization.

Example

Employee of Ppt.ru LLC Semenov S.S. presented a certificate of incapacity for work on November 6, 2020. Until November 16, 2020, the accountant will calculate benefits for the first three days of illness. Salaries at Ppt.ru LLC are paid twice a month - on the 10th and 25th. Thus, the transfer for the first three days of illness is Semenov S.S. will be received no later than November 25, 2020.

For the following days, payment is made by the Social Insurance Fund, and the employer transfers the data to the Fund. What to do if the Social Insurance Fund delays payment of sick leave? First, determine the date when the benefits should arrive.

The employer is obliged, no later than 5 calendar days after receiving the sick leave, to transfer information about it, the employee’s length of service and average earnings to the Social Insurance Fund.

The Social Insurance Fund is obliged to transfer funds under a certificate of incapacity for work within 10 calendar days from the date of receipt of the information necessary for calculating benefits.

Thus, the benefit is transferred no later than 15 calendar days after the employee submits a certificate of incapacity for work to the accounting department.

Who can issue a rolling sick leave?

The legislation allows the issuance of sick leave only to licensed medical institutions:

• These can be public clinics or hospitals and private medical centers that have licenses and certificates. Forms must be filled out in accordance with established rules, dates must be accurately and clearly stated.
• The document can also be obtained from a foreign clinic if the employee falls ill during a business trip. In this case, sick leave is issued according to the laws of this country, and upon return it is provided to the personnel department.

The minimum period for which sick leave is opened is 3 days. Even if the employee feels better, he cannot begin his job duties on the second day.

The maximum period for opening a sick leave is a month. If recovery has not occurred during this time, and it is necessary to continue treatment, the head physician of the medical institution gathers a council of doctors, at which the issue of further treatment or closure of sick leave is decided.

How is sick leave paid for an external part-time worker?

The general rule for taking into account earnings when calculating benefits for an external part-time worker is this: if the employee applies for benefits not only to you, but also to other employers, you take into account only your payments (that is, payments for part-time work), and if only to you - then payments from all employers for the billing period, including payments for work at the main place of work and part-time work in all organizations.

The place of work at which an employee can receive temporary disability benefits depends on the organizations in which he worked during the billing period:

1. If during the billing period he changed jobs or was employed by the same employers for both years, but in the current year he does not work for at least one of them, then to receive benefits he can choose any employer for whom he currently works ( Part 2.1, 2.2 Article 13 of Law No. 255-FZ).
2. If during the billing period an employee worked for the same employers with whom he is currently employed, then he must apply to all employers at the same time to receive benefits (Part 2 of Article 13 of Law No. 255-FZ).

Depending on where the external part-time worker worked and what documents he provided, the calculation will be different.

So, if an external part-time worker worked in the organization during the billing period (worked the billing period in full or part of it) and provided sick leave, the benefit is calculated by each employer to whom the employee applied. In this case, only your payments are taken into account. Certificates from other places of work stating that benefits were not accrued or paid there are not needed.

Earnings based on certificates from employers for whom the employee worked during the billing period are not taken into account (if the employee provided such certificates earlier).

If the part-time worker has provided the following documents:

• sick leave;
• certificates from other current places of work stating that benefits were not paid there;
• certificates of earnings from other employers for whom the employee worked in the billing period (including former ones) - payments for all places of work are taken into account, including those where the employee no longer works. The benefit is paid by one of the employers chosen by the employee.

An employee can confirm temporary incapacity for work with other employers with a copy of the certificate of incapacity for work, certified by the employer paying the benefit.

The benefit is not accrued if the employee has not provided certificates from other current places of work stating that the benefit was not accrued or paid.

If an external part-time worker did not work part-time for the employer during the billing period and provided him with sick leave and certificates, payments for all places of work in which the employee worked in the billing period can be taken into account. The benefit is paid by one of the current employers chosen by the employee. Payment of benefits is carried out depending on the specific situation: either for all places of work, or only for one of them at the employee’s choice, taking into account earnings from other employers.

If an employee falls ill while on leave at his own expense, on maternity leave or on parental leave, he will be paid sick leave to the employee at the end of these leaves, if he has not yet recovered by that time: for the days of illness coinciding with such leave , he should not be given a sick leave certificate, since temporary disability benefits are not paid for the days of such leave. Therefore, the employee must notify the doctor that he is on such leave.

If a certificate of temporary incapacity for work was nevertheless issued for periods of leave without pay, leave to care for a child under 3 years of age, for which the doctor should not have issued this document, but the employee did not warn him, then formally the FSS may not accept offset the amount of benefits paid under such sick leave. The best option is to replace such a sheet with a duplicate.

In any case, the benefit must be paid to the employee from the day when he was supposed to start work at the end of his vacation at his own expense.

How does payment work?

After recovery, the sick leave is transferred to the accounting department. But no later than six months from the date of termination of the sick leave. Otherwise, benefits will not be accrued.

In accordance with Federal Law No. 255 of 03/09/16, after submitting a certificate of incapacity for work, benefits are accrued within 10 days and issued together with the next salary or advance payment.

Benefit payment calculation

To calculate the payment amount you need to know:

1. How many days did the sick leave officially last?
2. Official work experience.
3. Average wage for one day.

Benefit amount

The amount of the benefit directly depends on the length of service, as well as on the salary of the last two years:

• If the experience is less than 2 years, then provide a certificate from a previous job for correct calculation.
• If the work experience is more than 8 years, then the amount of benefits for one day of sick leave is equal to the average income per day.
• From 5 to 8 years - 80% of average income.
• Up to 5 years - 60% of average income.
• Up to 6 months - payments are calculated according to the minimum wage.

The calculation of rolling sick leave is made using the same formula as for regular sick leave.

The average salary per day is calculated as follows: the annual salary for the two previous years is divided by 730 days. Then it is multiplied by the number of days of sick leave and by a coefficient (0.8; 0.6 or according to the minimum wage).

Let's look at an example

Employee A.A. Petrov provided sick leave, which was opened on December 25, 2021, and closed on January 10, 2021. On January 11, the employee began his official duties. Thus, he was sick for 7 days in December and 10 in January - a total of 17 days.

The amount of his income for the previous 2 years:

• For 2015 - 300 thousand rubles.
• For 2021 - 350 thousand rubles.

Total 650 thousand rubles for two years.

Let's calculate the average income for one working day: 650,000/731=889 rubles. 2021 was a leap year, so you need to divide by 731, not 730. The employee’s work experience is more than 10 years, so his payment per day will be equal to the average income per day. If the total length of service was, for example, 6 years, then the payment per day would be 889 * 0.8 = 711 rubles.

So, the total payment for 17 days of sick leave will be 889 * 17 = 15,113 rubles.

Important! The employee will not receive the entire amount: taxes will be deducted.

Transition to electronic sick leave certificates

In 2021, a new federal law No. 86 was issued on the transition from paper sick leave certificates to electronic ones for all medical institutions. This will simplify and speed up the transfer of documents via the Internet to the accounting department and the Social Insurance Fund. The law does not deprive an employee of the right to receive a certificate of incapacity for work in traditional paper form, and in electronic form the papers are sent to the relevant organizations only with voluntary consent.

From July 1, 2021, a smooth transition to electronic hospital clinics and hospitals connected to the Medical Information System began. The sick leave certificate is signed electronically, and the discharged employee is given his number, with which he goes to the accounting department. As soon as the sick leave is closed, at that very second it is transferred to the work organization and the Social Insurance Fund. Using the number in the database, the accountant will find a document with the necessary information for calculating benefits. It is impossible to falsify such a document, since the communication channels through which it is transmitted are reliably protected.

Rolling sick leave is practically no different from regular sick leave, except that it is open in one month and closed in another. You can obtain the document at any licensed medical institution. Calculating and paying disability benefits is not difficult. The only thing you need to be careful with: if you choose a sick leave certificate on paper, then it must be submitted to the accounting department within the time limits established by law.

How quickly the payment will be calculated depends on the employee: the faster the documents are provided, the faster the money will be transferred to the account.

What to do if an employee takes sick leave after the end of the working day?

Since simultaneous payment of earnings and temporary disability benefits is not provided for by law, the employee must choose what payment he wants to receive for the first day of illness.

Moreover, according to the law, citizens who seek medical help after the end of working hours (shift), at their request, the date of release from work on the certificate of incapacity for work can be indicated from the next calendar day. If the employee has chosen the benefit, he will have to make appropriate changes to the working time sheet.

Since the first 3 days of temporary disability due to illness or injury must be paid at the employer’s expense (if the employee has worked the first day of disability and is paid a salary for that day), the period paid at the employer’s expense is shifted. That is, the second, third and fourth days of incapacity will be paid.

If sick leave is issued during downtime

According to the law, benefits are not assigned for the periods:

• releasing an employee from work with full or partial retention of salary or without payment in accordance with the legislation of the Russian Federation, with the exception of cases of loss of ability to work due to illness or injury during the period of annual paid leave;
• suspension from work in accordance with the legislation of the Russian Federation, if wages are not accrued for this period;
• detention or administrative arrest;
• conducting a forensic medical examination;
• downtime (except for cases established by Part 7 of Article 7 of Law No. 255-FZ).

If temporary disability occurred before the downtime period and continued during its period, benefits for the downtime period are paid in the same amount as wages are maintained during this time, but not more than the temporary disability benefit that the employee would receive according to the general rules. To calculate the amount of the benefit, you first need to calculate the benefit in the usual manner, compare the result with the amount of the employee’s salary saved during the idle period, and select the lower value.

If an employee falls ill after the start of the downtime, then disability benefits are not paid for days of illness falling during the downtime period.

If temporary disability, which began during the period of downtime, continues after its end, then for its days the employee is paid benefits, it is calculated in the general manner. The first 3 days of illness after idle time are paid by the employer.

If an employee falls ill before the downtime begins, sick leave is paid as usual. For days of illness coinciding with downtime, benefits are paid in the amount of no more than:

• 2/3 of the salary (tariff rate), if downtime arose for reasons beyond the control of the employee and the employer;
• 2/3 of average earnings if the downtime was due to the fault of the employer.