Resigning without work while on sick leave: how the procedure works and other nuances

Last modified: January 2021

The time of dismissal does not always fall on a person’s working day. Sometimes circumstances are such that on the day of the upcoming termination of the contract, the employee falls ill and cannot be present at the workplace. Depending on who takes the initiative, dismissal during sick leave takes place differently. The problem is not only the fact of a person’s absence, but also the complexity of calculating the last payment, including sick leave.

The law, while prohibiting the dismissal of an employee who is on sick leave (Article 81 of the labor legislation), does not establish prohibitions for the employee to leave at his own request. If, in the procedure for terminating a contract with an employee, dismissal on sick leave is revealed, such a case is subject to challenge in court, followed by reinstatement and payment of compensation for the entire missed period.

Is it possible to write a letter of resignation during illness?

An employee can definitely quit while on sick leave . If the decision to leave the place of work comes from the employee himself, then he will not face any obstacles. The only rule: he must know how to act competently in this situation.

Any person can resign of his own free will at any time (Article 80 of the Labor Code of the Russian Federation), and the organization in which he works has no right to interfere with him. The situation is completely different when an employer wants to get rid of an employee, but he is sick. Here the manager can only wait for the person working for him to close his sick leave and go to work. It is impossible to dismiss an employee while he is on sick leave (Article 81 of the Labor Code of the Russian Federation).

You can quit while on sick leave only on your own initiative.

An employee is sick, who should work?

If the business suffers significantly from the absence of an employee, then someone must perform the functions of the absentee. What is it permissible for an employer to do, since it is not yet possible to fire an employee:

• temporarily assign the sick person’s responsibilities to other employees with appropriate qualifications (through external part-time work or combination of positions, with the drawing up of an additional agreement to the employment contract);
• hire another employee by concluding a fixed-term employment contract with him, in which the wording “until the permanent employee leaves sick leave” must be entered.

Is time of incapacity counted as working time?

The resignation letter must be submitted in advance , 2 weeks before dismissal, and sick leave time is included in this period. Art. 80 of the Labor Code of the Russian Federation does not contain exceptions for those cases when the employee is on vacation or sick. All days from the onset of the illness until its end are counted towards the established two-week period from application to dismissal.

It is necessary to take into account an important point: write a resignation letter on time. The countdown of 14 days of work will begin from the next day. If you want sick leave to cover these days, it is better not to delay submitting your application.

It is equally important to call the HR department at work in a timely manner and notify about your illness. Otherwise, the employee may have problems, since the employer may regard absence from work as absenteeism . Then the dismissal will be under a different article.

To resolve a conflict situation, you will have to go to court. Situations where employees hide information about sick leave are considered by the courts in favor of the employer: this is an abuse of right. That is why you should not forget about the need to notify management.

It is important for employees to be aware of their rights related to sick leave and the dismissal procedure. Read materials from our experts on how to arrange for the continuation of BL after dismissal and whether it is possible to take sick leave on the day of termination of the employment contract, whether they can be fired for frequent sick leave, as well as about payment for BL after dismissal from a position and during vacation followed by dismissal.

Is it possible not to work for 14 days?

1. Check to see if you are one of those citizens who has the right not to notify the employer of dismissal in advance.
   Not all employees must work two weeks upon dismissal. There is no need for testing if:
   • a pensioner or a pregnant woman quits;

   the employee is caring for a disabled child;

2. an employee moves to another city;
3. his/her husband/wife is transferred to another area to work;
4. the employee cannot continue to work due to illness or medical reasons;
5. he is enrolled in an educational institution.

In all of the above cases, documentary evidence is required that mining is impossible.

The following categories of workers are also not required to work two weeks:

• those who are on probation work only 3 days (Article 71 of the Labor Code of the Russian Federation);
• who has an employment contract for less than 2 months (Article 292 of the Labor Code of the Russian Federation);
• employed in seasonal work (Article 296 of the Labor Code of the Russian Federation).

Reasons for termination of an employment contract

When applying for a job, a new employee enters into an agreement with the organization, which is regulated by the provisions of the Labor Code of the Russian Federation. Termination of this agreement may occur for various reasons:

1. at the request of the employee;
2. at the initiative of the employer;
3. by agreement of both parties;
4. due to circumstances beyond the control of both parties;
5. when moving to a new position;
6. in case of violation of the rules of the employment contract;
7. upon expiration of the contract.

The most convenient option for both parties is mutual consent. In this case, the employee and manager can enter into an agreement that will be beneficial to both. Usually, in this case, the employee receives additional payments, and the employer guarantees that the agreement will not be canceled or challenged due to changed circumstances in the employee’s life.

Dismissal for inadequacy of the position is a rare option, as it is often difficult to prove.

An employee who does not show up for work may subsequently bring sick leave, in which case he will not be counted as absenteeism. Professional unsuitability can only be revealed in the event of a general certification that meets the requirements of the law.

The most common is leaving work of your own free will. Sometimes, even in the case of serious violations, the employer gives the person the opportunity to write a statement on his own so that dismissal under the article is not recorded in the work book.

But more often a person simply finds another, higher-paying, prestigious or convenient vacancy or moves.

Sometimes the reason for dismissal is reluctance to work under new management, unpreparedness for business trips, changes in working conditions, or deteriorating health.

After the written application, a two-week work period follows , but often people try to reduce it or avoid it altogether. Since sick leave is included in service upon dismissal, sometimes it is taken so as not to return to the place of duty. But before making hasty decisions, you need to know how many days you are supposed to work in different situations.

What documents need to be submitted?

When the employee has decided that he is terminating his employment relationship with the employer, his next action is to submit the necessary documents. The algorithm of actions is as follows :

1. Write a letter of resignation and submit it to the HR department.
2. Contact a medical institution or call a doctor at home, if there are reasons, and record the fact of illness. Be sure to tell the doctor that you will need a certificate of incapacity for work.
3. Immediately inform your employer of your illness. This can be done by simply calling your office.
4. The further course of action depends on how many days the person will be unable to work. If he is ill for 14 days or more, then he will not need work, since all days on sick leave will be counted towards it without fail. If the illness lasts less than two weeks, after the certificate of incapacity for work is closed, you will have to work the remaining days before dismissal.

Example : An employee fell ill on August 10, 2015 and wrote a letter of resignation on the same day. The countdown of the required 14 calendar days begins from the next day, i.e. from 08/11/2015. Thus, the last working day falls on 08/24/2015. If the sick leave was closed on 08/20/2015, and it states that work must begin on 08/21/2015, then the employee will have to work at the enterprise for another 4 calendar days, i.e. from 08/21/2015 to 08/24/2015 inclusive.

On the last working day, you need to report to work and receive a work book, paycheck and all necessary payments and compensations. If you can’t come on that day due to illness, you need to inform your employer and either pick up the documents after the sick leave closes, or ask them to send everything by mail.

How to write an application?

The resignation letter must be submitted correctly so that later the employer does not hide this fact from the inspection authorities and the court. The application must be addressed to the head of the organization, for example, the director. Indicate from whom it is submitted - with the title of the position.

The text of the statement itself will be short: “I ask you to dismiss me of your own free will.” If there are grounds for dismissal without service, you must attach supporting documents. The text of the application must be dated and signed.

The application does not have to indicate the date of dismissal. The date of submission of the application is sufficient, since the countdown of 14 days will begin from the next day.

It is better to write the application in two copies . Next, the employee must:

1. Contact the HR department and submit your resignation letter.
2. Request that such a statement be registered. The second copy, which will remain with you, should have a mark with the date of acceptance and the incoming number.
3. If the HR employee or clerk refuses to accept your application, send it by registered mail with an inventory, return receipt requested.
   It is advisable to send them to both the actual address of the organization and the legal address, if they are different. You will have in your hands a shipping receipt and an inventory, which will confirm that you have submitted the application. But in this case, 14 days will be correctly counted from the date the employer received the letter; it will be indicated in the notification of delivery.
4. On the day of dismissal, you must report to work and formalize your dismissal.

Making an order

On the last working day, an order to terminate the employment contract is issued . It must be presented to the employee against signature. Next, a record of dismissal is made in the work book in strict accordance with the wording in the order.

A settlement is made with the employee, which includes all necessary payments and compensations. This includes compensation for days of annual leave not taken off in cash equivalent, wages in proportion to the number of days worked at the time of dismissal and payment for days of incapacity for work on sick leave.

Sick leave payment

In all cases, except for the liquidation of the enterprise, the period of incapacity for work must be paid.
But the size of the benefit varies depending on the time of dismissal, as well as the insurance experience available to all people who have entered into an agreement and who actually work. Charges are calculated as follows:

1. 100% of salary for 8 years of experience;
2. 80% - from 5 years;
3. 60% in all other cases.

Thus, in the event of illness and the presence of a document confirming it, the corresponding payment for it occurs in full, regardless of the date on which the sick leave is closed, as well as when it expired after the date of termination of the employment contract.

Moreover, if a certificate of incapacity for work was received within a calendar month after dismissal and a new employment has not yet occurred, you can contact your former employer within six months with a demand to pay for it. But regardless of the insurance period, payments will not exceed 60% of average earnings.

How long will it take to dismiss a person with a certificate of incapacity for work?

If an employee is on sick leave, he can be fired at any time at his own request.

If there is no such desire, the employer will be able to fire an ill employee only due to the liquidation of the organization or the closure of the individual entrepreneur . Otherwise, you will have to pay benefits and wait for the sick leave to end. It will be possible to dismiss an employee only after he returns to work, and for this there must be a good reason specified in Art. 81 Labor Code of the Russian Federation.

The duration of sick leave depends on the severity of the disease. Typically this is 15 days, but if the person has not recovered, the certificate of incapacity for work is extended. The maximum period is no more than 10 months and 12 months in case of injuries, recovery from operations and tuberculosis (Order of the Ministry of Health and Social Development dated June 29, 2011 No. 624n).

While a person is on sick leave, the employer does not have the right to fire him on his own initiative.

Employer's liability

In addition to paying amounts to a dismissed employee, the official bears full responsibility before the law. The punishment may be :

• fine up to 5 thousand rubles. or disqualification for up to 3 years;
• fine up to 200 thousand rubles. or in the amount of one and a half years' salary of an employee, as well as correctional labor for up to 15 days (upon dismissal of pregnant women and mothers with children under 3 years of age);
• suspension of the enterprise's activities for up to 90 days.

Dismissal of an employee on sick leave is not a legal basis. The head of the department assumes all responsibility. The employee only needs to contact a higher authority and challenge the decision.

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What payments are due?

On the day of dismissal, the employee must receive:

• monetary compensation for unused vacation in full;
• the unpaid part of the salary, taking into account the last working day;
• other payments provided for by the wage regulations, collective agreement or other local regulations.

Payment for sick leave issued before dismissal is made after it is closed and presented to the employer. Within 10 days, the employer calculates the payment, and the money is transferred on the next payday (Part 1, Article 15 of the Federal Law of December 29, 2006 No. 255-FZ). It does not matter whether the employee has resigned by this time or is still on the staff.