The employer does not pay sick leave. In what cases is sick leave not paid? Once the claim is accepted, further procedures will begin.

A sick citizen goes to a clinic, where he is given a certificate of incapacity for work, paid according to certain rules, for the entire duration of his illness. The procedure for calculating the amount of sick leave is constantly changing. How payment is made, what indicators influence the amount of payments - questions of interest to anyone who is sick. How is sick leave paid?

The legislative basis for registration and payment of temporary disability benefits is. Payments are accrued to all employees of the enterprise ( Article 183 of the Labor Code of the Russian Federation), including part-time workers. Article 183. Guarantees for an employee in case of temporary disability

A certain limit has been established when paying for days when the employee could not be at work due to his illness or the illness of a relative (child). According to Article 5 of Federal Law No. 255 Paid stay at the bulletins during:

• illnesses, injuries: benefits are accrued for the entire period the doctor declared the person incapable of work;
• caring for a sick relative: payments are made no more than 7 days for each case and should not exceed 30 days per year;
• caring for a sick child under 7 years of age and from 7 to 15 years of age: sick leave is paid for a period not exceeding 60 and 45 days per year, respectively;
• care for a disabled child: the state pays for 120 days a year;
• recovery after surgery: 12 months provided;
• undergoing sanatorium-resort treatment: no more than 24 paid days are provided;
• maternity leave: payments are made for 140 days.

Important! Sick leave is paid even in a situation where a person quits his job and immediately falls ill within a month. The employer is obliged to pay 60% of average earnings ().

Exceptional situations when payment for days of incapacity to work is not made to an employee include:

• being on leave without pay;
• detention;
• idle time;
• suicide attempt;
• receiving a domestic injury within the first five days .

How are sick leave paid?

Payment for sick leave is carried out at the expense of:

• enterprise reserves;
• Fund amounts social insurance(FSS).

If the employee himself falls ill, the first 3 days are paid for by the company, all subsequent days are paid for by the Social Insurance Fund. When drawing up a document for care, all due days are paid in full from the Social Insurance Fund.

Important! Payment for incapacity for work is made for the calendar days specified in the sick leave. What determines the amount of sick pay?

Registration of a hospital document

A sick leave certificate is an official document indicating a valid reason for absence from work. The document is drawn up on a special form that has certain degrees of protection.

A certificate of incapacity for work is issued to a sick citizen at the medical institution where he applied for help. Registration takes place on the basis compulsory medical insurance policy and passports. A temporary disability certificate can be issued at the onset of the disease or after recovery (at discharge). The rules for filling out the document are described in detail in the Order of the Ministry of Health of the Russian Federation:

1. Information is entered by the health worker into specially designated cells in legible handwriting and only with a pen, preferably black.
2. A medical institution issues a duplicate of a sick leave certificate if errors or blots are detected in the document, which, due to corrections, loses its legal force.
3. Diseases must be filled in in the form of special codes.
4. All remaining blank fields in the “Exemption from work” column must be crossed out with a horizontal line.

Form of certificate of incapacity for work

Important! If an employee is registered in several organizations, then a document on temporary disability is issued for each of them. A mark is placed on it: this is the main place of work or part-time.

From 01/07/2017, electronic sick leave certificates are being introduced as an alternative to paper documents. The patient's consent is required before it is provided.

From July 1, 2017, with the written consent of the patient, a certificate of incapacity for work can be generated in the form of an electronic document

Illness while on vacation

If a citizen falls ill while on regular vacation, then Article 124 of the Labor Code of the Russian Federation he has a choice:

1. Transfer vacation days that coincided with illness to another period. (In this case, you must write a statement indicating the transfer dates.)
2. Continue to take your allotted vacation. There is no need to fill out any paperwork, the vacation is extended automatically.

Important! Extension due to illness concerns only the main and additional leave. If a child falls ill during an employee’s vacation, the issued bulletin will not affect the duration of the vacation in any way.

Application example

How is sick leave paid?

In 2020, no major changes were adopted when paying for a document recording temporary disability. The size of the benefit is influenced by 2 main indicators:

• work experience;
• amount of earnings.

Experience is the main component in determining payments for illness.

Important! When issuing a certificate of incapacity for work to care for children under 15 years of age for the first ten days, payment is calculated according to the existing length of service. For other days - 50% of the average salary. This calculation applies only to children undergoing outpatient treatment.

Another equally important component in the calculation is the amount of earnings. It is taken over the last 2 years. If the employee's annual earnings exceed the maximum base of insurance contributions established for a specific year, the size of this base is taken for calculations.

Accrual algorithm

1. Calculation of the total salary for two last year. If the employee has worked in more than one place during this time, then the provision of salary certificates taken from previous organizations is required.
2. When comparing the final earnings received for the last 2 years and the sum of 2 indicators for insurance contributions for the same years (718,000 + 755,000 = 1,473,000 rubles), the smallest of the compared amounts is accepted for calculation.
3. Determination of average daily earnings, which is obtained by dividing the amount chosen for calculations for the last 2 years by the number of days (365*2=730).
4. Finding out the percentage that is paid to the employee, depending on the length of service.
5. Final calculation of the amount for the issued sick leave.

Sick leave calculation

Last modified: January 2020

The temporary disability benefit provided for by law is a kind of guarantor of protection against illness in moral and material terms. However, in practice, situations arise when the expected amount of payments does not meet the expectations of the insured person. When and why are benefits reduced? In what cases is sick leave not paid at all? Who is guilty - medical institution, the fund, the employer or the employee himself?

Legal aspects

Obligation to accrue and remit in a timely manner insurance premiums in full, to calculate and pay benefits for temporary loss of ability to work, is entrusted to insurers - legal and individuals having employees, in accordance with Article 4.1 Federal Law RF No. 255-FZ, latest edition dated June 27, 2018. gives the right to insured persons to receive information and consulting services from the enterprise and the social insurance fund about the amount and when sick leave is paid.

In case of unreliable information, incorrect calculations and distortion of reporting data, the employer is liable both to the employee (insured person) and to the fund (insurer) in accordance with Article 15.1. The accountant must issue a certificate at the request of the employee regarding salary for 2 years within 3 days.

Restrictions on receiving benefits are imposed by:

• insufficient insurance experience (Article 7);
• instability of earnings or lack of work over the past 2 years (Article 14);
• violations of the regime during illness (Article 8);
• lack of income and damage (Article 9).

The decision to assign temporary disability benefits, establish the amount taking into account restrictions, or refuse sick leave for payment is made by the permanent commission (authorized) for social insurance, appointed by order of the head.

Within 10 days from the date of submission of the document, the commission is obliged to make a verdict, and the accounting department is required to make an accrual. Sick leave for incapacity for work is paid simultaneously with the next receipt wages or advance.

Grounds for refusal to grant benefits

There are legitimate reasons why an employer does not pay sick leave; what to do in this case is up to the employee to decide. You can contact the fund by filing a formal complaint and initiating an unscheduled inspection.

The commission (authorized) in certain cases cannot make a decision in favor of the employee, since the company will be subject to penalties and financial sanctions from the insurer. But there are situations when sick leave is paid or not, the employer decides.

Refusal based on legislation

The policyholder pays from his own pocket only the first 3 days of temporary disability benefits in the event of illness of the employee himself, not related to injury. The further period of payments is made at the expense of the fund in transit through the enterprise.

At the legislative level, there are the following restrictions leading to refusal to receive benefits:

1. Untimely application by the employee. According to Article 12 of Law No. 255-FZ, unpaid sick leave is a certificate presented to the social insurance commission 6 months after the closing date. A dismissed and unemployed employee has the right to contact his former employer within a month.
2. Commission of crime. The fact provides for the onset of illness as a result of intentional harm to health recognized by the court or a suicide attempt not as a result mental disorder.
3. Not correct design document. Order of the Ministry of Health and Social Development of the Russian Federation dated June 29, 2011 No. 624 established uniform rules for filling out certificates of incapacity for work. Failure to comply with compliance standards by medical institutions does not exempt legal entities and individuals from the imposition of financial sanctions by the insurer.
4. Violation of the issuance procedure. The norm concerns the extension of more than 30 days without the conclusion of a medical qualification commission, the issuance of documents “retroactively” or the issuance of documents by private clinics that do not have the appropriate licenses.
5. Cooperation on . Relations between the parties are of a civil nature; the company does not make social security contributions. The employee is not an insured person, which deprives him of the right to receive benefits from the fund.

An employer may refuse to pay benefits if it is in a state of liquidation, declared bankruptcy or other circumstances. force majeure. The insured person has the right to apply directly to the social insurance fund.

The decision is at the discretion of the employer

Violation of the norms of behavior of the victim and the consequences are regulated by Article 8 of the Law of the Russian Federation No. 255-FZ, which refers to the reduction of insurance payments to the minimum amount, regardless of the insurance period and salary.

The reasons are:

• failure by the insured person to comply with the regimen prescribed by the medical institution;
• failure to appear at a pre-established time to see a doctor or medical and social examination Without explaning the reason;
• illness, injury or intoxication of the body is a consequence of the use of alcoholic beverages or drugs.

Sick leave for alcohol poisoning or injury is issued by a medical institution with code 21, indicating that the patient was admitted in an inadequate manner. The letter of the Federal Social Insurance Fund of the Russian Federation dated April 15, 2004 No. 02-10/07-1843 in the first paragraph puts forward a ban on paying benefits in this case.

In the last paragraph of the letter, the fund clarifies the fact of the absence regulatory documents establishing a cause-and-effect relationship between drinking alcohol and getting the disease, citing insufficient regulation at the legislative level. The FSS shifts responsibility for making decisions to the employer.

Reasons for refusal to issue sick leave

For each type of disease, there is a maximum period of duration, terms of extension by the attending physician, a medical qualification commission and an appointment for a medical and social examination in order to establish disability.

The doctor or commission acts within the scope of authority. If the period of illness exceeds that allowed for a doctor of one level, then a certificate of incapacity for work is not issued, and the patient is sent to the next level.

The legislation provides for monetary compensation from the social insurance fund for the care of a sick family member, starting from the 1st day. The medical institution issues a BC with the appropriate mark. The reasons for refusal are:

• being on annual leave at the time of application;
• stay on parental leave until the age of 3;
• being on maternity leave;
• the child’s age is over 15 years when treated in a hospital setting.

The time limit directly depends on the age of the patient being cared for and the severity of the disease. According to Article 6 of Law of the Russian Federation No. 255-FZ, the duration of payment of child care benefits is:

• up to 7 years - the entire period of illness, but no more than 60 calendar days during the year (if the illness is included in the list determined by the executive authority, sick leave is given for a period of up to 90 days);
• from 7 to 15 years – 15 calendar days for each case of care, no more than 45 days a year;
• for a disabled person under 18 years of age – the entire period of illness with a limit of up to 120 calendar days per year;
• over 15 years old (equal to an adult family member) – 7 days in a particular case, up to 30 days a year.

When applying after the deadline, the medical institution is forced to refuse to issue a certificate of incapacity for care.

Knowledge by the insured of information about when sick leave is paid and when, who and why can refuse payment, allows issues of assignment and payment of benefits to be resolved between the employer and employees through a compromise.

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A sick leave certificate is the main document that is provided to the employer to confirm the employee’s temporary disability. The rules for its registration and payment are regulated by federal legislation, namely the Procedure for issuing certificates of incapacity for work.

Subject to its correct and legal execution, the sheet must be paid for at the expense of the employer and the Social Insurance Fund. However, the legislation identifies a number of cases in which it can be limited or abolished altogether. Specific cases and reasons for this are worth considering in more detail.

The first situation in which payment will not be made is the absence of a document confirming the incapacity for work, that is, a sick leave certificate. There are a number of situations in which a citizen may be refused to obtain this document.

These include the following grounds:

• the patient pretending to have an illness that, according to the doctor’s conclusion, he does not have;
• leaving for a sanatorium-resort treatment without a corresponding doctor’s referral;
• passing short-term and one-time medical procedures(vaccination, light rinsing, quick prosthetics);
• passing the planned medical examination, which is due to the employees of the enterprise.

In case of refusal to issue a sick leave certificate, the patient can challenge the doctor’s decision by contacting his superior management or the Social Insurance Fund.

However, this may not always bring results.

Also, some categories of medical workers do not have the right to issue sick leave. For example, these include ambulance doctors and blood transfusion stations, employees of medical prevention and emergency departments of medical institutions.

Grounds for full non-payment of sick leave

In some cases, sick leave, even if it is issued to an employee, may not legally be paid by the employer. In particular, this can happen during the following periods:

1. Release of an employee from his work duties. The most striking example of this is the registration of a free one, during which illness is not paid. This also applies to situations where during an employee’s vacation, this period is also not subject to payment. However, if a certificate of incapacity for work is issued due to the illness of the employee himself during his next vacation, he can apply for payment.
2. Suspension of an employee from work without retention. For example, this may happen when an employee is unable to perform his duties and it is impossible to transfer him to another job.
3. Taking the employee into custody. In this case, earnings are also not saved, so sick pay for this period is not due.
4. Administrative arrest of an employee.
5. Conducting a forensic medical examination.
6. Downtime of the enterprise. However, this only applies to situations where the disease occurred after the start of the downtime. Otherwise, sick leave is subject to payment in the amount of the salary retained for the given period, but not more than the maximum established limit.

In addition to these periods, the legislation identifies a number of cases when the employee is not entitled to benefits at all.

These include:

• the onset of illness in an employee due to the commission of an intentional crime;
• an illness that occurs as a result of an employee intentionally causing harm to his health.

In the latter case, the basis for refusal to pay for sick leave will be a court decision that officially established the employee’s intent.

Also, registration and payment of sick leave are not due to persons who work under civil law (rather than employment) contracts or are employed unofficially. In addition, the employer has the right not to pay sick leave if:

1. It was revealed that the document was either illegal. For example, it was made on a fake form or an old-style form, with fake seals or signatures. For providing such a sheet, the employer can hold the subordinate accountable.
2. Significant errors were identified in the legally executed document medical worker. The employer has no right to correct them, so the sheet must be replaced at a medical institution.

If the employer fails to complete the document, the Social Insurance Fund may refuse to pay sick leave. Another important condition is compliance with the deadline for providing the certificate - it is six months from the date the employee begins his work duties. After the expiration of six months, the document is also not subject to payment.

Grounds for partial non-payment of sick leave

In addition to a complete refusal to pay for the period of incapacity, in some situations it is subject to only partial payment.

The grounds for reducing the benefit amount are situations in which:

1. The patient, without good reason, violated the treatment regimen and procedure prescribed by the doctor.
2. The illness or receipt occurred due to the patient’s inappropriate condition (namely alcohol, drug or toxic intoxication).
3. The patient, without a good reason, did not show up for an appointment with the doctor at the appointed time or did not arrive on time for the planned medical and social examination procedure.

In each of these cases, certain periods of incapacity are paid at a reduced rate. Payment is no more than federal for one calendar month. If the relevant constituent entity of the Russian Federation operates, the benefit can be increased to the minimum wage adjusted by this coefficient.

Reduced pay is provided for certain periods of incapacity, the establishment of which depends on the specific basis.

For example:

1. If the patient violates the regime or fails to show up to the doctor at the appointed time, the amount of the benefit will be reduced for the period that begins from the day the violation is detected.
2. In situations where an illness or injury occurs due to the patient’s poor condition, the benefit amount will be reduced completely for the entire period of incapacity.

All of these listed reasons relate to situations where the slip is issued in the name of the employee himself. However, he also has the right to sick leave for some relatives, but also subject to certain restrictions.

Refusal to pay when caring for a relative

A common reason for issuing sick leave is the illness of an employee’s minor child.

The legislation establishes the maximum number of days that must be paid for one calendar year, depending on the age of the child:

• up to 7 years - 60 days;
• from 7 to 15 years - 45 days;
• up to 7 years, if the child has cancer or another disease specified by law - 90 days;
• up to 15 years, if the child is disabled - 120 days.

In cases where the patient is a child over 15 years of age or an adult relative, The maximum period of sick leave can be only 7 days. If there is a medical certificate issued to seriously ill people (including disabled people), this period can be extended to 30 days. Payments beyond these deadlines will not be made. In addition, payment of benefits is also not due if the child’s illness occurs during the employee’s next annual paid leave.

Obviously, in order to receive the full amount of benefits for a period of incapacity for work, an important condition is not only the correct execution of the sick leave certificate or its authenticity. The employee must also comply with all doctor’s instructions and not violate the established regime, otherwise the amount of payments may be significantly reduced.

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Almost every employee experiences illness at least once a year, which requires a period of sick leave, during which he does not perform his duties, but is exclusively concerned with his health. Unfortunately, not all employers perceive an employee’s illness with understanding; many simply do not pay for the period of incapacity, believing that the ill employee does not deserve payment, which is a direct violation of the law in most cases. So what to do if sick leave is not paid? And how to make the employer come to his senses?

Normative base

In accordance with Article 183 of the Labor Code of the Russian Federation, the enterprise is obliged to pay the employee for the period of illness on the basis of the submitted certificate of incapacity for work, issued in accordance with the norms of Order of the Ministry of Social Development No. 624n for all days that the employee was absent due to his condition, but subject to certain conditions.

In particular, Federal Law No. 255 states that the period of illness is compensated only for those workers who are officially accepted into the organization, that is, with the execution of an order for admission and the conclusion of an employment contract. An exception to this situation is the execution of a civil contract, which provides for the performance of a certain type of work without providing social guarantees.

The company is also required to pay sick leave former employee, if he fell ill within 30 days from the date of dismissal, as stated in Article 5, Part 2 of Federal Law No. 255. Of course, this situation does not suit many employers, but nevertheless they are obliged to pay for the period of incapacity for work in the amount of 60% of the average salary of the former employee.

Every employee of an enterprise or institution has the right to count on paid sick leave, but only subject to payment of contributions to the Social Insurance Fund of the Russian Federation. If such contributions have not been made, then sick leave is not subject to payment. However, given the fact that the obligation to transfer contributions to the Social Insurance Fund is assigned to the organization, an employee in such a situation has the right to demand that an unscrupulous employer compensate for this period or he will be forced to do so by the competent authorities.

In what cases can they refuse?

According to the norms of current legislation, sick leave submitted to an enterprise must be calculated within 10 days, and then paid in the amount established by Article 7 of Federal Law No. 255. That is, an employee who has worked for less than 5 years is paid 60% of average earnings, an employee who has a total work experience of 5 to 8 years is paid in the amount of 80% of average earnings, and, accordingly, employees with more than 8 years of experience are paid sick leave. paid at 100% of the average salary.

An employer can refuse payment only in a few cases, namely:

• if the sick leave was issued in connection with the illness of a child during the annual leave of the employee;
• if an employee is suspended from performing duties due to violations of local regulations, for example, in case of refusal to undergo a medical examination, to obtain the appropriate license, as well as downtime caused by his fault;
• if the period of incapacity for work occurred as a result of the employee’s guilty actions, for example, an injury was sustained due to being in a state alcohol intoxication or during the commission of a crime;
• if an employee attempted to commit suicide, resulting in harm to his health, which requires treatment.

An employer may also refuse to pay sick leave if it has written confirmation that the employee simply purchased sick leave.

However, the company cannot send a request to the clinic, since both the employee’s diagnosis and the treatment process not only constitute a medical secret, as stated in Article 13 of Federal Law No. 255, but are also personal data, the distribution of which requires the consent of the employee himself. Therefore, in such a situation, the employer will have to contact the prosecutor’s office, which has the right to request such data.

Where to go

If the management of the enterprise still does not want to pay for the period of incapacity of the employee, then they can only be forced with the help of the competent authorities. First, you need to write a complaint to the Labor Inspectorate, to which it is advisable to attach a copy of the sick leave certificate. After receiving a complaint, labor inspectors will not only check the procedure for paying sick leave at the enterprise, but will also analyze other aspects of the activity of this institution, which will most likely lead to the issuance of several orders to eliminate violations of labor legislation and a fine of up to 50 thousand rubles.

If an employee wants not only to receive payment for a period of incapacity, but also to punish an unscrupulous employer, then it is advisable to go to court, where the penalties will be higher, and perhaps a ban on engaging in commercial activities will follow for a certain period, say, a year . Imprisonment is also possible if it is proven that the rights of other workers are violated, and on a regular basis.

If an employee of an enterprise becomes ill to such an extent that his presence at the workplace is impossible, then he has the right to issue a sick leave. This certificate allows you to be absent from work on completely legal grounds and at the same time receive compensation for treatment. At the same time, you cannot reject the option in which payment for sick leave will not be carried out, or it will not be carried out in full; accordingly, you need to be prepared for anything.

Our consultants, who have extensive experience in this field, will be able to advise you on how to act correctly in such a situation.

What to do if sick leave is not paid?

You need to understand that in addition to an employee’s illness, such a sheet is issued if a child is sick or is about to be born, so care for a relative comes here, including after surgery. Those people who are registered according to employment contract or under the contract, if there is a corresponding clause there.

First you need to check whether the employee’s situation coincides with the following cases:

• 1. Work at the enterprise is carried out in accordance with a contract;
• 2. The sheet was unreasonably extended or issued for the wrong date;
• 3. The sheet was issued by unauthorized authorities;
• 4. The certificate was issued without prescribing treatment.

If everything is in order with the sheet, then it makes sense to go to the accounting department; the received document may have been lost or damaged. When it comes to official employment, this means that previously there were contributions to social insurance funds. It is from these funds that these payments come.

This is what you need to focus on when arguing with accounting. They can hire you without drawing up any contracts, but then you need to understand that even attracting relevant services from outside will not bring any results, because the employer will simply state that we do not have such an employee, and he will be right.

They don't pay sick leave: where to complain?

The first step is to try to resolve the issue without taking the problem outside the company. You should submit an application to the employer, indicating that there was a delay in payment of sick leave, and you should also refer to the relevant Labor Code law in the text.

Conversations with accounting or management may not bring the desired result, although formally there are all grounds for issuing and paying for sick leave. Then the employee has the right to file a complaint with state inspection labor. You can take a more decisive route by contacting the prosecutor's office or even the court.

If you manage to get a certificate of debts from your employer, then instead of a lawsuit, you can limit yourself to an application for the issuance of a court order - this is a more simplified option, since there will be no trial.

It will be difficult to act independently in such a situation. The point is that in order to successfully complete the case in your favor, you need to understand many of the intricacies of the law, you also need to clearly understand your rights and the rights of your employer, and finally, understand the procedure for filing a claim. Therefore, if such a problem arises, you can safely contact us for professional help.