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Taking sick leave presupposes temporary incapacity for work. It is in connection with this that appropriate compensation is calculated. But what payments are due to an employee if he goes to work during the validity period? The law gives a rather vague answer to this question, but still the correct procedure exists.
A sick employee returns to work: should he pay wages or allowances?
Salary or benefits? In any case, the employer must choose one of these options. It is impossible to accrue both compensation for sick leave and salary at the same time, since according to Federal Law No. 255 of December 29, 2006, one payment is intended to replace the other. That is, during the period when the employee is deprived of labor income, he receives benefits. These payments are mutually exclusive.
A number of employers are confident that benefits should be accrued. They operate with the following arguments:
- Article 183 of the Labor Code of the Russian Federation clearly states that the employer is obliged to pay benefits for the entire duration of sick leave, the duration of which can only be determined by a doctor. Only a specialist can accurately determine whether a person is able to work. Therefore, the fact that an employee goes to work while on sick leave does not at all indicate his ability to work.
- Sick leave implies release from work: the employee has no obligation to go to work. Voluntary work, when a person comes to work of his own free will, is not required to be paid by the employer.
All these arguments exist, however, despite them, the employer is obliged to pay wages. This is justified as follows:
- An employee’s work cannot be called completely voluntary. This is due to the fact that the sick leave period still remains a working period. This is how it is designated in the local labor regulations. This is not a vacation or a day off. Being on sick leave, according to paragraph 3 of Article 5 of the Federal Law No. 323 of November 21, 2011 and Article 3 of the Labor Code of the Russian Federation, cannot be a ban on work. The worker has the right to decide for himself whether he will use days of forced rest.
- According to paragraph 3 of Article 37 of the Constitution and Article 56 of the Labor Code of the Russian Federation, the employer is obliged to pay the employee a salary for work. The worker who does his job job responsibilities, must receive appropriate remuneration. The obligation to pay wages is also established by Articles 22 and 129 of the Labor Code of the Russian Federation.
ATTENTION! Salary during the validity period sick leave accrued at the standard rate. This is due to the fact that in this situation the employee does not work overtime. His work complies with the company’s internal work routine and standards. This rule is specified in Articles 107, 152-153 of the Labor Code of the Russian Federation.
Is it a violation to replace salary with benefits?
At first glance, the employer does not face anything for calculating benefits instead of salary. The manager simply does not display on the timesheet the days on which the employee actually worked. And in fact, if the employee is loyal, nothing will happen. But an employee who is dissatisfied with the small amounts of accruals can contact labor inspection. In this case, the company may have problems.
It is enough for the worker to provide inspectors with evidence that he was in service during the period of validity of the sick leave:
- Witness's testimonies.
- Correspondence from the workplace.
- Signatures on documents.
- Prepared waybill.
- Registration of a refund to the cashier.
If the labor inspectorate determines that the employer did not pay wages to the employee (even when benefits were accrued), an administrative fine is imposed. The punishment is stipulated in Article 5.27 of the Code of Administrative Offenses of the Russian Federation. After considering the employee’s complaint, he will have to accrue the previously unpaid salary. The amount of sick leave benefits is reduced by the number of shifts worked. If compensation is offset against insurance premiums, arrears are created. You will have to pay penalties on it, as well as a fine. Thus, for an incorrect action, the employer may suffer significant losses. Therefore, it is better to do everything right from the beginning. Paying benefits instead of salary brings virtually no benefits, but can lead to expenses in the future.
Is it possible to call an employee on sick leave?
Is it possible to force a specialist to come to work when he is on sick leave? No, this is strictly prohibited. A person has the right to stay at home throughout his sick leave. Recruitment to work in in this case will be considered a violation, punishable by a fine (Article 5.27 of the Code of Administrative Offenses of the Russian Federation). The ban on forced labor is stipulated in Article 4 of the Labor Code of the Russian Federation. However, it is rare that a manager issues an official order to call a person back from sick leave. Usually, if there is a production need, they try to come to an agreement with the employee, that is, this is an informal request. The main motivation of an employee is monetary. The employee is promised a certain financial reward.
IMPORTANT! The employer needs to take into account all the risks of calling an employee back from sick leave. In particular, if an employee’s illness worsens due to the continuation of activities, he can recover financial compensation from the company. This right is stipulated by articles 232-233, 237 of the Labor Code of the Russian Federation.
What rewards can be paid?
Typically, employers pay employees who return from sick leave. ahead of schedule, the following compensation:
- An employer has the right to provide its employee financial assistance. If the amount of assistance is less than 4,000 rubles, the amount will not be subject to personal income tax in accordance with paragraph 28 of Article 217 of the Tax Code of the Russian Federation.
- Prize. Accrued for the period before or after sick leave. A bonus cannot be awarded during a period of temporary incapacity for work, since the tax office will have questions about why it was paid. The remuneration must correspond to the points local act about bonuses. Money cannot be issued on grounds not included in the act.
Some employers provide employees with the opportunity to take “informal” days off for early leave from sick leave, during which salaries are accrued.
Is it possible to prevent an employee from going to work?
Many companies, in order to avoid confusion, completely prohibit employees from going to work during open sick leave. The corresponding ban is included in the local regulations of the enterprise. Is it possible to do this? There are two opposing views on the problem:
- It is forbidden. This is due to the fact that this condition will worsen the employee’s position, and this is unacceptable according to Article 8 of the Labor Code of the Russian Federation. According to Article 22 of the Labor Code of the Russian Federation, the employer is obliged to provide employees with opportunities to work. Article 76 of the Labor Code of the Russian Federation reveals a list of conditions under which an employee may not be allowed to work. This list does not include being on sick leave.
- Can. Rostrud gave an explanation according to which the worker could not be allowed to work. If the employee does come, he is given a notice of his obligation to comply with the hospital regime.
An employee who violates the provisions of a local act may be punished. Penalties include deprivation of profits or disciplinary action.
FOR YOUR INFORMATION! Usually, all financial issues related to work during sick leave are discussed informally between the employee and the employer.
15.05.2017 printIn the list of complex cases of calculating temporary disability benefits, an employee’s return to work during illness is far from last place. And in terms of the “cunning”, ambiguity and unpredictability of how inspectors and judges react to such situations, he is the undisputed leader.
It seems that even the widespread implementation planned for July of this year is unlikely to completely solve this problem. Since a smart electronic machine is not at all obliged to go into moral and ethical subtleties and find out: did his immediate superior order the completely ill manager Petrov to go to work, or did Petrov himself find a place for heroism? Was his work impulse a sincere zeal for the good of the company or is it pure deceit, in the sense that the ill “workaholic” hopes to receive for his zeal either a normal salary instead of a small allowance, or both?
We do not rule out that everyone was happy about the appearance of the sick Petrov at work - his superiors, his subordinates, and the company's counterparties. Only the accountant, who had to decide how to pay for these labor achievements and miracles of endurance, was upset. Moreover, this decision must coincide with the position of the FSS of the Russian Federation. But the Federal Social Insurance Fund of the Russian Federation believes that it is impossible to legally pay for work during sick leave. So spin, accountant, as you wish.
Since the solution to the problem one way or another lies in the conflict plane, wouldn’t it be easier to “turn around” Petrov at the office threshold and send him for further treatment? You are, they say, dear to us, like a memory, we all love you. Go, dear, drink tea with raspberries and listen to Rosenbaum: to love is to love, to walk is to walk. To be sick is to be sick.
note
The ability to take paid sick leave is a guarantee provided for in Article 183 Labor Code RF). Allowing an employee on sick leave to work is a violation of labor laws.
No, it’s not simpler... Petrov, as already noted, could appear not on his own whim - for a long ruble, but, like a genie, at the call of management, who, to answer accounting problems - yeah..., from a high bell tower. Moreover, the employee was most likely not called by any written order, but simply in words. It is quite possible that he was also promised additional compensation. So “forceful methods” do not work here.
In addition, an accountant can find out that a sick employee worked on such and such days after the fact, when he is given the honor of a closed sick leave. In which, by the way, there is no note about violation of the hospital regime, since the “workaholic” Petrov observed secrecy and showed up for doctor’s appointments on time.
So what should an accountant do? Initiating Petrov into the intricacies of social insurance is also somehow not the time. On the one hand, since a person worked, he was not “disabled for work” and was not entitled to benefits. But these are all high words. Such arguments can be brought to the FSS, but to Petrova, by and large, yeah... the same thing, from a high bell tower. He has sick leave in his hands, and it is impossible to brush aside this fact by paying the sick Petrov the traditional salary, like a healthy Petrov. More precisely, perhaps, but this fact may come back to haunt us in the future. In court, for example, where unpaid sick leave can be a good argument. Or during inspections where discrepancies in working time recording are revealed.
Another option - to pay benefits instead of wages - is also, to put it mildly, not without its drawbacks. An employee who received a small allowance for days worked instead of a large salary can file a complaint with the labor inspectorate. And there will be evidence that the employee worked like in the galleys. In general, as was said, the problem is the problem.
And there’s another moment that should cause a “headache” not for the accountant, but for the director: even manager Petrov, who sits on a chair at the computer all day, can, as they say, “get sick.” What if Petrov works not as a manager, but as a turner? After all, if something happens to him at work, that’s already work injury, with all the ensuing negative consequences for both himself and his employer. And if, as a result of being called to work, an employee on sick leave experiences a complication of his illness, he can try to obtain compensation from the organization for damage to his health (Articles 22, 232, 233, 237, 220 of the Labor Code of the Russian Federation).
Should I pay sick leave or pay a salary?
Regardless of the reasons for going to work (urgent request of the employer, own initiative in connection with the objective need to submit a report), the question arises of how to pay for working days and sick leave in this case. Can I pay both amounts or do I need to choose one? Is going to work during the period a basis for refusing an employee both sick leave and wages?
One of the organizations asked a similar question to the Russian Ministry of Finance, describing in detail the current circumstances. They were as follows.
Salary or benefit?
The most difficult situations arise if the employee went to work only on certain days, that is, he still “sicked” part of the sick leave, and worked part of it. On the one hand, in accounting and tax accounting it is necessary to reflect those transactions that were actually performed. This means, according to the logic of things, only benefits should be accrued for the time worked, and benefits should be accrued for the time that the employee was actually undergoing treatment and did not work.
Moreover, strictly speaking, it should depend on specific circumstances. If an employee worked at the beginning of a period of temporary disability (as, for example, in the situation described in the above letter from the Ministry of Finance of Russia), then there was a violation of the regime, and, therefore, payment for those days of illness when the employee did not go to work should be based on ( taking into account the regional coefficient). But if at first the employee was sick (he received treatment and did not go to work), and at the end of the sick leave he returned to work, those days of illness that preceded the violation of the regime (going to work) must be paid in full according to general rules, because a reduction in benefits due to a violation of the regime is made only starting from the date of the violation.
But, as has already been emphasized, it is the health worker, not the employer, who must mark the violation of the regime. If the employer, contrary to the advice of Rostrud of the Russian Federation, does not inform the medical institution that the employee is going to work, there will be no marks on the sick leave. Therefore, formally, the employer has no grounds for reducing the amount of benefits. Although, as already emphasized above, the judges may well conclude that he was nevertheless obliged to calculate benefits based on the minimum wage, since he knew for sure that a violation had taken place.
So, with a 99.9% probability we can assume that our “workaholic” will not have any marks of violation of the hospital regime. Is it necessary to reduce benefits if days were worked at the beginning or in the middle of sick leave? The FSS will most likely answer this question (if you ask it for some reason) in the affirmative. But from the courts, if an employee who is annoyed by this turn of events complains about you, you can expect anything. In particular, the verdict that without a doctor’s note about a violation of the regime, the employer does not have the right to reduce benefits, even if he knows about the violation (decision of the Zheleznodorozhny District Court of Ulyanovsk dated January 23, 2015 No. 2-47/2015(2-2811/2014;) ~M-2733/2014; Lomonosov District Court of Arkhangelsk dated January 22, 2015 No. 2-142/2015(2-4475/2014;)~M-4441/2014; appeal rulings of the Court of the Yamalo-Nenets Autonomous District dated February 10, 2014 33-242/2014).
note
The time of release from work due to incapacity for work does not apply to rest time. Consequently, work on sick leave is not work on a day off and is not paid double (Articles 107, 152, 153 of the Labor Code of the Russian Federation). If wages are accrued for days worked, then benefits for these days are not due and non-payment will not be a violation of the Labor Code of the Russian Federation.
So the employer has complete freedom of action in this regard with a whole bunch of all sorts of consequences. We choose the “best of the worst”. For example, we are guided by the position of the courts and do not reduce it. However, there is a possibility that the FSS will do this on its own - refusing to reimburse you.
By the way, do not forget about the resolution of the Presidium of the Supreme Arbitration Court of February 14, 2012 No. 14379/11, which states that even if there is a mark on the sheet, the employer is obliged to reduce the benefit only if the reason for the violation is not valid. The senior arbitrators, in turn, referred to paragraph 1 of part 1 and part 2 of article 8 of Law No. 255-FZ. Respect is determined not by the Social Insurance Fund, but by the manager, based on the conclusion of the social insurance commission created in the organization, or, if the company is small, individually (subclauses 1.1–1.3 Model provision, approved FSS 07.15.94 No. 556a; clause 10 of the Regulations, approved. Government Decree dated 12.02.94 No. 101). In general, we keep in mind the decision of the senior arbitrators and look for a valid reason for not reducing it. And, of course, we find it (difficult financial situation employee, presence of young children, etc.). This option will not completely protect you from a dispute with the fund, but it may possibly reduce its likelihood.
A reduction, while insuring against disputes with funds, can provoke a conflict with an employee. An employee who does not agree with the reduction can either complain (she will not accrue additional benefits, but she uses the complaint as a reason for verification) or go to court.
There is also a compromise option: reduce the benefit for offset (reimbursement) at the expense of the Federal Social Insurance Fund of the Russian Federation, and give the employee a full benefit, paying the difference from the organization’s funds. True, the amount of the “addition” will have to be charged insurance premiums– as a payment to an employee within the framework of an employment relationship.
A serious question is whether a person can work on sick leave. As you know, a certificate of incapacity for work is issued so that an employee can receive treatment at home or in a hospital, and at the same time he does not have to perform work duties. However, there are situations when a person himself wants to go to work as soon as possible, or his boss forces him to do this. Of course, while on sick leave, you cannot fulfill your professional responsibilities. Because violating this rule will lead to negative consequences.
What happens when you go back to work?
Quite a lot of people are glad to have the opportunity to relax at home, even if it is due to illness. They are in no hurry to go to work and obediently stay at home until the doctor prescribes them. However, there are also those who like to work or simply do not want to sit at home. Therefore, they do not want to stay on sick leave for a long time and go to work ahead of time.
Separately, we note that if a person decides to leave early just to receive both a salary and benefits, then this will not happen. Only one type of income is allowed to be accrued at a time. Therefore, there is no point in stopping treatment prematurely in order to double the payment.
It’s a completely different matter if going to work while on sick leave was caused by the employer. That is, he demanded to immediately appear at workplace or even threatened with dismissal or deprivation of money. A person should not succumb to this, because these actions are illegal. Even if the boss later fires you due to refusal to stop treatment early, such an action can be challenged in court.
It follows that for an employee who is at home due to illness, there is no point in being a hero and joining the company. You should complete the therapy and not violate the established rules, because this will only lead to negative consequences, both for the citizen and for the organization. Therefore, both management and the employee himself must remember that he can begin his duties only after discharge.
Consequences
If managers call a person to work and persistently insist on this, then the employee may act differently. He can agree and leave without contacting the hospital to report his intention to close the sick leave. This is what people do if they are afraid of losing their job due to failure to comply with the illegal demands of their boss. However, if an employee leaves during the period of treatment, then his work will not be paid.
Important! If the company decides to call its employee prematurely, then he has every right to refuse. Any attempts to force people to work are a violation of the labor code.
A citizen must tell an unscrupulous leader about a violation of the law in order to justify his position. Even if after this the management does not stop demanding that you show up for work, you can immediately contact the labor inspectorate. In this case, the head of the company who called the sick person will pay a fine.
A situation may also occur where the boss threatens to fire you. Such cases are common, but you should not succumb to blackmail and stop treatment. By law, an employer does not have the right to lay off a person who is currently undergoing outpatient or inpatient therapy. If he demands that the individual sign a resignation letter, then the citizen has the right to contact the prosecutor’s office with a complaint against the organization.
You should not be afraid of losing a job that does not allow you to undergo the necessary therapy. Even if after the conflict the relationship with your superiors is damaged, you should not be upset, because in any case it is better to find another place. After all, if you have serious health problems, it will simply be impossible to fulfill your job duties, and an unscrupulous boss will not allow you to undergo treatment in peace.
There may also be a situation where the employee and the manager agree among themselves that the citizen will go to work. Instead of official salary, which is not allowed in this case, individuals will be given, for example, time off or bonuses. Of course, this is possible, but it is illegal. And if anyone finds out about this, then the employee will lose part of the benefit, and the boss will be fined.
Ways to prove violation
As a rule, the company does not seek to convict its employee of going to work while temporarily incapacitated. This is beneficial for them, because if a person is on sick leave, the Social Insurance Fund pays him for this time. But wages will not be accrued, because these payments cannot be combined.
Most often, a problem arises when a person wants to undergo therapy, but his superiors prevent him from doing so. You can hear a complaint from a person: “I’m on sick leave, and my manager demands that I come to work.” This situation is extremely unpleasant, especially if the disease is serious. Therefore, a person has every right to appeal to government bodies to complain about the organization.
Let’s say that a citizen decides to go to court to resolve a conflict with his boss and receive compensation. To prove that you are right, you will need to confirm with facts that you really had to show up for work.
Words alone may not be enough, especially if the employer denies everything.
- You can prove that you are right in the following way:
- Show documents signed at work by an employee on sick leave.
- Provide information in court about the dates and times when the magnetic pass was triggered.
Involve witnesses who can confirm the fact that the employee was present at the company during illness.
In turn, the employer can contact the doctor to notify him that the employee is not following prescribed treatment. In this case, the same evidence as for the court will be suitable to confirm your words. Then the doctor will put a mark on the sick leave sheet.
As a result, the payment will not be higher than the minimum wage for a full calendar month. And the benefit will be accrued from the moment a violation of therapy is recorded. Therefore, an employee needs to think twice before going to work before the end of sick leave.
About early exit
Of course, you cannot violate the treatment regimen and voluntarily take up duties before the end of your sick leave. But this does not mean at all that a person does not have the right to report to work ahead of schedule. Such a possibility does exist if a person decides that there is no point in staying at home. But everything needs to be formalized, otherwise negative consequences cannot be avoided.
Let’s say there are a day left before the end of the sick leave, and the person has already reported to work. In this case, he must write a statement stating that he began his duties a day earlier. You also need to ask that this number be considered the first working day. The paper is sent to the employer and serves as a notification that the person has arrived at the organization earlier than expected.
A day worked can be compensated with time off or a bonus. It will not be possible to accrue wages for it. It is also worth understanding that even a written statement will not affect the fact that violation of the treatment regimen is considered an illegal act. Therefore, it is highly recommended not to rush and ignore doctors’ recommendations. At a minimum, a person may not be paid for days worked during illness. But it may also end up with his benefit being significantly reduced.
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In their work, accountants and personnel officers have to deal with various ambiguous and problematic situations. One of them occurs when an employee has sick leave, but at the same time goes to work on days falling during the period of temporary incapacity for work. Maybe the employee is irreplaceable, and the company’s management, due to production needs, urgently asked him to do so. Or maybe the employee himself wanted to show zeal and went to work without informing anyone about the sick leave, but when it was closed, he presented it for payment. Regardless of the reasons, the same question arises: how to pay for work and sick leave in this case? Can I pay both amounts or do I need to choose one? Is going to work during a period of temporary incapacity a basis for refusing an employee both sick leave and wages?
Commentary to the Letter of the Ministry of Finance of Russia dated 06/04/2012 N 03-03-06/4/57 “On issues of social security of employees and accounting for labor costs during periods of temporary disability for profit tax purposes”
The organization asked
In the commented Letter, the employing organization asked a very specific question, citing the factual circumstances of the case. And they are like that. The employee was issued for the period from February 2 to February 27, 2012.
However, from February 2 to February 6, 2012, the employee was at the workplace, as evidenced by the time sheet, as well as the work performed by the employee.
It is quite natural that the accountant had a question: in what order should temporary disability benefits be paid to the employee? The organization considered two options:
- pay benefits for the entire period from February 2 to February 27, 2012 in accordance with Federal law dated December 29, 2006 N 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity”;
- for the period from February 2 to February 6, 2012 and only from February 7 to February 27, 2012 - benefit.
Moreover, in the second case, an additional question arises: is it possible wages, paid to the employee for the period from February 2 to February 6, 2012, should be taken into account in expenses when calculating the tax base for income tax?
The financiers explained, but... did not answer
Unfortunately, the financiers once again did not give a direct and concrete answer to the questions posed.
First of all, they recalled that in accordance with the Regulations of the Ministry of Finance of Russia (approved by Order of the Ministry of Finance of Russia dated March 23, 2005 N 45n), the department does not consider on the merits appeals of organizations for clarification (interpretation of norms, terms and concepts) of the legislation of the Russian Federation and the practice of its application, on the practice of applying regulatory legal acts of the ministry, on conducting an examination of contracts, constituent and other documents of organizations, on assessing specific economic situations.
Nevertheless, officials considered it necessary to pay attention to the following legislation.
Firstly, in case of temporary disability, the employer pays the employee temporary disability benefits (Article 183 of the Labor Code of the Russian Federation).
Secondly, in order to assign and pay benefits for temporary disability, pregnancy and childbirth, the insured person submits (Clause 5 of Article 13 of Law No. 255-FZ):
- a certificate of incapacity for work issued by a medical organization in the form and in the manner established by the federal executive body exercising the functions of developing public policy and legal regulation in the field of social insurance;
- a certificate (certificates) about the amount of earnings from which the benefit should be calculated, from the place (places) of work (service, other activity) with another policyholder (other policyholders).
Thirdly, as explained in paragraph 17 of the Letter of the Federal Social Insurance Fund of the Russian Federation dated October 28, 2011 N 14-03-18/15-12956, the certificate of incapacity for work performs a dual function, being a financial document that serves as the basis for the assignment and payment of benefits, and certifies the disability of citizens , confirming their temporary release from work.
Fourthly, the basis for reducing the amount of temporary disability benefits is the violation by the insured person without good reason during the period of temporary disability of the regime prescribed by the attending physician (clause 1, clause 1, article 8 of Law No. 255-FZ).
And finally, based on paragraphs. 48.1 clause 1 art. 264 of the Tax Code of the Russian Federation, other expenses associated with production and sales include the employer’s expenses for paying temporary disability benefits in accordance with the legislation of the Russian Federation (with the exception of industrial accidents and occupational diseases) for days of illness of the employee, which are paid at the expense of the employer and the number of which is established by Law N 255-FZ. Payment is made only to the extent not covered by insurance payments made to employees by insurance organizations under agreements with employers in favor of employees in the event of their temporary disability.
What's the difficulty?
In fact, the issue raised in this Letter is quite ambiguous. And the problem is aggravated by the fact that there are no specific official explanations from the FSS of the Russian Federation, as well as from the Ministry of Finance of Russia, the Ministry of Health and Social Development of Russia and other departments on this issue. Therefore, all that remains is to analyze the letter of the law, arbitration practice and rely on common sense.
And most importantly, this issue is multifaceted, and a number of nuances will have to be taken into account.
Firstly, it is necessary to understand that temporary disability benefits are not just one of the guarantees provided for by labor legislation, and not just compensation payment based on the presented sick leave certificate.
Yes, benefits are spoken of precisely as guarantees in Art. 183 Labor Code of the Russian Federation. And in paragraph 1 of Art. 1.3 of Law N 255-FZ states that the insurance risk for compulsory social insurance in case of temporary disability is the temporary loss of earnings or other payments and remuneration by the insured person in connection with the occurrence of an insured event (including temporary disability of the insured person due to illnesses or injuries, except for industrial accidents and occupational diseases).
But the whole point is that the payment of benefits is “tied” by law not just to the fact of having sick leave, but specifically to the fact of temporary loss of ability to work.
So, in paragraphs. 1 clause 1 art. 5 of Law N 255-FZ emphasizes that the provision of benefits to the insured person is carried out in the event disability due to illness or injury. And from paragraph 1 of Art. 6 of Law N 255-FZ, one can draw a logical conclusion that benefits should be paid in case of loss of ability to work due to illness or injury for the entire period of temporary disability until the day of restoration of working capacity(or until the day disability is established), with the exception of some special cases.
Thus, only those employees who were truly temporarily disabled during the relevant period can apply for benefits. If the person worked, the condition of loss of ability to work is not met. In other words, despite the presence of sick leave, the employee was not disabled since he could go to work.
Secondly, in paragraphs. 1 clause 1 art. 8 of Law N 255-FZ, among the grounds for reducing the amount of benefits, mentions violation by the insured person without good reason during the period of temporary disability of the regime prescribed by the attending physician. In such a situation, from the day the violation was committed, benefits are paid not based on average earnings, but based on the minimum wage (taking into account the regional coefficient). Of course, logically, cases of an employee returning to work whose sick leave was not yet closed (i.e., who, according to the doctor, was incapacitated) should be considered a violation of the regime.
However, according to the rules prescribed in the Procedure for issuing certificates of incapacity for work (approved by Order of the Ministry of Health and Social Development of Russia dated June 29, 2011 N 624n), only medical worker(for example, the attending physician). An employer cannot arbitrarily enter such information on a sick leave sheet. And since there is no note about violation of the regime on the temporary disability certificate presented by the employee, formally the employer has no reason not to pay for such sick leave, and the Federal Social Insurance Fund of the Russian Federation does not have the right to refuse compensation (offset) of the corresponding amounts.
But this is all in theory. But in practice, this can lead to significant problems.
For example, the Federal Antimonopoly Service of the Far Eastern District, in Resolution No. F03-A59/08-2/2902 dated October 3, 2008, stated that the responsibility for checking disability for payment of benefits lies with the administration of the company. It makes its payment, and only if this obligation is properly fulfilled does the organization have the right to reimburse the funds at the expense of the Federal Social Insurance Fund of the Russian Federation (and the latter has the obligation to accept the paid amounts for offset).
Another interesting dispute was considered in the Resolution of the Federal Antimonopoly Service of the Ural District dated April 20, 2011 N F09-1302/11-S2.
The employee worked in one organization and part-time in another company. He took sick leave and did not go to work at the main organization during the period indicated on it, but he worked for another employer (part-time) as usual. But no notes on violation of the regime were made on the certificate of incapacity for work. Later, during an inspection (after the sick leave was presented and paid for by the “main” employer), the FSS of the Russian Federation discovered this fact. The fund qualified such actions of the employee as a violation of the regime and, despite the absence of a corresponding note from the attending physician on the sick leave, it considered that the amount of benefits at the main place of work should have been reduced (and, as a result, did not accept part of the benefits paid).
But the main employer believed that since at the time of payment he did not know and could not know about the violation of the regime, he legally paid sick leave on the basis of the documents presented by the employee and the entire amount should be offset.
The court concluded that the Federal Social Insurance Fund of the Russian Federation quite rightly did not take into account the costs of paying part of the benefit (i.e., the difference between the accrued amount and the amount that was due to the employee taking into account the reduction in the amount of the benefit in accordance with Article 8 of Law No. 255-FZ).
Facts of abuse of his rights by the insured person were established (he actually worked for another employer during the period of sick leave and, therefore, violated the regime). This means that the costs of paying sick leave in such a situation were incurred by the policyholder in violation of the norms of current legislation.
How to...
Of course, if judges are so strict with the main employer in cases where its employee violated the regime by going to work part-time during illness, they will clearly not show leniency in a situation where the employee, while on sick leave, goes to his main job .
Moreover, in this case it will no longer be just a matter of violating the regime and the need to reduce the amount of benefits, but generally about not assigning benefits to the employee. After all, in fact, going to work during illness means that the employee has not lost either his ability to work or his earnings.
Therefore, if throughout the entire period of validity of the temporary disability certificate the employee worked as usual, it is definitely impossible to pay both wages for the time worked and sick leave benefits (neither in full nor in a reduced amount).
Actually, in such a situation, there is no point in the employee taking medical institution certificate of temporary incapacity for work. And if it was nevertheless taken, it should not be presented for payment.
However, not only the employee himself, but also his employer can be “punished with a ruble” if the employee has sick leave and worked during his illness. After all, as already noted, the ability to take paid sick leave is a guarantee provided for by labor legislation (Article 183 of the Labor Code of the Russian Federation). This means that if the employer allowed an employee on sick leave to work, he violated labor legislation. The labor inspectorate has every right to apply appropriate sanctions to such an employer. This means that if an employee who has been asked to work while on sick leave holds a certificate of temporary incapacity for work, he can at any time contact the labor inspectorate and declare his rights violated.
It is somewhat more difficult to find the right solution in a situation similar to the one described in the question in the commented Letter - if the employee went to work only on certain days, that is, he still “sicked” part of the sick leave, and worked part of it.
There are several options here.
On the one hand, there is an opinion that in accounting and tax accounting it is necessary to reflect those transactions that were actually performed. This means that wages (and only wages) must be accrued for the time worked, and benefits must be accrued for the time that the employee was actually treated and did not work.
Moreover, strictly speaking, the amount of the benefit should depend on specific circumstances. If the employee worked at the beginning of the period of temporary disability (as, for example, in the situation described in the Letter), then there was a violation of the regime, and, therefore, payment for those days of illness when the employee did not go to work should be based on the minimum wage (with taking into account the regional coefficient). But if at first the employee was sick (he received treatment and did not go to work), and at the end of the sick leave he returned to work, those days of illness that preceded the violation of the regime (going to work) must be paid in full according to the general rules, because the reduction benefits due to violation of the regime are made only from the date of violation.
But, as has already been emphasized, it is the health worker, not the employer, who must mark the violation of the regime. If the employer does not inform the medical institution that the employee is going to work (the law does not impose an obligation to “knock on the employee”), there will be no marks on the sick leave. Therefore, formally, the employer has no grounds for reducing the amount of benefits. Although, as already emphasized above, the judges may well conclude that he was nevertheless obliged to calculate benefits based on the minimum wage, since he knew for sure that a violation had taken place.
On the other hand, some advise neglecting the “reality” of operations and using a “gray” scheme - nowhere to reflect the fact of work during sick leave, making notes about illness on the report card and paying for sick leave in full according to the general rules, but paying for the actual work performed " in an envelope" or "disguised" as a bonus, financial assistance and other payments.
Or, in the future, you can provide the employee with time off (working days will be entered on the timesheet, pay will be charged, and in fact the employee will have a rest on these days). But “gray” schemes, as we all understand, are also fraught - and simply illegal.
So, of course, it is best not to involve workers in work during periods when they are on sick leave, and not to allow them to show zeal and at will go to work these days. This is not only easier from the point of view of paying sick leave, but also safe from the point of view of enforcing labor laws.
If, for some reason, the employee “combines” illness and work, the manager and accountant of the organization will have to make a decision regarding the procedure for payment for such work and sick leave, taking into account the norms of legislation and arbitration practice discussed above.
