Home › Housing and communal services › An employee on sick leave works part-time. Working while on sick leave: consequences, what is important to know. Is it considered non-compliance with the law?

An employee on sick leave works part-time. Working while on sick leave: consequences, what is important to know. Is it considered non-compliance with the law?

“The slightest thing - straight into the bushes!” Are you familiar with the position of employees who are responsible for something and fail to do it? Most often, such an employee suddenly becomes seriously and long-term ill. Does the employer have the opportunity to stop the tricks of unscrupulous employees who are trying in such a simple way to avoid responsibility for unfulfilled management tasks?

Almost every employer has encountered the situation of “ostrich” behavior of their employees: when there is a danger of disgrace from management and the risk of being punished for failure to fulfill their duties, the employee suddenly turns out to be sick. At the same time, his incapacity for work is confirmed both visually (the employee is absent from the workplace) and documented (the employee submits a certificate of incapacity for work). However, management has every reason to believe that there is actually no disease.

What reasons might prompt an employee to take such actions? The list is short:

Conflict. By going on sick leave, an employee is thereby trying to avoid an imminent conflict with management and colleagues. The main message is “time heals,” which in this situation means the employee’s hope for exhaustion, repayment of the conflict by the long and complete absence of one of its parties.
Failure to comply with a standard, plan, task. The employee was afraid of the responsibility assigned to him by the manager for completing some task or project. The situation gets worse if the task is not completed and punitive measures may follow from the employer. For example, bringing to disciplinary action or reducing the size of the bonus.
Threat of dismissal. An employee becomes unable to work overnight due to news of an upcoming reduction in staff or numbers. Fearing being given notice of impending dismissal, the employee prefers to “get a little sick” in order to give himself a head start in finding a new job or a way out of the current situation. For example, getting pregnant.
Continuation of vacation. A trivial situation when an employee did not have time to return from vacation. Lack of advance planning of the route sometimes leads to sad results - there are no tickets for the last day, or the transport is broken down or stuck in the steppe, etc. The solution is to urgently issue (often “retrospectively”) a certificate of incapacity for work from a doctor you know.
Fatigue. The situation is typical for work areas where employees are very tired due to workload, intensity of work, and there is no alternative to replacement. For example, for a chief accountant if he does not have a deputy, or for employees occupying positions directly related to working with the public (payment acceptance, cashiers in supermarkets where there is a large flow of visitors), if there is no replacement employee. In such cases, in the absence of a full weekly rest, as well as the impossibility for production reasons of using annual paid leave in full at a time, the employee decides to take a little rest on sick leave.
Studies. The reason is relevant only for training employees. Reluctance or inability to take study leave, including in cases where the employer opposes the employee’s legal request to provide study leave, gives rise to the appearance of a disease that requires long-term outpatient treatment. Just for the entire duration of the next session at the educational institution.
Alcohol intoxication. Drawing up a certificate of incapacity for work serves as an emergency way out of the situation of an employee remaining intoxicated at the beginning of the working day or becoming intoxicated from drinking alcoholic beverages at the workplace. The problems are aggravated by the employer’s identification of this fact. In this case, the reason for going on sick leave becomes twofold: on the one hand, the employee, due to his general health, cannot perform his job duties, and on the other hand, in this way the employee tries to minimize the risk of being punished (including fired) for showing up at work drunk. All this becomes the reason for the employee to contact a medical organization in order to obtain a certificate of incapacity for work.
A game of hide and seek with management. In most cases, the basis for this reason lies in the political and career games of the “top” of the organization or its structural unit. A change in leadership, potentially dangerous by a subsequent chain of personnel changes, always causes trembling horror and nervous anticipation on the part of deputies, assistants and middle managers. “Serving” on sick leave in certain cases makes the employee invisible to management. In the heat of personnel changes, an employee who is neither seen nor heard is somehow forgotten for a while. And... they don’t touch it. And upon returning to work, he continues to work as if nothing had happened at his previous workplace and in his previous position.
Laziness. Perhaps the strangest reason of all. Its emergence is due to the presence of “warm” jobs, where there is little work, it is not hard and even well paid. But boring, uninteresting. And in general, despite all its positive properties, I’m somehow… too lazy to do it (the work). And while on sick leave you can have a good rest!

We use fighting methods

Of course, few employers are satisfied with the behavior of employees hiding from problems at work in clinics at their place of residence. Is it possible to combat this phenomenon and how? Let's try different paths and see what comes of it.

Solution 1: check the sick leave certificate for counterfeit and illegal issuance

Unfortunately, the employer will not be able to do this on his own due to. However, an employer, having reasonable doubts regarding the certificate of incapacity for work itself or the validity of his employee’s incapacity for work, may apply:

to the authorities of the Social Insurance Fund of Russia with a request for verification. If the FSS of the Russian Federation recognizes the employer’s arguments as worthy of attention, an inspection will be carried out in relation to the healthcare institution in accordance with the Instructions on the procedure for monitoring the organization of examination of temporary disability, approved by Order of the Ministry of Health of the Russian Federation No. 291, FSS of the Russian Federation No. 167 of October 6, 1998;
to the police and prosecutor's offices, which, within the framework of their powers, will also check the circumstances of the issuance of a dubious certificate of incapacity for work in order to detect signs of a crime.

Risk Such a solution to the problem for the employer lies in the possibility of violations that could lead to administrative and criminal liability provided for:

Art. 24 of the Law on Personal Data (legal norms on personal data);
Art. 13.11 of the Code of Administrative Offenses of the Russian Federation for violation of the procedure established by law for the collection, storage, use or dissemination of information about citizens (personal data) or Art. 13.14 Code of Administrative Offenses of the Russian Federation for disclosure of information with limited access;
Art. 137 of the Criminal Code of the Russian Federation for violation of privacy (disclosure of information about the personal life of an employee, which can be qualified as a crime).

Plus of the method- the desire to achieve truth and justice.

Disadvantages of the method- violation of employee rights, many wasted actions with almost zero results, the pointlessness of attempts to convict doctors of illegally issuing certificates of incapacity for work.

Thus, the decision entails a great risk of liability for officials of both the employer itself and the medical organization in which the employee is being treated. It can only be true when contacting the Federal Social Insurance Fund of the Russian Federation and the prosecutor’s office in order to initiate an investigation into the circumstances of the issuance of a certificate of incapacity for work by a medical institution for an employee.

However, you can act in another way - through the investigative authorities. After all, the production and use of false documents is a criminal offense. And if we take into account that an agreement between an employee and a doctor, as a rule, does not exist without a bribe, which is also recognized as a crime, there is even more reason to initiate an appropriate inspection and initiate a criminal case based on its results.

Judicial practice

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The court convicted two people - an employee who gave a bribe for issuing a false “sick leave” and then received temporary disability benefits for it, and a doctor who received this bribe. The case turned out to be ordinary: knowing that he was not given leave at work (not according to the schedule, but at will), the employee turned to a general practitioner at a clinic other than his own with an offer to draw up and issue him certificates of incapacity for a total period of 15 days for a monetary reward. . Having agreed with the doctor, the employee went on vacation at sea, upon his return paying the doctor and receiving a document confirming his absence from work was justified, although he was not sick and was not disabled during the specified period. The employer paid for the certificates, including at the expense of the Federal Social Insurance Fund of the Russian Federation, but reasonably doubted the reality of the employee’s illness. At the initiative of the employer, after an appropriate check, a criminal case was initiated, and it even went to court. Both citizens were found guilty of committing crimes under the Criminal Code of the Russian Federation: the doctor - for forgery and taking a bribe, and the employee - for fraud and giving a bribe. Both received two years of suspended imprisonment with a probationary period of the same duration (sentence of the Lysvensky City Court of the Perm Territory dated March 4, 2008).

Solution 2: dismiss for absenteeism, allegedly not knowing about the employee’s illness

The possibility of dismissal for absenteeism is provided for in subsection “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation. Paragraph 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2) contains clarifications regarding cases of application of this basis. Thus, it is allowed to dismiss an employee on the above grounds for:

absence from work without good reason, i.e. absence from work throughout the entire working day (shift), regardless of the length of the working day (shift);
an employee staying outside the workplace without good reason for more than four hours in a row during the working day;
abandonment of work without a good reason by a person who has entered into an employment contract for an indefinite period, without warning the employer of termination of the contract, as well as before the expiration of the two-week warning period;
abandonment of work without a good reason by a person who has entered into an employment contract for a certain period before the expiration of the contract or before the expiration of the warning period for early termination of the employment contract;
unauthorized use of days off, as well as unauthorized departure on vacation (main, additional). The exception is when the donor uses rest days when the employer illegally refuses to provide them.

Let us recall that the burden of proving the fact of absenteeism lies with the employer (clause 38 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2).

Risk Such a decision consists of declaring the dismissal illegal, restoring the employee to his previous position, as well as collecting wages from the employer for the period of forced absence and compensation for moral damage.

Advantages of the method- an immediate impact on the employee, forcing him to be active, show up at work, show a certificate of incapacity for work, and explain the reasons for his absence. In addition, this method shows the employee that the employer is serious and wants to part with him.

Disadvantage of the method is that it is illegal. Even if the employer did not know about the employee’s illness, the latter is subject to reinstatement at work in court, where he will file a corresponding claim. Part 6 art. 81 of the Labor Code of the Russian Federation prohibits dismissal at the initiative of the employer during the employee’s illness or while he is on vacation. The only possible case of leaving the dismissal as is is if the employee himself misses the deadline for going to court (one month from the date of dismissal - Article 392 of the Labor Code of the Russian Federation). In this case, it is mandatory for the employee to familiarize himself with the order, including in absentia (sending the order to the address of residence with notification of the need to obtain a work book, i.e. the actions provided for in Article 84.1 of the Labor Code of the Russian Federation when dismissing an absent employee). This is necessary to prove the date the employee became aware of his dismissal and the start of the period provided for in Art. 392 of the Labor Code of the Russian Federation has a one-month period for going to court.

As you can see, the method is not based on law. The likelihood that the employee will not challenge it is very low.

Judicial practice

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The employee filed a lawsuit against the employer to declare the dismissal order illegal and cancel it, to change the date and wording of the grounds for dismissal, to recover monetary compensation, compensation for moral damage, and legal costs. In support of the claim, she indicated that she submitted an application to the employer for leave with subsequent dismissal. While on vacation, she fell ill, about which she notified her employer by fax and asked to extend her vacation by the number of days of incapacity. Upon returning from vacation (after two months), she found out that she had been fired for absenteeism.

The court found that the plaintiff was granted leave, during which she actually became ill. During the period of incapacity for work, she was issued two certificates of incapacity for work, the second of which was improperly brought to the attention of the employer. At the end of the first period of incapacity, the employee did not return to work. The employer conducted its own investigation, and the plaintiff was fired for absenteeism. However, due to the controversial fact of improper communication of information about the employee’s continuing disability, the court found proven the fact of her appeal to the employer to extend her leave for both periods of disability.

The court concluded that the dismissal procedure was violated; the employee was fired while she was on annual paid leave. This conclusion is based on the provisions of Art. 124 of the Labor Code of the Russian Federation, obliging the employer to extend or postpone the employee’s next vacation for the period of the employee’s temporary disability. Failure by the defendant to issue an order to postpone or extend the plaintiff’s vacation does not automatically deprive the employee of the right to its extension. If an employee wishes to resign at the end of annual leave, the day of dismissal must be considered the last day of leave. The employer determined the specified dates incorrectly, and therefore the plaintiff’s absence from the workplace was unreasonably regarded as absenteeism, which, in turn, resulted in illegal dismissal. Therefore, the court declared the dismissal illegal, changed the wording of the dismissal to “dismissal of one’s own free will,” and simultaneously collected appropriate compensation from the employer in favor of the employee (decision of the Sovetsky District Court of Astrakhan dated April 30, 2010).

Solution 3: do not pay benefits due to suspected fake sick leave

The situation is critical: the employer, having more than once caught the employee using such a method of avoiding troubles as sudden incapacity for work, confirmed by a duly issued and executed certificate of incapacity for work, decides to go for broke, i.e. do not pay for time of incapacity.

Risks arise immediately in aggregate:

unscheduled inspection by the state labor inspectorate and the prosecutor's office at the request of the employee. And as a result of detecting a violation of an employee’s rights to receive social insurance benefits, the issuance of an appropriate order to eliminate the violation;
bringing the employer or its officials to administrative liability under Art. 5.27 Code of Administrative Offenses of the Russian Federation for violation of labor legislation;
bringing the employer to financial liability under Art. 236 of the Labor Code of the Russian Federation (collection of compensation for delay in payment of temporary disability benefits);
recovery by the court from the employer in favor of the employee of amounts of compensation for moral damage caused by violation of his rights.

Plus of the method- temporary material impact on the employee: “If you don’t go to work, you won’t get anything. And while you are suing and complaining, there is no more money for food.”

Disadvantage of the method- a high risk of holding the employer liable in the absence of a visible effect on the employee. The employee will still receive temporary disability benefits - whether voluntarily, or through the influence of regulatory authorities, or through the court.

The method is not based on the law and immediately entails the risk of administrative and financial liability. However, it is possible to invalidate the certificate of incapacity for work and recover from the employee the amount of temporary disability benefits paid.

Judicial practice

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The employer filed a lawsuit against the employee to invalidate the certificate of incapacity for work and return the temporary disability benefit. In support of the claim, he indicated that the plaintiff went on vacation without registering it in the prescribed manner. However, upon completion, she presented a certificate of incapacity for work. At the same time, the certificate of incapacity for work was issued one day before the start of the defendant’s vacation, but there were no marks on it about the employee’s violation of the regime, although the vacation lasted longer than the periods established for carrying out examinations of the disabled. The employer paid social insurance benefits for the specified certificate of incapacity for work. An inspection of this sheet carried out by the Federal Social Insurance Fund of Russia led to the employer’s refusal to reimburse the benefits paid.

The court, based on information about departures from the airport, established the dates and times of departure and arrival of the defendant. Having examined the certificate of incapacity for work, the court did not find any violations in the procedure for issuing it, but found violations in the procedure for its extension and completion (in terms of the absence of appropriate notes on the patient’s failure to appear for examinations). Based on the evidence presented, the court concluded that, without notifying the employer and without documenting her request, the defendant spent her vacation having planned it in advance. Not knowing that the employee was on vacation, the employer paid her benefits. Taking into account the provisions of the law that amounts of temporary disability benefits overpaid to the insured person cannot be recovered from him, except in cases of accounting error and dishonesty on the part of the recipient, the court found the employee’s actions to be dishonest. However, due to the fact that no violations were identified when issuing a certificate of incapacity for work, the court declared the certificate of incapacity invalid starting from the day following the day of application, and recovered the paid amount of benefits from the defendant for 9 days, thus satisfying the employer's claims partially ( decision of the Aircraft District Court of Kazan dated February 11, 2011 in case No. 2-215/11).

Decision 4: punish the employee in absentia - during his illness

The employee let the employer down by making mistakes at work and suddenly going on sick leave, and did this at the very beginning of the investigation into errors and violations, so the employer decides to punish him without waiting for his return. In this case, the procedure for bringing to disciplinary liability will be violated: an explanation is not required from the employee, the investigation will be carried out without his participation, he will not be familiarized with either the investigation report or the order of punishment. Therefore the main risk consists in challenging the order of punishment due to non-compliance with the procedure for bringing to disciplinary liability established by Art. 193 Labor Code of the Russian Federation.

Plus of the method- the employee will be punished.

Disadvantage of the method- if the employee is highly legal, the punishment will be in vain; he will challenge it in court and remain unpunished. However, if the employee misses the three-month (one month if the punishment was dismissal) period for going to court (the period begins from the day he is familiarized with the order of punishment) and the employer declares this when considering a legal dispute, the order of punishment may not be accepted. will be cancelled.

The method is not based on law. There is a high risk of challenging the employer's actions. It’s another matter if the employee cheated here too - he didn’t say about his disability, he hid this fact from the employer for the purpose of subsequent reinstatement at work. In this case, the court recognizes the employee’s actions as an abuse of right.

Judicial practice

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The employee filed a lawsuit for reinstatement at work. He considered his dismissal illegal, since in violation of Art. 81 of the Labor Code of the Russian Federation was dismissed during a period of temporary incapacity for work. The court found that the employer conducted an internal check against the plaintiff, which confirmed that he had committed a disciplinary offense, and the plaintiff was presented for dismissal “under the article.” On the last day of work, a settlement was made with the plaintiff, but then he presented certificates of incapacity for work, according to which the onset of his illness and treatment coincided with the date of dismissal. Having analyzed the case materials, the court came to the correct conclusion that the fact that the plaintiff committed an offense, which influenced the employer’s decision to terminate the employment contract with the employee, was confirmed. Verifying the plaintiff’s argument about dismissal during the period of his incapacity, the court concluded that the plaintiff’s actions involved an abuse of right, since he did not promptly notify the employer’s management of his temporary incapacity. At the same time, after the receipt of the certificate of temporary incapacity for work, the employer issued an order that amended the order to dismiss the plaintiff, replacing the date with the first working day after the plaintiff returned from sick leave. In this regard, the court did not find any violation of the employee’s rights in the employer’s actions and rejected the employee’s claim for reinstatement at work (decision of the Pravoberezhny District Court of Lipetsk dated November 6, 2012; appeal ruling of the Lipetsk Regional Court dated January 16, 2013 in case No. 33-3228 /2012) .

Solution 5: punish for failure to fulfill duties after the employee returns to work

The situation when, despite the “ostrich” behavior of the employee, the employer decides to punish him anyway, develops as follows. In this case, the manager gives the task to conduct an investigation, prepare all the documentation in anticipation of the employee returning from sick leave in order to complete the procedure for bringing disciplinary action and issuing an order to punish the suddenly ill employee who committed a violation of discipline and his official duties.

If the disciplinary procedure is carried out correctly there are no risks.

Plus of the method- a conscious, gradual, targeted influence on the employee, designed to prove to the latter that no matter how much he hides on sick leave, he cannot avoid responsibility. After all, according to Part 3 of Art. 193 of the Labor Code of the Russian Federation, disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees. Thus, the employer will still have time to punish the employee, despite the duration of the latter’s illness.

Disadvantage of the method- it is necessary to wait for the offending employee to come out and then prevent errors in the procedure for bringing to disciplinary liability that could lead to the recognition of the order of punishment as invalid.

As we can see, the method is effective in terms of “accumulation” of disciplinary sanctions for the same employee, giving the employer the right to dismiss him in the future under clause 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation (for repeated failure to fulfill official duties).

The courts fully agree with the rightness of the employer in not rushing to issue an illegal order of punishment in advance (due to non-compliance with the procedure), without denying his right to punish the employee after the end of the latter’s temporary disability.

Judicial practice

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The employee appealed to the employer with a claim to recognize the order to impose a disciplinary sanction as illegal, to force him to pay a bonus, and to compensate for moral damages. The court found that one of the plaintiff’s job responsibilities was to provide instructions on labor protection at the enterprise. On the eve of the onset of incapacity, the plaintiff filled out a log, entered the dates of the instruction and sent the log to the posts for the signatures of those instructed, but did not conduct any actual instruction. According to witnesses, this happened many times. The plaintiff’s argument that during the period of his illness the employer should have appointed another responsible person who would have carried out the planned instruction is not relevant for the decision in the case, since the plaintiff committed a violation of discipline by making entries about instructions that had not yet been carried out. From the moment the violation was discovered until October 2, 2010 (approximately three months), the plaintiff was absent from work and disciplinary measures could not be applied to him during this period. However, after the plaintiff returned from sick leave, the employer, having completed all the actions required by law, brought the employee to disciplinary liability. Before applying a disciplinary sanction, a written explanation was requested from the plaintiff, which the plaintiff did not provide within the prescribed period, and therefore an act of refusal to provide a written explanation was drawn up. When applying disciplinary measures, the court did not find any violations on the part of the employer. Based on the above, the court found the plaintiff’s demands unfounded and refused to recognize the order of punishment as illegal (decision of the Severobaikalsky City Court of the Republic of Buryatia dated December 28, 2010).

Solution 6: reduce the employee’s bonus

Since it is not possible to punish the employee and there is no right not to pay social insurance benefits, the employer decides in some way to reduce or completely deprive the employee of the bonus. The desire is laudable and has a chance to be realized. For this to happen, the following conditions must simultaneously exist:

the enterprise must operate a time-bonus or piece-rate wage system;
the size of the bonus is not clearly fixed anywhere;
the amount of the premium is subject to calculation based on certain changing indicators each reporting period;
the procedure for calculating and paying bonuses is regulated by the employer’s local regulations (for example, the Regulations on Bonuses);
local regulations (Regulations on bonuses) provide for a reduction (the employee has the right to a bonus in a smaller amount compared to the base amount) or non-payment of a bonus (i.e. when there is no right to a bonus at all) to employees who have disciplinary sanctions in the reporting period ( indicating the reduction coefficient or cases of complete non-accrual of the premium).

Thus, in order to exercise its right to reduce the size of the bonus or not pay it at all, it is enough for the employer to punish the employee (see decision 5) in compliance with the procedure provided for in Art. 193 Labor Code of the Russian Federation. And then act in accordance with the Regulations on Bonuses (or other local regulations governing relations regarding the payment of bonuses): collect memos, reports, punishment orders (issued when the employee returns to work after an “illness”), calculations and attach to the order on bonuses (de-bonuses) as a basis for not awarding a bonus to a cunning, sick violator of discipline.

Risk There is always a challenge to non-accrual of premiums, but it will arise only if all or part of the conditions listed above are absent.

Plus of the method that it is effective and legal. Its goal - to reduce the likelihood of relapses of such behavior by employees - is quickly achievable. Next time, many of these imaginary “patients,” having assessed their own losses, will prefer not only to endure the unpleasant procedure of investigating the violation they committed, but will also minimize the percentage of errors in the future.

Disadvantages of the method practically none.

Thus, punishing workers with rubles can even be useful: they are less likely to make mistakes at work, and less likely to try to escape trouble by going on sick leave.

Judicial practice

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The employee filed a claim against the employer for the appointment and payment of temporary disability benefits, payment of underpaid wages, and compensation for moral damage. In support of the claim, she indicated that the employer, incorrectly accounting for her working hours in the accounting sheet, did not pay her additional wages, and also did not pay sick leave in full. The court found that, according to the work time sheets, the plaintiff worked only 34 days during the annual pay period: in September 2008 - 15 days; in October, November, December 2008 - 0 days; in January 2009 - 4 days; in February 2009 - 7 days; in March, April 2009 - 0 days; in May 2009 - 5 days; in June, July 2009 - 0 days; in August 2009 - 3 days. The endless “sick leave” and the plaintiff’s removal from work did not affect the continuation of the labor relationship between the disputing parties. The court checked all the accruals and payments made to the plaintiff and partially satisfied her demands, collecting compensation for moral damage caused by the unlawful removal. All other demands for the collection of monetary amounts were denied to the plaintiff. At the same time, the court agreed with the employer in not accruing a bonus to the plaintiff, and in not including a one-time bonus in the calculation of average earnings (decision of the Budennovsky City Court of the Stavropol Territory dated February 24, 2011).

Solution 7: voluntary and persuasive method of parting with an unscrupulous employee

The employer is no longer satisfied with the employee’s game of being “always sick”, and he decides to part with the sly man. At the same time, he chooses a direct method - the method of persuasion. Giving various arguments, the employer insists on terminating the employment contract. Various reasons are used - from the employee’s own desire to the agreement of the parties. In any case, the separation does not occur on the basis of the “employer’s initiative,” although at his suggestion.

If a positive result is not achieved, the employment relationship between the parties continues. However, in this case, the employer’s goal (to terminate the employment contract) can be achieved using other methods, including on his initiative using one of the grounds provided for in Art. 81 Labor Code of the Russian Federation.

Risk here only in failure to reach agreement with the employee.

Plus of the method- its “softness”, which allows you to simultaneously realize the employer’s desire to get rid of the employee, give him a short-term opportunity to find a job and leave with dignity.

Disadvantage of the method- the manager needs to be able to convince, which can be quite difficult with problem employees.

This method is legal and effective, allowing you to solve the problem at the root - to exclude such an employee from the team, and not to fight his methods of avoiding problems by taking “sick leave”.

In conclusion, we summarize that the “ostrich” behavior of staff is typical for many work situations. Not all employers can calmly tolerate an employee going on sick leave during problems that arise in the production process. Even fewer employers are inclined to take for granted the suddenness of illness on such critical days for the enterprise. Problematic situations from which an employee tries to hide at home due to illness, as a rule, are created by himself, due to his mistakes and omissions in his work. Moreover, against this background, the behavior of the employer who is the culprit of the problems looks ugly.

Despite the wide choice of control methods, not all of them allow one to cope with the phenomenon under consideration in a legal and effective way. The use of illegal methods entails a high risk of challenging the actions and acts of the employer in court. Some of the methods used by the employer, due to their illegality, entail the risk of administrative, financial and criminal liability. Thus, of the seven considered methods of struggle, only three have signs of legality, validity, purposefulness, indisputability and effectiveness.

Practice shows that, despite the unsightliness of such behavior, workers for the most part consider themselves entitled to avoid solving problems by feigning illness, while receiving social security benefits, good wages and even a bonus. The dissimilarity between the position of the employer and the culprit of the enterprise’s problems, who is hiding on sick leave, lies in the different understanding of the own degree of responsibility of the parties to the labor relationship, the scope of rights and obligations in relation to each other, guaranteed by law. However, the employer is able to significantly influence the “ostrich” behavior of an employee only in rare cases, in rare circumstances, or with a strong desire to prove fraud on the part of the employee.

Footnotes

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In a letter dated 06/04/2012 No. 03-03-06/4/57, the Ministry of Finance of Russia considered an interesting situation: an employee fell ill and issued a certificate of temporary incapacity for work, but during the first days of illness he came to work and performed work duties. How to pay for sick leave in this case?

The employee of the organization continued to work for the first five days of illness. This is evidenced by entries in the time sheet. A certificate of temporary incapacity for work was issued to the employee for the entire period of illness. The organization was faced with a problem: how to settle payments with the employee - pay temporary disability benefits for all days of illness or pay wages for days of work, and temporary disability benefits for the remaining days? Is it possible to take into account wages paid during illness when calculating income tax? The organization addressed these questions to the Russian Ministry of Finance.

What the Ministry of Finance said

Financial department specialists explained the following. In case of temporary disability, the employer pays the employee temporary disability benefits (Article 183 of the Labor Code of the Russian Federation). To pay benefits, the employee submits sick leave issued by a medical organization in the prescribed form. This document performs a dual function: it is a financial document that serves as the basis for the appointment and payment of benefits, and certifies the disability of citizens, confirming their temporary release from work (clause 17 of the letter of the Federal Social Insurance Fund of Russia dated October 28, 2011 No. 14-03-18/15 -12956).

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 (subclause 1, paragraph 1, article 8 of the Federal Law of December 29, 2006 No. 255-FZ “On compulsory social insurance for case of temporary disability and in connection with maternity”, hereinafter referred to as Law No. 255-FZ). The employer's expenses for the payment of temporary disability benefits for the days of temporary disability of the employee, which are paid at the expense of the employer, are classified as other expenses associated with production and sales, on the basis of clause 48.1 of Art. 264 Tax Code of the Russian Federation.

As we can see, the financial department specialists did not give specific recommendations.

How to proceed

From the response of the Russian Ministry of Finance, we can draw the following conclusion: an employee’s return to work during a period of temporary incapacity for work constitutes a violation of the regime prescribed by the attending physician. Violation of the regime without good reason entails a reduction in the amount of benefits paid to the employee.

According to paragraph 2 of Art. 8 of Law No. 255-FZ, if there are grounds for reducing the benefit, it is paid in an amount not exceeding the minimum wage established by federal law for a full calendar month from the day on which the violation was committed (currently the minimum wage is 4,611 rubles).

The employee violated the regime from the first day of incapacity for work indicated on the sick leave, which is the basis for the calculation and payment of benefits. This means that the organization must pay the employee benefits in a reduced amount from the day the sick leave was issued.

The benefit itself is paid in the usual manner: the first three days at the expense of the organization, the rest at the expense of the Russian Social Insurance Fund. The organization has the right to take into account payment for the first three days in other expenses associated with production and sales, on the basis of clause 48.1 of Art. 264 Tax Code of the Russian Federation.

Let's take a closer look at this procedure and its consequences for the organization.

There is a salary for work

Unfortunately, the Russian Ministry of Finance did not say anything about wages for the days when the employee went to work. Let's try to fill this gap, let's speculate.

The employee has the right to timely and full payment of fair wages, which represents remuneration for work (Articles 2 and 129 of the Labor Code of the Russian Federation). Since the employee was at the workplace and completed the required amount of work, the employer is obliged to pay for them. That is, he must pay the employee wages. Failure to pay it is fraught for the employer with administrative (Article 5.27 of the Code of Administrative Offenses of the Russian Federation) and criminal liability (Article 145.1 of the Criminal Code of the Russian Federation).

The primary document serving as the basis for calculating wages is the working time sheet (form No. T-13 approved by Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1). The instructions for filling out the working time sheet say that it is used to record the time actually worked and (or) not worked by each employee of the organization, to monitor employees’ compliance with the established working hours, to obtain data on time worked, calculate wages, and also for compiling statistical reporting on labor.

In the case under consideration, the fact of work during illness is documented (there is a record of the employee’s presence at the workplace during the first days of illness in the work time sheet). At the same time, the employee performed ordinary work aimed at generating income for the organization. Expenses are any expenses incurred to carry out activities aimed at generating income (clause 1 of Article 252 of the Tax Code of the Russian Federation). The organization's labor costs include any accruals to employees related to work hours or working conditions (Article 255 of the Tax Code of the Russian Federation).

From these legislative norms we can conclude that the organization’s expenses for paying wages to an employee in this situation are economically justified and documented. Accordingly, the organization can attribute payments to the employee for his work in the first days of illness to labor costs in accordance with Art. 255 Tax Code of the Russian Federation. The Tax Code does not contain any restrictions for this.

At the same time, the Ministry of Finance of Russia considers it possible to take into account the costs of paying temporary disability benefits for the days when the employee was at work in other costs associated with production and sales, on the basis of clause 48.1 of Art. 264 Tax Code of the Russian Federation. True, then there is a high risk of claims from the tax authorities, which may recognize double payment for the same days (salary and benefits) as economically unjustified. To avoid litigation with tax authorities, accrued and paid wages to an employee should not be included as expenses when calculating the tax base for income tax.

In addition, the very fact of paying wages during a period of temporary disability of an employee (regardless of whether it is included in expenses or not) will attract the attention of specialists from the Federal Social Insurance Fund of Russia, who will most likely refuse to reimburse expenses for the payment of benefits for those days when the employee worked.

We record a violation of the regime

It is important for an organization to record the fact that an employee has violated the regime prescribed by the attending physician. This can be done by the social insurance commission (social insurance commissioner), which must be in every organization (clause 11 of the Regulations on the Social Insurance Fund of the Russian Federation, approved by Decree of the Government of the Russian Federation dated February 12, 1994 No. 101). Its functions include monitoring the correct calculation and timely payment of social insurance benefits by the enterprise administration, checking the correctness of the enterprise administration’s determination of the right to benefits, the validity of deprivation or refusal of benefits, consideration of controversial issues regarding the provision of social insurance benefits between employees and the enterprise administration (p 2. 2 of the Model Regulations on the Commission (Authorized) for Social Insurance, approved by the FSS of Russia on July 15, 1994 No. 556a).

In addition to the decision of the commission, it is advisable to make a note on the sick leave about a violation of the regime established by the attending physician. For this purpose, a special column “Notes on violation of the regime” is provided in the form of a temporary disability certificate. According to clause 58 of the Procedure for issuing certificates of incapacity for work by medical organizations, approved by order of the Ministry of Health and Social Development of Russia dated June 29, 2011 No. 624n, in this column, depending on the type of violation, the following two-digit code is indicated:

23 - failure to comply with the prescribed regimen, unauthorized leaving the hospital, traveling for treatment to another administrative region without the permission of the attending physician;
24 – late attendance at a doctor’s appointment;
25 - going to work without being discharged;
26 - refusal to refer to a medical and social examination institution;
27 - late appearance at the medical and social examination institution;
28 - other violations.

The organization does not have the right to independently record a violation of the regime on the sick leave. This is done by the attending physician, who enters the date of entry and his signature in the spaces provided.

Accordingly, it is necessary to send the employee to the medical institution that issued the certificate of incapacity for work, so that the attending physician makes a note about the violation of the regime. If the doctor refuses to make such an entry actually retroactively, the organization can send an official request to the medical institution with documents confirming the fact of violation of the regime (for example, a copy of the work time sheet). But even if the certificate of incapacity for work does not contain a note about violation of the regime, this does not change the situation. Indeed, in this case, the fact of violation of the regime was determined by the commission (which has the right to do so).

We pay benefits

Based on the certificate of temporary incapacity for work and the protocol of the social insurance commission with a note about violation of the regime, the organization pays for sick leave. Payment is made in the manner specified in sub. 1 item 2 art. 3 of Law No. 255-FZ. That is, the first three days are paid at the expense of the organization, and starting from the fourth day - at the expense of the budget of the Federal Social Insurance Fund of Russia. Please note that the benefit amount is reduced only if the regimen prescribed by the doctor was violated for unjustified reasons. The validity of the reasons is determined by the employer. This statement is confirmed by arbitration practice (resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 14, 2012 No. 14379/11 and the Federal Antimonopoly Service of the Ural District dated June 10, 2010 No. F09-4237/10-S2). Therefore, the organization may consider the reason for violating the regime to be a valid reason, and in this case, the amount of temporary disability benefits may not be reduced.

Such actions will inevitably entail claims from both the tax authorities in terms of income tax and the Federal Social Insurance Fund of Russia in terms of insurance premiums.

It is not uncommon for an employee to work on sick leave - at his own request or at the insistence of his boss. In any case, both parties want to know whether such a situation is acceptable, what the consequences may be and how to pay for such work.

Is it possible to go to work on sick leave?

From a legal point of view, a person cannot be sick and work at the same time. Sick leave means the employee’s temporary incapacity for work, so calling him to work is a gross violation of his rights.

If we consider the situation outside the official regulations, then it is quite possible. For example, an employee is at work, but on some days one of his relatives sits with him, which gives him the opportunity to work. This is illegal, but is possible with the agreement of management. The issue of payment remains to be resolved.

If the manager is not interested in a sick employee coming to work, and this happened, then he informs the doctor about the violated treatment regimen with relevant evidence. A special mark appears in the document, and the benefit is paid in a smaller amount.

Pay for work while on sick leave

It is illegal to pay sick leave for one period and at the same time pay wages. The employer does not have such a right.

There is one loophole for remuneration on sick leave - a bonus. An employer can reward a hardworking employee for the amount that he actually earned. In this case, everything is official, if no one reports the current state of affairs.

In practice, things are different. Many organizations adhere to a gray salary policy, so the employee officially receives accruals during illness, and receives remuneration for work during this time in an envelope. The employer does not have to look for a replacement, and the employee remains in the black.

What are the consequences of non-compliance with the hospital regime?

If an employee does not comply with the sick leave regime, then unpleasant consequences are possible:

Showing up for work with a serious illness can make your condition worse. In this case, the question concerns your own health.
If there is a viral, infectious or other contagious disease, there is a risk of infecting other employees. This way we can reach the epidemiological situation.
If the boss is not interested in the work of a sick employee, then he reports such a violation to the doctor, providing evidence. The consequences in this case are expressed in a reduction in benefits. In total for the month it will not exceed the minimum wage. Such changes will be legal from the date of the recorded violation. For this purpose, a special mark is placed on the sick leave.
There is another aspect of the situation when an employee worked while on sick leave, and management was not interested. In this case, the employee will not see payment for his work. There is no point in complaining about this to the labor inspectorate - violations will be recorded on both sides.
If an employee is forced to go to work, then the employer is violating the labor code. The employee must contact the labor inspectorate about this. In this case, the employer will face a fine.

What to do if you are forced to work while on sick leave?

Unfortunately, workers' rights are often violated. It is not uncommon for an employee to be called back to work while on sick leave.

Every employee should know that sick leave is an important document. This is confirmation of temporary disability. During this period, exemption from labor duties is fixed by law.

If you are forced to work while on sick leave, you should know what to do:

Explain your position to the employer. It is worth first trying to solve the problem without conflict.
Contacting the labor inspectorate. Forcing someone to go to work on sick leave means a gross violation of the labor code. The employer will be fined.
You should not be afraid of being fired while on sick leave if you refuse to go to work during it. The Labor Code states (Article 81) that a temporarily disabled employee cannot be fired. More information about dismissal on sick leave -.
Another situation is when dismissal threatens immediately after leaving sick leave. Unscrupulous employers always find reasons to fire an employee. Often employees are forced to write a statement themselves so that they are not fired under the article. In this situation, it is important to know your rights - you cannot sign a statement under duress, you need to contact the prosecutor’s office with this fact.

It is not always possible to defend your rights. An employer may find or invent work violations that could cause an employee to be fired. The employee should protect himself - any modern telephone has a voice recorder, so the resolution of controversial issues should be recorded. Words alone are not enough to prove that you are right, but recording a conversation is an undeniable argument.

What should an employer do if an employee wants to work on sick leave?

By law, if an employee decides to go to work on sick leave, the employer must inform the doctor. In this case, the hospital regime is violated. The violation is noted on the sick leave certificate, and the disability benefit is reduced.

In practice, if both parties are interested in the employee going to work, then all that remains is to agree on the details. Such work cannot be officially celebrated - it is a violation of the law. Thus, the fact of an employee working on sick leave cannot appear in any documents.

Employers should remember that it is illegal for an employee to work on sick leave. This may result in a fine. In addition, an employee’s unhealthy condition can worsen his health – in this case, a work-related injury or worse consequences are quite possible.

If both parties have agreed that the employee will work during sick leave, then the question of remuneration arises - it cannot be officially fulfilled. In this case, there are several options:

Prize. In this case, the remuneration should be issued in a different period - payment of a bonus during illness is very suspicious.
Time off. In this case, the employee receives full compensation for the period of incapacity. In the future, the employee periodically takes time off, but in the report card he is given the shift he worked and is paid a salary for it.
Financial assistance. This option is possible if the employee earned no more than 4,000 rubles on sick leave. From the point of view of the law, financial assistance is possible, and the employer is attracted by the fact that there is no need to pay contributions for this amount.
Envelope. Payment for days worked can be made unofficially. Naturally, this is not legal, but it does not change the fact that a considerable part of organizations practice gray wages.
Another illegal option is not to pay for sick leave and not to indicate the fact of its availability anywhere. This option is acceptable for the employee if sick leave payments are small.

Working while on sick leave is possible, but it is illegal for both parties. In this case, you also have to decide the issue of payment. In practice, such situations occur often, but not always by agreement of both parties: in this case, one of the opponents will definitely face punishment.

The employee took sick leave, but continued to work. The first 6 days out of 15 were paid to him according to his salary, the HR department carried out payment for the remaining 10 days, of which 3 days were at the expense of the employer + 7 at the expense of the Social Insurance Fund. Was it possible to take such a sick leave? What to do in such cases?

You can choose one of the options: 1) pay the employee’s days worked at salary, and pay benefits for the remaining days, 2) pay the employee sick leave, but not pay for the time worked, because going to work when sick is the employee’s own initiative.

The rationale for this position is given below in the materials of the Glavbukh System

1. Article:An employee came to work while sick

A company specialist went to work while on sick leave. But in fact, he was discharged only two days later. How can I pay for sick leave now?

The employee is not entitled to temporary disability benefits for these two days.*

Compulsory social insurance is designed to compensate or minimize the consequences of changes in the employee’s financial situation, including due to illness. This follows from Article 1 of the Federal Law of July 16, 1999 No. 165-FZ.

Since your employee worked for two days, the company must pay for his work. It turns out that his financial situation has not changed, which means that the employee has nothing to compensate with temporary disability benefits.

Journal of Accounting in Production No. 8 2014

2. Recommendation:Is it necessary to pay sick leave if, after violating the regime, the employee returned to work and closed the sick leave after a week of work (the material is in the Personnel system for commercial organizations)

The current legislation does not contain a clear answer to this question. In practice, there are two points of view regarding sick pay in such a situation.

The first is that the amount of sick leave benefits for a certificate of incapacity for work, which contains notes about violation of the regime, can be reduced, but the employer does not have the right not to pay for the sick leave.* At the same time, going to work without being discharged (closing the sick leave) is one from types of violation of the regime (clauses 21–22 of the Regulations approved by Decree of the Government of the Russian Federation dated June 15, 2007 No. 375, clause 58 of the Procedure approved by order of the Ministry of Health and Social Development of Russia dated June 29, 2011 No. 624n).

To establish the validity of the reasons for violating the regime and assess the reasons for the employee’s work until the sick leave is closed, create a social insurance commission (clause 2.2 of the Model Regulations approved by the Federal Social Insurance Fund of Russia on July 15, 1994 No. 556a). In addition, the head of the organization himself has the right to assess the validity of the reasons for violation of the regime by an employee (clause 10 of the Regulations approved by Decree of the Government of the Russian Federation of February 12, 1994 No. 101). If the commission (or the head of the organization) recognizes the reasons for these violations as valid, the employer has the right not to reduce the amount of temporary disability benefits. The legality of this approach has also been confirmed by judicial practice (see, for example, Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 14, 2012 No. 14379/11, Resolution of the Federal Antimonopoly Service of the Ural District dated June 10, 2010 No. F09-4237/10-S2).

As for the salary, which may have already been paid to the employee for the week of his work, the employer does not have the right to withhold this amount, since the employee, despite violating the regime, performed a labor function, therefore, received the right to payment for the specified time (para. 6 part 2 article 22, Labor Code of the Russian Federation).

The second approach comes down to the fact that the employer is obliged to pay benefits for temporary disability, and does not pay for work time during sick leave. The arguments are as follows: in the situation under consideration, going to work during illness is the employee’s own initiative. At the same time, the employer has no reason to not allow the employee to work until he presents a sick leave certificate. The organization also has no obligation to check whether the employee has recovered or not. Therefore, in this situation, an analogy will apply to an employee going to work without authorization during vacation or on weekends. The employer is not required to pay for such work. Moreover, the employer can contact a medical institution and complain about the employee’s violation of the regime and achieve a reduction in the amount of sick leave benefits.

It is also important to note the fact that if the employer reflects that he allowed a sick employee to work (that is, for the same period the employee will be accrued both benefits and wages), then claims may arise against the organization both from inspectors from the Federal Social Insurance Fund of Russia , and from labor inspectors.

In particular, auditors from the Federal Social Insurance Fund of Russia, if such a fact is discovered, will check the validity of issuing a certificate of incapacity for work. If it turns out that the employee was able to work, it means that the fund’s funds were spent illegally. Then the certificate of incapacity for work can be canceled, and the costs of paying benefits for it are excluded from the amount reimbursed by the fund. If it turns out that the employee went to work, but was still sick, then the auditors will report this to the labor inspectorate. And if this fact is confirmed, there is a possibility that they will try to bring the employer to administrative liability under the Code of the Russian Federation on Administrative Offenses. These circumstances also support the second approach.

At the same time, due to the lack of official clarifications and judicial practice on this issue, each organization independently decides which approach to follow. In order to minimize such cases, it is recommended to inform employees about the prohibition of going to work without permission during illness and explain the consequences of such an exit: non-payment of wages during unauthorized work and a reduction in the amount of sick leave.

Nina Kovyazina,

Deputy Director of the Department

education and human resources of the Russian Ministry of Health

Reduced benefit amount

The amount of sick pay may be reduced if the employee:

violated the regime prescribed by the doctor without good reason, or did not appear on time for a medical examination or medical and social examination. In this case, the doctor will put a violation code in the line “Note on violation of the regime” on the sick leave;
fell ill (injured) due to alcohol, drugs or toxic

In their work, accountants and personnel officers have to deal with various ambiguous and problematic situations. One of them arises 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 to take into account wages paid to an employee for the period from February 2 to February 6, 2012 as 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 state 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, in accordance with the legislation of the Russian Federation, temporary disability benefits (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 No. 255-FZ. Payment is made only to the extent not covered by insurance payments made to employees by insurance organizations under contracts 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 a compensation payment based on presented sick leave.
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 when 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 a medical worker (for example, an attending physician) can make notes about violation of the regime on a sick leave certificate. 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 company administration. It pays it, 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 at all for an employee to take out a certificate of temporary incapacity for work from a medical institution. 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 an employer allowed an employee on sick leave to work, he violated labor laws. 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, to make notes about illness on the report card and to pay for the sick leave certificate in full according to the general rules, but to pay 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 employees in work during periods when they are on sick leave, and not to allow them to show zeal and go to work on their own free will on 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.