Carrying out work activities requires the employee to have certain skills, and in some cases, physical strength and endurance. Accordingly, for this you need to be in good health. However, with age it naturally begins to worsen.
In addition, no employee is immune from injuries or injuries, which, even at a young age, can have an extremely detrimental effect on his ability to perform certain functions. Sometimes the health condition deteriorates so much that the employee is physically unable to perform his work duties. In this case, the law provides for the possibility and procedure for dismissal on appropriate grounds.
Dismissal at the initiative of the employer
The management of the organization does not have the right to allow a person to work if he has a certificate of professional incompetence in his hands. However, it will not be possible to completely dismiss such an employee. That is, responding to a medical certificate of limited ability to work by terminating the contract is not considered fair.
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Thus, the employer is obliged to make efforts to adapt the person to the changed conditions of his life. First of all, this involves selecting and offering suitable vacancies. Could some of them be lower paid? Of course, yes, and those that do not require such high qualifications are also allowed. The obligation to offer options will be considered fulfilled if the employee agrees to any of them, or formalizes a refusal in writing.
Required documents for dismissal
The law establishes that in order to be dismissed for health reasons, you must have certain documents. These include:
- medical report;
- notifying the employee in writing that the company does not have a suitable position;
- employee refusal, indicating reluctance to transfer to another job within the company;
- notice of termination of the contract with a receipt stamp;
- resignation letter from work (if there is an initiative of the employee);
- an order to terminate the employment agreement specifying a clear basis. It is drawn up on a special T-8 form. It must indicate the number and date of the conclusion of the medical institution, as well as information about the employee’s refusal to accept other vacancies.
All information about dismissal must be entered into the work book in accordance with standard rules. Thus, it will not be possible not to write down the grounds for termination of the contract (due to health conditions or a medical report).
In what cases does this happen on the basis of the Labor Code of the Russian Federation?
Termination of employment due to ill health is provided for by law. Let us examine in more detail the norms of the current Labor Code that establish this procedure.
- Termination of a contract due to recognition of a person as unfit to continue working. This basis is established by clause 5 of Art. 83 Labor Code of the Russian Federation. Thus, according to this norm, termination of relations with an employee occurs due to circumstances that do not directly depend on the actual expression of the will and desire of the parties. The basis for the application of clause 5 of Art. 83 of the Labor Code of the Russian Federation is the conclusion of the medical commission that the citizen is not at all capable of continuing to work. The employer terminates the employment contract immediately upon receipt of the relevant application accompanied by the conclusion of the medical commission.
- The employee’s refusal to provide him with another position. In some cases, the deterioration of health is not so fatal, and the citizen can perform his work duties in a more gentle manner. For example, this happens when a group III disability is established.
In this case, the law obliges the employer to offer its employee another position where working conditions are easier. If an employee refuses to transfer, then the organization’s management has the right to dismiss him on the basis of clause 8 of Art. 77 Labor Code of the Russian Federation.
In addition, termination of the contract on this basis occurs if the employer does not have an appropriate position in the staffing table to which an employee experiencing health problems can be transferred.
Important! Dismissal on the basis of clause 8 of Art. 77 of the Labor Code of the Russian Federation is possible only if the employee has an appropriate medical certificate.
It should be noted that termination of employment on the above grounds is impossible during the period when the employee is on sick leave.
Dismissal of certain categories of employees
Let's consider how an employment contract is terminated due to health status with certain categories of people: pregnant women, single mothers, military personnel, pensioners.
Pregnant
Dismissal of pregnant women is prohibited by law, and if she works under a fixed-term contract, it will have to be extended until the birth takes place. To do this, the woman's written consent and a medical certificate must be provided.
The only exception is the liquidation of the enterprise. In such a situation, all employees without exception are fired. In addition, you can terminate the employment contract at will.
Single mothers
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Art. 261 of the Labor Code of the Russian Federation establishes a legislative prohibition of terminating a contract with a single mother if the reason is her state of health. If a woman belongs to this category, then she certainly does not face dismissal due to inadequacy of the position, staff reduction, or even a change in the owner of the organization.
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Based on the results of the medical examination, it is possible to terminate the contract only in one case: when the girl refuses to be transferred to a more suitable vacancy, or when she is declared completely disabled.
Military personnel
Questions regarding the suitability of persons undergoing military service under a contract are decided by the military medical commission (MMC). However, every serviceman has the right to leave for health reasons, or to take another position that is more suitable according to the conditions. To do this, the IHC recognizes him as being of limited fitness (to terminate the contract, the consent of the person himself will be required).
Upon termination of the agreement, the serviceman has the right to receive payments and compensation from the state.
Pensioners
From a legal and legal point of view, pensioners are no different from other categories of citizens, therefore their dismissal for health reasons is carried out on standard grounds. If the medical commission recognizes an elderly person as incapacitated, the organization will have to terminate the contract with him.
However, if a pensioner is considered to be of limited ability to work, then the employer simply offers him more suitable options within the company.
Step-by-step steps to reduce for medical reasons
Termination of relations with an employee on grounds related to medical contraindications for performing a particular job must be properly formalized.
It is necessary to follow this procedure, since violations during dismissal can lead to adverse consequences for the organization, expressed in bringing it to administrative responsibility and recognizing the employment relationship as valid. An employee who did not take into account certain nuances when dismissing may lose the compensation payments due to him.
Collection of documents for dismissal
An employee who plans to resign due to illness is required to provide the organization’s personnel service with the following documents:
- Letter of resignation. Compiled in free form. However, it is necessary to indicate that the dismissal is due to health problems.
- Medical report. As a rule, it is the ITU conclusion on recognizing a citizen as disabled. However, other documents may be submitted confirming the presence of contraindications to a particular activity.
Assignment of payments and compensations
Upon dismissal, an employee is entitled to the following payments:
- Last month's salary. Proportional to time worked.
- Compensation for unused vacation. Paid in cases where the employee did not use his main or additional leave in the current year.
- Severance pay. Severance pay is a special payment paid when there is a reason for it. Thus, those dismissed for health reasons are entitled to benefits, the amount of which is the average two-week salary of the employee.
The calculation of such a benefit is quite simple.
So, it is necessary to calculate the total amount of money received by the employee over the last year, then divide by the number of days in the year when the employee performed his job duties, and then multiply the resulting number by 14.
Example:
Citizen Ivanova earned 350 thousand rubles over the past year, and actually worked 241 days.
We determine the average earnings per day:
350000/241 = 1452,28.
Accordingly, Ivanova’s average daily earnings were 1,452 rubles 28 kopecks.
Then:
Reference! 1452,28×14 = 20331,92.
Thus, the severance pay for employee Ivanova will be 20,331 rubles 92 kopecks .
Preparation of personnel documentation
In order to properly terminate an employment contract on the grounds discussed in the article, the employer must have and prepare the following documents:
- Medical report. Provided by employee.
- Notification of the presence or absence of a vacancy for transfer. In the event that the employee’s health condition allows him to work in easier conditions.
- Written refusal of the transfer by the employee. To be completed and certified by the employee personally.
- Notice of dismissal. The employee's signature is required.
- An order of dismissal indicating the legal grounds for termination of the agreement. An employee’s signature is required indicating familiarization with the document. Based on the order, a corresponding entry is made in the work book.
Dismissal while on sick leave
Separately, we note that in accordance with the provisions of Art. 81 of the Labor Code of the Russian Federation, it is not allowed to terminate an employment contract with an employee when he is on sick leave. However, if the employee notified about leaving work two weeks in advance and within this period he draws up a certificate of temporary incapacity for work, his illness will not be an obstacle to dismissal. First of all, because there is employee initiative.
note
It should also be clarified that after leaving work, sick leave must be paid if the incapacity for work occurred within 30 days after the termination of the contract and subject to non-employment in a new organization. In this case, the duration of illness does not matter; the amount will be 60% of the average salary.
In a situation where sick leave is open before leaving the company, and closed after, it is still payable. A person has the right to present the sheet to the HR department within six months after recovery.
Employer's liability
It is possible to terminate a contract with an employee due to his health only if all established rules and regulations are observed. Therefore, in order to avoid possible litigation, the employer is obliged to study in detail all the intricacies of the procedure. Typically, errors are associated with an incorrect assessment of the recommendations of MSEC or KEC, or failure to comply with the procedure for dismissing an employee.
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If an employee is fired due to his health condition, but there is no medical report from the relevant commission, then administrative liability may occur. The measures are established by the Code of Administrative Offences, namely its Article 5.27.
Let's consider what sanctions are provided:
- An administrative fine in the amount of 1,000 to 5,000 rubles.
- For individual entrepreneurs, the fine is up to 5 thousand rubles, and forced suspension of activities for 90 days is also possible.
- If we are talking about a company acting as a legal entity, then the amount of the monetary penalty increases and ranges from 30 to 50 thousand.
- In addition, disqualification for a period of one to three years is possible if the employer has previously been subject to a sanction under Art. 5.27 Code of Administrative Offenses of the Russian Federation.
The need for development
If the medical commission determines a complete disability, the head of the organization has no right to demand that he remain at the workplace for another two weeks, allotted for working until a replacement is found.
However, the issue of working out is possible in the following situations.
- MSEC or KEC have not established a ban on the performance of professional duties.
- The commission recommended transferring the person to an easier position.
- The employee expressed a desire to resign without an examination due to constant poor health.
In accordance with Art. 80 of the Labor Code of the Russian Federation, a person can leave work and not inform his employer about it in advance in some situations, for example, in case of illness. That is, he will have the right not to work for two weeks, but sometimes his superiors do not agree and court proceedings begin.
Fact
Work will be required if the medical certificate issued to the employee allows the possibility of continuing to work within a certain position.
We should not forget about the need to pay severance pay in the amount of two weeks' earnings. In addition, compensation is issued for unused vacation and salary for the period of time worked.
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How to confirm that your health condition is unsuitable for your job
The grounds for transfer or dismissal are official medical documents:
- conclusion of a medical and social examination, according to which the employee is assigned a disability and his ability to work is limited, a certificate of disability.
- certificate of the degree of loss of professional ability to work (also based on the results of the ITU).
- rehabilitation program as a result of an industrial accident and occupational disease.
- conclusion of a medical institution based on the results of a mandatory medical examination.
- conclusion of a doctor at the antenatal clinic.
These documents are presented to the employer. He is obliged to carry out the following actions: if it follows from the doctor’s conclusion that the employee cannot perform a labor function in his position temporarily for a period of up to 4 months, he is suspended from work without payment of wages. And if more than 4 months, he is transferred to another position with the consent of such an employee or fired.
On the day of dismissal, the employee must be given a work book and severance pay in the amount of 2 weeks’ average earnings. You can apply in advance for work-related documents - they may come in handy.
