Whether it is possible to take a sick leave on probation is a question that may be of interest to both employers and employees of companies. To find the answer to it, we will study the specifics of the legal norms governing labor relations.
Is sick leave paid on probation
An employee who carries out work under a contract that is drawn up in accordance with the norms of the Labor Code of the Russian Federation has the same rights and obligations regarding the registration of sick leave, regardless of the specific working conditions, whether it is work under an indefinite contract or a probation period.
As long as an employee is on the staff of the organization, even if he is on probation, he is entitled to the same types of social support measures that are established for an ordinary employee, namely:
- temporary disability allowance;
- maternity allowance;
- child care allowance and other close relatives;
- inpatient and sanatorium treatment.
Certain benefits are calculated for probation workers according to exactly the same rules as for ordinary workers.
You can learn more about the rules for calculating sick leave in the article: “Accrual of sick leave is an example.”
It is worth noting that in case of an industrial injury, special rules for calculating sick leave are applied, and these rules are also fully applicable to the implementation of social support measures for an employee on probation.
Is the period of temporary disability included in the probation period
The probation period does not include periods that involve the employee’s absence from work. A sick day is an example of one of these periods. If an employee falls ill, the probation period is usually extended for the duration of the sick leave.
Sick leave during the probation period is not paid during the periods specified in paragraph 1 of Article 9 of the law “On Compulsory Social Insurance” dated 12/29/2006 No. 255-FZ, as in a regular employment contract.
We are talking about periods:
- release of an employee from work in cases provided for by law (paid in full, partially or unpaid salary);
- suspension from work (unpaid);
- being under detention, administrative arrest;
- conducting a forensic medical examination;
- downtime (except for exceptions provided for by law).
If an employee is expected to be absent from work during the relevant periods, then these periods will not be included in the probation period. If a person is still present at the enterprise, then he will be considered to be on probation (for example, in case of forced downtime).
If we talk about exceptions during downtime, then the employer is obliged to pay for sick leave if the employee went to him before the downtime (clause 7 of Article 7 of Law 255-FZ).
Thus, since the days of sick leave are not included in the probation period, this period is extended for the time of sick leave. Legally, this extension is issued by a separate order from the employer.
Certain nuances characterize the termination of an employment contract when an employee goes on sick leave on probation.
Probation sick leave: termination of the contract by the employer
An employer who is not satisfied with the results of an employee’s work on probation has the right not to extend an employment contract with him, notifying the person in writing 3 days before the end of the probation period. At the same time, the legislation does not provide for the employer to send a notification about the employer’s unwillingness to extend the employment contract to an employee on sick leave. But no one forbids the employer to inform this employee about the relevant decision actually made.
That is, if the company decided not to extend the employment relationship with an employee directly during the sick leave period, then it can inform the employee about this (in any convenient form, at least verbally) so that he knows how much longer he will work in the company after completing treatment.
If the notification of the company’s unwillingness to continue the employment relationship is transmitted to the employee before the sick leave, then the presence of this employee on sick leave can delay his dismissal by the number of days corresponding to the period of temporary disability.
Sick leave on probation: termination of the contract by an employee
In turn, the employee has the right to initiate termination of the employment contract on probation while on sick leave. To do this, the employee must send a notification to the employer about the unwillingness to continue an employment relationship with him 3 days before the desired date of termination of work. He can do this while on sick leave (Rostrud letter No. 1551-6 dated 09/05/2006).
In this case, the sick leave must be paid taking into account the length of service of the employee based on the fact that at the time of opening the disability certificate, the employee was on the staff of the organization.
On the date of dismissal indicated by the employee in the notification, the employment contract between the parties terminates, even if the employee is on sick leave. The employer issues a dismissal order.
Results
If an employee on probation goes on sick leave, then temporary disability benefits are assigned to him in a general manner, as if this employee had a regular employment contract with the employer.In accordance with Article 70 of the Labor Code of the Russian Federation, the same provisions of labor legislation apply to an employee during the probation period as to other employees, including during the period of temporary disability. This means that the sick leave of the tested employee is also subject to payment in accordance with the norms of Federal Law No. 255-FZ dated December 29, 2006 “On Compulsory Social Insurance in case of temporary disability and in connection with maternity” (hereinafter – the Law). In accordance with Part 1 of Article 7 of the Law, an insured person with insurance experience of 8 years or more is paid sick leave in the amount of 100% of average earnings, having insurance experience from 5 to 8 years – 80%, up to 5 years – 60%.
Dismissal due to the expiration of the probation period during the period of sick leave if the employer is unwilling to extend the employment contract is illegal. But if the contract is terminated on the initiative of the employee, it is possible.