The employee opened 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 for the days worked by the employee at salary, and pay benefits for the remaining days, 2) pay the employee sick leave, but do 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 Model provision, approved by the FSS 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 validity of this approach has been confirmed 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 labor function, therefore, received the right to payment for the specified time (paragraph 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 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 labor inspection. 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

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Is it necessary to pay sick leave if an employee returns to work after violating the regime? Payment of sick leave and return to work during the continuation of illness.

Question: The employee presented the organization with a certificate of incapacity for work with code 31 (continues to be ill) on Friday. On Monday he goes to work without presenting another sheet with the date of his return to work. Can an organization pay only for the initial certificate of incapacity for work? If not, how should I calculate and pay for another pay slip if the employee has already worked since Monday?

Answer: If the employee has provided a certificate of incapacity for work, which contains a note about the issue of a continuation, then you can accept the initial certificate of incapacity for work, check its execution and pay for it in the general manner.

After providing the continuation of the certificate of incapacity for work, you must also check the execution of the continuation and accept it for payment if it is properly executed.

In your situation, the current legislation does not provide a clear answer if an employee goes to work while on sick leave. Due to the lack of official clarifications and judicial practice on this issue, each organization independently decides whether to pay for continued sick leave or not.

In addition, if an employee worked and received a salary during a period of temporary incapacity for work on a sick leave certificate, this indicates a violation by the employee of the regime prescribed by the doctor, namely, going to work without being discharged (code 25 and the date corresponding to the date of going to work), which, in accordance with with Article 8 of the Federal Law of December 29, 2005 No. 255-FZ entails a reduction in the amount of benefits.

It is also important to note the fact that if the employer states 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, 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 Article 5.27 of the Code of the Russian Federation on Administrative Offenses.

In order to minimize such cases, it is recommended to inform the employee 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 benefits.

Thus, calculate and pay for the initial certificate of incapacity for work, if it is issued in accordance with the established procedure. And having received a continuation of the sick leave, either register it as a violation of the illness regime and calculate with a reduction in the amount of benefits, or do not pay for the continuation of sick leave, but pay for the work for these days.

Rationale

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 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 for a certificate of incapacity for work, which contains notes about violation of the regime, can be reduced, but the employer has no right not to pay for the sick leave at all. At the same time, going to work without being discharged (closing a sick leave certificate) is one of the types of violation of the regime (Article 8 of the Law of December 29, 2006 No. 255-FZ, clauses 21-22 of the Regulations approved by the Decree of the Government of the Russian Federation of 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, article 137 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, 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 Article 5.27 of 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.

How to pay sick leave benefits if the certificate of incapacity for work contains notes about violation of the regime

If an employee violated sick leave during illness, the doctor will make a note about this on the sick leave certificate. Namely, he will put one of the codes in the “Notes about violation of the regime” field:
- 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 - untimely appearance at the medical and social examination institution;
- 28 - other violations.

Sick leave with this mark also needs to be paid. However, the amount of the benefit depends on whether there were valid reasons for violating the regime (Part 1, Article 8 of Law No. 255-FZ of December 29, 2006).

The legislation does not stipulate what reasons can be considered valid. In each specific case, this issue is resolved individually. You can be guided by the list approved by order of the Ministry of Health and Social Development dated January 31, 2007 No. 74:

1. Force majeure, that is, extraordinary, unpreventable circumstances (earthquake, hurricane, flood, fire, etc.).
2. Moving to a place of residence in another locality, change of place of stay.
3. Damage to health or death of a close relative.
4. Other reasons recognized as valid in court when the insured persons apply to court.

The employee must provide valid reasons. For example, write an explanatory note addressed to the manager and, if possible, attach documents confirming the circumstances stated in it.

The decision on whether the reasons are recognized as valid is made by the Social Insurance Commission (clause 11 of the Regulations, approved by Government Decree No. 101 of 02/12/1994). Document the decision in a protocol. Based on the results of the decision, the manager issues an order to pay benefits in full.

The employee has no valid reason

If the reason for violating the schedule or failing to show up to the doctor is not valid, the benefit calculation will be different.

There are two options here:

1. The employee came to see the doctor on another day and was declared healthy by him. In this case, the doctor will indicate on the sick leave:


- in the line “Other:” - code “36” and the date of appearance as able-bodied.

Then pay for the period from the onset of illness until the day the employee was supposed to see the doctor. That is, on the day indicated in the “Date” column next to the line “Notes of violation of the regime.” For example, an employee fell ill on February 7th. He was supposed to have an appointment on February 15, but came to the doctor on February 16 and was declared healthy. In this case, sick leave must be paid from February 7 to February 15.

2. The employee showed up for a doctor’s appointment on another day, but was declared incapacitated. That is, the sick leave was extended. In a letter dated December 29, 2017 No. 02-03-11/22-03-32521, the FSS explained that in this case the doctor will indicate on the sick leave:
- in the line “Notes on violation of the regime” - code “24”;
- in the “Date” line - the day when the employee was supposed to show up for an appointment with the doctor, but did not show up;
- in the line “Doctor’s signature” - the signature of the attending physician.

Such sick leave must be paid for all days of illness, but the amount of the benefit must be reduced starting from the date from which the employee committed a violation (Clause 1, Part 2, Article 8 of Law No. 255-FZ of December 29, 2006).

Thus, the total benefit amount in this case will consist of two amounts:
- benefit calculated according to general rules from the date of onset of illness to the day of violation of the regime;
- a benefit in the amount of no more than the minimum wage for a full calendar month. If a regional wage coefficient is established, the minimum wage must be increased by this coefficient.

Determine the second part of the benefit using the formula:

Please note that the doctor extends the sick leave from the day following the day of examination (paragraph 4, paragraph 60 of the Procedure approved). Therefore, the date may be missing in the “Exemption from work” columns. For example, if an employee was supposed to come for an appointment on February 1, but came on February 2, then the doctor will extend the sick leave from February 3 (the date following the day of attendance). However, you must pay for all days. After all, the employee was actually on sick leave and was declared incapacitated by the doctor.

An example of how to determine sick leave benefits if an employee violates sick leave. There are no good reasons

E.I. Ivanova was ill from July 8 to July 16, 2018. She presented a sick leave certificate in which the attending physician indicated:
- in the column “Exemption from work” - from 07/08/2018 to 07/11/2018;
- in the column “Note about violation of the regime” - (code 24) 07/11/2018;
- in the column “Exemption from work” - from 07/13/2018 to 07/16/2018.

Thus, Ivanova was supposed to appear for an appointment on July 11, but she did not show up to the doctor on time.

Ivanova came to the reception only on July 12. At the same time, the doctor declared her unable to work. The doctor must extend the sick leave from the day following the day of examination (paragraph 4, paragraph 60 of the Procedure, approved by order of the Ministry of Health and Social Development dated June 29, 2011 No. 624n). That is, from July 13 (the day following the day of inspection) to July 16.

Although the date July 12 is not indicated in the “Exemption from work” column, all sick days must be paid. Ivanova did not explain the reason for not showing up to the doctor, so the accountant paid a reduced amount of benefits.

The accountant paid for sick days from July 8 to July 10 (3 days) based on average earnings. And from the date of violation of the regime until the end of the illness (from July 11 to July 16), benefits are paid in an amount not exceeding the minimum wage for a full calendar month. In the region where Ivanova works, the regional coefficient has not been established.

Average daily earnings Ivanova is 1625.28 rubles. This does not exceed the maximum set for 2018 (RUB 2,017.81). Ivanova's insurance experience is eight years and one month. This means that she is entitled to a benefit in the amount of 100 percent of her earnings.

The benefit for the first 3 days of illness will be: 1625.28 rubles. * 3 days = 4875.84 rub.

For the period from July 11 to July 16 (6 days), the accountant calculated the benefit based on the minimum wage.

Average daily earnings were: 11,163 rubles. : 31 days = 360.10 rub.

total amount benefits amounted to: 4875.84 rubles. + 2160.60 rub. = 7036.44 rub.

Calculation of benefits in 2009 and 2010

The employee did not submit all certificates of incapacity for work

- Good afternoon! Please tell me whether a certificate of incapacity for work is payable if:

in the line “Get to work” it is indicated “Continues to be ill”, but there is no continuation of the sick leave; and vice versa, there is a continuation of sick leave, but there is no primary certificate of incapacity for work?

— Of course, you can pay for such sick leave. But keep in mind that the Russian Federal Social Insurance Fund will not reimburse you for the costs of paying benefits until the sick leave is properly completed.

— Tell me, what do we need to do to properly issue certificates of incapacity for work?

— The procedure for processing documents depends on the reason why the initial certificate of incapacity for work or sick leave - continued was not submitted by the employee.

Let's consider a situation where a certificate of incapacity for work - continuation is not submitted, because the employee went to work without covering his sick leave. in this case, he will have to contact the attending physician with a request to make appropriate corrections to the certificate of incapacity for work. True, I doubt that the doctor will make changes to the sick leave. Most likely, he will record a violation of the regime in him.

From the editor

If an employee, after extending the certificate of incapacity for work, does not show up for an appointment with the doctor, but at the next visit is recognized as able to work, then in the line “Get to work” on the certificate of incapacity for work, the doctor will make the entry “Appeared to be able to work” indicating the date of appearance. And in the free lines “From what date” and “Up to what date inclusive” of the “Exemption from work” table, dashes will be added. This is stated in paragraph 61 of the Issuance Procedure medical organizations certificates of incapacity for work, approved by order of the Ministry of Health and Social Development of Russia dated August 1, 2007 No. 514.

If an employee violates the regime without a good reason, the temporary disability benefit is reduced to the minimum wage for a full calendar month from the day the violation was committed until the end of the period of temporary disability. This is stated in subparagraph 1 of part 2 of article 8 of Law No. 255-FZ and paragraph 22 of the Regulations on the calculation of benefits.

If the sheets are not submitted due to their loss, you need to issue their duplicates. According to paragraph 63 of the Procedure for issuing certificates of incapacity for work by medical organizations, the attending physician and the chairman of the medical commission are authorized to do this.

Alexander Sorokin answers,

Deputy Head of the Operational Control Department of the Federal Tax Service of Russia

“Cash payment systems should be used only in cases where the seller provides the buyer, including its employees, with a deferment or installment plan for payment for its goods, work, and services. It is these cases, according to the Federal Tax Service, that relate to the provision and repayment of a loan to pay for goods, work, and services. If an organization issues a cash loan, receives a repayment of such a loan, or itself receives and repays a loan, do not use the cash register. When exactly you need to punch a check, see the recommendations.”

Certificate of incapacity for work, aka sick leave, issued when a person is temporarily unable to perform his work duties. Therefore, when during sick leave employee goes to work, this causes contradictions in the recording of working time and payment for days worked. Employment while on sick leave is illegal and may result in a fine for the employer.

An employee who went to work, despite the presence of an open sick leave, violates the regime, and if this fact is recorded, these days will not be subject to payment. He may, of course, not present it to the employer at all if he has worked all the days, and then he will receive the usual one. In this case, sick leave will, of course, not be paid.

If with an employee at the workplace, will happen work injury, and later it turns out that he should have been at home, because he is sick, the employer risks being punished and fined.

On the other hand, if an employee complains during a conflict dismissal that he was illegally involved in work while ill, and proves this, the employer will again be at a loss. The employee can prove this by presenting work documents signed with the dates of illness, or by providing information about the dates and times when the magnetic pass was triggered. The court will definitely side with the employee.

Is it possible to pay for work while on sick leave?

Every employer is required to keep a time sheet, which includes working days, and, of course, sick leave. You cannot enter timesheets and sick leave and work at the same time in the same period. The same thing happens with payment for such a period. It is officially impossible to pay for the same days twice.

Conclusion: You cannot legally pay for work while on sick leave. I. If this is nevertheless done, the Social Insurance Fund (Fund) will easily identify this violation during an inspection and refuse to reimburse expenses for sick leave.

An employer may resort to tricks to pay an employee, for example, compensate for work with a bonus or provide rest days. Or, if the company has such a practice, pay for work during sick leave by adding money “in the envelope.” Needless to say, this method has nothing to do with the law.

The employee’s consent to work with an open sick leave does not in any way affect the issue of the legality of such work, did he go to work voluntarily or was he forced to work while on sick leave?.

Sick or work

Everyone has the right to decide for themselves should he issue a sick leave certificate and sit at home, or endure the illness on his feet?. Employers, as a rule, are only happy if manufacturing process does not suffer and everything is in place. Just how well can you work while on sick leave? When you have a headache, fever, thoughts are confused, and you want to sleep. Such an employee will be of little use.

Is yours really necessary? Emergencies happen infrequently, more often the boss, out of spite, makes it clear that it is better for you to go to work. You can, of course, show your loyalty and zeal, but is it necessary, especially at the cost of your health?

During periods of epidemics, you should not leave your home at all if you are sick.. Not only can you get a complication, but you also re-infect your colleagues, and then there will definitely be no one to work with.

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 job responsibilities. 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 for a full calendar month federal law, from the day 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 by work.

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 regular 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, who may recognize double payment for the same days (salary and benefits) as economically unjustified. To avoid legal proceedings with tax authorities, accrued and paid wages to an employee should not be included in expenses when calculating tax base on 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 direct the employee to medical institution, who issued a certificate of incapacity for work so that the attending physician would make a note about the violation of the regime. If the doctor refuses to make such a record 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 for 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 can calculate good reason violation of the regime, 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.

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