There are many reasons for an employee to be removed from work. These include appearing drunk at the workplace, problems with meeting labor safety standards, and, finally, medical indications. In this case, the citizen cannot be involved in work, since his health does not allow him to perform labor duties. Suspension from work for medical reasons is not a right, but an obligation of the employer; allowing an employee to work is in this case a gross violation of legal norms.
How to offer another job to an employee who, according to a medical report, is contraindicated from working in his position for a period of more than four months?
Reasons for removal and legislative framework
Temporary removal from the performance of official duties by an employee is aimed at preventing the negative consequences of work - first of all for the employee himself, and then for the organization. Article 76 of the Labor Code of the Russian Federation establishes the reasons for removal from work.
How to formalize the suspension from work of an employee who needs to be transferred to another job for medical reasons?
Medical indications play a role if:
- the employee has not passed the medical examination required for his specialty;
- the employee underwent a medical examination, but according to the results of this examination, he cannot perform the work prescribed by the contract.
These are the main reasons for removal, but the list from Art. 76 is open, which allows suspension from work for other medical reasons, for example, if the driver passed a medical examination, but was noticed drunk by a law enforcement officer. The Labor Code of the Russian Federation allows in this case to remove a citizen from work.
The employee is not allowed to work until the circumstances preventing this are eliminated. If he missed a medical examination through no fault of his own, he is paid for the period of forced rest as simple rest; in other cases, the period of suspension is not paid at all.
The rules for paying for downtime are as follows (Article 157 of the Labor Code of the Russian Federation):
- through the fault of the administration - 2/3 of the employee’s average earnings;
- through the fault of a third party - 2/3 of the employee’s salary (rate).
On a note! Failure to undergo a medical examination is equivalent to a situation where an employee has not undergone a mandatory examination by a psychiatrist.
Suspension from work is also mentioned in Art. 73 Labor Code of the Russian Federation. There are situations when doctors give an opinion on transferring an employee to “light work” for a period of up to 4 months, but it is impossible to implement these recommendations:
- the employee refuses to transfer;
- The employer does not have a vacancy that meets the medical requirements. conclusions.
Then the employee is prohibited from working for the entire period specified in the conclusion. The employee retains his job, but his salary does not. It is retained only in exceptional cases provided for by law or the contract with the employee.
Then let's try to defend ourselves with medical rights
In accordance with Part 1 of Art. 5 of the Federal Law of September 17, 1998 N 157-FZ (as amended on November 28, 2018) “On immunoprophylaxis of infectious diseases” “When carrying out immunoprophylaxis, citizens have the right to:
- obtaining complete and objective information from medical workers about the need for preventive vaccinations, the consequences of refusing them, and possible post-vaccination complications;
-choice of a medical organization or individual entrepreneur carrying out medical activities,
- refusal of preventive vaccinations.
In accordance with Part 2 of this article, the absence of preventive vaccinations entails: refusal to hire citizens or removal of citizens from work, the performance of which is associated with a high risk of contracting infectious diseases.
That is, it is indeed possible to be suspended from work on the basis of Part 2 of Art. 5 of the Federal Law of September 17, 1998 N 157-FZ.
The list of works, the performance of which is associated with a high risk of contracting infectious diseases and requires mandatory preventive vaccinations, is established by the federal executive body authorized by the Government of the Russian Federation.
Item 12 of the “List of Work, the performance of which is associated with a high risk of infectious diseases and requires mandatory preventive vaccinations” (approved by Decree of the Government of the Russian Federation of July 15, 1999 N 825) provides for mandatory preventive vaccinations for work in organizations engaged in educational activities. .
However, before vaccination, it is required to obtain informed consent from the citizen for medical intervention.
Procedure for removal
IMPORTANT! A sample order for removal from work for medical reasons from ConsultantPlus is available here
The removal of an employee from the opportunity to work in accordance with the contract is carried out in compliance with all administrative and legislative norms; otherwise, conflicts with staff are possible, including litigation.
The standard procedure for removal includes:
- identification of circumstances leading to suspension on the basis of documents (medical examination report of drivers, presentation of a medical report by the employee himself);
- if necessary, offer the employee vacancies for “light labor” in writing;
- registration for another position;
- order of dismissal and familiarization with it to the employee against signature;
- if the employee refuses to certify that he is familiar with the order, it is necessary to draw up a report on this and confirm it with the signatures of uninterested representatives of the labor collective.
After the order is issued, the employee is not allowed to work until the reasons for this are eliminated. Then a new order is issued on the possibility of resuming work, which the citizen must also be familiar with upon signature. The order is signed by both the person who has read it and the representative of the accounting department, whose responsibilities include resuming the calculation of wages for the member of the workforce.
An order for suspension from work does not have a unified form and can be drawn up according to the rules of internal document flow. The most important thing in such a document is to indicate the reason for the removal with reference to the basis document. It is also necessary to formulate instructions to the accounting service regarding the calculation of wages for the period when the employee is unable to work.
A sample order is given below.
LLC "Mart"
02.10.19
Order No. 31-K
According to medical report No. 5522 dated October 1, 2019, on the basis of Art. 76-1 Labor Code of the Russian Federation, I ORDER:
1. Dismiss sales consultant A.M. Miroshnikova. from the performance of labor duties for the period from 10/02/19 to 11/10/19 inclusive. 2. Accountant N.N. Krasnokutskaya do not charge wages to Miroshnikova A.M. for the period from 10/02/19 to 11/10/19 inclusive.
Director: Irgashev A.I. Reason: medical report No. 5522 dated 10/01/19. The order was reviewed by: Miroshnikova A.M. Krasnokutskaya N.N.
Suspension from work: on the issue of length of service
When calculating pensions or annual leave, the issue of time worked for all personnel is paramount. Therefore, when providing a certificate, it is necessary to carry out explanatory work with each individual employee.
Legal literacy is the key to a comfortable atmosphere in the team. The employer must explain to the employee that, according to Law No. 122 of the Labor Code, the time period during which the suspension takes place will not be included in the work experience.
This is important for employees who are involved in calculating paid leave. The period of suspension must be highlighted in the worker’s personal card. Currently, there is no unified form of worker's card.
As a rule, HR department employees use cards of sample N T-2. They do not have a specific field in which to record the time of suspension. But there is also column X, which is called “Additional information”. It is convenient to enter this information into it.
The difficulty for employees responsible for maintaining local records is that the period of suspension may be of an indefinite period. In this case, they must enter in column X a note about the beginning of this period (with a mandatory reference to the order for the enterprise). At the time the employee is allowed to perform professional duties, the end time of the suspension period is indicated in the same column.
In addition, this period of time is also recorded in the working time sheet. This is important because wages are not accrued for these days or months. In the timesheet, this information is entered under the digital code “35” or under the code “NB”.
Suspension and dismissal
Speaking about suspension from work, one cannot fail to mention dismissal due to medical reasons.
In addition to disciplinary problems, when, following a medical suspension. indications should result in dismissal (for example, if an employee deliberately avoids medical examinations or comes to work in a state of intoxication, recorded by responsible persons), they can be fired under Art. 73 Labor Code of the Russian Federation.
If an employee refuses a medical transfer. testimony and the period of this transfer is long - over 4 months, permanent, we are no longer talking about removal from work, but about dismissal. An employer can do the same if he does not have a suitable job for a citizen for the specified period.
For a completely incompetent citizen, only dismissal is applied on the basis of a certificate from a medical commission. The document must contain a direct indication of incapacity, only then the dismissal is considered legal (Article 83-5 of the Labor Code of the Russian Federation).
Briefly
- Suspension from work is a temporary procedure. After eliminating the medical reasons that impede the performance of work duties, the employee is allowed to enter the workplace.
- If according to honey According to the testimony, the employee should be transferred to “light work”, but this is not possible, then for 4 months he may not work, as if suspended by the administration, and maintaining his position. Salaries are not accrued upon suspension from work, except in cases where a citizen missed a medical examination due to circumstances beyond his control. Then he will be paid for this time as idle time - partly from the average earnings or tariff (salary).
- The order for suspension for medical reasons contains an indication of the basis document and an order from the accounting department to stop accruing wages. The employee and the accountant get acquainted with its text against signature.
Design features
Regardless of whether the suspension is at the initiative of the employer or there are other reasons, the process itself is almost always influenced by the rules of a particular organization. At the same time, there are areas in which this procedure is significantly simplified. We are talking about the food and transport industries, as well as organizations related to public catering.
It is important to understand that any circumstance that results in permanent or temporary suspension from work must be recorded on paper. The document itself has the form of an act or memorandum addressed to the manager. It must be signed by both the originator and the witnesses.
Having studied the general rules regarding this issue, it can be noted that the removal must be formalized in the form of an order or order. However, there is no unified form developed for such cases. This document is signed by the head of the organization.
How to express disagreement with a management decision
We should not exclude a situation where an employee reacts negatively to his superiors’ initiative regarding removal. In this case, he has the right to challenge the decision by going to court.
The law allows the following requirements to be presented to the employer:
- recognition of the order that was read to him as illegal;
- if the result of a stoppage of activity was dismissal, the employee may insist on reinstatement;
- recovery of amounts for downtime, lost earnings or average income that was lost due to the fault of the company owners;
- compensation for the cost of defense services, as well as compensation for moral damage;
- in case of dismissal - changing the entry left in the work book.
If we study the experience of litigation, when the injured employee acted as the plaintiff, we can come to the conclusion that in the event of a mistake on the part of management, the chances of a successful outcome of the case may be quite high.
Which employees are required to undergo a medical examination by law?
The Labor Code of the Russian Federation states that every employee is required to undergo a preliminary or mandatory medical examination, but each category of specialists has its own requirements. Employees of the following organizations undergo mandatory examination:
- food and light industry;
- educational organizations, school and preschool levels;
- catering establishments.
There is no specific deadline for undergoing a medical examination. Typically, the period during which examinations of all employees must be carried out is determined by the medical institution.
