In the organization, employees undergo medical examinations. Based on the results of the next examination, the clinic sent the employer a conclusion that the employee was unfit and could not work in this position. The employer does not have any vacant positions for which the employee could perform work taking into account existing contraindications. What sequential actions must the employer take? How to make a record in the workbook?
An employer who has received a medical certificate that an employee is unfit for work in his position (employees, that is, specialists or managers) or profession (workers), should take the following actions.
1. According to paragraph 5 of Part 1 of Art. 76 of the Labor Code of the Russian Federation, the employer is obliged suspend from work(not allow) an employee to work if identified according to medical opinion, issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, contraindications for the employee to perform work stipulated by the employment contract. Thus, the first step is issuing an order to remove the employee from work.
The order is drawn up in any form and signed by the head of the organization. The employee should be familiarized with the contents of the order against signature. During the period of suspension from work, the employee is not paid wages.
From the norms of Art. 76 of the Labor Code of the Russian Federation it follows that suspension from work in this case does not depend on the will of the employer, but on the presence of medical contraindications established by the medical institution (Decision of the Moscow City Court dated 03/02/2011 in case No. 33-5685, Appeal determination of the Moscow Regional Court dated 21/07 2014 in case No. 33-15624/2014).
2. The employer is obliged notify the employee that he has no vacancies in general or vacancies that are not contraindicated for the employee due to health reasons.
The notification is drawn up in any form, signed by the head of the organization and handed to the employee against signature (Article 73 of the Labor Code of the Russian Federation) (Appeal ruling of the Lipetsk Regional Court dated September 10, 2014 in case No. 33-2401/2014).
3. At the same time it is necessary check the period for which the employee is declared unfit for work.
If the period is less than four months, then the suspension is issued before the expiration of the period specified in the conclusion (since, as follows from the question, the employer does not have vacancies for transferring the employee to another position (paragraph 2 of Article 73 of the Labor Code of the Russian Federation)). After the specified period, the employer issues an order to allow the employee to work, and the employee continues to work in his position/profession.
If the period for which the employee is declared unable to perform his work is more than four months or is not indicated in the medical report, and the employer does not have vacancies for such an employee, then the employee must be dismissed in accordance with clause 8 of part 1 of article 77 of the Labor Code of the Russian Federation following the appropriate procedure. In this regard, a dismissal order is issued, indicating as the basis for its issuance a medical report and a certificate of the absence of vacancies suitable for the employee, taking into account his competencies and health status.
The order can be issued in the unified form No. T-8 or in another form determined by the employer. The employee’s dismissal order must be submitted against signature. If the order cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it under signature, a corresponding entry is made on the order.
4. Necessary make an entry in the work book employee (example).
Example
5. Enter a notice of dismissal employee in accordance with the wording in the work book to a personal card employee (form No. T-2 or the form used in this personnel service). The entry in the work book should also be familiarized to the employee against a signature in the personal card (clause 41 of the Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books” (as amended on March 25, 2013)).
6. On the last day of work issue employee work book. In this case, the employee must sign in the book recording the movement of work books and inserts in them.
7. Dismissal under clause 8, part 1, art. 77 of the Labor Code of the Russian Federation provides the employee with additional guarantees. So, in accordance with paragraph 5 of Part 2 of Art. 137 of the Labor Code of the Russian Federation cannot be withheld from an employee vacation pay for unworked vacation days, and the employee is also paid severance pay in the amount of 2 weeks of average earnings (Part 3 of Article 178 of the Labor Code of the Russian Federation).
Thus, on the day of dismissal, the employee must not only be paid all wages due to him and compensation for unused vacation, but also severance pay in the amount of 2 weeks' earnings.
An employment contract with the heads of organizations (branches, representative offices or other separate structural units), their deputies and chief accountants who, in accordance with a medical report, need a temporary or permanent transfer to another job, if the transfer is refused or the employer does not have the corresponding job, is also terminated in accordance with clause 8, part 1, art. 77 Labor Code of the Russian Federation. However, the employer has the right, with the written consent of these categories of employees, not to terminate their employment contract, but to suspend them from work for a period determined by agreement of the parties. During the period of suspension from work, wages are not accrued to these employees, unless this is provided for in a collective or labor agreement.
Question: The employee refused to undergo a periodic mandatory medical examination on his day off. Does an employer have the right to remove an employee from work? Is the employer required to pay for the time of such suspension?
Answer:
An employee has the right to refuse to undergo a periodic medical examination on his day off, since this is a period of rest during which the employee is free from work duties and which he can use at his own discretion. At the same time, the employer is obliged to suspend from work an employee who has not undergone a mandatory medical examination in accordance with the established procedure. In our opinion, if the employer himself did not provide the employee with the conditions for undergoing a medical examination during working hours, payment for the entire period of suspension from work should be made as for downtime due to the employer’s fault, that is, in the amount of two-thirds of the employee’s average salary.
Rationale: Taking into account the provisions of Art. 212 of the Labor Code of the Russian Federation, the responsibility for ensuring safe conditions and labor protection rests with the employer. In accordance with Part 2 of Art. 212 of the Labor Code of the Russian Federation, the employer is obliged, in cases provided for by regulatory legal acts, to organize, at his own expense, mandatory preliminary (upon entry to work) and periodic (during employment) medical examinations and other mandatory medical examinations of employees while maintaining their place of work ( position) and average earnings at the time of passing the specified medical examinations.
The categories of employees in respect of whom the employer is obliged to organize mandatory preliminary and periodic medical examinations are established by Art. 213 Labor Code of the Russian Federation.
The obligation of employees to undergo mandatory preliminary and periodic (during their working life) medical examinations, as well as extraordinary medical examinations directed by the employer in cases provided for by labor legislation and other federal laws, is enshrined in Art. 214 Labor Code of the Russian Federation.
The procedure for conducting mandatory preliminary (upon entry to work) and periodic medical examinations (examinations) of workers engaged in heavy work and work with harmful and (or) dangerous working conditions is approved by Order of the Ministry of Health and Social Development of Russia dated April 12, 2011 N 302n (hereinafter referred to as the Procedure conducting surveys).
The rules for medical examination of drivers are established in Letter of the Ministry of Health of Russia dated August 21, 2003 N 2510/9468-03-32 “On pre-trip medical examinations of vehicle drivers.”
For employees for whom special rules for conducting a medical examination have not been established, the specified documents can also be used.
According to clause 25 of the Procedure for conducting examinations, a medical organization, on the basis of a list of names, which is compiled and approved by the employer, draws up a calendar plan for conducting periodic examinations. The specified calendar plan is agreed upon with the employer and approved by the head of the medical organization.
The employer, in turn, no later than 10 days before the start date of the periodic examination agreed upon with the medical organization, is obliged to familiarize employees subject to periodic examination with this calendar plan (clause 26 of the Procedure for conducting examinations). In addition, before conducting a periodic inspection, the employer is obliged to give the employee sent for examination a referral for periodic inspection, drawn up in accordance with the requirements of clause 8 of the Procedure for Conducting Examinations. In accordance with clause 28 of the Procedure for conducting examinations, in order to undergo a periodic examination, the employee is obliged to arrive at the medical organization on the day established by the calendar plan.
Thus, from the above we can conclude that the Procedure for conducting examinations does not contain any restrictions or instructions regarding the establishment of dates for periodic medical examinations in the calendar plan. Since the name lists of persons subject to periodic medical examination are compiled by the employer, the employer must take into account the work schedule of this category of persons and organize the periodic examination during their working hours.
Yes, Art. 106 of the Labor Code of the Russian Federation stipulates that rest time is the time during which an employee is free from performing work duties and which he can use at his own discretion.
Weekends (weekly continuous rest), according to Art. 111 of the Labor Code of the Russian Federation, are provided to all employees. A day off is the employee’s rest time (Article 107 of the Labor Code of the Russian Federation). Accordingly, the employee has the right to refuse to undergo a periodic medical examination on a day that is a day off for him.
At the same time, an employee who has not passed a mandatory medical examination (examination) cannot be allowed to work in accordance with the law (paragraph 13, part 2, article 212 of the Labor Code of the Russian Federation, paragraph 4, article 34 of the Federal Law of March 30, 1999 N 52 - Federal Law “On the sanitary and epidemiological welfare of the population”). The employer will be obliged to remove the employee from work (paragraph 4, part 1, article 76 of the Labor Code of the Russian Federation).
In accordance with Part 3 of Art. 76 of the Labor Code of the Russian Federation, during the period of suspension from work (preclusion from work), the employee’s wages are not accrued, except in cases provided for by the Labor Code of the Russian Federation or other federal laws. In cases of suspension from work of an employee who has not undergone training and testing of knowledge and skills in the field of labor protection or a mandatory preliminary or periodic medical examination (examination) through no fault of his own, he is paid for the entire period of suspension from work as idle time.
According to Art. 157 of the Labor Code of the Russian Federation, downtime due to the employer’s fault is paid in the amount of at least two-thirds of the employee’s average salary.
The law provides for the direct responsibility of the employer to organize periodic inspections (Article 212 of the Labor Code of the Russian Federation). In addition, part 5 of Art. 24 of the Federal Law of November 21, 2011 N 323-FZ “On the fundamentals of protecting the health of citizens in the Russian Federation” establishes that the employer is obliged to provide conditions for employees to undergo medical examinations. From the above, in our opinion, we can conclude that the employer should have ensured that the employee underwent a medical examination during his working hours.
In the situation under consideration, the employer did not provide a medical examination on working days; accordingly, payment for the entire period of suspension from work should be made as for downtime due to the fault of the employer.
Thus, an employer can involve an employee in undergoing a periodic medical examination on a day of rest only with his consent. The employee has the right to refuse to undergo a periodic medical examination on his day off, which he can use at his own discretion. In accordance with the law, the employer is obliged to suspend the employee from work for the entire period of time until he undergoes a medical examination. Payment for the entire period of suspension from work must be made in the amount of two-thirds of the employee’s average salary, since it is the fault of the employer who did not properly provide the employee with the conditions for undergoing a medical examination.
It explains how often an annual medical examination at work takes place (labor code, art. 213). And Article 214 describes the responsibilities of an employee in the field of labor protection.
You should also point to Article 185 of the Labor Code of the Russian Federation. According to this article, the time spent by the employee undergoing medical examinations must be paid.
Labor Code of the Russian Federation, Article 214. Responsibilities of an employee in the field of labor protection
The employee is obliged:
- comply with labor protection requirements;
- correctly use personal and collective protective equipment;
- undergo training in safe methods and techniques for performing work and providing first aid to victims at work, instruction on labor protection, on-the-job training, testing of knowledge of labor protection requirements;
- immediately notify your immediate or superior manager about any situation that threatens the life and health of people, about every accident that occurs at work, or about a deterioration in your health, including the manifestation of signs of an acute occupational disease (poisoning);
- undergo mandatory preliminary (upon employment) and periodic (during employment) medical examinations, other mandatory medical examinations, as well as undergo extraordinary medical examinations at the direction of the employer in cases provided for by this Code and other federal laws.
Labor Code of the Russian Federation, Article 185. Guarantees for employees sent for a medical examination
During the period of undergoing a medical examination, employees who are required to undergo such an examination in accordance with this Code shall retain the average earnings at their place of work.
What documents are needed to pass a medical examination for work?
- passport of the citizen who has been assigned a preliminary medical examination;
- , where the citizen is employed. Typically, the direction indicates those examinations that are necessary for a citizen to obtain employment;
- outpatient card.
When applying for employment at a food industry enterprise or an enterprise where communication with children occurs, the employee must fill out a form.
To complete it you need provide a 3x4 photo. Upon initial application, you will also need to provide SNILS, compulsory medical insurance policy and receipt about paying for a medical examination in this clinic.
We also note that if the medical examination takes place in a paid clinic, then SNILS and compulsory medical insurance no need to provide.
Certificate of completion
After all the doctors have passed, a certificate of completion of the medical examination upon employment is issued. The certificate states whether the employee passed the medical examination or not. In some cases, a certificate of medical examination upon hiring is not issued, but a medical book is provided. But the medical book is not issued immediately.
If the position requires the issuance of a medical record, then before it is issued, a person who has passed all the doctors is given a certificate stating that his personal medical record is in the hospital, he has passed the doctors, and the document itself will be issued on a certain date.
To be hired, you usually need a certificate to pass a medical examination form.
Since 2009, in order to be employed in the civil service, it is necessary to present a certificate.
It should be noted that the validity period of such a certificate differs from the period of periodic examination of personnel already working at the enterprise. Certificate 086/у has a validity period of 6 months. Certificate 001-ГС/у is valid twice as long, namely 12 months.
I didn’t pass the medical examination at work – what should I do?
You may not undergo the examination if diseases are identified that cannot be treated in this area. For example, this is an open form of tuberculosis or other diseases that are detected through research.
If this happened, need to undergo treatment. In this case it takes place suspension from work who have not undergone a medical examination until it has been completed and provided to the employer.
List of diseases for which a medical examination certificate is not issued:
- Eye diseases. If this is work on a computer or activities related to driving vehicles, then it is unlikely that people who have vision problems will be allowed to do it.
- Contagious skin diseases.
- In some cases, these are alcoholism, drug addiction and mental illness.
For example, You can't work as a driver in that case, if a person suffers from seizures in any form or is quite serious hearing impairment, and mental retardation.
But workers whose work is related to computers usually undergo all examinations. There are no special diseases identified for them.
If the driver has not passed the pre-trip inspection, he is not allowed to take the shift. The employee must be sent to a clinic.
In accordance with Art. 212 of the Labor Code of the Russian Federation, when hiring. But some employers are trying to violate the labor code and do not want to pay for a medical examination. If employer does not want to pay for a medical examination, then he violates labor laws.
Validity period and frequency
When it comes to employment, they are different. For example, certificate 086/у is valid for six months. The health certificate is considered valid for a year, after which it is necessary to undergo the examination again.
Medical examinations are carried out at intervals from Once every 6 months before Once every 2 years, depending on the enterprise.
For example, employees whose work involves working on a computer (if they spend more than 50% of their working time on a computer) must undergo a medical examination once every 2 years if they are over 21 years of age.
Car drivers must also undergo a medical examination once every 2 years. In addition, drivers must undergo a medical examination at the beginning of each shift. This inspection is called pre-trip inspection and all those who drive vehicles are required to undergo it.
Individual entrepreneurs whose activities are related to transportation must also undergo a pre-trip inspection.
Can I be fired if I don't pass the examination?
If the employee has not passed the examination, he will be suspended from work(Article 76 of the Labor Code of the Russian Federation). It is likely that the employee will be given a vacancy in which to work.
If there are vacancies positions that an employee can occupy in an enterprise No, and he did not pass the medical examination at work - dismissal at the enterprise.
If according to the results of the medical examination the period of suspension from work is less than 4 months, then after this time the employee is reinstated and continues to work at the enterprise. If the period of suspension from work exceeds 4 months or is not indicated in the results of the medical examination, then the employee will be fired.
Employer's liability
The employer has no right allow employees who have not been tested to work. The employer is subject to administrative responsibility for this (admission to work without a medical examination).
This applies to those workers for whom a medical examination is mandatory.
According to article Art. 11.32 of the Code of Administrative Offenses of the Russian Federation provides for the administrative responsibility of the employer for allowing an employee to work without a medical examination. In case of such an offense, the employer will be required to pay a fine of up to 50 thousand rubles.
Code of Administrative Offenses of the Russian Federation, Article 11.32. Violation of the established procedure for conducting mandatory medical examination of vehicle drivers (candidate vehicle drivers) or mandatory preliminary, periodic, pre-trip or post-trip medical examinations
Violation of the established procedure for conducting mandatory medical examinations of vehicle drivers (candidate vehicle drivers) or mandatory preliminary, periodic, pre-trip or post-trip medical examinations shall entail the imposition of an administrative fine on citizens in the amount of one thousand to one and a half thousand rubles; for officials - from two thousand to three thousand rubles; for legal entities - from thirty thousand to fifty thousand rubles.
Note. For administrative offenses provided for in this article, persons carrying out entrepreneurial activities without forming a legal entity bear administrative liability as legal entities.
Failure to undergo medical examination when necessary violates labor laws and Rospotrebnadzor requirements.
In addition, such a lack can cause serious consequences, such as the occurrence of epidemics and other negative consequences. That is why rules were created for undergoing a medical examination when applying for a job.
Question: Does the manager have the right to dismiss an employee (part-time worker; on a permanent basis) if he has not passed the mandatory medical examination. Which articles of the Labor Code can you appeal against? Explain the complete termination process.
Answer: The grounds for termination of an employment contract are specified in Chapter 13 of the Labor Code of the Russian Federation.
An employer does not have the right to terminate an employment relationship with an employee who did not undergo a mandatory medical examination, because such a basis is not provided for by the Labor Code. In accordance with Art. 212 of the Labor Code of the Russian Federation prohibits the admission of workers to the performance of their labor duties without undergoing mandatory, that is, established by state authorities or local government, medical examinations. An employee who has not passed the appropriate medical examination and started work, in accordance with Art. 76 of the Labor Code of the Russian Federation must be removed from work by the employer. Dismissal of an employee who has not passed a mandatory medical examination is not a right, but an obligation of the employer.
It should be remembered that the categories of workers for whom a mandatory medical examination is provided are indicated in the Labor Code of the Russian Federation itself or Order of the Ministry of Health and Social Development of the Russian Federation dated August 16, 2004 N 83 “On approval of lists of harmful and (or) hazardous production factors and work, during the performance of which preliminary and periodic medical examinations (examinations), and the procedure for conducting these examinations (examinations)."
The employer, at his own expense, is obliged to send the employee for a medical examination, and the latter must undergo it.
A corresponding order for the main activity must be issued about undergoing a medical examination. Before issuing a removal order, you must ensure that you have one of the following documents:
- act drawn up at the place of work. Typically, this document is drawn up if, instead of undergoing a medical examination, the employee was at his workplace, although it can be drawn up in other cases;
- documented information from a medical institution about the employee’s failure to appear for a medical examination;
- the employee’s written refusal to undergo a medical examination;
- a certificate of incapacity for work for a period coinciding with the date of the medical examination, or other documents confirming the employee’s failure to appear for the medical examination.
After the employer has recorded the employee’s failure to undergo medical examination. inspection, he has the right to issue an order for removal. The order must indicate the last name, first name, patronymic and position of the employee, the grounds for which he is suspended from work, as well as the period of suspension. In this case, the period is determined not by the date, but by the event - until the moment of passing the medical examination (Part 2 of Article 76 of the Labor Code of the Russian Federation). The dismissal order must be presented to the employee against signature. If you refuse to sign, a corresponding act is drawn up. It must be remembered that the obligation to issue an order to re-send an employee for a medical examination lies with the employer, so it is advisable to familiarize the employee with the order while he is at the workplace. If failure to undergo a medical examination was due to the fault of the employee, he can be brought to disciplinary liability (Article 192 of the Labor Code of the Russian Federation). If a disciplinary sanction is applied to an employee, it is first necessary to ask him for an explanation of the reasons for not passing the examination. If they are disrespectful, the employer has the right to issue an order to impose a disciplinary sanction.
In this situation, you can terminate your employment relationship with an employee if:
- the employee was previously brought to disciplinary liability, and less than a year has passed since the moment of prosecution (Part 1 of Article 194 of the Labor Code of the Russian Federation);
- the reason why an employee did not undergo a mandatory medical examination is not “reasonable”;
- Because the employee did not undergo a medical examination on time, the employer brought him to disciplinary action.
If these three conditions are met, the employer has the right to terminate the employment contract with the employee under clause 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, namely for repeated failure by an employee to fulfill labor duties without good reason, if he has a disciplinary sanction.
This position is supported in paragraph 35 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.” The Plenum of the Armed Forces of the Russian Federation indicates that failure by an employee to perform without good reason is failure to fulfill labor duties or improper performance through the fault of the employee of the labor duties assigned to him (violation of legal requirements, obligations under an employment contract, internal labor regulations, job descriptions, regulations, orders of the employer , technical rules, etc.). The Plenum also includes among such violations refusal or evasion without good reason from a medical examination of workers of certain professions.
What sanctions can be applied to an employee and what documents are required for this if the employee refuses to undergo a medical examination?
Employees, by virtue of Art. 214
Order of the Ministry of Health and Social Development of Russia dated April 12, 2011 N 302n approved the List
Periodic examinations are carried out by medical organizations of any form of ownership that have the right to conduct preliminary and periodic examinations, as well as to examine professional suitability in accordance with current regulations (clause 4
In accordance with Art. 76
The employer issues an order regarding the suspension of an employee, which indicates the grounds for suspension from work, as well as the period of suspension, and it is better to determine the period not by a specific date, but by the moment of passing a medical examination.
If the employee refuses to sign the order of suspension from work, a free-form report is drawn up, which records that the employee refused to sign.
In addition, refusal to undergo a medical examination is a violation of labor discipline, in connection with which the employer has the right to apply disciplinary measures to such an employee as established in Art. 192
If an employee evades a periodic medical examination, the employer must request a written explanation from the employee with a request to provide, within two days, an explanation of the reasons for failure to undergo a medical examination, as well as obtain documented information from a medical institution about the employee’s failure to appear for a medical examination. If after two working days the employee refuses to give any explanations, then a corresponding act is drawn up (Part 1 of Article 193
The fact that an employee has committed a disciplinary offense is formalized by an order to apply a disciplinary sanction. The order indicates the offense committed by the employee, namely the refusal to undergo a medical examination, the circumstances of the offense and the type of disciplinary sanction applied. In case of refusal to sign the order, a corresponding act is drawn up (Part 6 of Article 193