Suspension from work for medical reasons. Step-by-step procedure for dismissal for medical reasons in accordance with the law. Reasons for dismissal

The topic of dismissal of employees is of interest to employers suddenly, when a certain situation has arisen. Due to the fact that it is quite rare in labor practice, it is possible to make mistakes at the time of registration necessary documentation. In order to avoid this, it is necessary to reveal all sorts of nuances that are likely to be encountered along the way.

Exemption from work for health reasons

Exist various situations when the employee can no longer continue activities at the current place of work. The main reason is health. Such a decision may be made by a doctor or medical commission. Did the employee completely lose their ability to work? Usually the employer can transfer him to another position. This is included in the medical certificate. If such a transfer is not possible, the employer may dismiss the employee or release him from performing duties that significantly affect the state of health.

Suspension for health reasons

In order to suspend an employee for health reasons, the employer must use the following procedure:

First he gets necessary information, on the basis of which a verdict of temporary or permanent translation to another position. The medical report of the doctor is considered in detail.
If necessary, notify company management that the employee needs to be transferred to another position.
Offer the employee another activity that will not worsen his current health condition.
The employee must agree to the transfer. It must be framed separate document, which specifies a proposal to do so.
The employee must familiarize himself with the new responsibilities, current conditions and payroll.
He is trained in labor protection.
If he is accepted for a new position, then a new employment contract is concluded.
The labor conclusion is drawn up by a special order, then provided to the employee. He must sign.
All documents that testify to the transfer of an employee are included in his personal file.
After assigning documents to a personal file, this must be approved by a resolution of the Committee on archives, as well as office work.
After being transferred permanently to work book an appropriate entry is made.

Exemption from work for medical reasons

As stated, a transfer to another activity is allowed only if the employee has provided written consent. All manipulations carried out must be controlled by the established norms of the Labor Code of the Russian Federation. Sometimes the director must transfer an employee if the need arises. One of these is a medical report, which was issued after a mandatory medical examination.

Sample exemption from work for health reasons

In order to address the various issues that relate to labor relations, various official documents. They must be legal. This includes the statement. It is necessary to write it correctly in order to regulate the relationship between the employee and the employer. If incorrect information is entered into it, then errors may also occur in the transfer order, which is issued by the management.

Suspension from work for health reasons

The Commission of Doctors has the right to suspend an employee from his activities for a period of 120 days. At the same time, the employer can offer him another position that will not affect his health. The employee can either agree or refuse with the transfer itself. If he signs the refusal, the salary is not charged. The position is saved.

It happens that the term in the medical report can exceed four months. In this case, the employee refuses to transfer or the employer does not have the required position. Then in accordance with article 73 of the Labor Code of the Russian Federation his employment contract is terminated. He's being put on the redundancy list.

For a day

As stated, the management of the organization must remove the employee from activities until the circumstances that caused the initiation of this process are eliminated. For example, if an employee is intoxicated, he is suspended for one shift or one working day. But only if a different period is not indicated in the medical report. If an employee has a severe alcohol intoxication and dispatch, and he performs work that requires considerable attention, the suspension period can last for two or more business days.

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Observing the requirements of the Labor Code of the Russian Federation, the employer is obliged to provide employees with the necessary working conditions. In the article, we will analyze the actions of the employer when transferring an employee to another position due to medical reasons, and also find out how to document a temporary suspension from work for health reasons.

Transfer of an employee to another position for medical reasons: the position of the Labor Code of the Russian Federation

Article 73 of the Labor Code of the Russian Federation regulates the procedure for providing an employee with working conditions in accordance with the state of health of the employee and recommendations provided by a medical institution.

In particular, persons involved in work with harmful / dangerous factors can be transferred to another position, with more safe conditions based on a medical opinion.

When transferring, the employee retains the previous workplace. If a lower salary is set for a new (temporary) job, then within the first month after the transfer, the employer pays the employee the salary in the same amount.

Temporary transfer period

The term of the transfer is determined on the basis of a medical report, in the text of which the doctor indicates the period during which it is necessary for the employee to eliminate the harmful factors present at the current workplace. In this case, the total period of stay of an employee in a temporary position should not exceed 4 months. If the employee needs to be transferred for a longer time, the employer transfers him to a “safe” job on an ongoing basis, if the employee refuses to transfer, he dismisses him in accordance with paragraph 8 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

A detailed algorithm of the employer's actions when transferring an employee to a temporary position for health reasons is in the table below:

Stages	Name	Description of actions
Stage #1	Obtaining a medical report from an employee	The employee provides the employer with a medical report, which indicates the harmful factors that are contraindicated for the employee for health reasons, indicating the desired period for the employee to be removed from such factors. On the basis of a medical report, an employee issues an application for transfer to another position on the basis of par. 1 st. 73 of the Labor Code of the Russian Federation.
Stage #2	Issuance of a transfer order	Based on the medical report and application, the employer selects a position for the employee, the working conditions of which comply with medical recommendations, and issues a transfer order. The term of the transfer is determined on the basis of the conclusion.
Stage #3	Job offer in accordance with medical indications	If after 4 months the employee still needs to be removed from harmful factors (on the basis of a medical report), then the employer offers him a transfer to a new position on a permanent basis. If the employee agrees, the transfer is made by order.
Stage #4	Dismissal	If the employee refuses to be transferred to a permanent position proposed by the employer on the basis of medical indications, the employer issues an order to dismiss the employee on the basis of clause 8, p. 1, article 77 of the Labor Code of the Russian Federation.

Suspension from work for health reasons: step-by-step instructions for the employer

In cases where the employer cannot provide the employee with work in accordance with medical indications due to the lack of such work, the employee is suspended from his position for up to 4 months. During the period of suspension, the employee retains his workplace. Salary for the period of suspension from work for health reasons is not accrued.

Peculiarities documentation temporary suspension of an employee from work for health reasons - in the instructions below.

Step 1. Obtaining grounds for suspension from work

At the first stage, the employer receives a medical certificate from the employee, in which:

the factors that adversely affect the health of the employee and are subject to exclusion are listed (increased noise level, high physical activity, etc.);
the period during which the listed factors must be excluded is indicated.

When submitting a medical report, the employee draws up an application for transfer to another position on the basis of par. 1 st. 73 of the Labor Code of the Russian Federation. The period of transfer upon application must correspond to the medical report, but not exceed 4 months.

If the organization's staffing table does not provide for positions that meet the necessary conditions, the employer is obliged to completely remove the employee from work, having previously sent him a written notice.

Step #3 Issuing an order

Based on the medical report, the employee's statement, as well as a notice indicating the impossibility of providing the employee with the required working conditions, the employer issues an order for temporary suspension from work.

The order is drawn up in free form, indicating the following information:

name of company;
name of the document, date of compilation;
Full name, position of the employee being suspended from work;
information on temporary suspension from work for health reasons with the retention of the position;
suspension period in accordance with the medical report and application, but not more than 4 months ( “for a period of _____ months. since ____ by ____");
grounds for temporary suspension from work (paragraph 3 of article 73 of the Labor Code of the Russian Federation);
list of attached documents (medical report, employee's statement, notice of dismissal due to the inability of the employer to provide the employee with the necessary conditions labor).

After signing the order by the head, the document is handed over to the employee for review against signature (“Familiarized”, full name, date, signature).

Step #3 Return to work

Upon the expiration of the suspension period specified in the order, the employee returns to his previous workplace and begins to perform official duties. Return to work in this case is not issued by an additional order.

Settlements with the employee during temporary suspension from work

Before and after suspension from work, as well as during the period during which the employee did not perform official duties on the basis of a medical report and a corresponding order, the provisions of the company's local regulations on wages apply to the employee.

Thus, the employee is paid the salary and other remunerations stipulated by the employment contract, accrued during the period of performance of labor duties (until the moment of suspension from work).

During the period of suspension, in general, no salary is paid, except in situations where otherwise provided by the labor / collective agreement, local regulations.

At the end of the suspension period, the employee resumes accrual and payment of salary in in due course.

Posted On 06/01/2018

The list of medical indications for artificial termination of pregnancy is determined by the Ministry of Health. induced abortion by medical indications produced before 22 weeks of gestation.

Of course, in order to terminate a pregnancy for medical reasons, the consent of the woman is required.

Conventionally, all medical indications for abortion can be divided into three groups:

indications from the fetus;
testimony from the mother;
indications from the peculiarities of the course of pregnancy.

Medical indications for termination of pregnancy related to the condition of the unborn child

An absolute indication for termination of pregnancy is a non-developing pregnancy (missed miscarriage) - a pathological condition in which pregnancy persists for some time with a dead fetus. In such cases, abortion is carried out for health reasons (long-term presence of the dead fetus in the uterus threatens with complications).

In addition, medical indications for termination of pregnancy are gross malformations of the fetus (for example, anencephaly - the absence of a brain), in the presence of which the fetus dies before the end of pregnancy or in the first hours or days after childbirth, as well as the threat of the birth of a disabled child (Down syndrome).

As a rule, doctors recommend terminating a pregnancy early in cases where there is a high risk of the birth of a seriously ill child.

Medical indications for termination of pregnancy, which are associated with the peculiarities of its course

An absolute indication for abortion is an ectopic pregnancy, in which the fetal egg is attached outside the cavity of the uterine body (tubal, cervical, ovarian pregnancy, etc.), since it will inevitably be interrupted spontaneously and pose a threat to the woman's life.

In addition, severe early and late toxicosis of pregnant women is a medical indication for termination of pregnancy, in cases where they are difficult to treat and threaten the life of a woman.

Medical indications for termination of pregnancy related to the health of the pregnant woman

A medical indication for termination of pregnancy can be any serious illness in which pregnancy and childbirth pose an undoubted threat to the life and health of a woman.

In addition, doctors recommend terminating a pregnancy in case of pathologies that require treatment that poses a threat to the health of the unborn child (chemotherapy, etc.), as well as in case of diseases in which there is an increased risk of having a seriously ill child.

The most common medical indications for abortion are the following diseases:

pathology of the cardiovascular system (heart defects occurring with severe heart failure; septic endocarditis);
blood diseases (leukemia, aplastic anemia);
lung diseases occurring with severe respiratory failure (pneumosclerosis);
serious kidney pathologies occurring with severe renal failure;
damage to the endocrine system, which does not allow to endure and give birth to a healthy child (severe thyrotoxicosis or diabetes mellitus);
active tuberculosis;
AIDS in the advanced stage of clinical manifestations;
severe diseases of the gastrointestinal tract (damage to the liver parenchyma with a violation of its detoxification function, leading to poisoning of the body of the mother and child; ulcerative colitis with a tendency to a continuous recurrent course);
oncological pathology requiring immediate treatment with irradiation of the pelvic organs or the use of chemotherapy;
malignant neoplasms of the eyes;
serious mental illness (epilepsy, acute psychoses);
serious illnesses nervous system(polyneuritis or multiple sclerosis with a progressive course);
transferred abdominal operations, after which pregnancy and childbirth pose a threat to the life of a woman.

In each individual case, the individual characteristics of the course of the pathology, the state of the patient's body, and her desire to have children are taken into account. In complex cases, a council consisting of several specialists is assembled.

It should be noted that the list of conditions in which doctors recommend terminating a pregnancy is gradually being reduced due to the development of medicine.

So, back in 1993, the Ministry of Health of the Russian Federation recommended termination of pregnancy for all women who have reached the age of forty, today this indication is excluded from the list, and with it about a hundred diseases that today are no longer a threat to the health of mother and child.

Severance pay upon dismissal

However, this does not mean that the company cannot go further in this matter. This means that additional grounds for making payments and their increased amount can be established in a collective or labor agreement in force at the enterprise.

If a person terminates relations with the administration due to the liquidation of the company or the reduction in the number of personnel in it, then the payment of severance pay upon dismissal is carried out in the amount of the person's average earnings.

There are also cases when severance pay upon dismissal is limited only average salary For two weeks.

Medical termination benefits

But you can't just fire him. First, the employer is obliged to offer him a transfer to another position that is more suitable for him for health reasons. This is done with the written consent of the employee. The procedure for transferring an employee who, in accordance with a medical report, needs to be provided with another job is established by Article 73 Labor Code.

The document justifying the need to transfer an employee to another position or dismissal is a medical certificate issued in compliance with current legislation, which confirms the permanent disability of the employee.

Severance pay upon dismissal or reduction of an employee

If nothing is written in the employment contract, then no payments are made. For other reasons for dismissal of an employee, payments are the same for organizations and for an entrepreneur.

The amount of the severance pay also depends on the reason for the dismissal of the employee. For grounds No. 1, No. 2 and No. 9, discussed earlier in the article, the amount of the severance pay will be equal to the average monthly earnings for all employees, with the exception of seasonal workers (the size of the severance pay is equal to two weeks of average monthly earnings) and employees hired for a period up to 2 months (The amount of the allowance is established by a local regulation or a collective or labor agreement.

Severance pay upon dismissal

At the same time, he retains the average monthly salary for the period of his employment, but not more than two months (three in exceptional cases) h.

Translation for medical reasons

2 tbsp. 178 of the Labor Code of the Russian Federation. The employee also receives a benefit in the amount of the average monthly salary upon liquidation of the company, or if the employment contract was concluded in violation of the rules for concluding employment contract and this violation did not occur through the fault of the employee, Part 3, Art.

What is the procedure for dismissal due to medical contraindications to a certain job (activity) reflected in the medical report? Legal advice in Garant-Victoria

73, paragraph 8 of the first part of Art. 77 of the Labor Code of the Russian Federation);

Depending on what grounds for dismissal apply, the procedure for the employer to terminate the employment contract with the employee will also differ.

1) obtain a medical certificate issued to the employee in accordance with federal law (for example, in accordance with paragraph 2 of article 33 of the Federal Law of March 30, 1999 No.

Termination of an employment contract due to the employer's lack of work required by the employee in accordance with the medical report

approved by the Decree of the State Statistics Committee of the Russian Federation No. 1 dated 05.01.2004.

Settlement with the employee is made on the day of dismissal (paid financial compensation per unused vacation, wage, severance pay and other payments due).

Upon termination of the employment contract due to the employee's refusal to transfer to another job, which is necessary for him in accordance with the medical report (paragraph 8 of the first part of Article 77 of the Labor Code of the Russian Federation), the employee is paid a severance pay in the amount of two weeks of average earnings (Art.

Procedure for dismissal due to refusal to transfer or lack of work in accordance with a medical report

182 of the Labor Code of the Russian Federation when transferring an employee to another lower paying job at this employer he retains his former average earnings within one month from the date of transfer, and in case of transfer due to an industrial injury, occupational disease or other damage to health associated with work - until a permanent loss of professional ability to work is established or until the employee recovers.

Compensation for unused vacation is determined on the basis of average wages.

Expenses for the payment of severance pay upon dismissal of an employee for medical reasons

Payment of severance pay: Debit of account 0 302 62 830 “Reduction of accounts payable on benefits for social assistance to the population” Credit of account 0 201 34 610 “Disposal of funds from the cash desk of the institution”.

The “medical indications” of the employee are the problem of the employer. How to apply conflicting provisions of the Labor Code

“Personnel officer. Labor law for personnel officer”, 2009, N 7

“MEDICAL INDICATIONS“ OF THE EMPLOYEE IS THE PROBLEM OF THE EMPLOYER.

HOW TO APPLY CONTRADICTING LABOR CODE RULES

Some problems that arise during the application of legal norms related to the removal of an employee from work for medical reasons, and possible ways to overcome them without violating the rights and legitimate interests of the employer, are highlighted.

The reform of labor legislation aims to improve legal regulations, regulating labor Relations. main source labor law is the Labor Code of the Russian Federation.

Of course, the modification of its individual provisions at the present stage needs to be seriously considered not only by scientists, but, mainly, by law enforcers, including government bodies executive and judicial power. At the same time, it should be noted that not all the changes made to the Labor Code of the Russian Federation and other regulatory legal acts containing labor law norms are correct enough, which allows them to be applied without any effort. Unfortunately, the situation is quite common when, in the absence of the assistance of a specialist in the field of labor law, one or another legal norm is applied without deep and comprehensive analysis given its reform is not possible.

In particular, the Labor Code of the Russian Federation contains legal norms, the formal observance of which (the exercise of rights and the fulfillment of duties in strict accordance with their content) by an employer may become an offense, since compliance with one norm is associated with a violation of other norms provided for by this act.

For example, in accordance with Art. 76 of the Labor Code of the Russian Federation, the employer is obliged to suspend (not allow to work) the employee in the cases listed by law. These include, in particular, the identification, in accordance with a medical report issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation, of contraindications for an employee to perform work stipulated by an employment contract.

On the one hand, the basis for the removal of an employee from work is an appropriate medical certificate issued in accordance with the procedure established by law. On the other hand, such a medical report in itself does not allow the employer to comply with Art. 76 of the Labor Code of the Russian Federation, an obligation by virtue of the provisions provided for in Art. 73 of the Labor Code of the Russian Federation.

By virtue of Art. 73 of the Labor Code of the Russian Federation, the employer has the right to remove the employee from work only after the procedure established by law for his employment has been carried out. According to Part 1 of Art. 73 of the Labor Code of the Russian Federation, the employer is obliged to transfer (but not to suspend from work) an employee who needs to be transferred in accordance with a medical report to another job available to the employer that is not contraindicated for him for health reasons. At the same time, the law provides for various legal consequences for the employee (depending on the duration of the temporary transfer to another job, which he needs for medical reasons).

Thus, the legal norms set out in Art. Art. 73 and 76 of the Labor Code of the Russian Federation, provide for two different forms of suspension of an employee from work on the same - “medical” - basis.

Suspension Forms

So Art. 76 of the Labor Code of the Russian Federation establishes the obligation of the employer to suspend the employee from work immediately upon receipt of the relevant medical opinion without taking any measures, for example, related to the employment of the employee, while Art. 73 of the Labor Code of the Russian Federation allows the removal of an employee from work only after the employer has fulfilled the obligation to employ him.

Therefore, the removal of an employee from work in the first case is allowed if there is a medical certificate, in the second - if three conditions are present simultaneously:

1) the employee needs temporary transfer for another job for up to four months according to a medical report;

2) the procedure for the employment of the employee is carried out, or the employer does not have the corresponding job;

3) the employee refuses the transfer.

The norms under consideration do not allow the employer to independently determine (make a choice) the behavior that is possibly acceptable in a given situation. Analysis of the norms provided for by Art. Art. 76 and 73 of the Labor Code of the Russian Federation, together they reveal the following shortcomings legal regulation issues related to the removal of an employee from work for medical reasons.

In accordance with Part 2 of Art. 73 of the Labor Code of the Russian Federation, an employer has the right to remove an employee who needs to be transferred to another job, if one of the following conditions is met:

The employee refuses to be transferred to another job;

The corresponding work, which he is obliged to offer the employee in the order of employment, the employer does not have.

Thus, before an employer has the right to legally remove an employee from work (not allow him to work), he is obliged to carry out certain work to employ such an employee. The employment procedure, which allows the employer to remove the employee from work that is contraindicated for health reasons, involves two stages.

At the first stage, the employer is obliged to offer the employee the vacancies he has, which the employee can perform, taking into account the available business qualities and the state of his health. This is due to the provision of Part 1 of Art. 73 of the Labor Code of the Russian Federation, according to which the employer is obliged to transfer the employee to another job he has, which is not contraindicated for the employee for health reasons. A similar rule is contained in Part 4 of Art. 72.1 of the Labor Code of the Russian Federation, according to which it is forbidden to transfer and move an employee to work that is contraindicated for him for health reasons.

At the second stage, the employer is obliged to resolve the issue with the employee:

Or, if he agrees to work in one of the positions offered by the employer, transfer him to such a job, formalizing this by signing a bilateral agreement on making appropriate changes to the employment contract;

Or, if the employee refuses to transfer to the job offered by the employer, remove him from work in accordance with Art. 76 of the Labor Code of the Russian Federation.

The process of transferring to another job

The employer is not always able to immediately resolve the issue of transferring an employee to another job or removing him from work. This is due to a number of circumstances. In particular, the employee may not express his disagreement with the transfer to the job offered by the employer, but at the same time not agree with the employer's proposal to move to another job that is not contraindicated for his state of health. Nevertheless, the basis for the removal of an employee from work is precisely the refusal of the employee to transfer to another job.

The law does not establish rules for the lawful behavior of the employer in the situation under consideration. In addition, the law does not contain answers to elementary questions. For example, how is an employer obliged to offer an employee a job he has? When is the employee entitled to express his opinion on the vacancies offered by the employer? How is the employer obliged to record the employee's refusal to express any relation to the work offered by the employer?

Most likely, you will have to be guided by the norm provided for by Art. 72 of the Labor Code of the Russian Federation, according to which the change certain parties terms of the employment contract, incl. transfer to another job is allowed only by agreement of the parties to the employment contract. Thus, in the situation under consideration, the employer should have prepared a bilateral agreement on changing the terms of the employment contract related to the transfer of the employee to another job. It should reflect the change in terms of the contract, such as labor function employee, the name of the position occupied by the employee, the structural unit, the amount of remuneration, working hours and rest time, other conditions specified in the employment contract in case of their change.

Such an agreement must be prepared in duplicate (if the employment contract is to be concluded in duplicate). Considering that the written agreement of the parties to amend the terms of the employment contract, determined by its parties, implies the existence of a bilateral expression of will, the employer, represented by his representative, should sign and execute it in the manner prescribed by law.

Then the refusal of the employee to amend the employment contract for the position (job) offered to him by the employer in the order of employment can be recorded as a refusal of the job (position) offered to him by the relevant act drawn up by the commission.

Note. An employee's refusal to work (position) offered to him in the course of employment can be formalized by an appropriate act - on the employee's refusal to amend the employment contract by a bilateral agreement (an act of refusal to sign the relevant agreement).

In the situation under consideration, there is every reason to equate the employee's refusal to amend the employment contract, certified by the relevant commission act, to the refusal to transfer to another job.

Thus, the act of refusal to make appropriate changes to the employment contract may be the basis for:

To resolve the issue of suspension of an employee from work (if the employee needs a temporary transfer to another job for up to four months);

To dismiss an employee (if he needs a temporary transfer for a period of more than four months or a permanent transfer).

Thus, the procedure for registering an employee’s refusal to transfer to a job offered to him can be determined by a local regulatory act.

It should be noted that the body considering the dispute on the merits, in this situation, has the right, using judicial discretion, to recognize the absence of the period necessary for the employee to make a decision on transfer to another job (refusal to transfer) as a violation of his rights and legitimate interests. Therefore, the employer often independently determines by a local regulatory act the maximum allowable period during which the employee has the right to express his decision on the work offered to him in the order of employment.

However, it seems that the absence in the law of any period for the employee to choose one or another behavior does not oblige the employer to such actions.

Suspend and not pay?

Let us consider another problem related to the contradiction between the above two legal norms, provided for in Part 1 of Art.

1 st. 73 and Art. 76 of the Labor Code of the Russian Federation, when the employer, on the one hand, is obliged to remove the employee from work that is contraindicated for him in accordance with the medical report, and on the other hand, he is not entitled to do this without observing the procedure for his employment.

Within the meaning of Art. 76 of the Labor Code of the Russian Federation, the removal of an employee from work is understood as preventing him from performing work duties.

According to part 2 of Art.

Step-by-step procedure for dismissal for medical reasons in accordance with the law

76 of the Labor Code of the Russian Federation, the employer removes from work (does not allow to work) the employee for the entire period of time until the circumstances that were the basis for suspension from work or exclusion from work are eliminated. At the same time, by virtue of Part 3 of Art. 76 of the Labor Code of the Russian Federation during the period of suspension from work (non-admission to work), wages are not accrued to the employee. Exceptions are cases provided for by the Labor Code of the Russian Federation or other federal laws.

Therefore, if there is an appropriate medical certificate, which clearly states that work is contraindicated for health reasons, the employer does not have the right to allow him to work. However, the employer is not entitled to issue an appropriate order (instruction) to remove the employee from work without saving his wages, since he did not comply with the order provided for by Art. 73 of the Labor Code of the Russian Federation on the employment of this employee.

It seems that such contradictions should be eliminated at the level of legislative authorities. However, before the relevant changes are made to the federal legislation, the employer has the right to determine two forms of dismissal of an employee from work by his local normative act or the terms of the collective agreement:

1) suspension from work for the entire period of employment;

2) suspension from work in connection with the refusal to transfer to the job offered by the employer<1>.

-----------
<1>The second form of suspension from work is provided for in cases where the employer has a job suitable for the category of workers in question.

For this, it seems convenient in the situation under consideration to distinguish legal status an employee during the period of his employment and during the period when such employment did not take place for one reason or another.

Since the employer does not have the right to allow the employee to work that is contraindicated for him for health reasons, he is forced to issue an appropriate order (instruction) to remove the employee from work (to record the fact that the employee was not allowed to work that is contraindicated for him for health reasons).

If the local normative act (collective agreement) contains two forms of suspension from work, then in the case of the employment procedure for such an employee, the order (instruction) of the employer must indicate that the suspension from work is temporary, limited to the corresponding period of his employment. The basis for such an order (instruction) is a medical report; in its preamble, a reference should be made to the relevant paragraph of the local regulatory act (condition of the collective agreement).

If the employee agrees with the job offered to him in the order of employment, the employer issues an order (instruction) on the temporary transfer of the employee to another job with the preservation of his former place of work for the entire period stipulated by the medical reports. If the employee refuses the job offered to him in the order of employment, the employer issues an order (instruction) to suspend the employee from work for the entire period provided for by the medical report, but not more than four months.

In the event that there is no suitable job, the employer's order (instruction) to remove the employee from work must provide for the period of his suspension from work, which is indicated in the medical certificate, but not more than four months.

Thus, the presence of the employer in the situation under consideration suitable job causes the issuance of two orders (orders): one - on the temporary suspension of the employee from work for the period of his employment, the other - on temporary suspension from work for the entire period provided for by the medical report.

In this regard, the question arises: does the employer have the right not to charge the employee for this period (during the period of suspension from work, which falls on the period of his employment) wages?

From the standpoint of Art. Art. 76, 73 of the Labor Code of the Russian Federation, this issue is resolved unequivocally: during the period when an employee is suspended from work, wages are not accrued to him. At the same time, an analysis of the provisions of the Labor Code of the Russian Federation does not allow us to state with certainty that the employer has the right not to accrue wages to the employee during the period of his employment.

In accordance with Art. 234 of the Labor Code of the Russian Federation, the employer is obliged to compensate the employee for earnings not received by him in all cases of illegal deprivation of his opportunity to work. In the case under consideration, the contradictions in the legal norms pose a real threat to the employer, when it is possible to recognize his actions to remove the employee until employment for another job as illegal, violating the rights of the employee.

Since the Labor Code of the Russian Federation does not contain a rule according to which the employer has the right not to accrue wages to the latter for the period of employment of the employee, then the reimbursement of expenses associated with the employment of the employee should be made at the expense of the employer.

Considering that Art. 236 of the Labor Code of the Russian Federation provides liability employer for delaying the payment of wages and other payments due to the employee, the employer, in our opinion, has the opportunity to prevent adverse consequences.

He has the right to independently establish by local regulations or a collective agreement (agreement) the rules for keeping the employee for the period of his employment of average earnings up to his removal from work (in compliance with the procedure for his employment, provided for in Article 73 of the Labor Code of the Russian Federation) or until his dismissal from work.

Otherwise, the employer, for reasons beyond his control, may turn out to be an involuntary violator of labor law and incur legal liability in this regard.

The duration of the special right of the employee

It should be noted that the provision under Art. 73 of the Labor Code of the Russian Federation, incorrectly determines the period with which two possible options employer behavior:

1) suspend the employee from work if the period of temporary transfer to another job for medical reasons is less than four months;

2) dismiss the employee if such period exceeds four months.

In the first case, an employee who, in accordance with a medical report, needs a temporary transfer to another job for a period of up to four months, in the event of his refusal to transfer to another job or the absence of an appropriate job suitable for the employee, is subject to suspension from work with the preservation of the place of work (position) for the entire period specified in the medical report.

In the second case, an employee who, in accordance with a medical report, needs a temporary transfer to another job for a period of more than four months, in the event of a refusal to transfer or the employer does not have a relevant job, is subject to dismissal on the grounds provided for in paragraph 8 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

At the same time, the law does not determine the lawful behavior of the employer if the above period is exactly four months.

A similar provision is regulated for cases of suspension of the special right of an employee (licenses, rights to manage vehicle, the right to bear arms, other special rights) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility for the employee to fulfill his obligations under an employment contract.

Suspension of the special right of an employee for a period of less than two months serves as a basis for removing the employee from work, for more than two months - for terminating an employment contract with him on the grounds provided for in paragraph 9 of part 1 of Art. 83 of the Labor Code of the Russian Federation<2>. The consequences of suspension of the special right for a period of two months are also not defined by law.

-----------
<2>According to par.

9 h. 1 tbsp. 83 of the Labor Code of the Russian Federation, the grounds for termination of an employment contract are the expiration, suspension of validity for a period of more than two months or deprivation of an employee of a special right (license, right to drive a vehicle, the right to carry weapons, other special rights) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility for the employee to fulfill the obligations under the employment contract.

The reason for such provisions are shortcomings of a technical and legal nature. It seems logically correct to define the term in a different way. If the legal consequences provided for by any legal norm are associated with a certain calendar period, then its scope (limitations) should not contain intermediate provisions, unless such provisions entail independent special legal consequences. Thus, to establish a period, the expiration of which is associated with certain legal consequences, it is necessary otherwise. For example, the wording of Parts 2 and 3 of Art. 73 of the Labor Code of the Russian Federation may be as follows:

“If an employee who, in accordance with a medical certificate, needs a temporary transfer to another job for up to four months, refuses to transfer or the employer does not have a corresponding job, then the employer is obliged to remove the employee from work for the entire period specified in the medical certificate while maintaining the place of work (positions). During the period of suspension from work, wages are not accrued to the employee, with the exception of cases provided for by this Code, other federal laws, a collective agreement, agreements, and an employment contract.

If, in accordance with a medical report, an employee needs a temporary transfer to another job for a period of four or more months or a permanent transfer, then if he refuses to transfer or if the employer does not have the appropriate job, the employment contract is terminated in accordance with clause 8 of part one of Article 77 of this of the Code."

Unfortunately, the employer cannot eliminate the above shortcomings on his own, since he is not endowed with such a right. Law enforcement agencies, including courts general jurisdiction, of course, are forced to apply such legal norms in practice, however, it seems that any behavior in a situation that is not properly regulated can be recognized as illegal (unreasonable).

Literature

1. Commentary on the Labor Code Russian Federation(item-by-item). 7th edition, revised. and additional / Ed. K.N. Gusov. M., 2008.

2. Commentary on the Labor Code of the Russian Federation (item-by-article) (second edition, supplemented) / Ed. ed. A.M. Kurennoy, S.P. Mavrin, E.B. Khokhlov. M., 2007.

docent
departments of labor law
Moscow State University M.V. Lomonosov

Signed for print
12.06.2009

Suspension from work for medical reasons

The employer must not allow the employee until the grounds for contraindications are eliminated.

may submit to the employer such a conclusion, which will indicate that he cannot perform this particular job, but with easier working conditions - he can.

The procedure for suspension from work under the Labor Code of the Russian Federation (nuances)

The procedure for dismissal from work at the initiative of the employer

The removal of an employee from is a temporary exclusion from the performance of direct official duties.

Cases when the employer has every right to prevent an employee from entering his workplace can be seen in Art. 76 of the Labor Code of the Russian Federation:

During the suspension from the employee, the salary due to him is not accrued.

Suspension of an employee from work for medical reasons

If the employee wishes to remain at work, the employer is obliged to create working conditions suitable for his further labor activity according to the individual rehabilitation program.

Sample letter of dismissal from work

In addition to the act and order, confirmation of the legality of the employer's actions can also be explanatory worker about refusing to pass medical commission, medical report received by the employee, memorandum and others.

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Since wages will not be accrued during this time, the “NB” code (or the digital code “35”) is used, as shown in Appendix 3. From the work of the head of the organization limited liability"Oh yeah"

In what cases is it possible to be released from work for health reasons?

We will discuss the most common reasons for suspension from service for medical reasons and health and what needs to be done to avoid mistakes.

Grounds for Suspension from Work Labor legislation in the Russian Federation provides for a procedure for suspension from performance of one's duties. In article seventy-six of the Labor Code of the Russian Federation there are many different causal relationships that oblige the employer to release his subordinate, including for medical reasons.

Suspension from work based on PMO results?

Send them this order?

and they also wrote to exercise production control over the working conditions of workers. How is that? and who should do it?

And yet, it may not react at all to this scribbling in the final act, there are no deadlines or anything, it’s just written with a pen.

If they really need it, they will send an official request with the rationale for their wishes.

The procedure for dismissal of an employee for medical reasons

If again without justification, then spit again.

An employee is unable to perform work due to medical reasons

Contact. An employee may be dismissed on the basis of the conclusion of a medical and social examination When an employee is dismissed on the basis of clause 8, part 1, article 77 of the Labor Code of the Russian Federation, the following legally significant circumstances must be proved: - the presence of a medical certificate issued in the prescribed manner; - the inability of the employee to perform the previous work; - the employer's lack of adequate health, or the employee's refusal to switch to such work.

Suspension of an employee for additional examination from work for medical reasons

Date of registration: 05/04/2008 Auntie went to the prosecutor's office with a complaint, the prosecutor so far only requested documents, and verbally said that we were obliged to employ her, and had no right to leave her without a salary.

And since we have already done so - that is. did not begin to dismiss, but simply removed, then what could this threaten?

After all, it is not the employer's duty to fire the employee if there are no vacancies for " light labor»?

What document can serve as the basis for the transfer, what actions the employer should take, how to draw up the documents correctly, we will tell in this article.

Reasons for transfer.

Translation for medical reasons is regulated by Art. 73 of the Labor Code of the Russian Federation. In particular, it states that in order to transfer an employee, a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation is required. Are there any forms of such conclusions? Yes, from the analysis of normative acts it follows that a medical report can be presented in the form of:

a certificate confirming the establishment of a disability group and the degree of limitation of the ability to work (such a certificate is issued in accordance with the rules for recognizing a person as a disabled person, approved by Decree of the Government of the Russian Federation of February 20, 2006 No. 95 in the form approved by Decree of the Ministry of Labor of the Russian Federation of March 30, 2004 No. 41).

For your information: from April 1, 2011, in connection with the publication of the Order of the Ministry of Health and Social Development of the Russian Federation dated November 24, 2010 No. 1031n, new form certificate confirming the fact of the establishment of disability.

certificate of the results of establishing the degree of loss of professional ability to work in percent (the form was approved by the Order of the Ministry of Health and Social Development of the Russian Federation dated October 20, 2005 No. 643 “On approval of the forms of documents on the results of the establishment of federal government agencies medical and social examination of the degree of loss of professional ability to work in percent and recommendations for filling them out ");
program of rehabilitation of the victim as a result of an accident at work and occupational disease (Decree of the Ministry of Labor of the Russian Federation of July 18, 2001 No. 56 “On approval of the Interim criteria for determining the degree of loss of professional ability to work as a result of accidents at work and occupational diseases, the form of the rehabilitation program for the victim as a result of an accident at work and occupational disease”);
the conclusion of a medical institution conducting a mandatory medical examination of an employee, which is issued in the manner determined by the Regulations on the conduct of mandatory preliminary examinations upon admission to work and periodic medical examinations employees, approved by the Order of the Ministry of Health and Medical Industry of the Russian Federation of March 14, 1996 No. 90;
the conclusion of the doctor of the antenatal clinic (Order of the Ministry of Health of the Russian Federation of February 10, 2003 No. 50 "On the improvement of obstetric and gynecological care in outpatient clinics").

Temporary transfer

So, the employee brought a medical report, in which it is recommended to transfer him to another job. First of all, you need to pay attention to the term of such a transfer, indicated in the certificate. Please note that Art. 72.2 of the Labor Code of the Russian Federation says that a temporary transfer can be carried out for a period of not more than a year.

The employer must transfer such an employee only with his consent. Let's take a closer look at the translation steps.

We offer the employee vacancies that meet the requirements of a medical opinion. The employee may express his consent or disagreement to the transfer to the proposed vacancies in a separate application or on the notification form on the need for transfer. It is best to do this in writing and in duplicate, on one of which the employee will put his signature that the notification has been received. Here is an example of such a notice.

Ref. No. 42 to the driver of column No. 2

From 08.02.2011 Lukin Ivan Petrovich

About transferring to another job.

In accordance with the medical report dated February 7, 2011 No. 1248/09, we offer you a temporary transfer to another job for a period of two months. To date, Belaya Liniya LLC has the following vacancies that are not contraindicated for you for health reasons:

1. watchman (salary 8,000 rubles);

2. mechanic (salary 18,000 rubles).

In case of refusal of the offered vacancies on the basis of Art. 73 of the Labor Code of the Russian Federation, you will be suspended from work.

Director Romantsev/O. D. Romantsev/

I agree to a temporary transfer to the position of a watchman, Lukin, 02/08/2011

It is important to remember that the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

Thus, in the Ruling of October 05, 2010, in case No. 33-31025, the Moscow City Court confirmed the conclusions of the Zamoskvoretsky District Court of Moscow on satisfaction of the employee’s claims for reinstatement, recovery of wages for the time of forced absenteeism and compensation for moral damage. The city court pointed out that the court came to the correct conclusion that when the plaintiff was dismissed under paragraph 8 of part 1 of Art. 77 of the Labor Code of the Russian Federation, the procedure for his dismissal was violated, expressed in the fact that the employer did not offer him all the vacant positions available not only in branch No. a cashier, a cleaner, a vulcanizer, a tire fitter and others who were not the subject of a study by the commission considering the issue of transferring an employee to another job that corresponds to his medical indications.

Note: remember that under Art. 182 of the Labor Code of the Russian Federation, when transferring an employee to another lower-paid job in accordance with a medical report, this employer retains his previous average earnings for one month from the date of transfer, and when transferring in connection with an industrial injury, occupational disease or other damage to health associated with work - until a permanent loss of professional ability to work is established or until the employee recovers.

The procedure for transferring an employee.

If the employee refused to transfer or the employer has no vacancies that meet the recommendations specified in the medical report, and the period of such a transfer does not exceed 4 months, the employer is obliged to suspend the employee from work for the entire period specified in the medical report while maintaining the place of work (position). Suspension from work is issued by order in any form. It might look like this.

Limited Liability Company "White Line"

ORDER No. 21

about dismissal.

Due to the impossibility of performing work duties Shishkina Valentina Sergeevna in accordance with the medical report dated February 14, 2011, the refusal of a temporary transfer, on the basis of Art. 73 of the Labor Code of the Russian Federation

I ORDER:

1. Suspend from work for the period from 02/14/2011 to 05/16/2011 Shishkina Valentina Sergeevna, cleaner of industrial premises.

2. Do not accrue wages to Shishkina V.S. during the period of suspension.

3. To the head of the personnel department Dubnitskaya N.R. to acquaint V.S. Shishkin with this order.

4. I entrust the control over the execution of this order to the head of the personnel department Dubnitskaya N.R.

Director Markov/Markov L. Zh./

Familiarized with the order:

Production cleaner

premises Shishkina / Shishkina V.S. /

Head of Human Resources Dubnitskaya/ Dubnitskaya N. R. /

Chief Accountant Dudko/Dudko O.G./

If, in accordance with a medical report, an employee needs to be temporarily transferred to another job for a period of more than four months, if he refuses to transfer or if the employer does not have the appropriate job, the employment contract is terminated byp. 8 h. 1 art. 77 Labor Code of the Russian Federation.

Particular attention in such an action should be paid to pregnant workers who provide certificates from antenatal clinics, on the basis of which they are entitled to a transfer to work that excludes the impact of harmful production factors. By virtue of Art. 254 of the Labor Code of the Russian Federation, the employer is obliged to transfer a pregnant employee to another job upon providing such a certificate. Until a pregnant woman is provided with another job that excludes the impact of adverse production factors, she is subject to release from work with the preservation of average earnings for all missed working days as a result of this at the expense of the employer (part 2 of article 254 of the Labor Code of the Russian Federation). An employment contract with a pregnant woman can be terminated only in cases of liquidation of the organization or termination of activities individual entrepreneur(part 1 of article 261 of the Labor Code of the Russian Federation).

If the employee agrees to transfer to one of the proposed vacancies, it is necessary to draw up supplementary agreement to the employment contract, which reflects in detail all the new working conditions of the employee. It might look like this

Additional Agreement No. 2

To the employment contract dated 23.10.2005 No. 25/05

Saratov 08.02.2011

Belaya Liniya Limited Liability Company, represented by O.D. Romantsev, director, acting on the basis of the charter, hereinafter referred to as the "Employer", and Ivan Petrovich Lukin, hereinafter referred to as the "Employee", have entered into this agreement as follows:

1. In accordance with the medical report dated 07.02.2011 No. 1248/09, issued by the city clinical hospital No. 2, the employee from 02.08.2011 is transferred to work in the security department as a watchman, which he undertakes to perform in accordance with the job description.

2. Transfer term - temporarily: from 02/08/2011 to 05/08/2011.

3. For the period of transfer, the Employee is set official salary in the amount of 8,000 (eight thousand) rubles. per month in accordance with staffing Employer.

4. This agreement is made in two copies, having the same legal force, one for each of the parties.

5. signatures of the parties:

Employee Employer

Lukin/AND. P. Lukin/ Romantsev/O.D.Romantsev/

A copy of the agreement was received on 08.02.2011, Lukin

On the basis of the signed agreement, it is necessary to issue a transfer order in the T-5 form approved byDecree of the State Statistics Committee of the Russian Federation dated 05.01.2004 No. 1 “On approval unified forms primary accounting documentation for accounting of labor and wages". Here is an example of filling out such an order.

Further, information about the transfer for medical reasons must be entered in the personal card. Note that it is not necessary to make an entry in the work book, since in accordance with paragraph 4 of the Rules for maintaining and storing work books, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books”, only information about the transfer to another permanent job.

III. EMPLOYMENT AND TRANSFERS TO OTHER JOBS

the date	Structural subdivision	Position (specialty, profession), category, class (category) of qualification	Tariff rate (salary), allowance, rub.	Base	Personal signature of the owner of the work book

23.10.2005	Column No. 2	Driver	12 000	Order from	Lukin
23.10.2005
No. 28-k
08.02.2011	Security Department	watchman	8 000	Order from	Lukin
08.02.2011
№ 21

Please note that at the end of the transfer period, the employee must be provided with the previous place of work. If this is not done, and the employee did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent (Article 72.2 of the Labor Code of the Russian Federation).

Because the labor law the procedure for returning to the previous place of work is not regulated, we recommend that, in order to avoid disputes, a few days in advance (for example, 2 or 3) notify the employee that the period of his temporary transfer ends on such and such date and he is obliged to fulfill the duties of the previous job. And the best way to do this is in writing. Instead of such a notification, you can issue a personnel order in any form, with which you can familiarize the employee against signature.

Permanent translation.

The procedure for transferring an employee for medical reasons to a permanent job that is not contraindicated for him on a medical report is similar to that described above for a temporary transfer. That is, in any case, it is necessary to offer the employee the available vacancies that the employee can occupy taking into account the state of health, and if agreed, draw up an additional agreement and a transfer order.

Note that a permanent transfer must be recorded in the work book. It may be as follows: "Transferred to the security department as a watchman in accordance with the medical report."

But if the employee refuses the offered vacancies or if the employer does not have any, the employment contract must be terminated in accordance with paragraph 8 of part 1 of Art. 77 of the Labor Code of the Russian Federation. The entry in the workbook will look like this:

record number	the date			Information about hiring, transfer to another permanent job, qualifications, dismissal (indicating the reasons and referring to the article, paragraph of the law)	Name, date and number of the document, on which the entry was made
record number	number	month	year

…	…
				Familiarized Lukin

When terminating an employment contract on this basis, the employer may have a question: is it possible to terminate the employment relationship during the period when the employee is on sick leave? Yes, you can, and here's why. Indeed, due to Part 6 Art. 81 of the Labor Code of the Russian Federation it is not allowed to dismiss an employee during the period of his temporary incapacity for work and during his vacation (except in the case of liquidation of the organization or termination of activity by an individual entrepreneur). But this applies to the grounds for dismissal only at the initiative of the employer.

Meanwhile, the list of grounds for termination of the employment contract at the initiative of the employer is provided for in Part 1 of Art. 81 of the Labor Code of the Russian Federation, which does not contain such a ground for dismissal as the employee's refusal to transfer to another job, which he needs in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation. Therefore, dismissal on the grounds provided for in paragraph 8 of part 1 of Art. 77 of the Labor Code of the Russian Federation, in accordance with a medical report, does not depend on the will of the parties, and in particular the will of the employer. And the Labor Code of the Russian Federation does not contain a ban on the dismissal of an employee during a period of temporary disability on the specified basis. This conclusion is also confirmed by judicial practice (Information bulletin of cassation and supervisory practice in civil cases of the Arkhangelsk regional court for the fourth quarter of 2009).

Features of the transfer of certain categories of workers.

If the head of an organization (branches, representative offices or other separate structural divisions), deputy managers or chief accountants, regardless of the period of such a transfer, if they refuse or if the employer does not have the appropriate job, the employment contract is terminated in accordance with paragraph 8 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

However, the employer has the right, with the written consent of these employees, not to terminate the employment contract with them, but to suspend them from work for a period determined by agreement of the parties. During the period of suspension from work, wages specified employees not accrued, with the exception of cases provided for by the Labor Code of the Russian Federation, other federal laws, a collective agreement, agreements, an employment contract.

Finally.

As you can see, the procedure for transferring an employee to another job in accordance with a medical report is quite laborious. Moreover, in case of refusal of such a transfer, the employment relationship is subject to termination. Therefore, we recommend that you follow the order specified in the article, in terms of the proposal vacancies, and issuing other orders. Moreover, the reinstatement of workers dismissed under paragraph 8 of part 1 of Art. 77 of the Labor Code of the Russian Federation is not so little.

Kuznetsova V.P.,

expert of the magazine "HR department of a commercial organization"

Suspension from work is the exclusion of an employee from performing his job duties for one reason or another. The employer has the right not to allow the employee to work on the grounds listed in Art. 76 of the Labor Code of the Russian Federation and others federal laws and regulations.

Suspension from work does not entail the change and termination of the employment contract, but may become a prerequisite for the dismissal of the employee. Avoidance is a temporary measure!

One of the grounds on which the employer has the right not to allow his employee to work is medical reasons. The conclusion of the medical examination is issued in the manner prescribed by law.

There are such professions when employees must, before the start of the shift in without fail undergo a medical examination, and present the doctor's report to the employer. For example, drivers are required to undergo a medical examination before each flight. It is the responsibility of the employer to organize medical examinations for its employees, and it is the responsibility of the employees to undergo such examinations.

In Art. 212 of the Labor Code of the Russian Federation says that the employer does not have the right to release an employee for a shift if the medical report indicates that the employee has contraindications. The employer must not allow the employee until the grounds for contraindications are eliminated.

The employee can submit to the employer such a conclusion, where it will be indicated that he cannot perform this particular job, but with easier working conditions - he can. Such an employee should be offered a transfer to another position.

According to paragraph 1 of Art. 73 of the Labor Code of the Russian Federation, the employer is obliged to offer such an employee all the vacancies he has that correspond to his state of health. The transfer requires the written consent of the employee. If the employee does not agree to any of the proposed vacancies, the employer may dismiss him.

The process of finding a suitable vacancy and obtaining consent from the employee, as a rule, takes several days. During this period, the employee is suspended from performing his former duties. The employer himself will decide whether to pay for this period at the downtime rate or not to pay at all.

Upon receipt of a medical certificate, the employee must hand it over to the employer. Based on this conclusion, the latter removes the employee from his official duties. This is done on the basis of an order, which is issued on the basis of the conclusion.

The doctor must indicate in his opinion, the approximate period of time for which the employee should be suspended. This depends on the procedure for issuing a non-admission. If this period does not exceed 4 months, then the employer must offer the employee a transfer to another position.

If this period exceeds 4 months, then the suspension is not issued. The employee is transferred to another position (temporarily or permanently), or is dismissed from the enterprise on his own initiative. The employer must not dismiss such an employee without his consent.