Nowadays, in any firm, there may be cases in which management is required to remove an employee from the activities performed by him. It is absolutely unacceptable to arbitrarily remove a person from work without any reason. You need to know what reasons exist so that the employer does not get into an unpleasant situation.
Reasons for dismissal of an employee
There are some conditions that will force the authorities to remove the employee from the activity:
- The most common reason is the appearance of an employee at work intoxicated (alcohol, drugs or toxic). Then it is necessary to draw up a special act in a medical institution, to examine a citizen. There are usually witnesses present;
- Then, when a person did not pass the knowledge test, did not confirm the qualification in labor protection;
- When a person could not or did not want to undergo a medical examination, psychiatrist and narcologist checks, which should be carried out in certain period time;
- The presence of contraindications to activities that were identified during the examination;
- Suspension of the right to any type of work if it interferes with the performance of the activity. Then there is an offer to move to another vacancy from the employer;
- Also, the reason for non-admission may be the legal requirement of persons who are entitled to it;
- There may be other conditions under which management will have to remove an employee from work.
An employee can be removed from activity until the reason for not admitting to work is eliminated. At this point, he is not paid.
How to remove an employee from work
It's important to know correct algorithm suspensions:
- To begin with, the employee must write an explanatory note, where he indicates the reason for his behavior;
- It is necessary to prepare documents that are considered the basis for removing a person from activity: a special note with a service report, an act issued by a medical organization, an entry in any journal;
- Next, an order is being prepared for the removal, with which the employee must be familiarized;
- If the employee does not want to get acquainted with such an order, then an act of refusal is drawn up.
No entries in work book no. But in order to make it more convenient to calculate the length of service, you can enter information to your personal card.
The bosses often have a question: is it possible to suspend an employee from work for the period of an internal audit? According to the article of the labor code Russian Federation management does not have the right to remove a person from work for the period when a special check is carried out. If he nevertheless did this, then he is obliged to return the earnings that the employee lost during his absence from work.
Suspension from work for medical reasons
A prerequisite removal of a person from work is when he presents any document of a medical institution confirming the ban on such work. There are types of work when a medical examination is carried out every time before starting work. The period of suspension is not prescribed by law, so the employee is removed from work based on the specific situation.
When a person cannot cope with his activities, management will take care to transfer the person to another place. This requires the employee to agree to the transfer.
Deadline for issuing a suspension order
The removal order is issued on the basis of all collected evidence. Compose it on the letterhead of the organization, assign a serial number. The seal and signatures of the head, employee must be present. Another prerequisite is a record of the temporary suspension of the employee, for how long he leaves production.
Such a document is drawn up immediately, because a justification is needed why the person is absent from the enterprise. At the request of a person, a copy must be provided to him.
The employer is obliged to suspend the employee from work according to the Labor Code of the Russian Federation
You need to know that suspension actions are not considered the right of the employer. This is his immediate responsibility. Article 76 of the Labor Code of the Russian Federation - the employer is obliged to remove the employee from work if there are such reasons:
- the person appeared in a state of intoxication;
- refused to undergo a medical examination;
- so required by authorized persons or a court;
- there are contraindications to this type of activity.
It states that there may be other reasons, but these are the most basic ones.
Are wages paid during suspension?
For general reasons, wages are not paid upon removal. But there are some exceptions.
If a person could not prove his knowledge, confirm qualifications in labor protection or pass mandatory medical examination through no fault of his own, then the employer pays him for work as for a simple one.
All the time of inactivity is added to the length of service to calculate the annual leave.
If a person is accused or suspected, then he is paid an allowance from the state, which is five minimum wages.
In order for the employer not to have problems with suspension, it is necessary to correctly draw up documents and an order. Then it will not be possible to appeal against such actions in court.
Suspension from work is not grounds for terminating the employment contract. Suspension is temporary and entails the suspension of the employee's performance of labor duties. The employer suspends 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 are eliminated.
Cases of dismissal of an employee from work are provided for in Art. 76 of the Labor Code of the Russian Federation. At the same time, it must be borne in mind that in these cases, the removal of an employee from work is an obligation, and not the right of the employer.
The employer is obliged to remove (not allow to work) the employee:
- Appeared at work in a state of alcoholic, narcotic or other toxic intoxication (such a state can be confirmed both by a medical report and other types of evidence that must be assessed accordingly by the court in the event of an individual labor dispute being considered);
- A person who has not undergone training and testing of knowledge and skills in the field of labor protection in accordance with the established procedure (Decree of the Ministry of Labor of Russia, the Ministry of Education of Russia dated January 13, 2003 N 1/29 approved Order training on labor protection and testing the knowledge and requirements of labor protection of employees of organizations);
- A person who has not passed a mandatory medical examination in accordance with the established procedure, as well as a mandatory psychiatric examination in cases provided for by the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation (Order of the Ministry of Health and Social Development of Russia dated 12.04. production factors and work, during the performance of which mandatory preliminary and periodic medical examinations are carried out. Appendix to the Order is the Procedure for conducting such medical examinations);
- If, in accordance with the medical report, contraindications are identified for the employee to perform work stipulated by the employment contract (Order of the Ministry of Health and Social Development of Russia dated 02.05.2012 N 441n approved the Procedure for issuing medical organizations certificates and medical reports);
- In case of suspension for a period of up to 2 months of a 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 the obligations under the employment contract and if it is impossible to transfer the employee with his written consent to another job available to the employer (how vacant position or a job corresponding to the qualifications of the employee, and a vacant lower position or lower paying job), which the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided collective agreement, agreements, employment contract;
- At the request of the authorities and officials authorized by federal laws and other regulatory legal acts of the Russian Federation.
Other cases of suspension from work
Suspension from work is also allowed in other cases provided for by federal laws and other regulatory legal acts of the Russian Federation.
So, in accordance with the Federal Law "On the sanitary and epidemiological welfare of the population" (Article 33), persons who are carriers of pathogens infectious diseases If they can become sources of the spread of infectious diseases due to the peculiarities of the production in which they are employed, or the work they perform on the basis of decisions of the chief state sanitary doctors, they are temporarily suspended from work with the payment of social insurance benefits.
In the cases established by the Federal Constitutional Law "On the State of Emergency" (Article 13), for the period of the state of emergency, the heads of state and non-state organizations may be suspended from work due to improper performance of their duties and other persons temporarily acting as the said heads may be appointed .
Federal Law "On State civil service Russian Federation” (Article 32) contains a list of cases when the representative of the employer has the right to remove from the position of the civil service to be replaced (not to allow official duties) civil servant. Such suspension is allowed for the period:
- settlement of conflicts of interest;
- checking the accuracy and completeness of information on income, expenses, property and liabilities of a property nature submitted by civil servants in accordance with the Federal Law "On Combating Corruption", information submitted by civil servants when entering the civil service, compliance by civil servants with restrictions and prohibitions, requirements for the prevention or settlement of conflicts of interest, the fulfillment by him of the duties established by the Federal Law "On Combating Corruption".
Similar rules are established for municipal employees. Prevention or resolution of conflicts of interest on municipal service may consist in changing the official or official position of a municipal employee who is a party to a conflict of interest, up to his removal from the performance of official (official) duties. The representative of the employer (employer), who became aware of the occurrence of a personal interest in a municipal employee, which leads or may lead to a conflict of interest, is obliged to take measures to prevent or resolve a conflict of interest, up to the removal of this municipal employee from the substituted position of the municipal service for the period of settlement conflict of interest with the preservation of his financial allowance for the entire period of removal from the position of the municipal service to be replaced (Article 14.1 of the Federal Law “On Municipal Service in the Russian Federation”.
Consequences of being suspended from work
By general rule upon suspension from work, wages are not accrued. In cases of suspension from work of an employee who has not passed training and testing of knowledge and skills in the field of labor protection or a mandatory medical examination through no fault of his own, he is paid for the entire period of suspension from work as for downtime. In accordance with Art. 157 of the Labor Code of the Russian Federation, downtime due to the fault of the employer is paid in the amount of at least two-thirds of the average salary of the employee.
The time an employee is absent from work good reasons, including as a result of suspension from work in cases provided for in Art. 76 of the Labor Code of the Russian Federation, is not included in the length of service, giving the right to an annual basic paid leave (part 2 of article 121 of the Labor Code of the Russian Federation).
Recognition by the court or the state labor inspectorate of the decision to suspend from work as illegal entails the payment to the employee of the average wage for the entire period of suspension (Article 234 of the Labor Code of the Russian Federation). In addition, an employee illegally suspended from work has the right to demand compensation for moral damage caused to him (Article 237 of the Labor Code of the Russian Federation).
What is suspension from work
Suspension from work of an employee means preventing him from performing the duties prescribed in the employment contract. The manager can remove an employee from work on the grounds specified in the Labor Code of the Russian Federation, and in other cases that are provided for by legal acts and federal laws. In the event of a case provided for by law, the manager is obliged to remove the employee from work.
Suspend an employee own will or of their own free will, the leader has no right.
Suspension from work should not be confused with release from work. Exemption from work can be issued at the request of the employee. The release gives the employee a guarantee that his position and salary will be retained for him. In this case, there may be several grounds for exemption:
- in connection with the performance of public or state duties;
- professional development or training;
- blood donation;
- prevention of adverse effects of production factors on the course of pregnancy, etc.
When can an employee be removed from work?
Article 76 of the Labor Code of the Russian Federation specifies cases when an employee can be suspended from work. These include situations where:
- the employee appeared at the workplace in a state of alcoholic or drug intoxication. In this case, the employee undergoes a medical examination, which must be signed by the employee himself and other employees who witnessed this event.
- The employee did not pass a knowledge test or training in the direction of labor protection. This requirement is established by article 214 of the Labor Code of the Russian Federation. Failure to comply prevents the employee from continuing job duties.
- The employee does not have a certificate of mandatory medical examination. This includes both routine examinations and examinations by a psychiatrist in certain cases and examinations for occupational diseases.
- Suspension from work medical indications or if contraindications are found for the employee to perform official duties.
- Suspension from work is also possible upon the expiration of the employee's special rights (driver's license, the right to carry weapons, etc.). That is, if the employee is unable to perform his duties in full. In this case, the manager can offer the employee another position in which the employee can receive less wages. A prerequisite is finding a place of work in a new position in the same place where the employee worked before the suspension, unless otherwise specified in the employment contract.
- At the request of persons authorized regulations and federal laws. These persons may be labor inspectors or representatives of sanitary supervision.
Article 76 of the Labor Code of the Russian Federation does not provide a complete list of grounds for removal, because some cases are prescribed in other codes and acts.
Suspension time and salary during suspension
Regardless of the reasons for suspending an employee from work, the period of suspension implies the time required to eliminate the grounds. That is, if an employee appeared at work in a state of intoxication, he removes for one day and the next working day he must come to work.
If an employee is suspended due to failure to pass the certification in the field of labor protection, then the suspension period will be extended until the next exam and its passing. General rules suspension of an employee from work indicates that he will not receive wages for this period. However, he will retain his position.
There are exceptions where suspended employees can and should receive a paycheck.
For example, the federal law on the State Civil Service of the Russian Federation states that a civil servant who has committed an official misconduct may be suspended from work duties until the grounds for removal are eliminated or the issue of disciplinary liability is resolved, but with the preservation of wages. In this case, the period of his suspension may not exceed one month.
The Labor Code also provides for cases where forced leave is due to grounds beyond the control of the employee. In such situations, the employee temporarily does not work and receives payments for downtime. The grounds under which an employee receives payments include all the same grounds, but without the fault of the employee.
The procedure for suspension from work
If grounds are found for the removal of an employee, his immediate supervisor must draw up a memorandum addressed to the chief executive. The memorandum should indicate directly the very basis for forced leave.
The note must be signed by several witnesses and the specialist who conducted the examination (if the basis is alcohol or drug intoxication or threatened pregnancy).
After the note is drawn up and sent to the director of the organization, it must be signed by the director or his deputy. After that, the director or deputy must issue an order.
This order must be signed by the employee who is being suspended. If he refuses to put his signature, then several other employees must sign instead of him, who will later be able to confirm the legitimacy of the suspension in court.
For the period of forced leave of an employee, a corresponding mark is placed in the timesheet:
- "NB" - non-admission to work without payroll,
- "BUT" - non-admission to work with the preservation of wages.
After all grounds for suspension are eliminated, the employee can begin to fulfill his labor obligations. No additional orders and statements need to be written. The beginning of his work is recorded in the work sheet.
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Suspension from work due to failure to pass industrial safety rules
Good day. Tell me how to remove an employee from work if he has not passed the industrial safety certification at RTN? What documents can be used for suspension? How to arrange this species punishment? Thank you.
Christina 08/06/2019 05:18
Leave during suspension
Hello, such a situation, today I was suspended from work, because I did not pass the medical commission. In three days I have a vacation, according to the schedule. Will he get paid?
Vyacheslav 13.12.2018 17:09
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Dubrovina Svetlana Borisovna 13.12.2018 17:11
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Agree with colleague.
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In some cases, the manager has the legal right to prevent the employee from fulfilling his official duties.
However, in the absence of significant grounds, such actions of the employer are perceived as an offense and may cause certain legal consequences. What to do to a citizen whose rights have been violated, you can find out in this article.
The concept of illegal suspension from work
The labor legislation of the Russian Federation does not have a clearly defined concept illegal suspension faces from work.
Formally, in this case we are talking about depriving a citizen of the opportunity to work and perform his official duties for a specific period of time, if this measure was carried out at the initiative of the leadership in the absence of good reasons.
It is possible to remove an employee:
- until the moment when he actually began to perform his work;
- during the performance of official duties.
Involuntary leave from work must be in writing on behalf of management. The oral form is not acceptable.
Reasons for releasing a person from official duties
The temporary suspension of personnel occurs in connection with various grounds, the list of which is established by Article 76 of the Labor Code of the Russian Federation. So, a person should not be allowed to work:
- which has not been examined in a medical institution, if this is required by law or the terms of the concluded contract;
- appeared at the place of work in a state of intoxication;
- who did not pass the test of the level of knowledge in the field of labor discipline;
- upon detection of signs of narcotic or toxic intoxication;
- having contraindications to the performance of their official duties, identified during a medical examination;
- unable to perform their work due to the suspension of the employee's special right (for example, when depriving a license, driver's license, etc.);
- in other situations stipulated by the labor legislation of our country.
The main reason for the removal of an employee from the performance of his official duties is the suppression of the commission of an offense (violation of labor discipline) in the labor sphere.
Making a suspension
In practice, violation of the rights of an employee occurs not in connection with the grounds for suspension from work, but because of non-compliance with the procedure for issuing this release from duty.
For example, a citizen who appeared on workplace drunk, must first undergo a medical check to confirm the fact of being in a state of intoxication.
In addition, the management must issue an appropriate act, fixing the appearance of an employee in the office in an unsuitable form for work.
Throughout the entire period of suspension, a person does not receive the wages due to him, unless otherwise provided by Russian law (for example, the exception is the inability to undergo a medical examination in a clinic not through the fault of the citizen himself, but due to an error medical worker).
On the basis of Article 234 of the Labor Code of the Russian Federation, in case of illegal suspension from work, the management undertakes to reimburse the citizen for the amount of earnings he has not received for the days when he was absent from the workplace.
An example of a suspension
The procedure for the temporary release of a person from the performance of his official duties can be considered using a specific example.
The appearance of an employee at the workplace in a state of intoxication is a legitimate reason for his suspension from work in order to ensure discipline and safety for the rest of the team.
First of all, it is important to record the fact of violation of the company's internal regulations and labor laws. For this purpose, an appropriate act may be drawn up in the name of the head.
The document indicates signs of intoxication. The employee himself should also be familiar with the text (under signature).
The head should send the citizen to undergo an examination in a medical institution. It is worth noting that this does not apply to the duties of the employee, so he has the right to refuse.
Verification should be carried out in special rooms by specialists.
Do not forget about the display of exemption from duty in the timesheet of staff.
Consequences of illegal suspension from work
On the basis of Article 234 of the Labor Code of the Russian Federation, the management of an enterprise that has suspended a citizen from work without good reason for this is obliged to pay him the material damage caused as a result of these actions.
In addition, according to article 237 of the same code, a person has the right to claim compensation for moral damage resulting from the illegal actions of the head.
Officials who have committed an offense may also be subject to disciplinary or administrative liability, in accordance with Article 5.27 of the Code of Administrative Offenses of the Russian Federation.
What should an employee do if their rights have been violated?
In case of unlawful suspension from work, the employee is required to draw up the text of the corresponding complaint (
The suspension of an employee from work is legal in nature, the procedure is regulated by the Labor Code of the Russian Federation. About the cases in which the employer has the right to suspend from work, what documents should be drawn up in this case, and also how suspension differs from release from work, we suggest reading in our article.
Suspension from work is an action of the employer, who, for certain reasons, has the right not to allow the employee to perform his duties. Suspension from work is devoted to Art. 76 Labor Code RF, in which this fact is noted as a temporary measure that does not affect the change in the employment contract. However, the law provides for a number of cases when suspension from work may also entail such a disciplinary measure as dismissal. In our article, we will dwell in more detail on each of the grounds for removing an employee from work and consider the procedure for processing documents in each individual case. The removal of an employee from work can be carried out both by the employer and by law enforcement authorities or officials who have the right to do so on the basis of certain regulatory legal acts. The employee is suspended from work in time until the elimination of the reasons that were the basis for the exclusion from work or suspension from the performance of official duties.
The period of suspension from work until the elimination of the causes of the offending employee is not paid! Exceptions are cases of not passing training and testing knowledge on labor protection and medical examination through no fault of the employee.
Grounds for suspension from work
Article 76 of the Labor Code of the Russian Federation provides for 6 main reasons that may be a consequence for the removal of an employee from work. Let's look at each reason in more detail.
Appearing at work in a state of alcoholic, narcotic or other toxic intoxication
As you know, the appearance at work in the above state is gross violation labor discipline, which can serve as a full-fledged basis for the dismissal of an employee. Moreover, it is worth noting that this can also be applied if the employee was not at the workplace, but on the territory of the organization. In accordance with Part 2 of Art. 76 of the Labor Code of the Russian Federation, the employer is obliged to remove the employee from the performance of official duties if he appears at the workplace in a state of alcoholic, narcotic or toxic intoxication, regardless of the degree of intoxication. The actions of the employer must be properly documented, and the fact of intoxication is officially recorded and certified by a medical report or witness testimony.
We note that on the basis of Art. 81 of the Labor Code of the Russian Federation, if the fact of revealing a state of intoxication is revealed by an employee who is a member of a trade union organization, the testimony is drawn up by an act with the participation of a representative of the trade union.
The procedure for the employer to remove an employee who is in a state of intoxication includes the following steps:
- Drawing up an act with the participation of at least two witnesses. In the event of a trial, an act signed by several witnesses is considered as a written testimony. The act must include the full details of the employee, his position, a description of the state of intoxication, the data and signatures of witnesses, the one who draws up the act and the one in respect of whom this document is drawn up.
If the employee refuses to sign the act, this fact is noted in the document, certified by the signatures of the compiler of the witnesses. Also, it is allowed to draw up a separate act to refuse to sign a delinquent employee.
- Conducting a medical examination. This is the most significant evidence of the state of intoxication of an employee, which is carried out in a specialized institution (or in a field laboratory). The result of the medical examination is a conclusion containing a clear detailed state of the person being examined.
Note that the employee has the right to refuse a medical examination. Also, the employee cannot be sent for examination by force.
An employee who was found at work in a state of any intoxication may begin to perform his duties the very next day, that is, after the removal of the grounds for suspension from work. However, the employer also has the right to refuse work to the guilty employee the next day and apply to him disciplinary action- dismissal.
The day when an employee was suspended from work for being in a state of intoxication cannot be regarded as absenteeism without good reason.
Failure to pass in the prescribed manner training and testing knowledge of labor protection
Russian labor law provides for mandatory training and testing of knowledge of newly hired and transferred workers on safety and labor protection (Article 212 of the Labor Code of the Russian Federation). In case of failure to undergo training and verification in this area, the employee must be suspended from work until the grounds are eliminated (part 1 of article 76 of the Labor Code of the Russian Federation). The testing of knowledge on labor protection among employees is carried out in the presence of members of the commission, the results are documented in a protocol. Employees who have not passed the knowledge test are required to undergo retraining no later than 1 month.
The suspension of an employee from work on this basis implies his exclusion from the performance of official duties until the end of training and knowledge testing.
Failure to pass the mandatory medical examination and psychiatric examination in accordance with the established procedure
In accordance with Art. 212 of the Labor Code of the Russian Federation, it is the responsibility of the employer to prevent employees from working without undergoing a medical examination and mandatory psychiatric examinations. If this fact is revealed, the employee is suspended from work in time until the moment of passing the inspection with the issuance of a conclusion.
Note that medical examinations and psychiatric examinations are carried out at the expense of the employer.
The presence of contraindications for the employee to perform the labor functions specified in the employment contract
In accordance with Part 1 of Art. 76 of the Labor Code of the Russian Federation, an employee who has contraindications for performing work under an employment contract on the basis of a medical examination must be removed from the performance of official duties. The basis for the removal of such an employee from work is medical report. Based on Art. 73 of the Labor Code of the Russian Federation, an employee who has medical contraindications, with the written consent of the latter, must be transferred by the employer to another position. If needed temporary transfer for a period of up to 4 months in the absence of the required position in the organization, the employer is obliged to suspend the employee from work for the period specified in the medical report, while retaining his place of work. If it is necessary to transfer for a period of more than 4 months or permanently, in the absence of another free post corresponding to medical indications, labor contract between employer and employee ceases.
Suspension of the special right of an employee for up to two months
Based on Part 1 of Art. 76 of the Labor Code of the Russian Federation, an employee is suspended from work in the event of suspension of his special right for up to 2 months. For example, this may be a license, the right to drive a vehicle or carry a weapon, and other rights. If this basis entails the impossibility of the employee to fulfill his labor functions, the employer is obliged to offer the employee all the vacancies available in his area, in accordance with the specified requirements. The basis for the removal of an employee from work in accordance with the revealed fact of the suspension of a special right is a court decision. However, such suspension may be exercised due to the expiration of this right.
In case of deprivation or suspension of the special right of an employee for a period of more than 2 months, the employment contract with the employee must be terminated (part 1 of article 83 of the Labor Code of the Russian Federation).
Suspension from work at the request of authorities or authorized officials
The employer is obliged to remove the employee from the performance of official duties if required by the relevant authorities (part 1 of article 76 of the Labor Code of the Russian Federation). The general list of officials who have the right to remove an employee from work includes:
- federal labor inspectorate;
- specialized state inspections (gossanepidnadzor, gosgortekhnadzor and others);
- Judicial authority.
Upon receipt of a document on the removal of an employee from the performance of labor functions, the employer is obliged to carefully examine the document for proper execution and the correctness of the decision. If the document contains information about the removal from office in the form of a recommendation or request, the decision is made by the employer independently.