An employee who has not passed a medical examination by the employer. How to remove from work an employee who has not passed a medical examination? Who pays for periodic health checks

Hello!

According to article 76 of the Labor Code of the Russian Federation:

The employer is obliged to suspend from work (not allow to work) the employee:
appeared at work in a state of alcoholic, narcotic or other toxic intoxication;
who has not undergone training and testing of knowledge and skills in the field of labor protection in the prescribed manner;
not passed in the prescribed manner mandatory medical checkup , as well as a mandatory psychiatric examination in cases provided for by this Code, other federal laws and other regulatory legal acts Russian Federation;
…
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 or non-admission to work are eliminated, unless otherwise provided by this Code, other federal laws.
During the period of suspension from work (non-admission to work) wage employee is not charged, except as provided for by this Code or other federal laws. 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 time of suspension from work as for downtime.

According to article 73 of the Labor Code of the Russian Federation:

An employee who needs to be transferred to another job in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation, with his written consent, the employer is obliged to transfer to another job available to the employer, not contraindicated to the employee for health reasons.
If an employee who is in need of a medical certificate during temporary transfer to another job for a period of 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 report, while maintaining the place of work (position). 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 more than four months or a permanent transfer, then if he refuses to transfer or the employer does not have the appropriate job employment contract is terminated in accordance with paragraph 8 of the first part of Article 77 of this Code.
An employment contract with the heads of organizations (branches, representative offices or other separate structural divisions), their deputies and chief accountants who, in accordance with a medical report, need temporary or permanent transfer to another job, if the transfer is refused or if the employer does not have the appropriate job, it is terminated in accordance with clause 8 of part one of Article 77 of this Code. 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 are not accrued to these employees, except for the cases provided for by this Code, other federal laws, a collective agreement, agreements, and an employment contract.

With respect, Nadezhda.

Dear Elena.

Labor Code of the Russian Federation Article 213. Medical examinations of certain categories of workers

Employees engaged in heavy work and in work with harmful and (or) dangerous working conditions (including underground work), as well as in work related to the movement of transport, undergo mandatory preliminary (when applying for a job) and periodic (for persons under the age of 21 - annual) medical examinations to determine the suitability of these workers for the performance of assigned work and warning occupational diseases. In accordance with medical recommendations, these employees undergo extraordinary medical examinations.

Employees organizations Food Industry, Catering and trade, waterworks, medical organizations and children's institutions, as well as some other employers, undergo these medical examinations in order to protect public health, prevent the occurrence and spread of diseases.

This Code, other federal laws and other regulatory legal acts of the Russian Federation may establish mandatory medical examinations for certain categories of employees at the beginning of a working day (shift), as well as during and (or) at the end of a working day (shift). The time for passing these medical examinations is included in working hours.

Harmful and (or) dangerous production factors and work, during the performance of which mandatory preliminary and periodic medical examinations are carried out, the procedure for conducting such examinations is determined by the federal executive body authorized by the Government of the Russian Federation.

If necessary, by decision of the authorities local government individual employers may introduce additional conditions and indications for mandatory medical examinations.

Employees who carry out certain types activities, including those associated with sources of increased danger (with the influence of harmful substances and adverse production factors), as well as those working in conditions of increased danger, undergo a mandatory psychiatric examination at least once every five years in the manner established by the federal executive body authorized by the Government of the Russian Federation.

The medical examinations and psychiatric examinations provided for by this Article shall be carried out at the expense of the employer.

those. in order to claim that you need a medical examination, there must be a certificate of attestation of workplaces, which recognizes that some of these places have industrial hazard. And only employees of these places must undergo a medical examination. Employees of those jobs that will not be recognized as harmful should not undergo any medical examination at all. Of course, you can refuse, but for not passing the medical examination you in accordance with Art. 76 shopping malls can be suspended from work

The organization of mandatory medical examinations for certain categories of workers () is mandatory for the employer. According to separate categories workers are required to undergo such examinations.

When eliminating the reason for the suspension, i.e. after the employee passes the medical examination, the employee must be allowed to work. The employer draws up an order for admission to work, which he introduces to the employee against signature.

Filling out a time sheet, a work book and a personal card of a suspended employee

Suspension time in the time sheet ( unified form T-12 or T-13) is marked by affixing an alphabetic (NB) or digital (35) code (suspension from work (non-admission to work) for reasons provided for by law).

At suspension from work and admission to work do not record V work book employee and employee's personal card. The period of suspension from work is not included in the length of service required to grant leave ().

What is the maximum period of suspension of an employee in connection with the failure to pass a medical examination through his fault

Answer

Answer to the question:

Suspension is carried out until the obstacles to admission to work are eliminated..

There is no set calendar maximum.

If an employee, due to their own fault, has not passed the medical examination required for admission to work, then you suspend the employee for the period until such a medical examination is completed. In order for this situation not to last forever, you need:

1. immediately begin the procedure for bringing him to disciplinary liability for failure to undergo a medical examination due to his fault (clause "c", clause 35 of the Resolution of the Plenum Supreme Court RF, including requesting his explanation, and applying a penalty in the form of a reprimand or remark;
2. in the order of suspension or a separate order, immediately establish a new date for the passage of such an inspection;
3. if the employee repeatedly, without a good reason, does not undergo a medical examination if he already has a penalty for violating the requirements of Art. 214 of the Labor Code of the Russian Federation, expressed in the failure to pass the honey. inspection (avoiding its passage without good reason), then you can start the procedure for his dismissal under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

Details in the materials of the System Personnel:

Situation: How to remove from work an employee who has not passed a mandatory medical examination, examination or vaccination

Documents that confirm the fact that the employee did not pass mandatory medical examination or vaccination, may be:

• memorandum of the responsible person on the failure of the employee to undergo an examination (vaccination) indicating the reasons;
• explanatory note of the employee about the failure to pass the examination (vaccination);
• a written refusal of the employee to undergo an examination (vaccination);
• certificate of incapacity for work issued during the period of examination (vaccination);
• documented information from medical institution about the absence of the employee for examination (vaccination);
• an act on the employee's refusal to undergo a medical examination or vaccination, drawn up by the employer in the presence of witnesses.

Based on the documents submitted, the employer issues. In this case, the period of suspension is determined not by the date, but by the event - until the moment of passing a medical examination or vaccination ().

With the order it is necessary to familiarize the employee under the signature.

The fact of passing a medical examination is confirmed by a conclusion issued by a medical organization (clause , and of the Procedure approved).

Irina Zhuravleva lawyer, consultant personnel records And labor disputes, author of the advanced training course "School of Personnel Officer"

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• STEP 1

  Familiarize yourself with the requirements for the actions of the employer in case of refusal of the employee to undergo a periodic medical examination

  1.1. In accordance with Art. 214 of the Labor Code of the Russian Federation, the obligation of an employee in the field of labor protection is the passage of mandatory preliminary (when applying for a job) and periodic (during labor activity) medical examinations, other mandatory medical examinations, as well as the employee is obliged to undergo extraordinary medical examinations at the direction of the employer in cases provided for by the Labor Code of the Russian Federation and other federal laws. Note 1.

  The employer is obliged to ensure that employees are not allowed to perform job duties without undergoing mandatory medical examinations, mandatory psychiatric examinations, as well as in case of medical contraindications(paragraph 12, part 2, article 212 of the Labor Code of the Russian Federation).

• 1.2. labor law the categories of employees in respect of which the employer is obliged to organize mandatory preliminary and periodic medical examinations are established. Employees engaged in work with harmful and (or) dangerous working conditions (including underground work), as well as in work related to the movement of vehicles, undergo mandatory preliminary (upon employment) and periodic (for persons under the age of 21 years - annual) medical examinations to determine the suitability of these workers for the performance of assigned work and the prevention of occupational diseases. In accordance with medical recommendations, these employees undergo extraordinary medical examinations. Employees of food industry organizations, public catering and trade, water supply facilities, medical organizations and children's institutions, as well as some other employers, undergo these medical examinations in order to protect public health, prevent the occurrence and spread of diseases (Article 213 of the Labor Code of the Russian Federation). 1.3. According to Art. 76 of the Labor Code of the Russian Federation, the employer is obliged to suspend from work (not allow to work) an employee who has not passed a mandatory medical examination in the prescribed manner, in cases provided for by the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation.

  In accordance with Part 2 of Art. 76 of the Labor Code of the Russian Federation, 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 or exclusion from work are eliminated, unless otherwise provided by the Labor Code of the Russian Federation, other federal laws.

  Note 1: The employer is obliged to organize medical examinations at his own expense.

• STEP 2

  Determine if there are grounds for removing the employee from work (prevention from work)

  2.1. If the employee does not belong to the category of persons who are required to undergo periodic medical examinations, you may not insist on a medical examination.

  2.2. If the employee belongs to the category of persons who are required to undergo a mandatory medical examination, the employer must organize and pay for the medical examination.

  Issue an order (instruction) to send an employee to undergo a periodic medical examination (Order on referral for medical examination) .

  The order must indicate the place, date, time and timing of the medical examination, full name. sent to the employee for inspection. Note 2.

  The employee must be given a referral for a periodic medical examination, on the basis of which he must arrive at medical organization within the time limit for inspection.

  2.3. If an employee refuses or evades undergoing a medical examination, for the legality of the suspension, it is necessary that the fact of the employee's refusal or evasion from undergoing a medical examination be recorded in writing.

  For example, if an employee fails to appear at a medical organization for a medical examination, with a request to remove the employee from work and a description of the fact of violation by the employee, the circumstances of the event, a memorandum can be submitted by the immediate supervisor of the employee, an act is drawn up with detailed description events (Memorandum for suspension from work), (Act on the evasion of an employee from passing a mandatory medical examination) .

  If there are no legal grounds for suspension (or not documented), the employee's suspension will be voidable.

  If an employee for whom a periodic medical examination is mandatory has not completed the specified examination, go to step 3.

  Note 2: the procedure for conducting periodic examinations is established by the Order of the Ministry of Health and Social Development of Russia dated April 12, 2011 No. 302n “On Approval of Lists of Harmful and (or) Hazardous Production Factors and Works, During the Performance of which Mandatory Preliminary and Periodic Medical Examinations (Examinations) Are Conducted, and the Procedure for Conducting Mandatory Preliminary and Periodic medical examinations (examinations) of workers engaged in hard work and work with harmful and (or) dangerous working conditions.

  The frequency of periodic inspections is determined by the types of harmful and (or) dangerous production factors affecting the employee, or the types of work performed.

• STEP 3

  Issue an order (instruction) on suspension from work (non-admission to work) and familiarize the employee with it

  If there is an established and documented fact that the employee did not pass the mandatory periodic medical examination, the employer is obliged to remove the employee from work.

  Refusal to undergo a medical examination may be due to good reasons However, this does not exclude the need to remove the employee from work and only affects the possibility of holding him accountable.

  Issue an order (instruction) to suspend the employee from work due to failure to pass a medical examination (Order on the removal of the employee from work) . Note 3.

  The order must indicate the reason for the suspension and its period, which is appropriate to determine the event of passing a new medical examination.

  Familiarize the employee with the order (instruction) on the removal of the employee from work (non-admission to work).

  Familiarization of the employee with the order must be confirmed by his signature. At the request of the employee, issue him a duly certified copy of the specified order (instruction).

  If the employee refuses to familiarize himself with the order or to sign, draw up an act (indicating the date, time and place of the act) ( The act of refusal of the employee to familiarize himself with the order of dismissal) .

  Invite the employee to familiarize himself with the drawn up act against receipt. In case of refusal, make an appropriate note in the act. Attach the order to the act. On the text of the order itself, it should be recorded that in connection with the employee’s refusal to familiarize himself or sign, an act was drawn up.

  Enter information about the period of suspension from work in the employee's time sheet. The law also does not contain requirements to record the suspension in personal

  card or work book of the employee.

  Written explanations from the employee about the reasons for not passing the mandatory medical examination should be requested in order to be able to assess the presence or absence of the employee’s fault in not passing the medical examination, since this will affect the terms of payment (non-payment) of the suspension period and the possibility of bringing the employee to disciplinary liability.

  Note 3: if there are grounds established by law, the removal of an employee from work (prevention from work) is an obligation, and not the right of the employer.

  The suspension has the status of a temporary measure. If the reasons for the suspension are irremovable, it may result in a transfer to another job or dismissal of the employee.

• STEP 4

  Organize and conduct a medical examination

  To eliminate the reason for the employee's suspension from work, set a new date for the mandatory periodic medical examination of the employee. Note 4.

  Note 4: repeated refusal of an employee to undergo a mandatory medical examination after imposing disciplinary action may be grounds for dismissal for repeated failure to comply official duties according to paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

• STEP 5

  After eliminating the reasons for the suspension, allow the employee to work

  An employee may be allowed to work only after passing a mandatory medical examination, as a result of which a medical certificate will be issued confirming the absence of contraindications for work.

  If the employee has passed a mandatory periodic medical examination, the fact of which is confirmed by a medical report that there are no contraindications to work, issue an order (instruction) on the admission of the employee to work and familiarize the employee with the order (instruction) (Order on admission to work after suspension). Note 5.

  The order must indicate the date when the employee is required to start work. Familiarization of the employee with the order must be confirmed by his signature. At the request of the employee, issue him a duly certified copy of the specified order (instruction).

  If the reason that served as the basis for the suspension is not eliminated for some reason or is in principle unremovable, the issue of transferring the suspended employee to another job or dismissal should be considered.

  Note 5: an order for admission to work may not be issued if the entire period of suspension was immediately recorded in the previously issued order for suspension from work.

• STEP 6

  In cases of suspension from work of an employee who did not pass a mandatory medical examination through no fault of his own, he is paid for the entire time of suspension from work as for downtime.

  According to Art. 157 of the Labor Code of the Russian Federation, downtime (Article 72.2 of the Labor Code of the Russian Federation) due to the fault of the employer is paid in the amount of at least two-thirds of the employee's average wage. Downtime for reasons beyond the control of the employer and employee is paid at least two-thirds tariff rate, salary (official salary), calculated in proportion to the downtime.

  If the employee did not undergo a medical examination due to his own fault, for the period of suspension from work (non-admission to work), the employee’s wages are not accrued, unless otherwise provided by the Labor Code of the Russian Federation or other federal laws. This follows from part 3 of Art. 76 of the Labor Code of the Russian Federation. Note 6.

  Note 6: By general rule, the time of suspension is not included in the length of service, which gives the right to an annual basic paid leave (part 2 of article 121 of the Labor Code of the Russian Federation), as well as during the period of work, which gives the right to early appointment of an old-age labor pension.

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