Suspension of an employee from work is not. How to remove an employee from work

IN various companies and at enterprises such situations periodically occur when the employer needs to remove a particular employee from performing his duties. On the other hand, management does not always act legally under such circumstances. Therefore, this issue needs to be considered in more detail and figure out how both sides should behave.

Suspension from work

This process can be described as a ban on the performance of labor duties by a specific employee due to certain circumstances. It should be noted that the use of such a measure as a disciplinary sanction is not legal.

Such an instrument of influence is rarely recorded, since it is easier to issue a fine than to launch this mechanism, in which an employee of the personnel department should take the most direct part.

What are the types of suspension

In fact, two main areas of such measures of influence can be distinguished: an order to suspend work for a limited period of time (until the factor that provoked such a reaction from the management is eliminated) and for the entire period of employment.

As you can see, the scheme is painfully simple. Various reasons can influence the term of termination of an employee's activity, and the specific number of days during which the work will be unavailable depends on them.

In other words, until the problem or reason for which the suspension occurred is resolved, the employee will not be able to return to their duties. An example is a criminal case or the infection of an employee.

Reasons for dismissal

If you pay attention to Article 76 of the Labor Code of the Russian Federation, then you can determine the following reasons, which are sufficient grounds for such actions:

• the employee was unable to undergo training and subsequent testing of knowledge on labor protection;
• lack of necessary results of a medical examination;
• a fixed state of intoxication due to the influence of alcoholic, toxic or narcotic drugs;
• on demand officials or authorized state bodies;
• medical contraindication;
• in the event that the rights of an employee or a special permit have been suspended (court, labor inspectorate, etc.);
• There may be other cases that are not fixed in the current legislation.

Design features

Regardless of whether there is an employer-initiated suspension or other reasons, the process itself is almost always influenced by the rules of a particular organization. At the same time, there are areas in which this procedure is significantly simplified. We are talking about the food, transport industry, as well as organizations related to public catering.

It is important to understand that any circumstance resulting in a permanent or temporary suspension from work must be recorded on paper. The document itself has the form of an act or a memorandum addressed to the head. It must be signed by both the compiler and the witnesses.

Having studied the general rules relating to this issue, it can be seen that the suspension should be issued in the form of an order or order. At the same time, there is no unified form developed for such cases. This document is signed by the head of the organization.

Learn more about medical opinion

The result of an examination by qualified doctors may be the basis for the suspension of the activities of a particular employee. If we delve a little into this topic, we can single out the following reasons, the consequence of which may be suspension from work for medical reasons:

• if, after the examination, contraindications were recorded for performing a specific type of work according to the content employment contract;
• when the mandatory medical examination was not successfully passed, as well as a psychiatric examination in those cases that are provided for by regulatory legal acts and federal laws;
• in case of receipt of a certificate establishing the fact of disability (indicating a specific group) or the degree of limitation of the ability to carry out labor activity;
• suspension from work for medical reasons is possible with the participation of an employee in a rehabilitation program, due to disability after an accident at work;
• conclusion issued by the doctor of the antenatal clinic.

What needs to be specified in the order

When such a document is drawn up, the following information must be recorded in it:

• The period for which the suspension will be in effect, if it can be determined. This position of the employee may be tied to the need to perform a certain action, after which he will be able to resume his duties (physical examination, for example).
• Circumstances leading to dismissal.
• If the situation so requires, it is worth indicating who exactly will perform the duties of the suspended employee until the moment when his issue is resolved.

If it so happened that the removal of an employee from work must be carried out as soon as possible (in case of intoxication, for example), a simplified system can be used.

Its essence is as follows: medical worker takes the initiative regarding the termination of work by a specific employee and presents the inspection data as the basis for his decision. Suspension from work at the initiative of the employer (meaning the direct participation of management) can also significantly speed up the process.

Nevertheless, even a simplified scheme does not deprive the relevance of the need to write an order or order. This feature is due to the fact that such a measure as a suspension is inevitably associated with the termination of payroll.

The procedure for suspension from work implies an indication of the period of suspension. It must be displayed in the order. In some cases, the definition of the boundaries of the period for the temporary cessation of activities is not mandatory. For example, in the case of the need to pass a medical examination, the dates will be redundant. After all, if the employee manages to pass this inspection before the specified period, then the employer will have to issue new order with new data, which cannot be defined as a practical and convenient scheme.

When wages are not suspended upon suspension

It is important to understand that there are such reasons for termination labor activity, which imply the preservation of wages or its partial accrual.

For example, suspension from work is not a consequence of the fault of the employee, then the latter can count on the fact that he will receive 2/3 of his earnings. An example is the temporary transfer of an employee.

This information is also relevant for pregnant women. She may be suspended due to the need to transfer to a more gentle job based on the relevant medical indications. At the same time, the average wage at the previous place of work will be preserved. She also has the opportunity to be released from work with the preservation of the average salary in the event that a suitable new place has not been found.

What actions can be considered illegal

There is always a risk that an unscrupulous employer may try to use a suspension from work without proper justification.

So, labor law recognizes some of the actions associated with the above process as not in accordance with the law. In this case, everything is very simple - illegal suspension from work is considered as such if:

1. as a reason for terminating the activity of an employee, a reason is used that is not provided for by the Labor Code;
2. even if the grounds are legitimate, the decision to suspend cannot be considered correct if there is not enough evidence that such measures are necessary.

Thus, illegal suspension from work can be prevented if you delve a little into the Labor Code.

Additional Documentation

The reasons for the termination of the activities of a particular employee may be different, but he should always be aware of them. For this reason, the suspension order (a sample can be easily downloaded online) is accompanied by a notice that is necessary to familiarize the employee with the decision.

The employee, having learned that suspension from work has been applied to him, has the right to demand a written explanation. It may be needed in the event that you have to conduct a dispute.

As for the legal consequences, the termination of the activities of a particular employee can have several outcomes: transfer to another place of work, admission to labor process and, in fact, dismissal.

Each of these verdicts must be accompanied by an order and documentation that will confirm the objectivity and legality of the decision of the company's management.

How to express disagreement with management's decision

It is not necessary to exclude such a situation when the employee reacts negatively to the initiative of the authorities regarding the removal. In this case, he has the right to challenge the decision by going to court.

The law allows employers to meet the following requirements:

1. invalidating the order that was read to him;
2. if the result of the stoppage of activities was dismissal, then the employee may insist on reinstatement;
3. recovery of amounts for downtime, lost earnings or average income that was lost due to the fault of the company's owners;
4. reimbursement of the cost of protection services, as well as compensation for moral damage;
5. in case of dismissal - changes in the entry left in the work book.

If we study the experience of litigation, when the injured employee acted as a plaintiff, we can conclude that in the event of a mistake made by the management, the chances of a successful outcome of the case can be quite high.

Conclusion

In some cases, employers may either make mistakes or intentionally act illegally. For this reason, you should always carefully study the order for suspension from work. A sample document is easy to find online. This will give you an idea of ​​how it should be designed. If the order was drawn up without legal grounds or was not accompanied by the necessary documentation (notification), then the employee has every reason to protect his rights.

As of: 03/17/2010
Magazine: Directory of personnel officer
Year: 2010
Author: Avtushko Irina Anatolyevna
Theme: Documents personnel service, Responsibility of the employer, Remuneration
Category: HR practice
What to do if one employee left for a shift in a state of intoxication, another did not find time to undergo a medical examination, and all the deadlines had already expired, the third skipped a safety briefing at one time? Of course, remove from work! And no objections from the master or foreman: “Yes, you are crazy! There is no one to work for us” - they cannot go into the calculation. After all, the director will be responsible for the consequences. And he, in turn, will ask you why measures were not taken in time.

Suspension from work is a temporary exclusion of an employee from performing work duties by order of the employer. Suspension from work does not entail any change or termination of the employment contract.

Article 76 of the Labor Code of the Russian Federation defines a list of cases when the employer is obliged not to allow the employee to work, and if he has already started work, then remove him from it. This list is not exhaustive. The circumstances under which an employer is obliged to remove an employee from work may also be provided for in other federal laws and other regulatory legal acts of the Russian Federation.

For example, according to paragraph 22 of the Regulations on the discipline of railway workers Russian Federation, approved By Decree of the Government of the Russian Federation of August 25, 1992 No. 621, an employee who has committed an offense that threatens the safety of train traffic and shunting work, life and health of people, is suspended from work on this working day (shift) by an official performing administrative or control and inspection functions at this plot. The appropriate supervisor must be notified immediately. The notice must detail the reasons and circumstances that caused the suspension from work.

Please note: in cases provided for by law, suspension from work is not a right, but an obligation of the employer. Failure to comply with this obligation may result in negative consequences.

For example, let's say there was an accident on the premises. It was seen from the act of investigation that the cause work injury were inadequate actions and negligence of an employee who was in a state of intoxication. Since the evidence of the removal of the employee from work, as required by Art. 76 of the Labor Code of the Russian Federation, the employer did not provide, the court ordered the enterprise to reimburse medical institution price medical services rendered to the employee in connection with the injury (Decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated July 24, 2006 No. A82-5768 / 2005-11).

Quoting the Document

Article 76 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; who has not passed the mandatory medical examination (examination) in the prescribed manner, as well as the mandatory psychiatric examination in cases provided for by federal laws and other regulatory legal acts of the Russian Federation; if, 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, contraindications are revealed for the employee to perform work stipulated by an employment contract; in the event of suspension for a period of up to two months of an employee’s 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 perform obligations under the employment contract and if it is impossible to transfer the employee from his written consent to another job available to the employer (as vacant position or work corresponding to the qualifications of the employee, as well as a vacant lower position or lower paid job) that 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 for by the collective agreement, agreements, labor contract; at the request of bodies or officials authorized by federal laws and other regulatory legal acts of the Russian Federation; in other cases stipulated by federal laws and other regulatory legal acts 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 are the basis for suspension from work or exclusion from work are eliminated. During the period of suspension from work (non-admission to work) wage employee is not accrued, with the exception of cases provided for by this Code or other federal laws. In cases of suspension from work of an employee who has not undergone training and testing of knowledge and skills in the field of labor protection or a mandatory preliminary or periodic medical examination (examination) through no fault of his own, he is paid for the entire time of suspension from work as for downtime. Labor Code of the Russian Federation

At the same time, it should be remembered that the suspension of an employee from work in cases not provided for by the legislation of the Russian Federation, or without sufficient grounds, is illegal and entails liability in accordance with the current legislation of the Russian Federation.

In particular, unlawful suspension from work entails liability the employer to the employee (Article 234 of the Labor Code of the Russian Federation): the employer is obliged to compensate him for the unreceived earnings for the entire period of illegal suspension from work.

For illegal removal from work, the guilty person may also be brought to administrative responsibility (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Administrative liability for illegal suspension from work

TIME FRAME

Suspension from work of an employee is carried out for the entire period of time until the elimination of the circumstances that served as the basis for suspension from work. It is desirable to designate such a period by a specific date.

For example, from March 1 to April 23, the employee was suspended from work in accordance with a medical report due to the identification of contraindications for performing work.

However, it is not always possible to limit the time of suspension from work to a specific date. In such situations, the period of suspension from work may be due to the commission of certain actions.

For example, K. was suspended from work due to the fact that he did not pass the mandatory medical examination. The period of his suspension from work will continue until he passes such a medical examination.

In some cases, the specified period cannot be determined at the time the employee is suspended from work. In such a situation, the employee should simply be suspended from work without any indication of a limitation on the period of suspension from work. For example, in the case of suspension from work of an employee who appeared at work in a state of intoxication.

TO PAY OR NOT TO PAY?

By general rule during the period of suspension from work, wages are not accrued to the employee, with the exception of cases provided for by the Labor Code of the Russian Federation or other federal laws.

Expert opinion

A. K. Gavrilina, cand. legal Sciences, Associate Professor of the Faculty of Law State University for land management Dismiss but pay In part 3 of Art. 76 of the Labor Code of the Russian Federation establishes: in cases of suspension from work of an employee who has not undergone training and testing of knowledge and skills in the field of labor protection or a mandatory preliminary or periodic medical examination (examination) through no fault of his own, he is paid for the entire period of suspension from work as for simple. The legislator differentiates payment for downtime depending on the presence or absence of fault of the parties to the employment contract

employer and employee (Article 157 of the Labor Code of the Russian Federation) It should be recognized that the norm enshrined in Part 3 of Art. 76 of the Labor Code of the Russian Federation, to a certain extent, is incomplete, since it only speaks of the absence of the employee's fault. In our opinion, the legislator's reference to the application of the provisions on payment for downtime, enshrined in Art. 157 of the Labor Code of the Russian Federation, gives reason to use the rules of this article and further differentiate the payment for the time of suspension from work, depending on the presence or absence of the employer's fault. A different approach, when when paying for the time of suspension from work, only one situation is taken into account - the absence of fault of both the employee and the employer - seems to be a limited interpretation of the provisions of Part 3 of Art. 76 of the Labor Code of the Russian Federation. The fact is that the situations referred to in this rule may arise both through the fault of the employer, and in the absence of his fault. So, if an employee is suspended from work due to the circumstances under consideration through his own fault (for example, he refused to undergo a mandatory periodic medical examination or did not appear without good reasons mandatory preliminary medical examination)

The time off from work is not payable. If in such a situation the circumstances that became the basis for suspension from work arose not through the fault of the employee, but solely through the fault of the employer (for example, the employer did not provide timely training, testing the knowledge and skills of the employee), then the time of suspension from work is paid on the basis of Part 1 Art. 157 of the Labor Code of the Russian Federation in the amount of at least two thirds of the average salary of an employee. At the same time, there may be cases when the reasons for the occurrence of the circumstances that served as the basis for suspension from work do not depend on either the employee or the employer (for example, due to temporary disability, the employee was unable to undergo a mandatory periodic medical examination on time). It seems that in such cases, the time of suspension from work should be paid on the basis of Part 2 of Art. 157 of the Labor Code of the Russian Federation in the amount of at least two thirds tariff rate, salary (official salary), calculated in proportion to the time of suspension from work.

So, in cases of suspension from work of an employee who has not undergone training and testing of knowledge and skills in the field of labor protection or a mandatory preliminary or periodic medical examination (examination) through no fault of his own, he is paid for the entire time of suspension from work as for simple ( part 3 article 76 of the Labor Code of the Russian Federation).

According to parts 1 and 2 of 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, and for reasons beyond the control of the employer and employee - in the amount of at least two thirds of the tariff rate, salary (official salary), calculated in proportion to the time just me.

On March 23, the employer sent T. for a mandatory periodic medical examination. But it turned out that the medical institution had lost his card, and the employee could not pass the medical examination. By order of the employer, T. was suspended from work. The card was found only in early April, and the employee underwent a medical examination on April 7. How should the period of suspension from work be paid?

Since the suspension was for reasons beyond the control of the employer and the employee, the employer must pay the period of suspension from work - from March 24 to April 6 - based on an amount of two-thirds of the employee's salary.

If the employee were unable to pass the medical examination due to the fact that the employer delayed payment to the medical institution, then two-thirds of the average salary would be saved for the period of suspension from work. In this case, it is the employer's fault that the employee was suspended from work.

It should be noted that sometimes the material support of an employee suspended from work is carried out at the expense of other sources, and not at the expense of the employer.

For example, in accordance with Part 6 of Art. 114 and Art. 131 of the Code of Criminal Procedure of the Russian Federation, a suspect or accused temporarily suspended from office is entitled to a monthly state allowance in the amount of five minimum dimensions wages paid out of the funds federal budget or means of participants in criminal proceedings.

HOW TO APPLY

The decision of the employer to remove the employee from work is formalized by order (Attachment 1) with which the employee must be familiarized against signature. Insofar as unified form such an order is not approved, the employer must draw up this document on one's own.

The order must state the circumstances that served as the basis for the removal of the employee, and list the documents confirming these grounds (memorandum, act, medical report, order of the authorized body or official, etc.). In addition to the specified information, it is advisable to indicate in the order on suspension from work whether the employee is retained for the period of suspension of wages.

Driver S. showed up at work in the afternoon drunk. They did not fire him: it turned out that on that day his son was born. The management considered the reason for the misconduct to be valid, but he was removed from work. The corresponding order was issued. Should such an order be reflected in other documents? Is the suspension recorded in work book?

According to part 4 of Art. 66 of the Labor Code of the Russian Federation, information about the employee, the work performed by him, transfers to another permanent job and dismissal, as well as the grounds for termination of the employment contract and information on awards for success in work. Thus, a record of suspension from work in the work book of the employee is not made.

In the time sheet, the period of suspension from work is marked with a conditional code, depending on the payment for this period (see table).

Note!

In case of dismissal of an employee from work, no additional agreement not included in an employment contract. Suspension from work - a unilateral act of the employer

It should be noted that Art. 76 of the Labor Code of the Russian Federation does not provide for an obligation for the employer to demand, and for the employee to provide explanations of the reasons for the occurrence of circumstances that were the basis for dismissal from work. However, in some cases, the employer needs to find out why the circumstances that gave rise to such a suspension arose.

For example, in the case of suspension from work of an employee who has not passed a mandatory periodic medical examination, the issue of remuneration is decided depending on whether the employee is guilty or innocent in this situation (part 3 of article 76 of the Labor Code of the Russian Federation).

The employer can establish the guilt of the employee, including by asking the employee for an explanation. In it, the employee can express his opinion about the current situation, which seems to be a kind of guarantee of respect for his rights. An exception is cases when the reason is obvious, for example, the medical institution refused to examine the employee because the employer did not transfer the money on time.

Code indicating the period of suspension from work in the time sheet

Keep in mind: the written explanation of the employee in the event of a dispute can be considered as evidence, so it is advisable to demand a written explanation from the employee.

Expert opinion

A. F. Nurtdinova, Doctor of Law Sciences, Head of the Department of the Constitutional Court of the Russian Federation Suspension and simple: the differences are fundamental In accordance with Part 3 of Art. 722 of the Labor Code of the Russian Federation, downtime is understood as a temporary suspension of work for reasons of an economic, technological, technical or organizational nature. Downtime is an event in production and working life that entails certain legal consequences. Downtime, in the presence of the conditions specified in the Labor Code of the Russian Federation, may serve as the basis for the temporary transfer of an employee to another job. As a rule, during the period of downtime, the employee must be at the workplace, since the suspension of work may be of a short-term nature (as a result of equipment breakdown, lack of raw materials and materials, power outages, etc.) and end unexpectedly (they will repair the machine, provide raw materials, turn on electricity, etc.).

Thus, the employee can resume the performance of his labor duties at any time during the working day (shift). In case of long downtime, the employer may allow employees to stay at home. Depending on the absence (presence) of the employee's fault, downtime is paid or not paid. Depending on the presence (absence) of the employer's fault, downtime is paid in a larger or smaller amount (Article 157 of the Labor Code of the Russian Federation). Suspension from work - independent legal concept, the essence of which lies in the active action of the employer: he removes the employee from work in cases where statutory(Article 76 of the Labor Code of the Russian Federation). Suspension from work differs from downtime in essence (downtime is an objectively determined event, and suspension from work is an action (legal act) of the employer) in terms of the right regime (regulation) and legal consequences. Suspension from work is not a basis for changing or terminating an employment contract. The circumstances that serve as grounds for suspension from work are related to the personality of the employee and, as a rule, are of a long-term nature. There is no need for the employee to be present at the workplace during the period of suspension, since he cannot be allowed to work.

According to part 3 of Art. 76 of the Labor Code of the Russian Federation during the period of suspension from work, as a rule, wages are not accrued to the employee. Only 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 preliminary or periodic medical examination (examination) through no fault of his own, he is paid for the entire time of suspension from work as for downtime. It should be noted that sometimes personnel officers misunderstand Part 3 of Art. 76 of the Labor Code of the Russian Federation, since it mentions a simple one. They conclude that suspension from work (during this period the employee does not perform his job duties) is downtime. Such a conclusion does not follow from the provisions of the Labor Code of the Russian Federation. Firstly, as can be seen from the above norm, we are talking only about payment, and not about a set of legal consequences. Secondly, the legislator does not equate suspension from work with downtime, it only determines the amount of the guarantee payment to an employee who, through no fault of his own, could not pass a knowledge test or a medical examination on time. Note that the rule says: as for a simple i.e. downtime payment rules apply in this case. If the intentions of the legislator were something else, he would have chosen a different wording, for example, he would have indicated that the suspension from work in this case is downtime or is equated with downtime.

If the employee refuses to provide the specified explanations, it is desirable to draw up an appropriate act.

Registration of an employee's admission to work depends on the content of the order to remove him from work. If the suspension time is specified in the order by a specific date, then when it occurs, the order is automatically terminated. If the period of suspension is due to the commission of a certain action (for example, the employee is suspended until the mandatory periodic medical examination), then in this case it seems necessary to issue an order for admission to work (appendix 2).

To issue an order for admission to work, a document is required confirming that the circumstances that were the basis for the removal of the employee from work have been eliminated.

For example, in the case when an employee who has not undergone a psychiatric examination is suspended from work, the basis for issuing an order for his admission to work will be a written decision of the medical commission on the suitability of the employee to work in conditions of increased danger, adopted as a result of a psychiatric examination of the employee.

According to part 4 of Art. 114 of the Labor Code of the Russian Federation, the temporary removal of a suspect or accused from office is canceled on the basis of a decision of the interrogating officer, investigator, when there is no need to apply this measure. Thus, if the employee was removed from office by a court order, and then the organization received an investigator’s decision to cancel the temporary suspension from office, then the employer in the order for admission to work allows the employee to begin to fulfill his official duties with reference to the decision of the investigator.

According to Art. 76 of the Labor Code of the Russian Federation, the length of service giving the right to the annual basic paid leave does not include the time the employee is absent from work without good reason, including due to his removal from work.

However, from this rule there is an exception: the period of suspension from work of an employee who has not passed a mandatory medical examination (examination) through no fault of his own is included in the specified length of service.

Here are the main, most general provisions concerning all cases of suspension from work. In the following issues, we will take a closer look at some of the provisions provided for in Art. 76 of the Labor Code of the Russian Federation, the circumstances that are the grounds for such a suspension.

Attachment 1

An example of an order to dismiss an employee from work

Annex 2

An example of an order for the admission of an employee to work

1 -1

A subordinate who has begun to perform labor duties or is only planning to do so can be dismissed by his boss.

Article 76 of the Labor Code of the Russian Federation establishes the grounds on which the employer has the right to do this.

The list of grounds on which the employer acts allows you to save the subordinate from his abuses.

Cases when superiors illegally do not allow subordinates to work are not uncommon at present..

They make up the subject labor disputes considered by state-authorized bodies: the Labor Inspectorate, the Prosecutor's Office, the court.

In the Labor Code of the Russian Federation there is no definition of what can be considered suspension from work. This gap is filled by jurisprudence.

Its analysis allows us to say that the removal from official duties- this is a temporary refusal of the employer to provide the employee with work due to labor agreement concluded between the two parties.

The purpose of removing personnel from work is to prevent the negative development of the situation in the form of risks and consequences if the person would remain in his place and continue to perform his duties.

IMPORTANT: To prevent a person from working for legitimate reasons is not a right, but a duty of the boss.

The reasons for dismissal from work are not closed. This means that laws may provide for other cases of exclusion of personnel from the workplace. Foundations:

1. presence at the workplace in alcoholic, narcotic, toxic intoxication;
2. failure to undergo a medical examination, training and testing of skills and knowledge in the field of labor protection;
3. identification, on the basis of a medical examination, of contraindications for an employee to engage in the type of activity that he carries out at the enterprise;
4. suspension for a temporary period (up to 2 months) of an employee’s special right (for example, revocation of a transport management license), if this is related to his work duties;
5. requirements of officials authorized by laws and regulations, announcement of quarantine, etc.

The procedure for suspension from work

The algorithm of actions of the head depends on the rules fixed at the enterprise by the instruction on office work, as well as on the grounds for which there was no admission to official duties.

In some areas, a simplified procedure is provided(for example, in transport).

The procedure for dismissal from work is drawn up by order of the head of the company. This happens in most cases.

The order is accepted by the accounting department: this department must be notified of the situation, since in many cases we are talking about a suspension in the payment of wages.

The creation of a package of documents for the removal of an employee must be accompanied by the presence of written evidence of the occurrence of the situation that served as the basis for the removal.

Evidence can be:

• memorandum;
• service note;
• the act of fixing the case, etc.

This evidence can be useful in the event of a labor dispute..

Suspension period

The legislator indicates that the removal of an employee is temporary.

The employee will not be able to work until the reasons for his admission are not eliminated.

Deadlines depend on the grounds, as well as on the company(company) where the person works.

For example, in the case of guilty actions of a municipal employee and planning to introduce a disciplinary offense against him, he can be removed from his duties for no more than 31 days until this issue is resolved.

But the money content during this month is reserved for him.

Based on this, issues related to the timing of elimination should be decided on a case-by-case basis.. There is no single term for all employees employed in many production areas, service delivery, etc.

IMPORTANT: The boss may be notified that the reasons for the removal of an employee from work duties will be of a regular nature. Eliminating them is not possible.

In this situation, it makes no sense for the manager to remove the person: he must take care to transfer him to another position or dismiss him, but only if there are legal grounds for this action.

See more about the reinstatement process.

Pay during suspension

Suspension from work is not paid.

But there are exceptions to this general rule.

For example, if an employee was suspended from work who did not undergo training, a test of skills, knowledge in the field of labor protection, or a doctor's examination (mandatory) not due to their guilty actions, he will be paid suspension from work (Labor Code of the Russian Federation, Art. 157) as for downtime .

If there is a need to temporarily remove a person from office, and he is suspected of a crime of article 114 of the Criminal Code of the Russian Federation, he is paid an allowance from the state in the amount of 5 minimum wages for the entire period of suspension.

FAQ

How to suspend an employee for medical reasons?

The non-admission of a subordinate to his position occurs on the basis of an order. And his the basis is the conclusion of doctors about contraindications to a particular position.

The doctor must indicate in his opinion a specific period during which the citizen will not be able to work in the same conditions. The execution of the procedure for not admitting an employee to his position depends on this period.

If the doctor indicated a period of less than 4 months, then the employer must offer his subordinate vacant positions in his enterprise.

If there are no such positions, or they do not suit the employee himself, then the suspension is issued for the entire period specified in the conclusion of the doctors. Workplace for this, employees are retained, but wages are not accrued.

If the period specified in the medical report exceeds 4 months, then the suspension is not issued, but a permanent or temporary transfer to another position is issued.

If the employer has a position that is not suitable for this employee or he refuses them, then, according to Part 3 of Art. 73 of the Labor Code of the Russian Federation, the employment contract with this employee is terminated.

Can employees be suspended if they are suspected of stealing?

Guided by the norms of the Labor Code of the Russian Federation, namely Art. 76 in which complete list there are no grounds on which an employee can be suspended, there are no rules regarding removal from work for the duration of an inspection and an internal investigation.

At the same time, in Part 7 of Art. 76 of the Labor Code of the Russian Federation, there is a rule that obliges the employer to remove employees from work at the request of bodies or officials authorized by federal laws and other regulatory legal acts of the Russian Federation.

In particular, the court has the right to require the employer to remove the employee from work.

Article 76 of the Labor Code of the Russian Federation is devoted to suspension from work, according to which suspension is understood as the exclusion of an employee from work - the performance of his labor function. And even though a suspension from work is being considered current legislation as a temporary measure and in itself does not entail a change in the employment contract or its termination, in some cases it may precede the dismissal of the employee. In addition, the removal of an employee from work on the grounds provided for by the Labor Code of the Russian Federation is an unconditional legal obligation of the employer.

And it is interesting that the Labor Code of the Russian Federation considers the concepts of "dismissal" and "prevention" as synonyms. However, there is still a semantic difference between these concepts. So, if signs of a state of intoxication (one of the grounds for removal provided for in Article 76 of the Labor Code of the Russian Federation) are found in an employee before the start of the working day (shift), for example, at the checkpoint of the enterprise, then the employer is obliged prevent until the performance of the work stipulated by the employment contract. If these signs were revealed during the working day (shift), the employee must be suspended from work. In this article, for convenience of presentation, we will use the term "dismissal".

If there are appropriate grounds, the employee is suspended from work for the entire period of time until the circumstances that are the basis for suspension from work or exclusion from work are eliminated. Most often, during the period of suspension from work, wages are not accrued to an employee, with the exception of a number of cases provided for by the Labor Code of the Russian Federation or other federal laws (we will discuss these exceptions later in the article). Suspension is usually temporary and does not involve the termination of the employment contract.

Suspension from work may be initiated by:

• employer;
• bodies and officials specially authorized to do so by federal laws and other regulatory legal acts.

Article 76 of the Labor Code of the Russian Federation contains six grounds for removing an employee from work. Let's consider each of them in more detail.

Grounds for suspension from work

Appearing at work in a state of alcoholic, narcotic or other toxic intoxication

According to paragraph 2 of part 1 of Art. 76 of the Labor Code of the Russian Federation, the employer is obliged to remove from work an employee who appears at work in a state of alcoholic, narcotic or other toxic intoxication. In this case, the employee is subject to suspension from work, regardless of what time of the working day (shift) he appeared at work in a similar condition. The degree of intoxication and the nature of the work performed are also of no fundamental importance. Of course, an employee in such a state will not be able to properly perform their labor duties.

The Labor Code does not determine the duration of the suspension from work of an employee who appeared in a state of intoxication, and only contains an indication that the suspension from work can continue until the circumstances that served as its basis are eliminated (part 2 of article 76 of the Labor Code of the Russian Federation). Most often, the employer does not allow the employee to work on the day (shift) when the corresponding condition of the employee is discovered. The next day, the employee can resume his work duties.

Appearing at work in a state of intoxication (alcoholic, narcotic or other toxic) - gross violation labor discipline and work responsibilities. For such a disciplinary offense, the employer has the right to apply to the employee one of disciplinary action, up to dismissal under sub. "b" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation. It does not matter whether the employee was suspended from work due to intoxication or not. It must also be borne in mind that dismissal on this basis may also follow when the employee is work time was in such a state not at his workplace, but on the territory of this organization, or he was on the territory of the facility, where, on behalf of the employer, he had to perform a labor function (paragraph 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as Resolution No. 2).

Article 76 of the Labor Code of the Russian Federation does not provide for the mandatory registration of suspension from work in writing. However, in order to avoid disputes and disagreements with the employee in the future, it is recommended that the actions of the employer be properly documented. And first of all, this concerns the fact of the appearance of an employee in a state of intoxication - it must be recorded and certified. According to paragraph 42 of Resolution No. 2, the state of intoxication of an employee can be confirmed:

• medical opinion;
• other types of evidence (for example, witness statements), which must be assessed accordingly by the court. Please note that if the employee is a member of a trade union, the testimony must be formalized by an act drawn up with the participation of a representative of the trade union (Article 81 of the Labor Code of the Russian Federation).

So what is the employer's procedure?

First of all, we recommend making act on the appearance of an employee at work in a state of intoxication signed by at least two witnesses (see Example 1). If the dispute reaches the court, this act will just act as an example of evidence of a “different kind”. You should not rely only on testimonies, since witnesses can forget all the circumstances under which the suspension occurred, quit, etc. An act signed by several witnesses will be considered by the court as written testimony.

There are no strict requirements on the content of this act, as well as on who exactly should draw it up. The act can be drawn up by the immediate supervisor of the employee, the head structural unit or, which is not uncommon, an employee of the personnel department. This duty may be labor instructions and local regulations of the employer. As for the content of the act, in addition to data on the “guilty” employee, it is advisable to indicate the following information:

• date, time and place of drawing up the act;
• surname, name, patronymic and position of the employee who drew up the act;
• names and positions (professions) of employees who were present at the drawing up of the act (witnesses);
• the state of the employee, which became the reason for the conclusion about intoxication and drawing up an act;
• signatures of the compiler of the act and the employees present at its compilation;
• the signature of the employee in respect of which the act is drawn up (i.e. the employee must be familiar with the act without fail).

What to pay attention to when drawing up an act? The signs of intoxication should be described in detail (for example, incoherent speech, a characteristic smell, impaired coordination of movements, etc.). Moreover, if the signs of alcohol intoxication are quite easy to determine, then drug and toxic intoxication is very difficult. This is partly due to the fact that the use of various narcotic and toxic drugs is characterized by different signs. Indicators of such intoxication can be: dilated pupils, pallor, rapid incoherent speech, increased excitability, or vice versa, apathy, etc. In these cases, the best confirmation of the employee's condition is still a medical report.

The act on the appearance of an employee at work in a state of intoxication is signed by the employee who compiled it and witnesses (as a rule, also employees of the enterprise). Then it is necessary to familiarize the employee who arrived in a state of intoxication with it. His written explanation of the reasons for appearing at work in such a state will not be superfluous. However, sometimes the degree of intoxication of the employee does not allow him to familiarize himself with the drawn up act. In this situation, the act should make a note that it is not possible to familiarize the employee with the act, since he cannot control his actions and realize the importance of the questions asked of him.

The employee may quite consciously refuse to sign the act, for example, considering that the employer exaggerated the degree of his intoxication. In this case, the refusal of the employee should be noted in the act and also certify this entry with the signatures of the compiler and witnesses. In practice, sometimes a separate act is drawn up - on the refusal to sign. Both options are available at the discretion of the employer.

After drawing up the act, the employee is removed from the work performed and sent for a medical examination (in this case, it is desirable to provide him with an accompanying employee). A note on the direction for examination is also made in the act.

Medical opinion issued based on the results of a medical examination, is the most significant evidence of the state of intoxication of an employee. However, it must be taken into account that the employee involved by the employer in this procedure has the right to refuse medical intervention or demand its termination (Article 33 of the Fundamentals of the Legislation of the Russian Federation on the Protection of the Health of Citizens, approved by the Supreme Court of the Russian Federation on July 22, 1993 No. 5487-1). Therefore, it is impossible to send an employee for examination by force.

It should be noted that the medical examination is carried out in accordance with the Temporary Instruction "On the procedure for a medical examination to establish the fact of alcohol consumption and the state of intoxication", approved by the USSR Ministry of Health on September 1, 1988 No. 06-14 / 33-14 (hereinafter referred to as the Instruction), and Methodological instructions "Medical examination to establish the fact of alcohol consumption and the state of intoxication", approved by the USSR Ministry of Health on September 2, 1988 No. 06-14 / 33-14.

In accordance with these documents, a medical examination is prescribed in cases where the law provides for disciplinary and administrative liability for drinking alcohol or being intoxicated, drinking alcohol at work, in case of injuries associated with intoxication, etc.

An examination for intoxication can be carried out at the direction of law enforcement officials, as well as officials of enterprises, institutions and organizations at the place of work of the person being examined. The employee himself can also apply for a medical opinion, for example, if he does not agree with the act drawn up by the employer.

According to clause 2 of the Instruction, a medical examination to establish the fact of alcohol consumption and the state of intoxication is carried out in specialized rooms of narcological dispensaries (departments) by psychiatrists-narcologists or in medical institutions by psychiatrists-narcologists and doctors of other specialties who have been trained, as directly in institutions , and with departure in specially equipped for this purpose .

The result of the survey is a conclusion, which should clearly describe the state of the employee at the time of the survey.

The above documents note that the doctor conducting the examination must not only ascertain the fact of alcohol consumption, but also correctly qualify the condition of the subject, since the diagnosis of the relevant syndromes serves as a medical criterion for establishing offenses related to alcohol consumption defined in the law. Therefore, the doctor conducting the examination should inform the reasons for the procedure and its purpose, that is, indicate from the standpoint of which regulatory act the results of the examination will be considered (in this case, the Labor Code of the Russian Federation). Thus, in order to apply the provisions of Art. 76 of the Labor Code of the Russian Federation on suspension from work, it is important to confirm the state of intoxication, and not just the fact of drinking alcohol (in the latter case, signs of intoxication may not be observed, respectively, there are no grounds for suspension from work). In addition, when preparing a medical report, it is advisable to inform the doctor of the main content of the employee’s labor function so that the specialist can correlate the employee’s condition with the work that he must perform.

Physician based on the criteria set out in guidelines according to a medical examination, must make one of the following conclusions about the state of the employee:

1. sober, no signs of alcohol consumption;
2. the fact of alcohol consumption was established, signs of intoxication were not detected;
3. alcohol intoxication;
4. alcoholic coma;
5. state of intoxication caused by narcotic or other substances;
6. sober, there are violations of the functional state, requiring suspension from work with a source of increased danger for health reasons.

From this list it is clear that the suspension from work will be legal if the states numbered 3-5 are indicated. If condition number 6 is established, suspension from work is possible in accordance with paragraph 5 of part 1 of Art. 76 of the Labor Code of the Russian Federation (hereinafter, this basis will be discussed in more detail).

If the employee categorically refused to undergo a medical examination, in addition to making an appropriate entry in the act on the appearance of the employee in a state of intoxication, the employer may warn him that:

• the state of intoxication can be confirmed by other types of evidence;
• refusal or evasion without good reason for employees of some professions is regarded as a disciplinary offense.

In practice, such measures are sometimes used to facilitate the referral of an intractable employee for a medical examination, such as calling the police or an ambulance. From a legal point of view, this is unjustified, but in especially difficult cases it can help calm a drunk worker.

When the "guilty" can start working again? The answer to this question directly depends on the degree of intoxication and the well-being of the employee. In most cases, this becomes possible the very next day (shift). If the medical report does not indicate the time after which the level of substances consumed in the blood will drop to the norm that does not interfere with the performance of work, you can contact your doctor for clarification. At the same time, in the case under consideration, the employer has the right to refuse to provide work (admission to it) to the sobered worker the very next day and dismiss him under subpara. "b" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation.

Please note that the day during which the employee was suspended from work should not be regarded as absenteeism without good reason. This is due to the fact that the employee still came to work, but was removed from it due to being in a state of intoxication.

Failure to undergo training and testing of knowledge and skills in the field of labor protection in the prescribed manner

Unfortunately, the death of workers at the workplace, injuries, injuries received by them as a result of accidents at work are not such a rare occurrence. decline occupational injury contributes to the strict observance of labor protection rules. Due to this Labor Code obligatory training of workers in safety engineering and testing of their knowledge and skills in the field of labor protection are provided, and paragraph 3 of part 1 of Art. 76 of the Labor Code of the Russian Federation establishes the need to remove an employee from work if he has not undergone such training or verification.

The obligation of an employee to be trained in safe methods and techniques for performing work on labor protection, first aid in case of accidents at work, instruction in labor protection, internships at the workplace, testing knowledge of labor protection requirements is directly established by Art. 214 of the Labor Code of the Russian Federation.

In turn, the employer, in accordance with Art. 212 of the Labor Code of the Russian Federation is obliged to train employees in the named methods and techniques, conduct briefings, provide internships and test the knowledge of employees. These obligations of the employer must be carried out in accordance with the Procedure for training in labor protection and testing knowledge of labor protection requirements for employees of organizations, approved by the Decree of the Ministry of Labor of Russia No. 1, the Ministry of Education of Russia No. 29 dated January 13, 2003 (hereinafter referred to as the Procedure).

This Procedure is designed to ensure preventive measures to reduce occupational injuries and occupational diseases and establishes general provisions for compulsory training in labor protection and testing of knowledge of labor protection requirements for all employees, including managers.

According to the Procedure, for all persons hired, as well as for employees transferred to another job, the employer (or a person authorized by him) is obliged to instruct on labor protection. In addition to introductory briefing on labor protection, primary briefing at the workplace, repeated, unscheduled and targeted briefings are carried out. The briefing on labor protection ends with an oral test of the knowledge and skills acquired by the employee of safe working practices by the person who conducted the briefing. Conducting all types of briefings is recorded in the relevant journals for conducting briefings (in established cases - in the work permit) indicating the signature of the instructed and the signature of the instructing person, as well as the date of the briefing.

In addition to the briefing, the employer must conduct training on labor protection, the volume and content of which depend on the category of the employee (workers in blue-collar professions or managers and specialists of organizations).

In order to test the knowledge of labor protection requirements of employees in organizations, by order (instruction) of the employer (manager), a commission is created to test knowledge of labor protection requirements. The test results are documented in a protocol. An employee who has not passed the knowledge test of labor protection requirements during training is obliged to undergo a re-test of knowledge after that no later than one month (clause 3.8 of the Procedure).

Is it possible to suspend from work for a long time an employee who has not undergone training and testing of knowledge and skills in the field of labor protection in the prescribed manner? When an employee is removed for this reason, he is not allowed to work until the end of training and verification. If the employee evades re-verification, he may be suspended for a longer period. This is explained by the fact that training and testing of knowledge and skills in the field of labor protection, as a rule, are carried out according to a specific schedule established by the organization. In special cases (at the discretion of the employer), it is possible to conduct individual training and subsequent verification, then, if the result of the verification is positive, the employee may be allowed to work.

The procedure and grounds for the removal of an employee from work are regulated by Art. 76 of the Labor Code of the Russian Federation, according to which suspension is understood as the exclusion of an employee from performing his labor function. The circumstances provided for in this article oblige the employer to remove the employee from work, regardless of production needs, personal relationships or extenuating circumstances. At the same time, it is not uncommon for employers to abuse their right to remove an employee from work, using it as a measure to "push" the employee to quit or change the terms of the employment contract. In this article, we will continue the conversation about the conduct and execution of such a conflicting personnel procedure.

Failure to pass, in accordance with the established procedure, a mandatory medical examination (examination), a mandatory psychiatric examination

In accordance with paragraph 12 h. second Article. 212 of the Labor Code of the Russian Federation, one of the obligations of the employer in terms of providing safe conditions and labor protection is the prevention of employees from performing their labor duties without undergoing mandatory medical examinations (examinations), mandatory psychiatric examinations, as well as in case of medical contraindications.

The current legislation provides for the passage of preliminary (upon employment) and periodic (during employment) medical examinations by employees. In addition, medical examinations in their focus can be divided into examinations to determine whether the health of an employee is appropriate for the work performed by him, and for the early detection of possible occupational diseases, and examinations carried out to prevent the occurrence of various diseases among the population.

So, according to Art. 213 of the Labor Code of the Russian Federation, workers engaged in heavy work and work with harmful and (or) dangerous working conditions (including underground work), as well as in work related to traffic, must undergo the following medical examinations (examinations) :

• preliminary (when applying for a job);
• periodic (for persons under the age of 21 - annual) - to determine the suitability of these workers to perform the assigned work and prevent occupational diseases;
• extraordinary - in accordance with medical recommendations.

Order of the Ministry of Health and Social Development of the Russian Federation dated August 16, 2004 No. 83 approved the Procedure for conducting preliminary and periodic medical examinations (surveys) of workers employed in hazardous work ah and at work with harmful and (or) dangerous production factors, as well as the Lists of harmful and (or) dangerous production factors and work during which these inspections are carried out.

The specified Procedure provides that preliminary and periodic medical examinations (examinations) of employees are carried out by medical organizations licensed for this type of activity. Examinations of employees engaged in hazardous work and in work with harmful and (or) hazardous production factors for five or more years are carried out once every five years in occupational pathology centers and other medical organizations that have licenses for professional suitability examination and examination of the relationship of the disease with profession.

The employer determines the contingents and draws up a list of names of persons subject to periodic medical examinations (examinations), indicating sites, workshops, industries, hazardous work and harmful and (or) hazardous production factors affecting employees, and after agreement with the territorial authorities Federal Service for Supervision in the Field of Consumer Rights Protection and Human Welfare sends him two months before the start of the examination to a medical organization with which an agreement has been concluded for periodic medical examinations (examinations). The medical organization, on the basis of a list of names of employees subject to periodic medical examinations received from the employer, approves together with the employer calendar plan conducting surveys.

Conclusion medical commission and the results of the examination, both preliminary and periodic, as well as an extract from the employee's outpatient card, are entered in the card of preliminary and periodic medical examinations (examinations). In addition, within 30 days, the medical organization must provide the employer with a final act, which indicates the employees who did not appear and did not pass the examination. Based on this information, the employer has the right to make a decision to prevent or remove the employee from work.

In order to protect public health, prevent the occurrence and spread of diseases, these medical examinations are carried out by employees of organizations Food Industry, Catering and trade, water supply facilities, medical and preventive and children's institutions, as well as some other employers.

Mandatory medical examinations are also provided for a number of other categories of workers (for example, preliminary and periodic (annual) examinations for minors (Article 266 of the Labor Code of the Russian Federation), mandatory preliminary examinations for athletes (Article 348.3 of the Labor Code of the Russian Federation).

In addition, in pursuance of the Federal Law of March 30, 1995 No. 38-FZ “On Preventing the Spread of Disease Caused by the Human Immunodeficiency Virus (HIV) in the Russian Federation”, the following were approved:

• Rules for conducting a mandatory medical examination for the detection of the human immunodeficiency virus (HIV infection) (Decree of the Government of the Russian Federation of October 13, 1995 No. 1017);
• The list of employees of certain professions, industries, enterprises, institutions and organizations that undergo a mandatory medical examination to detect HIV infection during mandatory pre-employment and periodic medical examinations (Decree of the Government of the Russian Federation dated 04.09.1995 No. 877).

The requirements for medical examinations and psychophysiological examinations of employees of nuclear facilities are approved by Decree of the Government of the Russian Federation of March 1, 1997 No. 233.

In addition, if necessary, by decision of the authorities local government individual employers may introduce additional terms and indications for mandatory medical examinations (examinations).

As for the psychiatric examination, according to Art. 213 of the Labor Code of the Russian Federation, employees engaged in certain types of activities, including those associated with sources of increased danger (with the influence of harmful substances and adverse production factors), as well as working in conditions of increased danger, undergo a mandatory psychiatric examination at least once every five years in the order established by the Government of the Russian Federation. It should be noted that the wording of this article, which existed before the introduction of amendments by Federal Law No. 90-FZ of June 30, 2006, did not provide for the possibility of removing an employee from work on this basis. In connection with its addition, such an obligation of the employer was established.

The rules for passing the examination were approved by Decree of the Government of the Russian Federation of September 23, 2002 No. 695 “On the passage of a mandatory psychiatric examination by employees engaged in certain types of activities, including activities associated with sources of increased danger (with the influence of harmful substances and adverse production factors), and also working in high-risk conditions.

Please note that the provisions of Art. 213 of the Labor Code of the Russian Federation, medical examinations and psychiatric examinations are carried out at the expense of the employer.

In case of failure to pass a preliminary or periodic medical examination (examination) or a psychiatric examination, the employee is suspended from work until such an examination is passed.

Identification of contraindications for the employee to perform work stipulated by the employment contract

According to paragraph 5 of the first article. 76 of the Labor Code of the Russian Federation, an employee is suspended from work if, in accordance with a medical report, contraindications are revealed for the employee to perform work stipulated by an employment contract. Contraindications can be identified during a medical examination or during other medical procedures.

The basis for removal in this case is a medical report issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation.

What should an employer do if they receive a medical certificate confirming that an employee has contraindications? There may be several options for action, all of them are determined by the state of health of the employee and local regulations in force in a particular industry. For example, an employee may be sent for further examination (medical and social expert commission), recognized as completely incapable of work and dismissed, temporarily or permanently transferred to another job.

At the same time, it must be borne in mind that, according to Art. 73 of the Labor Code of the Russian Federation, an employee who needs to be transferred to another job in accordance with a medical report, with his written consent, the employer is obliged to transfer to another job he has that is not contraindicated for 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 retaining his place of work (position).

If, in accordance with the medical report, the 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, the employment contract is terminated under paragraph 8 of the first article. 77 of the Labor Code of the Russian Federation.

Suspension of the special right of an employee for up to two months

In accordance with paragraph 6 of the first article. 76 of the Labor Code of the Russian Federation, an employee is subject to suspension from work in the event of suspension for a period of up to two months of the employee’s special right (license, right to drive a vehicle, the right to carry weapons, other special rights), if this entails the impossibility for the employee to fulfill obligations under an employment contract and it is impossible transfer the employee, with his written consent, to another job available to the employer (both a vacant position or a job corresponding to the qualifications of the employee, and a vacant lower position or lower-paid 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 for by the collective agreement, agreements, labor contract.

This ground for dismissal of an employee from work was also included in the Labor Code of the Russian Federation by Federal Law No. 90-FZ of June 30, 2006.

An example of a special right is the right to manage vehicles, confirmed by the appropriate driver's license (Federal Law of December 10, 1995 No. 196-FZ "On Road Safety").

As for licenses, then, of course, in this case, individual licenses are implied, confirming the right to carry out certain types of activities, and not licenses issued to legal entities or individual entrepreneurs. For example, to carry weapons, you need licenses issued by internal affairs bodies (Federal Law No. 150-FZ of December 13, 1996 “On Weapons”, Rules for the Circulation of Civil and Service Weapons and Cartridges for It on the Territory of the Russian Federation, approved by a decree of the Government of the Russian Federation dated July 21, 1998 No. 814).

Interestingly, administrative legislation, licensing legislation and legislation governing the implementation certain types activities, provides not for the suspension, but for the termination of a special right. It seems logical that in order to apply Art. 76 of the Labor Code of the Russian Federation, these concepts can be considered as equivalent.

The basis for suspension from work in this case is the decision of the court or the relevant authorized body to suspend (deprive) the employee of a special right. In addition, suspension from work may be carried out due to the expiration of a special right.

Please note that if the period for which the special right is suspended exceeds two months or the employee is deprived of the corresponding right, the employment contract with such an employee is subject to termination under paragraph 9 of the first article. 83 of the Labor Code of the Russian Federation.

Requirement of bodies or officials authorized by federal laws and other regulatory legal acts

Based on paragraph 6 of the first article. 76 of the Labor Code of the Russian Federation, the employer is obliged to remove the employee from work if this is required by bodies or officials authorized by federal laws and other regulatory legal acts of the Russian Federation.

For example, one such body is the federal labor inspectorate. In accordance with Art. 357 of the Labor Code of the Russian Federation, state inspectors have the right to present to employers and their representatives binding orders to remove from office in the prescribed manner persons guilty of violating labor legislation, and other regulatory legal acts containing norms labor law. Besides Labour Inspectorate has the right to issue orders to dismiss from work persons who have not undergone, in the prescribed manner, training in safe methods and techniques for performing work, briefing on labor protection, internships at the workplace and testing knowledge of labor protection requirements.

A number of other specialized inspections and supervisions (sanitary and epidemiological supervision, gosgortekhnadzor, etc.) are also entitled to present to the employer a requirement to remove an employee from work.

In the event that persons who are carriers of pathogens of infectious diseases 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, with their consent, they are temporarily transferred to another job that is not associated with the risk of spreading infectious diseases. diseases. If such a transfer is impossible, on the basis of the decisions of the chief state sanitary doctors and their deputies, they are temporarily suspended from work with the payment of social insurance benefits (clause 2, article 33 of the Federal Law of March 30, 1999 No. 52-ФЗ “On Sanitary epidemiological well-being of the population).

Another body whose decision to remove an employee from work is mandatory for execution by the employer is the court. In accordance with paragraph 10 of Art. 29 of the Code of Criminal Procedure of the Russian Federation, the court is vested with the right to make a decision on the temporary removal of a suspect or accused from office, including during pre-trial proceedings. According to Art. 114 of the Code of Criminal Procedure of the Russian Federation, if necessary, the court, upon a petition initiated with the consent of the prosecutor by the inquirer or investigator, issues a decision on the temporary removal of the suspect or the accused from office. The basis for the cancellation of temporary suspension is the relevant decision of the inquirer, investigator, prosecutor. This decision is also binding on the employer.

Upon receipt of a document on suspension from work of a particular employee, you must carefully read it. Pay attention to the following points: whether the demand was presented by the appropriate body or official, whether it is correctly drawn up, what kind of decision it contains.

If the document received does not contain a request for removal, but a request, recommendation or proposal, the decision to remove the employee is made by the employer independently.

The time of suspension, as a rule, is indicated in the decision or in the instruction of the authorized body. Exist various options determination of the suspension period, for example, a specific date or a condition for the commission of certain actions (most often, the elimination of a violation).

Other grounds for dismissal of an employee

It should be borne in mind that the list of grounds for suspension from work, given in Art. 76 of the Labor Code of the Russian Federation, is not exhaustive. Suspension from work is also possible in other situations, but only if they are provided for by federal laws or other regulatory legal acts of the Russian Federation.

Thus, the Federal Law of September 17, 1998 No. 157-FZ “On Immunoprophylaxis of Infectious Diseases” provides for the possibility of suspension in the absence of preventive vaccinations for workers performing work associated with a high risk of contracting infectious diseases.

Another example of a legal act containing grounds for dismissal from work is the Decree of the Government of the Russian Federation of March 10, 1999 No. 263 “On the organization and implementation of production control over compliance with industrial safety requirements at a hazardous production facility". In accordance with this resolution, the employee responsible for the implementation of production control is obliged to submit proposals to the head of the organization on the removal from work at a hazardous production facility of persons who do not have the appropriate qualifications, who have not undergone timely training and certification in industrial safety.

In other words, the employer cannot independently “invent” additional grounds for removing an employee from work.

Arbitrage practice

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The prosecutor of the Oktyabrsky district of the city of Samara issued a decision to initiate proceedings against the Housing and Construction Cooperative No. 174 on administrative offense according to part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation in connection with the violation of labor legislation in terms of hiring, dismissal and suspension from work of citizen A. Based on the results of consideration of the materials of the case on an administrative offense by the State Labor Inspectorate in the Samara Region, ZhSK No. 174 was found guilty of an administrative offense with a fine of the amount of 45,000 rubles.

ZhSK No. 174 appealed to the Arbitration Court of the Samara Region with a demand to cancel the decision State Inspectorate labor in the Samara region. These demands were denied. The Court of Appeal upheld the decision of the Arbitration Court.

Disagreeing, ZhSK No. 174 turned to the Federal Antimonopoly Service of the Volga District. However, this court also refused to satisfy the stated requirements, citing the fact that the employee’s lack of a work book, employment contract, education document and repeated refusal to submit them are not included in the list of cases listed in Art. 76 of the Labor Code of the Russian Federation, and, accordingly, is not a basis for removing an employee from work (decree of the Federal Antimonopoly Service of the Volga District of March 27, 2008 in case No. A55-15108 / 07-5).

Read the rest of the article in the next issue of the journal.

Footnotes

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The suspension of an employee from work is regulated by Art. Labor Code of the Russian Federation and is produced according to the following grounds (reasons):

• appearance at work in a state of alcoholic, narcotic or other toxic intoxication;
• failure to pass the mandatory medical examination in accordance with the established procedure;
• failure to undergo training and testing of knowledge and skills in the field of labor protection in the prescribed manner;
• suspension (deprivation) of a special right for up to two months;
• removal of an employee if, 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, there are contraindications for the employee to perform work stipulated by an employment contract;
• demand of bodies or officials;
• other cases provided for by federal laws and other regulatory legal acts of the Russian Federation.

As a general rule the employee is temporarily suspended from work (not allowed to work) until until the circumstance (reason) that led to his removal () disappears. There may be cases when admission to work will depend not on the elimination of the circumstances that led to the suspension, but on other factors.

The procedure for issuing the suspension of an employee from work

The procedure for and documentation of suspension depends on the reason for which the employee is suspended from work. In order to find out the exact order of registration, select and go to the corresponding page of the procedure.

The general procedure for processing the procedure for the removal of an employee next:

• draw up document(s) - ground(s) for removal. These can be acts fixing an act (for example, appearing at work in a state of intoxication, refusing to undergo a medical examination, etc.), a report, explanatory note, resolutions of bodies or officials;
• On the basis of the executed documents, an order is drawn up on suspension from work;
• After elimination of the reasons for the suspension, an order for admission to work is issued.

If the employee refuses to sign this or that document, then an act of refusal to familiarize is drawn up.

In case of temporary suspension and admission to work, they do not make an entry in the employee's work book and the employee's personal card. The period for which the employee was suspended from work is not included in the length of service Required to grant vacation ().

Liability for unlawful suspension

For unreasonable suspension employee, the employer is held liable:

• administrative according to Art. 5.27 Code of Administrative Offenses of the Russian Federation:
• for officials - a fine, and for a repeated similar violation - disqualification;
• for legal entity- fine or administrative suspension of activities.
• material according to, namely:
• payment of wages not received by the employee for the period of illegal suspension.