Instructions: we are suspended from work for medical reasons.

There are many reasons for an employee to be removed from work. These include appearing drunk at the workplace, problems with meeting labor safety standards, and, finally, medical indications. In this case, the citizen cannot be involved in work, since his health does not allow him to perform labor duties. Suspension from work for medical reasons is not a right, but an obligation of the employer; allowing an employee to work is in this case a gross violation of legal norms.

How to offer another job to an employee who, according to a medical report, is contraindicated from working in his position for a period of more than four months?

When to be suspended for medical reasons

The employer is obliged to ensure that working conditions are as safe as possible taking into account the scope of the organization's activities. If continuation of work is contraindicated and will worsen the employee’s health, the employer will either arrange for his transfer to a safe position or issue an inadmissibility to work for medical reasons. The decision is made on the basis of an official medical report issued in accordance with the rules of Order of the Ministry of Health and Social Development No. 441n dated May 2, 2012. The requirement for an employee to provide an official medical report is specified in paragraph. 1 tbsp. 73 Labor Code of the Russian Federation.

Legislative norms

In Art. 76 of the Labor Code of the Russian Federation spells out the rules by which an employee can be removed from work. It states here that management has the right to prevent employees from working until certain circumstances are eliminated. This also includes medical conditions.

In connection with the current situation, the norms of this article began to be applied when people are removed from work due to coronavirus. If an employee refuses to get vaccinated, management will not allow him to work. The suspension may last a long time - “until the epidemiological situation improves.”

Management has the right to prevent an employee from performing his duties due to coronavirus in the following cases:

How to register correctly

The procedure for introducing restrictions on work for medical reasons involves going through several stages. The basis for removal from the current position and transfer to another is medical contraindications. If it is impossible to transfer, then either a complete suspension or dismissal is issued.

To legally issue a suspension from work based on a medical report, follow the instructions:

1. The employee provides the employer with a medical opinion, from which it follows that continuation of activities in the current position is unacceptable;
2. Guided by Art. 212 of the Labor Code of the Russian Federation, the employer removes the employee from his current position by issuing an order.
3. The employer is obliged to make an attempt to transfer the employee to another position, the work in which will not harm his health. To do this, the employer offers in writing the options available to him. The employee has the right to agree to the options provided or refuse. Obtaining the employee’s consent to the transfer is mandatory; no one is forced to work in a particular position.
4. If there are no options or if the citizen does not agree to the proposed transfer, the employer removes the employee completely. Consent is no longer required for complete removal if transfer is not possible; the employer is obliged to ensure that the employee does not remain in a position that is harmful to him.
5. The withdrawal is valid until all contraindications are removed.

The law does not establish strict requirements for how to formalize an act of removal from work for medical reasons. Its text must reflect:

• employer's name;
• Full name, position and personnel number of the employee who is being suspended;
• period of suspension: set clear time limits or indicate that the suspension will last until the restrictions are lifted by the attending physician;
• basis - medical opinion.

The order is signed by the head of the organization or an employee who is authorized to sign such documents by constituent documents or a power of attorney from the head. The suspended employee and all other employees who are affected by the execution of the order are familiarized with its text against their signature.

Suspension from work due to refusal to vaccinate against coronavirus

An employee must be suspended from work if he refuses to get vaccinated against coronavirus without medical contraindications, for the entire period of an unfavorable epidemiological situation or until he finally gets vaccinated. Suspension must be provided that the employee is included in the list of persons required to get vaccinated, approved by the decree of the chief sanitary doctor of the region (letter see Rostrud dated July 13, 2021 No. 1811-TZ). Moreover, transferring an employee to remote work is not an alternative to suspension.

You can find regulations on vaccination in your region and see details here.

Find out what documents to prepare for compulsory vaccination of employees in ConsultantPlus. If you do not have access to the K+ system, get a trial demo access. It's free.

See also “New grounds for suspension from work and other changes to labor protection from 2022.”

Note! During the suspension, the anti-vaxxer is not paid or accrued.

Obviously, this fact does not suit the workers. And there are already cases of them going to court to protect their rights.

There is still little judicial practice. For example, Rospotrebnadzor for the Republic of Khakassia reports on the decision of the Abakan City Court, which recognized as legal the suspension from work of a bus driver who refused to be vaccinated against a new coronavirus infection without a good reason. Also, the actions of the employer, who suspended unvaccinated employees from work, were recognized as legal by the Proletarsky District Court of Tula (decision dated September 29, 2021 No. 2-1927/2021). In Tatarstan, workers dissatisfied with the suspension reached the republican Supreme Court (there is no decision yet). That is, in general, on the issue of mandatory vaccination, the courts tend to support employers. And suspensions are canceled, as a rule, due to non-compliance with the procedure and flaws in the design. Therefore, the rules must be strictly followed.

Important! Recommendations from ConsultantPlus The procedure for removing from work a person who has not been vaccinated may be as follows (clause 6 of the Appendix to the Explanations of the Ministry of Labor of Russia, Rospotrebnadzor, clause 3 of Rostrud Letter N 1811-TZ): firstly, the employer needs to record the fact that this employee has not completed vaccinations, for this purpose both a memo from the responsible official and an act drawn up and signed collectively can be drawn up; secondly, it is necessary to issue an order in any form... Get trial access to K+ for free and see the entire algorithm of actions.

And there is no need to overdo it. If you have already reached the required percentage of vaccinated people, do not exclude the rest. In such situations, the court will most likely support the employee. This conclusion is indirectly confirmed, for example, by the decision of the Zadneprovsky District Court of Smolensk dated October 19, 2021 No. 2-1710/2021. In this case, an employee who did not have direct contact with a large circle of people (a mechanic) was suspended, and then, when the vaccination rate was reached, he was returned to work. The court awarded him compensation for lost earnings during his suspension and moral damages in the amount of 3,000 rubles. For more details on this case, see our forum.

You can download samples of a notice of the need to get vaccinated against COVID-19 and an order to remove an anti-vaxxer for free by clicking on the desired image below:

Example of an order for removal for medical reasons

Period of suspension

First, let's focus on the terms of suspension:

The start date of the suspension depends on the timing of vaccination, which is specified in the Resolution of the Chief Sanitary Doctor of the region . An employee can be suspended from work only after the end of the period that was provided for the completion of the second component of the vaccine[14].

It is impossible to determine the end date of a suspension in advance, so the end of the period must be indicated by an event. Officials propose suspension “for a period of epidemiological troubles.” But how can an employer know exactly when this period will end? The event must be clearly recorded.

It is logical to assume that the end of this period will be fixed by another Resolution of the Chief Sanitary Doctor of the region. Therefore, the end date for the suspension period can be specified: “until the Chief State Sanitary Doctor of the Murmansk Region issues a resolution on the end of the period of epidemic trouble in the region.”

But if an employee does get vaccinated during the period of his suspension and brings the appropriate certificate to the employer, we believe it would be wrong to deprive him of the opportunity to start work until the end of the period of epidemiological troubles. Therefore, one more event can be specified as the expiration date of the suspension: “until the employee provides a vaccination certificate or a document confirming the presence of contraindications to vaccination.”

Is it possible to fire an employee instead of suspending him?

Dismissal of a citizen due to contraindications to continuing work is possible, but only in individual cases and under the following conditions:

• the duration of the citizen’s contraindications is more than four months;
• the employer does not have other positions to which he could move the employee, or the employee refuses them.

The procedure for removing an employee applies to cases where the contraindications will last no more than four months, if they are longer, or if the employee requires a permanent transfer, and in the absence of other work - dismissal under Part 8 of Art. 77 Labor Code of the Russian Federation. This rule is enshrined in para. 3 tbsp. 73 Labor Code of the Russian Federation.

Upon dismissal on this basis, the employer pays the employee severance pay in the amount of two weeks' average earnings - such an obligation is established for the employer under Art. 178 Labor Code of the Russian Federation.

Suspension and dismissal

Speaking about suspension from work, one cannot fail to mention dismissal due to medical reasons.

In addition to disciplinary problems, when, following a medical suspension. indications should result in dismissal (for example, if an employee deliberately avoids medical examinations or comes to work in a state of intoxication, recorded by responsible persons), they can be fired under Art. 73 Labor Code of the Russian Federation.

If an employee refuses a medical transfer. testimony and the period of this transfer is long - over 4 months, permanent, we are no longer talking about removal from work, but about dismissal. An employer can do the same if he does not have a suitable job for a citizen for the specified period.

For a completely incompetent citizen, only dismissal is applied on the basis of a certificate from a medical commission. The document must contain a direct indication of incapacity, only then the dismissal is considered legal (Article 83-5 of the Labor Code of the Russian Federation).

Briefly

1. Suspension from work is a temporary procedure. After eliminating the medical reasons that impede the performance of work duties, the employee is allowed to enter the workplace.
2. If according to honey According to the testimony, the employee should be transferred to “light work”, but this is not possible, then for 4 months he may not work, as if suspended by the administration, and maintaining his position. Salaries are not accrued upon suspension from work, except in cases where a citizen missed a medical examination due to circumstances beyond his control. Then he will be paid for this time as idle time - partly from the average earnings or tariff (salary).
3. The order for suspension for medical reasons contains an indication of the basis document and an order from the accounting department to stop accruing wages. The employee and the accountant get acquainted with its text against signature.

How to punish for violations

For an employer, a violation is:

• allowing an employee to work if he or she has health contraindications. Responsibility for this act is established by Parts 3 and 5 of Art. 5.27.1 of the Code of Administrative Offenses of the Russian Federation and implies punishment in the form of a fine for legal entities in the amount of 200,000 rubles or administrative suspension of activities for up to 90 days;
• errors in registering an employee’s challenge, in particular, providing alternative options if available. Such a violation is qualified under Part 1 or 2 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation and is punishable by a fine of up to 70,000 rubles.

How to remove a person from work: a step-by-step algorithm

To suspend a person from work for a certain period, it is necessary to follow a procedure and a certain algorithm. This is necessary to ensure that the employer is not held accountable or fined.

The following steps should be taken:

1. Prepare a notice of mandatory vaccination. It must be handed over in person, sent to a postal address or email.
2. Obtain consent or refusal from the employee. Any decision a person makes must be in writing (especially a refusal). The refusal must indicate that the person himself does not want to undergo the vaccination campaign. If the employee does not issue a written refusal, it must be drawn up by the manager, but in the presence of two witnesses.
3. Prepare an order for removal.

Important! An employee cannot be fired for refusing to get vaccinated. You can only prevent him from performing his job duties.

To prevent a person from working, it is necessary to prepare the following documents:

1. A written refusal or an act drawn up in the presence of witnesses.
2. Written information from the medical institution that the employee did not show up for vaccination on the appointed day and time. This is relevant if management organizes an individual vaccination campaign only for its staff.
3. Order.

Drawing up an order must be taken with full responsibility. Otherwise, the employee may challenge the unlawful removal. The employer will face a fine.

Constant translation.

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

Please note that a permanent transfer must be recorded in the work book. It may be as follows: “Transferred to the security department as a guard in accordance with the medical report.”

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

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

Meanwhile, the list of grounds for termination of an employment contract at the initiative of the employer is provided for in Part 1 of Art. 81 of the Labor Code of the Russian Federation, which does not contain such grounds for dismissal as the employee’s refusal to transfer to another job, which is necessary for him in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation. Therefore, dismissal on the grounds provided for in clause 8, part 1, art. 77 of the Labor Code of the Russian Federation, in accordance with a medical report, does not depend on the will of the parties, and in particular the will of the employer. But the Labor Code of the Russian Federation does not contain a prohibition on the dismissal of an employee during a period of temporary incapacity for work on the specified basis. This conclusion is confirmed by judicial practice (Information bulletin of cassation and supervisory practice in civil cases of the Arkhangelsk Regional Court for the IV quarter of 2009).

They don't pay for air?

As a general rule, no salary is paid during the period of suspension. But there are exceptions. For example, in the event of the suspension of an employee who has not undergone training and testing of knowledge and skills in the field of labor protection or a medical examination through no fault of his own, he is paid for the entire period of suspension from work as if he was idle. And paragraph 2 of Article 14 of the Law of July 31, 1995 No. 119-FZ “On the Fundamentals of the Civil Service of the Russian Federation” establishes that during the removal of a civil servant who has committed official misconduct, his salary is retained.

Although wages are rarely paid, some workers may receive benefits. For example, those suspended from office under Article 114 of the Criminal Procedure Code, who are paid a monthly state benefit in the amount of the subsistence level of the working population.

It should be remembered that the length of service that gives the right to annual paid leave includes the time of suspension from work upon subsequent reinstatement to the previous job, as well as the period of suspension of an employee who has not undergone a mandatory medical examination through no fault of his own (Article 121 of the Labor Code of the Russian Federation).