Who, according to the Labor Code of the Russian Federation, pays for medical examinations upon hiring and periodic examinations - the procedure for payment by the employer

Who pays for the pre-employment medical examination?

Art. 69 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) establishes the obligation to undergo medical examinations during employment for:

• minors;
• persons for whom such an obligation is established by the Labor Code of the Russian Federation (for example, for persons applying for work in the regions of the Far North from other regions - Article 324 of the Labor Code of the Russian Federation);
• persons for whom the obligation to undergo medical examinations is established by law (for example, when applying for employment on a ship - clause 4 of article 57 of the Merchant Shipping Code of the Russian Federation).

The answer to the question of who pays for the medical examination when applying for a job is given in Art. 212 of the Labor Code of the Russian Federation on the responsibilities of the employer in the field of labor protection.

According to Art. Art. 212, 213 of the Labor Code of the Russian Federation, in cases provided for by law, the administration of the enterprise must organize a medical examination during employment at its own expense.

This rule is also enshrined in Art. 213 of the Labor Code of the Russian Federation on inspections of certain categories of workers.

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In practice, the question often arises whether a citizen can undergo a medical examination at his own expense upon employment with subsequent compensation for expenses by the company.

Note! According to the position of the Ministry of Finance of the Russian Federation, set out in letter No. 03-15-06/7527 dated 02/08/2018, payment by individuals of medical examination expenses at their own expense with subsequent reimbursement by the administration of the enterprise Art. 213 of the Labor Code of the Russian Federation is not provided for.

Read about medical examinations when applying for a job in our articles at the following links: When is a medical examination required when applying for a job? Drug testing upon hiring.

Which employees are required to undergo regular medical examinations?

Current regulations issued by government agencies contain regulations governing the procedure for conducting medical examinations for representatives of various professions. Such regulations contain a list of all areas of work activity that require mandatory medical examination. According to legislative acts, all persons under the age of majority must undergo a primary medical examination before employment. In addition, these obligations are assigned to representatives of the medical and beauty industries.

In addition, mandatory medical examination is required for workers employed in the field of education and catering. Regular medical examination is a mandatory requirement for professional athletes and law enforcement officials. This list also includes people who use shift work and people involved in hazardous work.

The three hundred and second Order of the Ministry of Health dated April 12, two thousand and eleven provides a complete list of various areas of work activity, representatives of which are required to regularly undergo preventive medical examinations. It should be noted here that each manager has the legal right to independently decide on the need to conduct an initial medical examination of a candidate for a vacant position. In case of refusal to undergo a medical examination, the company's management has the legal right to refuse to sign an employment contract. An employer may also refuse to hire an employee who does not meet the requirements for a vacant position due to his or her health condition.

Is an employer required to pay for an annual medical examination for employees?

Answering the question of whether the employer is obliged to pay for an annual medical examination for employees, we note that Art. 212 and 213 of the Labor Code of the Russian Federation establish the same rule for periodic inspections as for inspections during employment.

Conclusion. When asked whether an employer should pay for a medical examination, the legislator replies that it is the employer’s responsibility to organize periodic medical examinations at his own expense.

Note! The procedure for undergoing medical examinations for workers engaged in heavy work is determined by the order of the Ministry of Health and Social Development of the Russian Federation “On approval...” dated April 12, 2011 No. 302n.

In the previous section of the article, when answering the question of who pays for the medical examination when applying for a job, the position of the Ministry of Finance of the Russian Federation was given that Art. 213 of the Labor Code of the Russian Federation does not provide for the opportunity for a citizen to undergo a medical examination himself and subsequently receive compensation.

However, similar situations occur in judicial practice, when the court determines whether the employer is obliged to pay for a medical examination that the employee underwent independently.

Note! When resolving disputes about who pays for a pre-employment medical examination, it is necessary to determine whether the medical institution had the necessary license. Its absence does not make it possible to recover from the company in favor of the person who underwent the medical examination the costs of conducting it (appeal ruling of the Khanty-Mansi Autonomous Okrug-Yugra Court dated July 31, 2018 in case No. 33a-5140/2018).

On periodic examinations, also read the article at the link: Periodic medical examination of enterprise employees.

Medical examination at the request of the employer

If the field of work, specialty or position for which the applicant is applying is not included in the list established by Order of the Ministry of Health and Social Development No. 302n, undergoing a primary medical examination only at the initiative of the employer :

• carried out by the applicant solely on a voluntary basis;
• paid by the employer.

The manager does not have the right, in one form or another, to force a candidate for a position to undergo an optional primary medical examination without compensation.

Who pays for extraordinary medical examinations?

Art. 212 of the Labor Code of the Russian Federation indicates that payment for medical examinations by the employer is made not only in relation to preliminary and periodic examinations, but also to other types of medical examinations required by law.

Thus, the employer is obliged to pay for extraordinary examinations and mandatory psychiatric examinations.

Note! To be referred for an extraordinary examination, medical recommendations must be available. The employer’s position on the need for an employee to undergo an extraordinary examination by a psychiatrist due to his inappropriate behavior is illegal. At the same time, the costs of such an examination, if the employee undergoes it, are compensated by the employer (appeal ruling of the Sverdlovsk Regional Court dated September 12, 2018 in case No. 33-16153/2018).

Other issues related to medical examinations of citizens and medical contraindications for performing work are discussed here: Dismissal for medical reasons - a step-by-step procedure.

Commentary on Article 213 of the Labor Code of the Russian Federation

The list of categories of workers who must undergo medical examinations is established by Art. 213 TK. Such inspections can be preliminary, periodic or extraordinary. Thus, all minors and persons under 21 years of age, workers hired for heavy work and work with harmful and (or) dangerous working conditions undergo a mandatory preliminary medical examination; for work related to driving, to determine the suitability of workers to perform these works and prevent occupational diseases. These employees subsequently also undergo periodic and, at the age of 21 years, annual medical examinations at the expense of the employer. Based on medical recommendations, they undergo extraordinary medical examinations.

Employees of food industry organizations, public catering and trade, water supply facilities, medical and preventive and children's institutions, as well as some other organizations undergo the specified medical examinations (examinations) in order to protect public health, prevent the occurrence and spread of diseases.

Harmful or dangerous production factors and work, during which preliminary and periodic medical examinations are carried out, as well as the procedure for their conduct, are determined by regulatory legal acts approved in the manner established by the federal executive body authorized by the Government of the Russian Federation. Thus, in accordance with Decree of the Government of the Russian Federation dated October 27, 2003 N 646 (as amended on February 1, 2005) <1>, Order of the Ministry of Health and Social Development of Russia dated August 16, 2004 N 83 (as amended on May 16, 2005) <2> the Lists were approved harmful and (or) dangerous production factors and work, during which preliminary and periodic medical examinations (examinations) are carried out, as well as the procedure for their conduct. If necessary, by decision of local authorities, additional conditions and indications for medical examinations may be introduced in individual organizations.

——————————— <1> NW RF. 2003. N 44. Art. 4313; 2005. N 7. Art. 560. <2> BNA. 2004. N 38; 2005. N 24.

Medical and preventive organizations (institutions) that have the appropriate license and certificate have the right to conduct medical examinations (examinations) (see Regulations on licensing of medical activities, approved by Decree of the Government of the Russian Federation of January 22, 2007 N 30 (as amended on September 24, 2010) < 1>; Order of the Ministry of Health and Social Development of Russia dated May 10, 2007 N 323 “On approval of the procedure for organizing work (services) performed in the implementation of pre-medical, outpatient and polyclinic (including primary health care, medical care for women during pregnancy, during and after childbirth, specialized medical care), hospital care (including primary health care, medical care for women during pregnancy, during and after childbirth, specialized medical care), emergency and emergency specialized (sanitary and aviation), high-tech, sanatorium -resort medical care" (as amended on 09.09.2009)) <2>.

——————————— <1> NW RF. 2007. N 5. Art. 656; 2008. N 15. Art. 1551; 2010. N 19. Art. 2316; N 40. Art. 5076. <2> RG. 2007. June 20; 2009. 13 Feb.

A referral for a medical examination in accordance with the lists of harmful, dangerous substances and production factors affecting workers is issued by the employer to the person being examined for presentation to the attending physician conducting the medical examination. An examination by a psychiatrist is carried out in a psychoneurological dispensary (department, office) at the place of permanent registration of the subject.

Employees engaged in certain types of activities, including those associated with sources of increased danger (with the influence of harmful substances and unfavorable production factors), as well as those working in conditions of increased danger, undergo a mandatory psychiatric examination at least once every five years. The procedure for conducting such an examination is determined by Decree of the Government of the Russian Federation of September 23, 2002 N 695 (as amended on February 1, 2005) <1>. In this case, the examination of the employee is carried out on a voluntary basis in order to determine his suitability for mental health to carry out certain types of activities, as well as to work in conditions of increased danger, provided for by the List of medical psychiatric contraindications for carrying out certain types of professional activities and activities related to sources of increased risk. danger, approved by Resolution of the Council of Ministers - Government of the Russian Federation dated April 28, 1993 N 377 (as amended on September 23, 2002) <2>. The examination is carried out by a medical commission created by the health care management body.

——————————— <1> NW RF. 2002. N 39. Art. 3796; 2005. N 7. Art. 560. <2> SAPP RF. 1993. N 18. Art. 1602; 1998. N 22. Art. 2759; N 32. Art. 3910; 2000. N 31. Art. 3288; 2002. N 39. Art. 3796.

Carrying out additional medical examinations (examinations) is recommended in a number of cases when working with harmful and (or) dangerous production factors. Funds for conducting such inspections (surveys) are allocated from the Social Insurance Fund of the Russian Federation.

Employers are obliged to provide conditions for employees to undergo medical examinations and medical examinations, as well as to freely release employees to undergo them (Clause 5, Article 24 of the Federal Law of November 21, 2011 N 323-FZ “On the fundamentals of protecting the health of citizens in the Russian Federation” <1> ).

——————————— <1> NW RF. 2011. N 48. Art. 6724.

Employees who, based on the results of the examination, have identified certain contraindications, are given a conclusion from the federal state institution of medical and social examination in hand, and a copy is sent to the employer within three days.

If an employee detects signs of an occupational disease or is suspected of it, the employee is sent to the occupational pathology center for a special examination in order to clarify the diagnosis and establish a connection between the disease and professional activity. The procedure for establishing the presence of an occupational disease is regulated by clauses 7 - 18 of the Regulations on the investigation and recording of occupational diseases, approved by Decree of the Government of the Russian Federation of December 15, 2000 N 967 <1>.

——————————— <1> NW RF. 2000. N 52 (part 2). Art. 5149.

Information about employees undergoing medical examinations is entered into the employee’s medical book (Order of Rospotrebnadzor dated May 20, 2005 N 402 “On a personal medical book and sanitary passport” (as amended on April 7, 2009) <1>).

——————————— <1> BNA. 2005. N 24; 2007. N 30; RG. 2009. May 13.

During the entire period of release from work for workers sent for medical examination (examination) and psychiatric examination, they retain their average salary. If an employee, in accordance with the established procedure, was sent for examination to an inpatient medical institution, his average earnings are retained for the entire period of stay in the hospital (see Article 185 of the Labor Code and commentary thereto).

Is my earnings maintained when undergoing a medical examination on a working day?

The employer pays for the day of the medical examination on a working day, since according to Art. 212 of the Labor Code of the Russian Federation, during the inspection, the employee retains his place of work and average earnings.

Note! Average earnings are calculated in accordance with Art. 139 of the Labor Code of the Russian Federation and the Decree of the Government of the Russian Federation “On the peculiarities of the calculation procedure...” dated December 24, 2007 No. 922.

Important! If an employee does not pass a medical examination, the enterprise administration must remove him from work. Average earnings during suspension are not paid. An exception is if the employee did not pass the inspection through no fault of his own. In this case, he is paid as if he was idle (Article 76 of the Labor Code of the Russian Federation).

Judicial practice notes that sending an employee on a shift is not a valid reason for failing to undergo an examination (if, for example, he could have undergone an examination before being sent on a shift). In this regard, the order to suspend without pay is legal. If the employee is subsequently declared unfit for work, then this is not a basis for canceling the order of suspension from work, since the grounds for inadmissibility to work (lack of a positive medical report) have not disappeared (appeal ruling of the Samara Regional Court dated March 12, 2019 in case No. 33-2754/ 2019).

About medical examinations on weekends, read the article at the link: Explanations on the issue of an employee undergoing a medical examination on weekends. Issues of issuing referrals for medical examinations are covered in the article at the link: Referral for a medical examination from the employer.

So at whose expense is the payment made?

The employer is required to pay for the following types of medical examination:

• primary, passed during employment for new employees;
• intermediate control examination for existing employees of enterprises. As a rule, it is planned, it is organized directly by the management of the enterprise once or twice a year;
• unscheduled medical examinations and examinations of employees due to unforeseen circumstances related to the life and health of employees. At the same time, their jobs and positions are preserved, as well as days spent outside the home for this reason, enterprises are required to pay according to the average salary of the employee.

Employers are required to pay for these types of medical examinations in one of the following ways:

• the employer independently organizes a medical examination (concludes an agreement with a public or private clinic, pays for the work of the necessary set of medical specialists. Employees only arrive at the appointed time and visit all the doctors in turn);
• the employer organizes a medical examination at a certain time, the employees pay for it independently with their own funds, and then the employer compensates for the cost of the examination in wages during the course of their work;
• the employer simply gives a referral for a medical examination indicating a list of necessary specialists, procedures and tests. The employee goes through everything independently in those clinics in which it is more convenient or profitable for him and during the work of each of the specialists. The employee collects the checks and provides them to the employer, who, in turn, compensates for the damage suffered by the employee during the course of his work in the form of wages.

For candidates for positions, the first method of undergoing a medical examination is, of course, preferable (it does not take much time and does not require additional financial costs, which is very important, since when applying for a job, people expect to earn money and not waste it).

The second and third options are more common, but carry certain risks for job candidates. This is due to the fact that not all employers quickly compensate for damage; many compensate these funds within three or even six months. They find their arguments in the uncertainty that the employee will work for a long time at this enterprise. And if for some reason the employee really quit quickly, then they refuse to reimburse expenses at all.

This fact is a gross violation of our legal framework.

Peculiarities of payment for medical examinations of certain categories of workers

According to the law, the employer bears increased obligations and expenses for medical examinations in relation to, in particular, the following categories of persons:

• minors: mandatory preliminary medical examination (Article 76 of the Labor Code of the Russian Federation), annual examination at the expense of the company (Article 266 of the Labor Code of the Russian Federation);
• workers in underground work: mandatory examination before hiring, medical examinations at the beginning and end of the working day or shift (Article 330.3 of the Labor Code of the Russian Federation);
• athletes: examinations during employment, mandatory periodic examinations, extraordinary examinations at the request of athletes and in the presence of medical recommendations (Article 348.3 of the Labor Code of the Russian Federation).

Read about pre-trip medical examinations of drivers in our article at the link: Conducting pre-trip medical examinations of drivers.

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So, medical examinations of employees, in connection with employment or periodic, are paid for by the employer.

conclusions

A medical examination must be carried out not only upon hiring, but also at certain intervals for some specialties.

All expenses for organizing and undergoing periodic medical examinations must be borne by the management at the place of work.

Otherwise, the manager may be subject to administrative liability and heavy fines, and the company faces suspension of activities for up to 90 days.

In addition to the cost of a medical examination, the employer must also pay for the time that employees spent, if it was a working day.

What are the cases?

If the employee has passed the medical examination and still has time to work

In this case, the hours worked will be paid in the usual manner, and the average earnings will be maintained during the medical examination.

How to calculate monthly salary, consider an example:

The employee was given a salary, and working hours were recorded. E.L. Shorin works as an operator on a five-day work schedule. His working day is from 9.00 to 18.00, lunch - from 14.00 to 15.00. The employee's salary is 45,000 rubles. E.L. Shorin spends his entire working day at the computer. Therefore, you should undergo periodic medical examination. On July 20, 2020, the employee was sent for a mandatory periodic medical examination from 9.00 to 13.00. From 14.00 E.L. Shorin got to work. The employee worked the remaining days in July. In the billing period (from July 1, 2020 to July 30, 2020) E.L. Shorin worked 224 working days. The amount of payments taken into account when calculating average earnings was 452,000 rubles.

How to calculate the amount of payments to an employee for July 2020? (click to expand)

Answer: The amount of payments to E.L. Shorin for July 2020 will consist of two values:

• wages for hours worked;
• average earnings for hours spent on medical examination.

Entry in the report card:

In the timesheet, we denote the days worked by code “L” and indicate the number of hours worked. The time spent at the medical examination can be designated by the code “MO” and the number of hours indicated.

Salary for time worked.

In July 2020, according to the production calendar, there are 184 working hours. E.L Shorin worked four hours less because he was undergoing a medical examination. For the time actually worked in July, the employee received a salary of 44,022 rubles. (RUB 45,000: 184 hours × 180 hours).

Average earnings per medical examination hours

The employee has a daily recording of working hours. Therefore, when calculating average earnings, average daily earnings are used. This is stated in the paragraph. The average daily earnings of E.L. Shorin is 2020.86 rubles. (RUB 452,000: 224 working days). In order to determine the amount for calculating the average salary for hours of medical examination, you need to convert them into days. The employee spent four hours undergoing a medical examination. This amounts to 0.5 working days (4 hours: 8 hours). The average earnings during the medical examination are 1008.93 rubles. (RUB 2,017.86 × 0.5 days). The total amount of payments for July 2017 E.L. Shorin needs to be credited 45,030.93 rubles. (RUB 44,022 + RUB 1,008.93).