Does an employer have the right to require a medical examination on a day that is a day off for an employee? Is it legal for the employer to require the employee to undergo a periodic medical examination at his own expense with subsequent compensation for expenses? What conclusion did the RF Armed Forces come to regarding medical examinations for trade workers? What conclusion did the RF Armed Forces make regarding the passing of medical examinations by trade workers who are engaged in analytical and administrative activities? What liability does an employer face for allowing an employee to perform work duties without undergoing a mandatory medical examination, a mandatory psychiatric examination, or if he has medical contraindications?
Workers engaged in work with harmful and dangerous working conditions, as well as in work related to traffic, undergo mandatory preliminary (upon entry to work) and periodic medical examinations to determine the suitability of these workers to perform the work assigned to them and to prevent occupational diseases ( Part 1 of Article 213 of the Labor Code of the Russian Federation). In accordance with medical recommendations, these employees undergo extraordinary medical examinations.
For your information:
The procedure for conducting mandatory periodic medical examinations (examinations) was approved by Order of the Ministry of Health and Social Development of the Russian Federation dated April 12, 2011 No. 302n “On approval of lists of harmful and (or) hazardous production factors and work, during the performance of which mandatory preliminary and periodic medical examinations (examinations) are carried out, and the procedure carrying out mandatory preliminary and periodic medical examinations (examinations)” (hereinafter referred to as the Procedure, List of Factors, List of Works).
According to Part 8 of Art. 213 of the Labor Code of the Russian Federation, the medical examinations and psychiatric examinations provided for by this article are carried out at the expense of the employer.
Let us recall that the Rules for financial support of preventive measures to reduce industrial injuries1 stipulate that, at the expense of the amounts of insurance premiums, the insured has the right to cover, in particular, the costs of mandatory periodic medical examinations (examinations) of workers engaged in work with harmful and (or) hazardous production factors (clause “e” clause 3).
To justify financial support for mandatory periodic medical examinations (examinations) of employees, the insured shall submit a list of names of employees subject to mandatory periodic medical examinations (examinations), approved by the insured in accordance with the Procedure.
Name lists are developed in accordance with clause 19 of the Procedure based on the contingents of workers subject to periodic and (or) preliminary medical examinations, indicating harmful (hazardous) production factors, as well as the type of work in accordance with the List of Factors and the List of Works.
Workers exposed to harmful production factors specified in the List of Factors, as well as harmful production factors, the presence of which was established based on the results of certification of workplaces for working conditions, carried out in the prescribed manner, are subject to inclusion in the contingent and name lists.
The FSS in Letter No. 02-09-14/16-05-8715 dated May 17, 2016 clarified: the decision on financial support for mandatory periodic medical examinations (examinations) of employees is made by the executive body of the FSS on the basis of the submitted documents in accordance with the Rules for the financial support of preventive measures to reduce industrial injuries and on the basis of the Procedure.
For your information:
The employer is obliged to suspend from work (not allow to work) an employee who has not undergone a mandatory medical examination in the prescribed manner, as well as a mandatory psychiatric examination in cases provided for by the Labor Code of the Russian Federation and other federal laws (Part 1 of Article 76 of the Labor Code of the Russian Federation).
The employer suspends the employee from work (does not allow him to work) for the entire period until the circumstances that became the basis for removal from work (not allowing him to work) are eliminated, unless otherwise established by the Labor Code of the Russian Federation or other federal laws (Part 2 of Article 76 of the Labor Code of the Russian Federation) .
According to Part 3 of Art. 76 of the Labor Code of the Russian Federation during the period of suspension from work (preclusion from work), the employee’s wages are not accrued. In the event 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 medical examination through no fault of his own, he is paid for the entire period of suspension from work as idle time.
Which is a day off for an employee?
It should be noted that the current legislation does not regulate the situation when an employee is sent for a medical examination on his day off.
According to Rostrud, expressed on its official website, an employee undergoing a medical examination on a day that is a day off for him in accordance with the work schedule should be carried out according to the rules for attracting employees to work on weekends or non-working holidays. The fact is that, according to Part 1 of Art. 113 of the Labor Code of the Russian Federation, work on weekends and non-working holidays is prohibited, except in cases provided for by the Labor Code of the Russian Federation.
Employees are required to work on weekends and non-working holidays with their written consent if it is necessary to perform unforeseen work, the urgent execution of which subsequently determines the normal operation of the organization as a whole or its individual structural divisions, in particular, an individual entrepreneur (Part 2 of Art. 113 Labor Code of the Russian Federation).
Let us remind you that hiring employees to work on weekends and holidays without their consent is permitted in the following cases:
- to prevent a catastrophe, industrial accident or eliminate the consequences of a catastrophe, industrial accident or natural disaster;
- to prevent accidents, destruction or damage to the employer’s property, state or municipal property;
- to perform work the need for which is due to the introduction of a state of emergency or martial law, as well as urgent work in emergency circumstances, that is, in the event of a disaster or threat of disaster (in case of fire, flood, famine, earthquake, epidemic or epizootic) and other cases posing danger threat to the life or normal living conditions of the entire population or part of it (Part 3 of Article 113 of the Labor Code of the Russian Federation).
In other cases, involvement in work on weekends and non-working holidays is permitted with the written consent of the employee and taking into account the opinion of the elected body of the primary trade union organization (Part 5 of Article 113 of the Labor Code of the Russian Federation).
For your information:
According to the rules of Part 8 of Art. 113 of the Labor Code of the Russian Federation, the involvement of employees in work on weekends and non-working holidays is carried out by written order of the employer.
If an employee does not agree to undergo a medical examination on a day off, the employer has no right to demand this from him. An employer can involve an employee in undergoing a medical examination on a weekend or holiday only with the written consent of the employee.
How to pay and record the time employees undergo a mandatory medical examination
No. 22-2/377333-782. Situation: how to pay for the day when an employee underwent a mandatory medical examination if it fell on a scheduled day off? The employee is provided with a summary record of working time. Pay for the day of mandatory medical examination based on the average earnings for the number of hours that the employee actually spent undergoing a medical examination on the day off. This situation is not regulated by law.
But these are precisely the recommendations given by specialists from the Russian Ministry of Labor in their oral explanations. There is no need to pay for the day of the medical examination as work on a day off. After all, at this time the employee was essentially not working.
That is, despite the fact that the employee underwent a medical examination on his day off, he is not entitled to an increased payment for this time. At the same time, during the medical examination, the employee who is required to undergo such an examination retains the average salary at the place of work (Article .
185 Labor Code of the Russian Federation).
at his own expense with subsequent compensation for his expenses?
In practice, it is quite common for an employer to offer an employee to undergo a periodic medical examination at his own expense, and then reimburse him for the expenses. If an employee refuses to undergo a medical examination under such conditions, the employer will not allow him to work. Are the employer's actions legal?
As already noted, the employer is obliged to suspend from work (not allow to work) an employee who has not undergone a mandatory medical examination in the prescribed manner.
As for undergoing periodic medical examinations at the employee’s expense with subsequent reimbursement of expenses, the following must be kept in mind.
Preliminary and periodic examinations are carried out by medical organizations of any form of ownership that have the right to conduct such examinations, as well as to examine professional suitability in accordance with current regulations (clause 4 of the Procedure).
It should be noted that the absence of an agreement on the provision of services for conducting preliminary (periodic) medical examinations of workers, concluded by the employer and the medical institution, is not a violation of current legislation. In this case, the employer must fulfill the obligation to organize mandatory medical examinations without concluding any agreements with a medical organization. In such cases, the employer usually issues the employee a referral for a mandatory medical examination, and after passing it, reimburses him for the expenses incurred.
It should be noted that the Ministry of Finance has a different opinion on this issue. In Letter No. 03‑15‑06/7527 dated 02/08/2018, the department considered the issue of taxing personal income tax and income contributions of employees of food industry organizations in the form of payment amounts for their mandatory medical examinations.
Officials pointed out the illegality of the practice, popular among employers, in which employees undergo these medical examinations at their own expense, and then receive compensation from the employer for the corresponding expenses.
As noted in the letter, provided for in Art. 213 of the Labor Code of the Russian Federation, medical examinations (examinations) are carried out at the expense of the employer; payment for preliminary medical examinations of employees at their own expense with subsequent reimbursement of such expenses by the employer is not established by law.
Although the Labor Code of the Russian Federation does not specify exactly how the employer must pay for employees to undergo medical examinations, within the meaning of clauses 23, 25, 26, 42, 44 of the Procedure, for the purposes of conducting periodic medical examinations of employees, direct interaction is assumed between the employer and the medical organization. In fact, fulfillment of the requirements contained in these standards is impossible without establishing contractual relations between these parties.
Thus, an employer who sends its employees for medical examinations is obliged to pay for the corresponding services of a medical organization independently within the framework of an agreement with it. Consequently, a situation in which the employer does not enter into an agreement with a medical organization to conduct mandatory medical examinations, but only compensates for the expenses of employees who independently pay for medical services as part of medical examinations, may be regarded as violating the requirements of labor protection legislation and the employer may be subject to administrative responsibility. In particular, the arbitrators came to this conclusion in the Resolution of the Oktyabrsky District Court of Samara, Samara Region dated May 13, 2015 No. 12-232/2015.
Medical examination according to the labor code during working hours or no
It is borne in mind that this type of activity takes up more than fifty percent of an office worker’s working period, and desktop activities account for less than fifty percent. It is preferable to save on fines. In the event of an inspection by the labor inspectorate, the inspector will not make do with reading the work agreement or official instructions, but will carry out real inspections of the work area. If there is a PC in the work area, the source and working materials used are in its memory, or on external media, where the results of the manager’s work are created (tables, demonstrations, text materials used, etc.), for the inspector it will undoubtedly be that harmful factors affect the employee all day. A fine for deviation from a medical examination is guaranteed. Rate the quality of the article.
Article 213 of the Labor Code of the Russian Federation establishes medical examinations as necessary conditions for the work of certain categories of employees. What types of medical examinations are there, how they are paid for, what awaits the employee and employer for failing to undergo an examination, read the article. Categories of employees required to undergo medical examinations in accordance with the Labor Code of the Russian Federation. Purposes of undergoing medical examinations at the enterprise. Types of medical examinations Regular psychiatric examination of some employees The procedure for undergoing medical examinations Medical examinations under Art. 213 of the Labor Code of the Russian Federation: who makes the payment What happens if the employee does not pass the medical examination Failure by the employer to comply with the requirements of paragraph. 11 hours 2 tbsp. 212 of the Labor Code of the Russian Federation Categories of employees required to undergo medical examinations in accordance with the Labor Code of the Russian Federation Some employees, due to the specifics of their job duties, must undergo medical examinations.
The population must undergo a medical examination, which includes many relevant procedures, once every three years. Despite the extensive complex, according to statistics, a person can complete it in up to one working day. Now this event is of a legislative nature.
InfoYou may also be interested in: Registration of a business trip It is also worth considering the fact that medical examination procedures are not always the same for the population. Much depends on the person’s profession, so doctors will focus on his activities, and the frequency will vary. The problem is that it is extremely difficult to cover the entire population in this way, especially within a time frame. Often, health workers can only clarify whether the employee is suitable or not to perform work in his profile.
The employer can use the form of the medical organization with which the contract for conducting examinations is concluded, or draw up the form independently. It is only important that it contains all the necessary information specified in clause 8 of the Procedure for conducting medical examinations. Periodic examinations are also carried out on the basis of a referral, however, the employer must draw up in advance lists of employees subject to examinations and coordinate with the medical institution a plan for their implementation.
Attention: Based on the results of the examinations, a medical report is drawn up in 2 copies. One copy remains in the medical record, and the other is given to the employee or applicant. Based on this conclusion, the employer is obliged to make a decision on admission or refusal to work. Important! Refusal to hire on the basis that an employee has medical contraindications for the job is justified.
Good afternoon, I work on a railway crane with a 12-hour schedule, and every other 2 hours I get very tired. The annual medical commission was organized not during working hours, but on my days off. It is legal? Question tags: medical examination of workers | medical examinations of workers | Answers from lawyers Similar questions
- 07/30/2014 Application of Article 76.
- 04/08/2015At whose expense is periodic medical examination of a driver working in a state organization carried out?
- 02/04/2015Payment for medical records
- 07/30/2014Are days paid when undergoing a mandatory annual medical examination?
- 06/12/2014Medical examinations
- 12/25/2014 Sending an employee for a medical examination
- 07/30/2014 passing the annual medical commission
- 10/09/2014 Employment
- 10/21/2014 medical examination
- 02/10/2015 referral for medical examination
- 02/17/2015Med.
trade workers?
The Supreme Court, in Resolution No. 34-AD17-5 dated December 6, 2017, recognized that all employees of organizations should be sent for medical examinations, and confirmed the legality of imposing a fine on the employer in the amount of 120,000 rubles. for allowing persons to work who have not passed a medical examination.
According to the case materials, the organization specialized in the wholesale trade of machinery, equipment and accessories. In her justification, she argued that the employees allowed to work without a medical examination of workers were not engaged in the sale of products, but only in analytical and administrative activities.
In refusing the organization, the court took into account the following:
according to paragraph 1 of Art. 34 of Federal Law No. 52-FZ[2], employees of certain professions, industries and organizations, when performing their job duties, are required to undergo preliminary (upon entry to work) and periodic preventive medical examinations in order to prevent the occurrence and spread of infectious diseases, mass non-infectious diseases (poisonings) ) and occupational diseases;
by virtue of paragraph 4 of Art. 34 of Federal Law No. 52-FZ, employees who refuse to undergo medical examinations are not allowed to work;
on the basis of Part 2 of Art. 213 of the Labor Code of the Russian Federation, employees of food industry organizations, public catering and trade, water supply facilities, medical organizations and child care institutions, as well as some other employers undergo the specified medical examinations in order to protect public health, prevent the occurrence and spread of diseases;
in accordance with clause 15 of the List of Works, mandatory medical examinations are carried out in relation to workers employed in catering, trade, buffets, catering units, including transport.
So, having analyzed the above norms, the Supreme Court of the Russian Federation noted that the List of Works refers to labor in all trade organizations. Neither its specific types nor the products sold are indicated in this document. At the same time, the court took into account that there are special contraindications for those who manufacture and sell food products. The rest of the rules apply to all trade workers without exception.
For your information:
Rospotrebnadzor had a different opinion: mandatory preliminary (upon entry to work) and periodic medical examinations, the availability of personal medical records are provided for workers engaged in work related to the storage, transportation (transportation) and sale of food products and during the performance of which direct contacts of workers with food (edible) raw materials and (or) food products (Answers to questions received before and during the May 25, 2020 public discussions of the results of the law enforcement practice of Rospotrebnadzor (question 52), the document is posted on the website https://rospotrebnadzor. ru 07/31/2017).
How to get an extra day off for a medical examination
Since the beginning of this year, working Russians have received the right to take advantage of an additional paid day off to undergo a medical examination.
For most employees, this opportunity is available once every 3 years. People of retirement and pre-retirement age will be able to undergo a medical examination while maintaining their average earnings annually for two days. You cannot simply miss a day of work and then declare that you had a medical examination at the clinic.
You must first write a statement about the need to undergo medical examination. The specific date will need to be agreed with the management of the enterprise.
In this case, you must be given a paid day off to perform all necessary medical procedures.
The deadlines for filing such an application are not regulated in any way by the provisions of the Labor Code. These nuances can be specified by the internal labor regulations of a particular enterprise.
Some employers provide their employees with centralized medical examinations in accordance with voluntary health insurance programs. However, this circumstance does not cancel the right of employees to undergo medical examination in clinics at their place of residence, in accordance with compulsory health insurance policies. An employer may request a certificate from a clinic or medical center about undergoing medical examination.
Let us note that the provisions of the Labor Code do not stipulate the employee’s obligation to document the fact of undergoing a medical examination.
However, since the employer must pay for the day the employee missed, he may need a similar certificate for accounting and tax reporting. Often, one free day is not enough to complete the medical examination. The employer has no obligation to pay for subsequent days of medical examination (unless this is stipulated by employment agreements or internal regulations of the enterprise). Therefore, to complete the medical examination, if necessary, you will have to either take a day off at your own expense, or ask for time off from work in advance in order to leave the workplace earlier or come Later.
- Related Posts
