Transfer of an employee to another position for medical reasons: position of the Labor Code of the Russian Federation
Article 73 of the Labor Code of the Russian Federation regulates the procedure for providing an employee with working conditions in accordance with the employee’s state of health and recommendations provided by a medical institution.
In particular, persons involved in work with harmful/dangerous factors may be transferred to another position, with safer conditions, based on a medical report.
During the transfer, the employee retains his previous job. If a lower salary is established for a new (temporary) job, then during the first month after the transfer the employer pays the employee the same salary.
Reasons for removal and legislative framework
Temporary removal from the performance of official duties by an employee is aimed at preventing the negative consequences of work - first of all for the employee himself, and then for the organization. Article 76 of the Labor Code of the Russian Federation establishes the reasons for removal from work.
Medical indications play a role if:
- the employee has not passed the medical examination required for his specialty;
- the employee underwent a medical examination, but according to the results of this examination, he cannot perform the work prescribed by the contract.
These are the main reasons for removal, but the list from Art. 76 is open, which allows suspension from work for other medical reasons, for example, if the driver passed a medical examination, but was noticed drunk by a law enforcement officer. The Labor Code of the Russian Federation allows in this case to remove a citizen from work.
The employee is not allowed to work until the circumstances preventing this are eliminated. If he missed a medical examination through no fault of his own, he is paid for the period of forced rest as simple rest; in other cases, the period of suspension is not paid at all.
The rules for paying for downtime are as follows (Article 157 of the Labor Code of the Russian Federation):
- through the fault of the administration - 2/3 of the employee’s average earnings;
- through the fault of a third party - 2/3 of the employee’s salary (rate).
On a note! Failure to undergo a medical examination is equivalent to a situation where an employee has not undergone a mandatory examination by a psychiatrist.
Suspension from work is also mentioned in Art. 73 Labor Code of the Russian Federation. There are situations when doctors give an opinion on transferring an employee to “light work” for a period of up to 4 months, but it is impossible to implement these recommendations:
- the employee refuses to transfer;
- The employer does not have a vacancy that meets the medical requirements. conclusions.
Then the employee is prohibited from working for the entire period specified in the conclusion. The employee retains his job, but his salary does not. It is retained only in exceptional cases provided for by law or the contract with the employee.
Temporary suspension from work for health reasons: step-by-step instructions for the employer
In cases where the employer cannot provide an employee with work in accordance with medical indications due to the lack of such work, the employee is suspended from his position for up to 4 months . During the period of suspension, the employee retains his job. No salary will be accrued for the period of suspension from work for health reasons.
Features of documenting an employee’s temporary suspension from work for health reasons are in the instructions below.
Step 1. Obtaining grounds for dismissal from work
At the first stage, the employer receives a medical report from the employee, in which:
- factors that adversely affect the employee’s health and must be excluded are listed (increased noise levels, high physical activity, etc.);
- the period during which the listed factors must be eliminated is indicated.
When submitting a medical report, the employee draws up an application for transfer to another position on the basis of paragraph. 1 tbsp. 73 Labor Code of the Russian Federation. The period of transfer upon request must correspond to the medical report, but not exceed 4 months.
A sample application can be downloaded here ⇒ Application for transfer to another position due to health reasons.
If the organization’s staffing table does not provide for positions that meet the necessary conditions, the employer is obliged to completely remove the employee from work, having previously sent him written notice.
Suspension from work for medical reasons - procedure
The employer's algorithm of actions varies depending on the severity of the contraindications. In some cases, it is possible to transfer a specialist to another, easier job; in others - only dismissal. The basis for making a decision is the doctor’s opinion. Remember that this must be a medical report (Order of the Ministry of Health and Social Development No. 441 of 05/02/12). A certificate, extract or sick leave certificate will not be suitable for removal from work.
If a transfer is allowed, the organization is obliged to offer the specialist all open vacancies that are not contraindicated for him due to health (Part 1 of Article 73 of the Labor Code). In this case, it is necessary to obtain the consent of the individual. The nature of the translation depends on the doctor’s recommendations and is of two types:
- Temporary – no more than 4 months. If an individual refuses to transfer for this period, the employer suspends him from employment for the entire period specified in the conclusion. The same rule applies if there are no suitable vacancies in the company. The position of the specialist is retained.
- Permanent – performed if, based on a medical report, it is necessary to exclude the influence of harmful factors on the employee’s health for a permanent period of employment. In the event of an employee’s refusal or in the absence of suitable vacancies at the enterprise, the employment contract is terminated according to clause 8, part 1 of the statute. 77 TK.
Read about Transferring an employee to another position
After receiving the (written) consent of the individual, a transfer agreement is concluded with him. Then the order is issued. The document is filled out in free form. Details of the medical report, agreements, and transfer deadlines must be provided. If an employee is transferred permanently, a corresponding entry is made in the work book. Upon signature, it is necessary to notify the employee with the contents of the employer's LNA. A sample order for suspension from work based on a medical report is given below.
Order for removal from work for medical reasons - sample
Limited Liability Company "Spectrum"
ORDER
No. 15-k dated July 29, 2019, St. Petersburg
“On the removal of an employee from work”
In accordance with medical report No. 45 dated July 26, 2019 and due to the identification of contraindications in the driver Glukharev I.S. for further performance of work stipulated by the employment contract No. 12 dated June 7, 2017, for a period of three months from “29 » July 2020 to » October 28, 2020
I ORDER:
- To remove I. S. Glukharev from performing his duties as a driver during the period from July 29, 2020 to October 28, 2019.
- HR service employee T.V. Kartavykh selects vacant positions and prepares a notice to the employee.
- The chief accountant Ivanova M.N. should not pay wages to Glukharev I.S. during the period of suspension from work.
Reason: medical report No. 45 dated July 26, 2019.
General Director _____________________/Komarov I.G./
The following have been familiarized with the order:
Driver ___________________/Glukharev I.S./ 07/29/2019
HR service employee ____________________ /T.V. Kartavykh/ 07/29/2019
Chief accountant ______________________/Ivanova M.N./ 07.29.2019
Read: How to draw up an order for transfer to a position
Settlements with an employee during temporary suspension from work
Before and after suspension from work, as well as during the period during which the employee did not perform job duties on the basis of a medical report and the corresponding order, the employee is subject to the provisions of the local regulations of the enterprise on remuneration.
Thus, the employee is paid wages and other remunerations stipulated by the employment contract, accrued during the period of performance of work duties (until the moment of removal from work).
During the period of suspension, in general, wages are not paid, except in situations where otherwise provided by the labor/collective agreement or local regulations.
At the end of the suspension period, the employee resumes accrual and payment of wages in the prescribed manner.
Design features
Regardless of whether the suspension is at the initiative of the employer or there are 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 and transport industries, as well as organizations related to public catering.
It is important to understand that any circumstance that results in permanent or temporary suspension from work must be recorded on paper. The document itself has the form of an act or memorandum addressed to the manager. It must be signed by both the originator and the witnesses.
Having studied the general rules regarding this issue, it can be noted that the removal must be formalized in the form of an order or order. However, there is no unified form developed for such cases. This document is signed by the head of the organization.
In what cases is an employee suspended from work?
The main circumstances in the presence of which the direct responsibilities of the employer will include the removal of an employee from the performance of his labor functions include the following:
- The employee appeared at his workplace in a state of alcoholic intoxication or under the obvious influence of narcotic and other drugs. In such a situation, an employee can be dangerous not only to himself, but also to his colleagues. That is why the employer must immediately make a decision to temporarily suspend such an employee.
- The employee, for one reason or another, has not completed mandatory safety training or testing of existing knowledge in a certain professional field. Current standards establish that in many enterprises regular testing of the skills and knowledge of subordinates is mandatory. Consequently, failure of an employee to pass such a test will also be a valid basis for his immediate removal from work.
- The employee, before starting to fulfill his professional obligations, did not undergo a medical examination. In many organizations, such inspections are also mandatory and regular events. If the employer does not have documentary evidence that the employee has no contraindications to work, then such a subordinate must be removed.
- The employee underwent a regular and mandatory medical examination, but the results obtained revealed the presence of certain contraindications. If an employee has been diagnosed with certain health problems, it means that his work activity should be suspended as quickly as possible by an appropriate decision of his superiors.
- The employee has been revoked of certain rights or opportunities that he requires to properly perform his assigned professional obligations. The most striking example here would be a driver's license. As you know, absolutely every employee whose activities involve driving a vehicle must have this document. If, for example, due to a traffic violation, a driver is deprived of his rights, then the suspension must be formalized by the employer urgently.
- The employee was prohibited from fulfilling professional obligations based on the decision of officials, as well as an official resolution of the authorized body.
- An employee whose work involves dangerous or harmful working conditions refuses to use personal protective equipment. The suspension must be formalized by the employer if the use of these funds is mandatory, in accordance with the established internal rules of the institution.
How is suspension from work formalized?
To prepare a reasoned claim to the employer for violation of labor rights, it is first necessary to establish whether the suspension from work has been formalized correctly.
It should be noted that the law does not allow any verbal forms of formalizing removal from work. Absence from work under such circumstances will be classified as absenteeism with appropriate consequences.
Depending on the specific grounds for exclusion, the list of documents required for registration may vary, but in any case it is:
- An act confirming the employee’s compliance with established requirements. For example, in case of alcohol intoxication - an examination report, a report to the manager.
- Order . Based on the results of checking the grounds for dismissal, the employer must issue a dismissal order, a copy of which must be given to the employee himself.
In addition, as a result of contacting the labor inspectorate regarding this fact, the employer will be held administratively liable.
