Unlawful removal from work. How and under what circumstances can an employee be removed from his duties?

Suspension from work does not mean the termination of employment relations. In this case, we are talking only about a temporary measure on the part of the employer, which is expressed in the suspension of the activities of a specific employee. We will discuss the procedure for dismissal from work later in the article.

Suspension from work under the Labor Code of the Russian Federation

Suspension or non-admission to work is provided for in Article 76 of the Labor Code of the Russian Federation. In particular, the employer is obliged to limit the employee’s work activity:

when he appears at the workplace in a state of alcoholic, toxic or drug intoxication;
if the employee refuses to undergo a mandatory medical examination;
in case of failure to attend training or failure to pass a knowledge test on labor protection;
upon deprivation of a special permit to engage in certain activities for a period of more than 2 months;
when identifying contraindications for further work activities in accordance with a medical report;
at the request of authorized persons;
in other cases provided by law.

The employee must be suspended from work for the entire period of the above circumstances. Once the restrictions are removed, the employee returns to his duties.

It is important to remember that suspension from work does not imply the accrual of wages to the employee for this time, except in cases established by the legislator. In particular, if a citizen cannot undergo training or a medical examination through no fault of his own, he should be paid compensation for downtime.

Removal from work for medical reasons

The Labor Code of the Russian Federation provides for the obligation of the employer to remove from work an employee who, for medical reasons, is unable to continue working in his previous position. The basis for removal in this case is the conclusion of the commission of the medical organization that examined the citizen.

If a suspension occurs for this reason, the employer must offer the employee other vacant positions in accordance with the level that is permissible on the advice of doctors (for example, light work or excluding computer work).

Important! As a rule, the doctors' conclusion sets a period during which the employee cannot perform his duties in his previous position (for example, necessary for recovery after surgery). However, there are also cases when an employee loses his ability to work permanently (for example, as a result of a serious accident and receiving a disability group). If doctors determine that a citizen will no longer be able to return to his previous state and work in the position specified in the employment contract, then if there are no vacancies, the employer has the right to fire him.

Removal from work at the initiative of the employer

Labor legislation lists among the reasons for temporary suspension from work those for which this is possible at the initiative of the employer. In particular, the reason for such removal may be:

The appearance of an employee at the workplace in a state of alcohol/drug intoxication. In this case, a report is drawn up that describes the situation and behavior of the employee, and also records his explanations. Removal from work occurs on the same day; delay is not allowed.
Refusal of an employee to undergo a mandatory medical examination. It is a refusal, not an inability to undergo an examination. In some organizations, a medical examination is paid for by the employer, after which the employee appears at a specified medical institution at a certain time, takes all the necessary tests and visits specialists. If the employer does not pay for the examination on time, the employee is deprived of the right to a medical examination - however, the manager does not have the right to remove him from work in this case.
Refusal to undergo training. The situation is similar to undergoing a medical examination. Only an employee’s refusal to attend courses gives the employer the opportunity to temporarily prohibit him from working.

It is also important to remember: although suspension from work, unlike dismissal, is temporary, it also requires the issuance of an appropriate order, a sample of which we offer you below.

Sample order to remove an employee from work

Order

Based on the medical report issued by the State Institution “Central City Hospital of Ulyanovsk” dated January 27, 2018, according to which the driver V.V. Arkhiptsev cannot perform his labor duties stipulated by the employment contract dated January 18, 2013 No. 215, for 2 months - from 02.02.2018 to 01.04.2018,

I order:

Suspend V.V. Arkhiptsev from work as a driver for the period from 02/02/2018 to 04/01/2018.
The head of the HR department, Pestrova E.K., prepare a list of vacant positions.
The chief accountant A.P. Slepenkova should not pay wages to V.V. Arkhiptsev during the period of his suspension from work.

Reason: medical report from the State Healthcare Institution “Central City Hospital of Ulyanovsk” dated January 27, 2018.

Director: Vasnetsov A. A.

The following have been familiarized with the order:

Driver Arkhiptsev V.V.
Head of the HR Department E. K. Pestrova
Chief accountant Slepenkova A.P.

"Personnel officer. Personnel records management", 2013, N 3

The employee’s keys, pass, work clothes, seals and stamps are taken away, thereby depriving him of the opportunity to appear at the workplace. A familiar situation, isn't it? At the same time, the management is deeply convinced that it is doing the right thing by limiting the constitutional right of a citizen to work. In what cases can dismissal from work be considered lawful? How is deprivation of the right to work different from dismissal?

Cases of suspension from work

The phenomenon of “suspension of the employee from work” should be distinguished from the termination of an employment contract, which entails the termination of the employment relationship between the employee and the employer.

Suspension from work differs from termination of employment relations in that, firstly, the relationship between the employee and the employer is not terminated, but is suspended, as a rule, with the suspension of payment of wages, and secondly, it is temporary in nature and is allowed only in cases established by law. So, according to Art. 76 of the Labor Code of the Russian Federation, the employer is obliged to remove from work (not allow to work) an employee:

Appearing at work in a state of alcohol, drug or other toxic intoxication;

Has not undergone training and testing of knowledge and skills in the field of labor protection in accordance with the established procedure;

Has not undergone a mandatory medical examination (examination) in accordance with the established procedure, as well as a mandatory psychiatric examination in cases provided for by the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation;

If, in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, contraindications are identified for the employee to perform work stipulated by the employment contract;

In case of suspension for a period of up to 2 months of an employee’s special right (license, right to drive a vehicle, right to carry a weapon, other special right) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility of the employee’s fulfillment obligations under the employment contract and if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower paid job), which the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract;

At the request of bodies or officials authorized by federal laws and other regulatory legal acts of the Russian Federation;

In other cases provided for by the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation.

So, for example, part 2 of Art. 32 of the Federal Law of July 27, 2004 N 79-FZ “On the State Civil Service of the Russian Federation” (as amended on December 30, 2012) provides for the right of the employer’s representative to remove a civil servant from the civil service position being filled (not allow him to perform official duties) during the settlement period conflict of interest.

In a number of cases specified in the law and the organization’s charter, the powers of the head of a legal entity may be suspended. Suspension of the powers of a manager is possible, for example, in the following cases:

Recognition of a leader as missing by a court decision that has entered into legal force;

Initiating a criminal case against the manager or implicating him as an accused in another criminal case;

Participation of a leader in an election campaign as a candidate for a legislative (representative) body of the Russian Federation or a legislative (representative) body of a constituent entity of the Russian Federation, as well as election (appointment) to these elective positions.

In such cases, before the election of a new director, the authorized body is also obliged to make a decision on the formation of a temporary sole executive body of the company - acting (Clause 4, Article 69 of the Federal Law of December 26, 1995 N 208-FZ "On Joint Stock Companies", as amended on December 29. 2012).

As can be seen from the law, the concept of “suspension from work” means that the employee began to perform a job function and the employer became aware of the circumstances listed in the law during the working day. In turn, “preclusion from work” means that the specified circumstances were identified before the start of the work function (the start of the working day, work shift).

Period of suspension from work

The employer suspends the employee from work (does not allow him to work) for the entire period of time until the circumstances that served as the basis for removal from work or not being allowed to work are eliminated (unless otherwise provided by federal laws).

It is clear that during the period of suspension from work the employee does not fulfill his job duties. Therefore, as a general rule, during the period of suspension from work (preclusion from work), the employee’s wages are not accrued.

Cases when an employee is provided with financial support are established by federal laws. For example, 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 medical examination (examination) through no fault of his own, he is paid for the entire period of suspension from work as idle time.

If circumstances arise that entail dismissal from work, the employment contract does not terminate. Moreover, the occurrence of such circumstances does not mean that the employer must prepare documents for dismissal, even if the events associated with the suspension from work give the employer grounds for dismissing the employee, such as showing up at work under the influence of alcohol, drugs or other toxic substances. intoxication.

It should also be understood that the removal of an employee from work is not equivalent to the cancellation of the employment contract. After all, the cancellation of an employment contract is a special type of termination of an employment contract and labor relations, when, contrary to the start date established by the employment contract, the employee does not appear at his workplace. In this case, absenteeism is a legal fact that gives grounds to recognize the employment contract as not concluded.

In the labor laws of some European countries, suspension from work means suspension of the employment contract. Based on the norms of domestic labor legislation on the removal of an employee from work, we can talk about a partial suspension of the employment contract - the performance of the labor function provided for by the employment contract is stopped for a certain time.

Registration of suspension from work

Experts correctly recommend a scheme for promptly making a decision on the removal of employees from work on the grounds provided for by law, and enshrining the powers of officials on this issue in the local acts of the organization.

Documenting the removal of an employee from work depends not only on what rules, based on local labor regulations, are established in the organization by instructions for office work, but also on the basis for the removal. In some cases, a court decision will be needed, in others - only a decision by the employer.

The employer's decision to remove an employee from work (not allowing him to work) is formalized by order of the head of the organization. Despite the fact that such an order is accepted for accounting by the accounting department, since wages are not accrued during the period of suspension from work, its unified form has not yet been approved by the State Statistics Committee of Russia.

Approximate sample

On the removal from work of Tochilin A.S.

Based on the decision of the Timiryazevsky District Court of Moscow dated January 16, 2013 on the temporary removal of the accused from office and guided by Art. 76 of the Labor Code of the Russian Federation,

I ORDER:

1. Starting from January 17, 2013, storekeeper Andrey Sergeevich Tochilin is temporarily suspended from work.

2. Do not allow storekeeper A.S. Tochilin to perform his job duties until this measure of procedural coercion is canceled by an investigator’s resolution issued in the manner established by the Criminal Procedure Code of the Russian Federation.

3. From January 17, 2013, the accounting department will suspend the payment of wages to storekeeper A. S. Tochilin.

4. At the moment of familiarization with the contents of this order, storekeeper Tochilin A.S. must hand over a pass to the head of the security service, Vasin A.A., giving the right to enter the warehouse territory.

5. Entrust control over compliance with this order to the head of the warehouse Krokhov M. M.

I have read the order _________________ A. S. Tochilin

January 2013

When preparing the text of the order, you must indicate the circumstances that served as the basis for the removal of the employee, as well as documents confirming its validity. Particular attention should be paid to listing the circumstances that served as the basis for removal from work or non-admission to work, since the employee will not be allowed to work for the entire period of time until these circumstances are eliminated. Thus, this part of the administrative document should not be formulated vaguely. It is necessary to avoid vague and “empty” phrases like “due to operational necessity”, “based on the director’s decision”, etc.

It should be noted that Art. 76 of the Labor Code of the Russian Federation and other provisions of the law do not provide for the obligation of the employer to demand, and the employee to provide, explanations of the reasons for the occurrence of certain circumstances. Since removal is not a disciplinary sanction, the provisions of Art. 193 of the Labor Code of the Russian Federation are not applicable when deciding the issue of removal. Thus, as in our example, storekeeper Tochilin A.S. has the right to refrain from making any comments or giving explanations (including written ones).

The employee gets acquainted with the order and signs it. If an employee refuses to sign for any reason, such refusal must be immediately recorded in writing.

Approximate sample

On refusal to sign in order to familiarize yourself with the order

Commission consisting of:

Vasin Andrey Alekseevich, head of the security service,

Krokhov Mikhail Mikhailovich, head of warehouse facilities,

Anna Viktorovna Kovalchuk, head of the HR department

has drawn up this act as follows:

Based on the decision of the Timiryazevsky District Court of Moscow dated January 16, 2013, the general director of LLC Trading House "Everything for the Gardener" issued Order No. 1 on the removal from work of storekeeper Andrey Sergeevich Tochilin from January 17, 2013 with the suspension of salary calculations.

In order to familiarize A.S. Tochilin with the contents of the order, the head of the HR department, A.V. Kovalchuk, arrived at the warehouse on the same day.

When entering the warehouse territory, she asked the head of the security service, A. A. Vasin, to accompany her, since it was necessary to temporarily confiscate a pass from the storekeeper A. S. Tochilin, giving the right to enter the warehouse territory.

The head of the warehouse, M. M. Krokhov, was in the warehouse at that moment.

Kovalchuk A.V., in the presence of Vasin A.A. and Krokhov M.M., presented the order to the storekeeper Tochilin A.S. and asked to sign indicating familiarity with the contents of the order. However, Tochilin A.S., in our presence, pointedly refused to do this, citing the fact that he did not agree with the order and did not steal the goods from the warehouse. Thus, it was not possible to familiarize A.S. Tochilin with the contents of the order.

Storekeeper Tochilin A.S. also refused to sign this act. He motivated his refusal by the fact that he did not consider himself guilty of anything.

We confirm the facts specified in this act with our signatures:

A. A. Vasin

M. M. Krokhov

A. V. Kovalchuk

The HR specialist must understand that in cases of dismissal from work, the decision must be made promptly, and the preparation of documents must be done as soon as possible. Moreover, in the vast majority of cases we are talking about the suspension of salary payments. And the accounting service should know about this decision in a timely manner. In practice, it can be quite difficult to determine the period for which an employee will not perform his duties. Let's give just one example.

The employee was suspended from work due to alcohol intoxication. When deciding to suspend an employee from work (preventing him from working), the employer should take into account that depending on the severity of intoxication, it takes a different amount of time to rid the body of alcohol, and in some cases, medical intervention. In addition, even though alcohol has been metabolized by the body, the consequences of its consumption can seriously affect the employee's ability to work.

If the fact of an employee appearing in a state of intoxication is confirmed by a medical report, then it must indicate the time after which the level of alcohol, narcotic drugs and psychotropic substances in the blood will decrease to a standard that does not interfere with the performance of work.

As already noted, healthcare legislation operates with such a concept as the severity of intoxication. Moderate and mild alcohol intoxication does not require special therapy, and one can indeed talk about sobering up the next day. As for severe intoxication, subject to medical intervention, the duration of treatment is 2 days.

Only after medical procedures have been carried out, after 2 days, the employee will be able to fully control his actions. If we are talking about alcohol abuse (use with harmful consequences for health), chronic alcoholism, then it will take from 10 to 25 days to treat and recover from alcohol intoxication.

Therefore, if the medical report does not indicate the period after which the level of alcohol, narcotic and psychotropic substances in the blood will decrease to the established norm, you should additionally consult a doctor and obtain an addition or clarification to the medical report. If the grounds for removal from work or non-admission to work are eliminated, then an order to terminate the suspension is issued in a similar form. An employee suspended from work loses not only his salary, but also loses his pension experience during this period: according to the Rules for calculating periods of work, which gives the right to early assignment of an old-age labor pension in accordance with Articles 27 and 28 of the Federal Law "On Labor Pensions in the Russian Federation" Federation", approved. By Decree of the Government of the Russian Federation dated July 11, 2002 N 516 (as amended on May 26, 2009), periods of suspension from work are subsequently not included in the period of work that gives the right to early assignment of an old-age labor pension.

Approximate sample

LLC "Trading house "Everything for the gardener"

On the resumption of performance by Tochilin A.S.

labor responsibilities

Based on the decision of the Timiryazevsky District Court of Moscow dated January 26, 2013 to terminate the temporary suspension from office

I ORDER:

1. Starting from January 28, 2013, resume work as storekeeper Andrey Sergeevich Tochilin in the same position and under the same working conditions.

2. The head of the security service, Vasin A.A., must ensure the issuance of a pass to A.S. Tochilin by January 28, 2013 for unhindered access to the workplace.

4. Entrust control over compliance with this order to the head of the warehouse Krokhov M. M.

General Director K. I. Shalagin

Suspension from work at the initiative of the employer is a temporary ban on the employee performing his job duties. This measure is used only if there are sufficient grounds, the list of which is established in Article 76 of the Labor Code of the Russian Federation.

Moreover, in fact, preventing an employee from performing his immediate duties is not a right, but an obligation of the employer, which he must fulfill immediately after identifying the relevant circumstances. It should be noted that the decision to prevent an employee from working can be made not only by the head of the company, but also by authorized employees of government agencies, as well as by the court.

The removal of an employee from performing his or her job duties is not itself a reason for amending or terminating the employment contract. However, the use of this measure implies several results:

Resumption of work functions;
Transfer to another job;
Termination of an employment contract.

During the period of suspension, according to Article 76 of the Labor Code of the Russian Federation, employees are not paid wages. The exception is cases when it is not the citizen’s fault that he is not allowed to work. Then, according to the specified norm, this time is regarded as forced downtime and payment is made according to the rules provided for in Article 157 of the Labor Code of the Russian Federation.

The procedure for registering non-admission to work may differ depending on the circumstances and specifics of the enterprise’s activities. However, it has several basic rules that apply to all situations:

If facts are identified that entail the removal of an employee from work, they should be documented. Often in this case, an appropriate act is used, which notes information about the employee and describes the grounds for his removal.
The decision to not allow a worker to work must also be formalized in accordance with the established procedure.

All facts identified during the consideration of the issue of removing a worker must be recorded or have documentary evidence. They can have different types, based on the basis on which the employee is not allowed to carry out work activities.

Any violations in the procedure for registering this measure or abuse by the company’s management of their right to remove a worker entails administrative liability. In addition, the employee can go to court and then the company’s expenses associated with violation of the current labor legislation will increase even more.

What is a suspension?

The concept of “suspension” from work is used in the text of Article 76 of the Labor Code of the Russian Federation. However, in itself it implies the termination of the work of an employee who has actually already begun it. If circumstances preventing the employee from fulfilling the duties assigned to him are discovered before the actual start of work, then the concept of “not allowing” him to work is used.

A temporary restriction on work activity may also be imposed on a worker by an authorized government agency or a court. At the same time, the ban is not always aimed at removing people from work. If a citizen is deprived of a special right (for example, a driver’s license) or a license to perform a certain type of activity, then there will be no direct ban on work. On the other hand, if the rights of a worker working as a driver are taken away, then the employer, based on a court decision, removes him from the implementation of labor functions.

It must be taken into account that the grounds for excluding employees may differ depending on their field of activity. In addition to Article 76 of the Labor Code of the Russian Federation, they are regulated by a number of federal regulations that apply in a specific industry and can make significant changes to the procedure for removing employees or introduce additional grounds for this.

Reasons for dismissal from work

The list of main circumstances that entail the exclusion of employees from work is enshrined in Article 76 of the Labor Code of the Russian Federation:

An employee showing up at work while intoxicated;
The worker has not undergone training or testing of skills in the field of occupational safety in accordance with the established procedure;
Lack of a certificate of completion of a medical examination or examination by a psychiatrist, if this document is necessary for the employee to perform his job duties;
In case of restriction of a special right or deprivation of a license to engage in a certain activity;
In the event of a significant deterioration in the worker’s health, providing for restrictions in the conditions and severity of work and the impossibility of performing the labor functions assigned to him in accordance with the concluded contract (subject to the corresponding decision of the medical commission);
By the tribunal's decision.

This list is not exhaustive. A number of Federal laws also contain additional grounds for the removal of company employees from fulfilling the duties assigned to them under the provisions of the contract.

In addition, if there are sufficient grounds, a decision on not allowing a person to work can be made by authorized officials and government agencies. Thus, an employee of the Labor Inspectorate, according to Article 357 of the Labor Code of the Russian Federation, has the right to issue an order to remove persons who have not undergone safety training in the prescribed manner. Also, in relation to citizens under investigation, according to Article 114 of the Code of Criminal Procedure of the Russian Federation, the investigator has the right to demand temporary exclusion from performing work duties.

Upon receipt of such orders, the employer must, in accordance with the procedure established by law, remove the employee from work. The restriction is often a temporary measure. After eliminating the circumstances that impeded the performance of official duties, the employee must be immediately allowed to work.

The procedure for dismissal from work at the initiative of the employer

The removal procedure at the initiative of the management of the enterprise occurs on the basis of documented facts that impede the continuation of the performance of official duties. Depending on what circumstances served as the reason for not allowing you to work, the papers required to complete it also change.

For example, if you appear in a state of alcoholic or other type of intoxication, it is necessary to call medical workers who will draw up an appropriate report, and also send the employee for a medical examination. The immediate supervisor of this employee draws up a memo addressed to the head of the enterprise. Based on the act and note, a decision is made to remove the worker, and a corresponding order is issued.

If, in accordance with the established procedure, a citizen has received a decision from a special commission about the deterioration of his health and the impossibility of continuing to work in his current position, this decision is also sent to the enterprise. The manager, for his part, must remove the employee from work and transfer him to another job. If there are suitable vacancies, according to honey. recommendations, the company does not, then the employment contract is terminated.

Payment for days of suspension is not generally made. Accruals stop from the moment the corresponding order is issued, so it is very important to issue it without delay. In some cases, according to labor legislation, it is allowed to pay for this time as idle time - in the amount of 2/3 of the salary. Earnings are accrued in full if the suspension occurred in connection with an internal audit or until the conflict situation is resolved (these norms apply to state and municipal employees).

If the denial of admission was made in violation of current legislation, then the employee’s lost income must be compensated in full. In addition, he has the right to go to court for compensation for moral damage.

Rules for issuing an order for suspension from work

After the manager receives documents confirming the existence of grounds for preventing the employee from performing work duties, he must immediately issue an order for his removal. It does not have a unified form or form. An order is issued in any form, if local regulations at the enterprise do not establish a standard form for such documents. If the organization has letterhead, then the order can be issued on them, but this is not mandatory.

Despite the fact that this document does not have a unified form, when preparing it you should adhere to a number of rules:

The order reflects the full name and position of the suspended employee;
The grounds for exclusion from performing official duties are noted;
Details of the documents on the basis of which this decision was made are indicated;
It is noted whether the salary of this employee will be calculated based on the specific circumstances that led to the removal;
Establish a period for preventing the employee from working (fixed or until the reasons for preventing him from working are eliminated);
If necessary, the order indicates the person who will be temporarily assigned the duties of this employee until he resumes his work.

The order is signed by the head of the company, after which it is sent to the suspended employee for review. If he refuses to sign this document, a corresponding act is drawn up in the presence of at least 2 witnesses.

In addition, you must take an explanatory note from the employee if this is provided for by the specific circumstances of the circumstances. Giving explanations is the right of the worker, who is given the opportunity to express his point of view regarding the current situation. If you refuse to write an explanatory note, all facts will be interpreted at the discretion of the employer.

The text of the order should also indicate the persons responsible for its implementation. Since it is associated with preventing the worker from entering the workplace and performing his job duties, it is best to entrust control over the execution of the order to the immediate supervisor of the suspended employee. Also often, a security chief or a watchman may be appointed as a responsible person if the enterprise has a pass control system.

Reflection of suspension from work in the time sheet

Today, maintaining a timesheet (WTC) is not mandatory, therefore, when registering it, both unified designations and those adopted at a particular enterprise can be used. From the point of view of legislation, they do not have any legal force, but are used only for internal accounting.

On the other hand, if a controversial situation arises, the URV report card can serve as confirmation of the date of suspension. But in this case, it will be better if unified designations are used when preparing this document:

Non-admission to the workplace without payment of wages - NB;
Suspension with payment of average earnings - BUT;
Payment for time limited in work activity, as forced absenteeism - PV.

Unlawful removal from work and its consequences

Violation of the procedure for desalination from work activity or making mistakes when preparing the necessary documents accompanying this procedure entails recognition of the inadmissibility to work as illegal. It does not matter whether these actions were committed consciously or without criminal intent.

If an employee files a complaint with the government. labor inspectorate and during the inspection, violations in the removal procedure are revealed, then, according to Article 234 of the Labor Code of the Russian Federation, the employer will be obliged to compensate in full for unpaid wages. In addition, an admin may be imposed on it. collection under Article 5.27 of the Code of Administrative Offenses in the form of a fine in the amount of up to 50 thousand rubles. A fine of up to 5 thousand rubles may also be imposed on the personnel officer.

In court, a suspended employee may demand compensation not only for lost income, but also for moral damage. In this case, the amount of compensation will be determined by the court.

Article 76 of the Labor Code of the Russian Federation is devoted to suspension from work, according to which suspension is understood as preventing an employee from working - from performing his labor function. And despite the fact that suspension from work is considered by current legislation as a temporary measure and does not in itself entail a change in the employment contract or its termination, in some cases it may precede the dismissal of an 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 “suspension” and “non-admission” as synonyms. However, there is still a semantic difference between these concepts. Thus, if signs of intoxication (one of the grounds for dismissal provided for in Article 76 of the Labor Code of the Russian Federation) are detected in an employee before the start of the working day (shift), for example, at the checkpoint of an enterprise, then the employer is obliged prevent it before performing the work stipulated by the employment contract. If these signs were identified during the working day (shift), the employee must be suspended from work. In this article, for convenience of presentation, we will use the term “suspension.”

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

Removal from work may be carried out on the initiative of:

employer;
bodies and officials specially authorized for this 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 take a closer look at each of them.

Grounds for suspension from work

Appearing at work in a state of alcohol, drug or other toxic intoxication

According to paragraph 2, part 1, art. 76 of the Labor Code of the Russian Federation, the employer is obliged to suspend from work an employee who appears at work in a state of alcohol, 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 such a state. The degree of intoxication and the nature of the work performed are also not of fundamental importance. Of course, an employee in such a state will not be able to properly perform his job duties.

The Labor Code does not determine the duration of suspension from work for an employee who appears in a state of intoxication, and only contains an indication that the suspension from work may 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 employee’s corresponding condition is discovered. The next day the employee can resume his work duties.

Appearing at work in a state of intoxication (alcohol, drugs or other toxic substances) is a gross violation of labor discipline and labor duties. For such a disciplinary offense, the employer has the right to apply one of the disciplinary sanctions to the employee, up to and including dismissal under subclause. "b" clause 6 of Art. 81 Labor Code of the Russian Federation. It does not matter whether the employee was suspended from work due to intoxication or not. It is also necessary to take into account that dismissal on this basis can also follow when the employee during working hours 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 (Clause 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the 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 mandatory formalization 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 employer’s actions be properly documented. And first of all, this concerns the fact that an employee appears 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 report;
other types of evidence (for example, witness testimony), which must be assessed accordingly by the court. Please note that if the employee is a member of a trade union, the witness testimony must be documented in an act drawn up with the participation of a trade union representative (Article 81 of the Labor Code of the Russian Federation).

So what is the employer's procedure?

First of all, we recommend making act of an employee appearing 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 serve as an example of “another type” of evidence. You should not rely only on witness testimony, since witnesses may forget all the circumstances under which the dismissal occurred, quit, etc. A document signed by several witnesses will be considered by the court as written testimony.

There are no strict requirements about the content of this act, as well as about who exactly should draw it up. The act can be drawn up by the employee’s immediate supervisor, the head of a structural unit, or, as is often the case, by a human resources employee. This obligation may be provided for by labor instructions and local regulations of the employer. As for the content of the act, in addition to information about the “offending” employee, it is advisable to indicate the following information:

date, time and place of drawing up the act;
last name, first name, patronymic and position of the employee who drew up the act;
names and positions (professions) of workers present during the drawing up of the act (witnesses);
the state of the employee, which became the reason for the conclusion about intoxication and drawing up a report;
signatures of the author of the act and the employees present during its preparation;
signature of the employee in respect of whom the act is drawn up (i.e. the employee must be familiar with the act).

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, poor 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 symptoms. Indicators of such intoxication can be: dilated pupils, pallor, rapid incoherent speech, increased excitability or, conversely, apathy, etc. In these cases, the best confirmation of the employee’s condition is still a medical report.

The report on the employee appearing 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. A written explanation of the reasons for showing up at work in such a state would also be helpful. However, sometimes the degree of intoxication of an employee does not allow him to familiarize himself with the drawn up act. In this situation, a note should be made in the act that it is not possible to familiarize the employee with the act, since he cannot control his actions and understand the meaning of the questions asked of him.

An employee may quite consciously refuse to sign the document, for example, considering that the employer has exaggerated the degree of his intoxication. In this case, the employee’s refusal should be noted in the act and this entry should also be certified by the signatures of the compiler and witnesses. In practice, sometimes a separate act is drawn up - about refusal to sign. Both options are possible at the employer's discretion.

After drawing up the report, the employee is removed from the work performed and sent for a medical examination (it is advisable to assign him an accompanying employee from among the employees). A note about the referral for examination is also made in the report.

Medical report, issued based on the results of a medical examination, is the most significant evidence of the employee’s state of intoxication. However, it is necessary to take into account that an 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 compulsorily send an employee for examination.

Let us note that the medical examination is carried out in accordance with the Temporary Instruction “On the procedure for medical examination to establish the fact of alcohol consumption and intoxication”, approved by the USSR Ministry of Health on September 1, 1988 No. 06-14/33-14 (hereinafter referred to as the Instructions), and Methodological instructions “Medical examination to establish the fact of alcohol consumption and 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 ordered in cases where the law provides for disciplinary and administrative liability for drinking alcohol or being intoxicated, drinking alcohol at work, for injuries associated with intoxication, etc.

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 apply for a medical opinion, for example, if he does not agree with the act drawn up by the employer.

According to paragraph 2 of the Instructions, a medical examination to establish the fact of alcohol consumption and intoxication is carried out in specialized rooms of drug treatment clinics (departments) by psychiatrists-narcologists or in treatment and preventive institutions by psychiatrists-narcologists and doctors of other specialties who have been trained, both directly in the institutions , and with departure in specially equipped for this purpose.

The result of the examination is a conclusion, which must clearly describe the employee’s condition at the time of the examination.

The above documents note that the doctor conducting the examination must not only state the fact of alcohol consumption, but also correctly qualify the condition of the person being examined, 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). So, to apply the norm of Art. 76 of the Labor Code of the Russian Federation on removal 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, and accordingly, there are no grounds for removal from work). In addition, when preparing a medical report, it is advisable to inform the doctor about the main content of the employee’s labor function so that the specialist can correlate the employee’s condition with the work he must perform.

Based on the criteria set out in the guidelines for medical examination, the doctor must make one of the following conclusions about the employee’s condition:

sober, no signs of alcohol consumption;
the fact of alcohol consumption was established, signs of intoxication were not identified;
alcohol intoxication;
alcoholic coma;
state of intoxication caused by narcotic or other substances;
sober, there are functional impairments that require removal from work with a source of increased danger for health reasons.

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

If an employee categorically refuses to undergo a medical examination, in addition to making an appropriate entry in the report about the employee appearing 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 workers of some professions is regarded as a disciplinary offense.

In practice, 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 particularly difficult cases it can help calm a drunk employee.

When can the “offender” start working again? The answer to this question directly depends on the degree of intoxication and the employee’s well-being. 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 decrease to a norm that does not interfere with the performance of work, you can consult a doctor for clarification. Moreover, in the case under consideration, the employer has the right the very next day to refuse to provide a sober employee with work (admission to it) and to dismiss him under subclause. "b" clause 6 of Art. 81 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 explained by the fact that the employee nevertheless showed up for 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 accordance with the established procedure

Unfortunately, the death of workers in the workplace, injuries, and mutilations received as a result of industrial accidents are not such a rare occurrence. Strict compliance with labor safety rules contributes to the reduction of industrial injuries. In connection with this, the Labor Code provides for mandatory safety training for workers and testing of their knowledge and skills in the field of labor protection, 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 completed such training or testing.

The employee’s obligation to undergo training in safe methods and techniques for performing work on labor protection, providing first aid in case of accidents at work, instruction in labor protection, on-the-job training, testing of knowledge of labor protection requirements is directly established by Art. 214 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 workers in the named methods and techniques, conduct instructions, provide internships and test the knowledge of workers. These responsibilities 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 Resolution of the Ministry of Labor of Russia No. 1, Ministry of Education of Russia No. 29 of January 13, 2003 (hereinafter referred to as the Procedure).

This Procedure was developed to ensure preventive measures to reduce industrial injuries and occupational diseases and establishes general provisions for mandatory training on 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 provide instructions on labor protection. In addition to introductory briefing on labor protection, initial briefing in the workplace, repeated, unscheduled and targeted briefings are carried out. The labor safety briefing ends with an oral assessment of the employee’s acquired knowledge and skills in safe work practices by the person conducting the briefing. Conducting all types of briefings is registered in the relevant logs of briefings (in established cases - in the work permit) indicating the signature of the person being instructed and the signature of the instructing person, as well as the date of the briefing.

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

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

How long should an employee who has not undergone training and testing of knowledge and skills in the field of labor protection be suspended from work for a long time? If an employee is suspended on this basis, he is not allowed to work until the completion of training and testing. If an 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 are usually carried out according to a specific schedule established in the organization. In special cases (at the discretion of the employer), it is possible to conduct individual training and subsequent testing; then, if the test result is positive, the employee may be allowed to work.

The procedure and grounds for removing an employee from work are regulated by Art. 76 of the Labor Code of the Russian Federation, according to which suspension means preventing 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 necessity, personal relationships or extenuating circumstances. At the same time, there are often cases when employers 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 undergo a mandatory medical examination (examination) or a mandatory psychiatric examination in accordance with the established procedure

In accordance with paragraph 12 of part two of Art. 212 of the Labor Code of the Russian Federation, one of the employer’s responsibilities in terms of ensuring safe conditions and labor protection is to prevent employees from performing their job duties without undergoing mandatory medical examinations (examinations), mandatory psychiatric examinations, as well as in the case of medical contraindications.

Current legislation provides for employees to undergo preliminary (upon entry to work) and periodic (during employment) medical examinations. In addition, medical examinations, by their focus, can be divided into examinations to determine whether the employee’s health corresponds to the work he performs, 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 (upon 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 (examinations) of workers engaged in hazardous work and work with harmful and (or) dangerous production factors, as well as Lists of harmful and (or) dangerous production factors and work during which these inspections are carried out.

This 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 workers engaged in hazardous work and 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 to examine professional suitability and examine the relationship of the disease with profession.

The employer determines the contingents and draws up a list of persons subject to periodic medical examinations (examinations), indicating areas, workshops, production facilities, hazardous work and harmful and (or) dangerous production factors affecting workers, and after agreement with the territorial bodies of the Federal Service for supervision in the field of consumer rights protection and human well-being sends him two months before the start of the examination to a medical organization with which an agreement has been concluded to conduct periodic medical examinations (examinations). The medical organization, based on the list of employees who are subject to periodic medical examinations received from the employer, approves, together with the employer, a calendar plan for conducting examinations.

The conclusion of the 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 into the card of preliminary and periodic medical examinations (examinations). In addition, within 30 days, the medical organization must provide the employer with a final report, which identifies 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 and prevent the occurrence and spread of diseases, the specified medical examinations are carried out by employees of food industry organizations, public catering and trade, water supply facilities, medical and preventive care 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 in the Russian Federation of the disease caused by the human immunodeficiency virus (HIV infection)” the following were approved:

Rules for conducting mandatory medical examination to detect human immunodeficiency virus (HIV infection) (Resolution of the Government of the Russian Federation of October 13, 1995 No. 1017);
List of workers of certain professions, industries, enterprises, institutions and organizations who undergo mandatory medical examination to detect HIV infection during mandatory pre-employment and periodic medical examinations (Resolution of the Government of the Russian Federation of September 4, 1995 No. 877).

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

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

As for the psychiatric examination, according to Art. 213 of the Labor Code of the Russian Federation, workers 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 those working in conditions of increased danger, undergo a mandatory psychiatric examination at least once every five years in accordance with established by the Government of the Russian Federation. Let us note that the wording of this article, which existed before the amendments were made 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 undergoing the examination were approved by Decree of the Government of the Russian Federation dated September 23, 2002 No. 695 “On undergoing mandatory psychiatric examination by workers 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 provided for in 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 undergo a preliminary or periodic medical examination (examination) or psychiatric examination, the employee is suspended from work until such an examination is completed.

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

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

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

What should an employer do if it has received a medical report indicating 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 (by a medical and social expert commission), declared completely incapable of work and dismissed, temporarily or permanently transferred to another job.

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 available job that is not contraindicated for the employee for health reasons.

If an employee who, in accordance with a medical report, needs a temporary transfer to another job for a period of up to four months, refuses the transfer or the employer does not have the corresponding job, then the employer is obliged to suspend the employee from work for the entire period specified in the medical report, while maintaining his place. work (position).

If, in accordance with a 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 the transfer or the employer does not have the corresponding work, the employment contract is terminated under clause 8 of the first article. 77 Labor Code of the Russian Federation.

Suspension of an employee’s special right for up to two months

In accordance with paragraph 6 of Part 1 of Art. 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 a weapon, other special right), if this entails the impossibility of the employee fulfilling his duties under the employment contract and is impossible transfer the employee, with his written consent, to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job), which the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

This basis for removing 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.

As an example of a special right, we can mention the right to drive vehicles, confirmed by the appropriate driver’s license (Federal Law of December 10, 1995 No. 196-FZ “On Road Safety”).

As for licenses, of course, in this case we mean individual licenses 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 “On Weapons” dated December 13, 1996, Rules for the circulation of civilian and service weapons and ammunition for them on the territory of the Russian Federation, approved by decree of the Government of the Russian Federation dated July 21, 1998 No. 814).

Interestingly, administrative legislation, licensing legislation and legislation regulating the implementation of certain types of activities provide not for the suspension, but for the termination of special rights. It seems logical that for the purposes of applying Art. 76 of the Labor Code of the Russian Federation, these concepts can be considered as equivalent.

The basis for removal from work in this case is a decision of the court or the relevant authorized body to suspend (deprive) the employee of a special right. In addition, removal from work may be carried out due to the expiration of the 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 clause 9 of Part 1 of Art. 83 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 part one of Art. 76 of the Labor Code of the Russian Federation, the employer is obliged to remove an employee from work if this is required by bodies or officials authorized by federal laws and other regulatory legal acts of the Russian Federation.

Thus, one of such bodies 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 employers and their representatives with binding orders to remove from office in the prescribed manner persons guilty of violating labor laws and other regulatory legal acts containing labor law norms. In addition, the labor inspectorate has the right to issue orders to remove from work persons who have not undergone training in safe methods and techniques for performing work, instruction in labor safety, on-the-job training, and testing of knowledge of labor safety requirements.

A number of other specialized inspections and supervisions (sanitary and epidemiological supervision, state mining and technical supervision, etc.) also have the right to present to the employer a requirement to remove an employee from work.

In the event that persons who are carriers of infectious disease agents may become sources of the spread of infectious diseases due to the characteristics 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 the spread of infectious diseases diseases. If such a transfer is impossible, on the basis of 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-FZ “On Sanitary epidemiological well-being of the population").

Another body whose decision to remove an employee from work is mandatory for the employer to execute 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 there is such a need, the court, upon a petition initiated with the consent of the prosecutor by the inquiry officer or investigator, makes a decision on the temporary removal of the suspect or accused from office. The basis for canceling a temporary suspension is the corresponding decision of the inquiry officer, investigator, or prosecutor. This resolution is also mandatory for the employer.

When you receive a document about the removal of a specific employee from work, you must carefully read it. Pay attention to the following points: whether the demand was made by the appropriate body or official, whether it is drawn up correctly, and what kind of decision it contains.

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

The time of suspension is usually indicated in a resolution or order of the authorized body. There are various options for determining the period of suspension, for example, a specific date or a condition on the commission of certain actions (most often - elimination of the violation).

Other grounds for dismissal of an employee

It should be borne in mind that the list of grounds for removal 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, Federal Law No. 157-FZ of September 17, 1998 “On Immunoprophylaxis of Infectious Diseases” provides for the possibility of dismissal in the absence of preventive vaccinations for workers performing work associated with a high risk of contracting infectious diseases.

Another example of a regulatory legal act containing grounds for removal from work is Resolution of the Government of the Russian Federation dated 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 carrying out production control is obliged to make proposals to the head of the organization to remove from work at a hazardous production facility persons who do not have the appropriate qualifications and 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 Samara issued a resolution to initiate an administrative violation case under Part 1 of Art. against Housing and Construction Cooperative No. 174. 5.27 of the Code of Administrative Offenses of the Russian Federation in connection with violation of labor legislation in terms of hiring, dismissal and removal from work of citizen A. Based on the results of consideration of the materials of the case of an administrative offense by the State Labor Inspectorate in the Samara Region, housing cooperative No. 174 was found guilty of an administrative offense with a fine of in the amount of 45,000 rubles.

Housing cooperative No. 174 appealed to the Arbitration Court of the Samara Region with a demand to cancel the resolution of the State Labor Inspectorate in the Samara Region. These demands were denied. The appellate instance upheld the decision of the Arbitration Court.

Having disagreed, housing cooperative 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, educational 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 (resolution of the Federal Antimonopoly Service of the Volga Region dated March 27, 2008 in case No. A55-15108/07-5).

Read the end of the article in the next issue of the magazine.

Footnotes

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