As of: 03/17/2010
Magazine: Directory of personnel officer
Year: 2010
Author: Avtushko Irina Anatolyevna
Theme: Documents personnel service, Responsibility of the employer, Remuneration
Category: HR practice
What to do if one employee left for a shift in a state of intoxication, another did not find time to undergo a medical examination, and all the deadlines had already expired, the third skipped a safety briefing at one time? Of course, remove from work! And no objections from the master or foreman: “Yes, you are crazy! There is no one to work for us” - they cannot go into the calculation. After all, the director will be responsible for the consequences. And he, in turn, will ask you why measures were not taken in time.

Suspension from work is a temporary exclusion of an employee from performing work duties by order of the employer. Suspension from work entails neither change nor termination employment contract.

Article 76 of the Labor Code of the Russian Federation defines a list of cases when the employer is obliged not to allow the employee to work, and if he has already started work, then remove him from it. This list is not exhaustive. The circumstances under which an employer is obliged to remove an employee from work may also be provided for in other federal laws and other regulatory legal acts of the Russian Federation.

For example, according to paragraph 22 of the Regulations on the discipline of employees railway transport Russian Federation, approved Decree of the Government of the Russian Federation of August 25, 1992 No. 621, an employee who has committed an offense that threatens the safety of train traffic and shunting work, life and health of people, is suspended from work for this working day (shift) by an official exercising administrative or control and inspection functions at this site. The appropriate supervisor must be notified immediately. The notice must detail the reasons and circumstances that caused the suspension from work.

Please note: in cases provided for by law, suspension from work is not a right, but an obligation of the employer. Failure to comply with this obligation may result in negative consequences.

For example, let's say there was an accident on the premises. From the act of investigation, it was seen that the cause of the work injury was inadequate actions and negligence of the employee, who was in a state of intoxication. Since the evidence of the removal of the employee from work, as required by Art. 76 of the Labor Code of the Russian Federation, the employer did not provide, the court ordered the enterprise to reimburse medical institution price medical services rendered to the employee in connection with the injury (Decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated July 24, 2006 No. A82-5768 / 2005-11).

Quoting the Document

Article 76 The employer is obliged to suspend from work (not allow to work) the employee: appeared at work in a state of alcoholic, narcotic or other toxic intoxication; who has not undergone training and testing of knowledge and skills in the field of labor protection in the prescribed manner; not passed in the prescribed manner mandatory medical checkup(examination), as well as a mandatory psychiatric examination in cases provided for federal laws and other normative legal acts of the Russian Federation; if, in accordance with a medical report issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation, contraindications are revealed for the employee to perform work stipulated by an employment contract; in the event of suspension for a period of up to two months of an employee’s special right (license, right to manage vehicle, the right to bear arms, other special rights) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility for the employee to fulfill the 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 ( How vacant position or work corresponding to the qualifications of the employee, as well as a vacant lower position or lower paid job) that the employee can perform taking into account his state of health.

At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract; at the request of bodies or officials authorized by federal laws and other regulatory legal acts of the Russian Federation; in other cases stipulated by federal laws and other regulatory legal acts of the Russian Federation. The employer suspends from work (does not allow to work) the employee for the entire period of time until the circumstances that are the basis for suspension from work or exclusion from work are eliminated. During the period of suspension from work (non-admission to work), wages are not accrued to the employee, with the exception of cases provided for by this Code or other federal laws. In cases of suspension from work of an employee who has not passed training and testing of knowledge and skills in the field of labor protection or a mandatory preliminary or periodic medical examination (examination) through no fault of his own, he is paid for the entire time of suspension from work as for downtime. Labor Code of the Russian Federation

At the same time, it should be remembered that the removal of an employee from work in cases not provided for by the legislation of the Russian Federation, or without sufficient grounds, is illegal and entails liability in accordance with the current legislation of the Russian Federation.

In particular, unlawful suspension from work entails liability the employer to the employee (Article 234 of the Labor Code of the Russian Federation): the employer is obliged to compensate him for the unreceived earnings for the entire period of illegal suspension from work.

For illegal removal from work, the guilty person may also be brought to administrative responsibility (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Administrative liability for illegal suspension from work

TIME FRAME

Suspension from work of an employee is carried out for the entire period of time until the elimination of the circumstances that served as the basis for suspension from work. It is desirable to designate such a period by a specific date.

For example, from March 1 to April 23, an employee was suspended from work in accordance with a medical report due to the identification of contraindications for performing work.

However, it is not always possible to limit the time of suspension from work to a specific date. In such situations, the period of suspension from work may be due to the commission of certain actions.

For example, K. was suspended from work due to the fact that he did not pass the mandatory medical examination. The period of his suspension from work will continue until he passes such a medical examination.

In some cases, the specified period cannot be determined at the time the employee is suspended from work. In such a situation, the employee should simply be suspended from work without any indication of a limitation on the period of suspension from work. For example, in the case of suspension from work of an employee who appeared at work in a state of intoxication.

TO PAY OR NOT TO PAY?

As a general rule, during the period of suspension from work, wages are not accrued to the employee, with the exception of cases provided for by the Labor Code of the Russian Federation or other federal laws.

Expert opinion

A. K. Gavrilina, cand. legal Sciences, Associate Professor of the Faculty of Law State University for land management Dismiss but pay In part 3 of Art. 76 of the Labor Code of the Russian Federation establishes: 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 preliminary or periodic medical examination (examination) through no fault of his own, he is paid for the entire period of suspension from work as for simple. The legislator differentiates payment for downtime depending on the presence or absence of fault of the parties to the employment contract

employer and employee (Article 157 of the Labor Code of the Russian Federation) It should be recognized that the norm enshrined in Part 3 of Art. 76 of the Labor Code of the Russian Federation, to a certain extent, is incomplete, since it only speaks of the absence of the employee's fault. In our opinion, the legislator's reference to the application of the provisions on payment for downtime, enshrined in Art. 157 of the Labor Code of the Russian Federation, gives reason to use the rules of this article and further differentiate the payment for the time of suspension from work, depending on the presence or absence of the employer's fault. A different approach, when when paying for the time of suspension from work, only one situation is taken into account - the absence of fault of both the employee and the employer - seems to be a limited interpretation of the provisions of Part 3 of Art. 76 of the Labor Code of the Russian Federation. The fact is that the situations referred to in this rule may arise both through the fault of the employer, and in the absence of his fault. So, if an employee is suspended from work due to the circumstances under consideration through his own fault (for example, he refused to undergo a mandatory periodic medical examination or did not appear without good reasons mandatory preliminary medical examination)

The time off from work is not payable. If in such a situation the circumstances that became the basis for suspension from work arose not through the fault of the employee, but solely through the fault of the employer (for example, the employer did not provide timely training, testing the knowledge and skills of the employee), then the time of suspension from work is paid on the basis of Part 1 Art. 157 of the Labor Code of the Russian Federation in the amount of at least two thirds of the average wages worker. At the same time, there may be cases when the reasons for the occurrence of the circumstances that served as the basis for suspension from work do not depend on either the employee or the employer (for example, due to temporary disability, the employee was unable to undergo a mandatory periodic medical examination on time). It seems that in such cases, the time of suspension from work should be paid on the basis of Part 2 of Art. 157 of the Labor Code of the Russian Federation in the amount of at least two thirds of the tariff rate, salary ( official salary), calculated in proportion to the time of suspension from work.

So, 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 preliminary or periodic medical examination (examination) through no fault of his own, he is paid for the entire time of suspension from work as for simple ( part 3 article 76 of the Labor Code of the Russian Federation).

According to parts 1 and 2 of Art. 157 of the Labor Code of the Russian Federation, downtime due to the fault of the employer is paid in the amount of at least two thirds of the average salary of the employee, and for reasons beyond the control of the employer and employee - in the amount of at least two thirds of the tariff rate, salary (official salary), calculated in proportion to the time just me.

On March 23, the employer sent T. to compulsory periodic medical examination. But it turned out that the medical institution had lost his card, and the employee could not pass the medical examination. By order of the employer, T. was suspended from work. The card was found only in early April, and the employee underwent a medical examination on April 7. How should the period of suspension from work be paid?

Since the suspension was for reasons beyond the control of the employer and the employee, the employer must pay the period of suspension from work - from March 24 to April 6 - based on an amount of two-thirds of the employee's salary.

If the employee were unable to pass the medical examination due to the fact that the employer delayed payment to the medical institution, then two-thirds of the average salary would be saved for the period of suspension from work. In this case, it is the employer's fault that the employee was suspended from work.

It should be noted that sometimes the material support of an employee suspended from work is carried out at the expense of other sources, and not at the expense of the employer.

For example, in accordance with Part 6 of Art. 114 and Art. 131 of the Code of Criminal Procedure of the Russian Federation, a suspect or accused temporarily removed from office is entitled to a monthly state allowance in the amount of five minimum dimensions remuneration, which is paid at the expense of the federal budget or the funds of participants in criminal proceedings.

HOW TO APPLY

The decision of the employer to remove the employee from work is issued by order (Annex 1) with which the employee must be familiarized against signature. Since the unified form of such an order has not been approved, the employer must draw up this document on his own.

The order must state the circumstances that served as the basis for the removal of the employee, and list the documents confirming these grounds (memorandum, act, medical report, order of the authorized body or official, etc.). In addition to the specified information, it is advisable to indicate in the order on suspension from work whether the employee is retained for the period of suspension of wages.

Driver S. showed up at work in the afternoon drunk. They did not fire him: it turned out that on that day his son was born. The management considered the reason for the misconduct to be valid, but he was removed from work. The corresponding order was issued. Should such an order be reflected in other documents? Is the suspension recorded in work book?

According to part 4 of Art. 66 of the Labor Code of the Russian Federation, information about the employee, the work performed by him, transfers to another permanent job and dismissal, as well as the grounds for termination of the employment contract and information on awards for success in work. Thus, a record of suspension from work in the work book of the employee is not made.

In the time sheet, the period of suspension from work is marked with a conditional code, depending on the payment for this period (see table).

Note!

In case of dismissal of an employee from work, no additional agreement to the employment contract is concluded. Suspension from work - a unilateral act of the employer

It should be noted that Art. 76 of the Labor Code of the Russian Federation does not provide for an obligation for the employer to demand, and for the employee to provide explanations of the reasons for the occurrence of circumstances that were the basis for dismissal from work. However, in some cases, the employer needs to find out why the circumstances that served as the basis for such a suspension arose.

For example, in the case of suspension from work of an employee who has not passed a mandatory periodic medical examination, the issue of remuneration is decided depending on whether the employee is guilty or innocent in this situation (part 3 of article 76 of the Labor Code of the Russian Federation).

The employer can establish the guilt of the employee, including by asking the employee for an explanation. In it, the employee can express his opinion about the current situation, which seems to be a kind of guarantee of respect for his rights. An exception is cases when the reason is obvious, for example, the medical institution refused to examine the employee because the employer did not transfer the money on time.

Code indicating the period of suspension from work in the time sheet

Keep in mind: a written explanation of an employee in the event of a dispute can be considered as evidence, so it is advisable to demand a written explanation from the employee.

Expert opinion

A. F. Nurtdinova, Doctor of Law Sciences, Head of the Department of the Constitutional Court of the Russian Federation Suspension and simple: the differences are fundamental In accordance with Part 3 of Art. 722 of the Labor Code of the Russian Federation, downtime is understood as a temporary suspension of work for reasons of an economic, technological, technical or organizational nature. Downtime is an event in production and working life that entails certain legal consequences. Downtime, in the presence of the conditions specified in the Labor Code of the Russian Federation, may serve as the basis for the temporary transfer of an employee to another job. As a rule, during the period of downtime, the employee must be at the workplace, since the suspension of work can be short-term (as a result of equipment breakdown, lack of raw materials and materials, power outages, etc.) and end unexpectedly (they will repair the machine, provide raw materials, turn on electricity, etc.).

Thus, the employee can resume the performance of his labor duties at any time during the working day (shift). In case of long downtime, the employer may allow employees to stay at home. Depending on the absence (presence) of the employee's fault, downtime is paid or not paid. Depending on the presence (absence) of the employer's fault, downtime is paid in a larger or smaller amount (Article 157 of the Labor Code of the Russian Federation). Suspension from work is an independent legal concept, the essence of which lies in the active action of the employer: he removes the employee from work in cases established by law (Article 76 of the Labor Code of the Russian Federation). Suspension from work differs from downtime in essence (downtime is an objectively determined event, and suspension from work is an action (legal act) of the employer) in terms of the right regime (regulation) and legal consequences. Suspension from work is not a basis for changing or terminating an employment contract. The circumstances that serve as grounds for suspension from work are related to the personality of the employee and, as a rule, are of a long-term nature. There is no need for the employee to be present at the workplace during the period of suspension, since he cannot be allowed to work.

According to part 3 of Art. 76 of the Labor Code of the Russian Federation during the period of suspension from work, as a rule, wages are not accrued to the employee. Only in cases of suspension from work of an employee who has not passed training and testing of knowledge and skills in the field of labor protection or a mandatory preliminary or periodic medical examination (examination) through no fault of his own, he is paid for the entire time of suspension from work as for downtime. It should be noted that sometimes personnel officers misunderstand Part 3 of Art. 76 of the Labor Code of the Russian Federation, since it mentions a simple one. They conclude that suspension from work (during this period the employee does not perform his job duties) is downtime. Such a conclusion does not follow from the provisions of the Labor Code of the Russian Federation. Firstly, as can be seen from the above norm, we are talking only about payment, and not about a set of legal consequences. Secondly, the legislator does not equate suspension from work with downtime, it only determines the amount of the guarantee payment to an employee who, through no fault of his own, could not pass a knowledge test or a medical examination on time. Note that the rule says: as for a simple i.e. in this case Downtime payment rules apply. If the intentions of the legislator were something else, he would choose a different wording, for example, he would indicate that the suspension from work in this case is downtime or is equated with downtime.

If the employee refuses to provide the specified explanations, it is desirable to draw up an appropriate act.

Registration of an employee's admission to work depends on the content of the order to remove him from work. If the suspension time is specified in the order by a specific date, then when it occurs, the order is automatically terminated. If the period of suspension is due to the commission of a certain action (for example, the employee is suspended until the mandatory periodic medical examination), then in this case it seems necessary to issue an order for admission to work (appendix 2).

To issue an order for admission to work, a document is required confirming that the circumstances that were the basis for the removal of the employee from work have been eliminated.

For example, in the case when an employee who has not undergone a psychiatric examination is suspended from work, the basis for issuing an order for his admission to work will be a written decision of the medical commission on the suitability of the employee to work in conditions of increased danger, adopted as a result of a psychiatric examination of the employee.

According to part 4 of Art. 114 of the Labor Code of the Russian Federation, the temporary removal of a suspect or accused from office is canceled on the basis of a decision of the interrogating officer, investigator, when the application of this measure is no longer necessary. Thus, if the employee was removed from office by a court order, and then the organization received an investigator’s decision to cancel the temporary suspension from office, then the employer in the order for admission to work allows the employee to start fulfilling his obligations. official duties with reference to the decision of the investigator.

According to Art. 76 of the Labor Code of the Russian Federation, the length of service giving the right to the annual basic paid leave does not include the time the employee is absent from work without good reason, including due to his removal from work.

However, there is an exception to this rule: the period of suspension from work of an employee who has not undergone a mandatory medical examination (examination) through no fault of his own is included in the specified length of service.

Here are the main, most general provisions concerning all cases of suspension from work. In the following issues, we will take a closer look at some of the provisions provided for in Art. 76 of the Labor Code of the Russian Federation, the circumstances that are the grounds for such a suspension.

Annex 1

An example of an order to dismiss an employee from work

Annex 2

An example of an order for the admission of an employee to work

1 -1

The suspension of an employee from work is regulated by Art. Labor Code of the Russian Federation and is produced according to the following grounds (reasons):

• appearance at work in a state of alcoholic, narcotic or other toxic intoxication;
• failure to pass the mandatory medical examination in accordance with the established procedure;
• failure to undergo training and testing of knowledge and skills in the field of labor protection in the prescribed manner;
• suspension (deprivation) of a special right for up to two months;
• removal of an employee if, in accordance with a medical report issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation, there are contraindications for the employee to perform work stipulated by an employment contract;
• demand of bodies or officials;
• other cases provided for by federal laws and other regulatory legal acts of the Russian Federation.

As a general rule the employee is temporarily suspended from work (not allowed to work) until until the circumstance (reason) that led to his removal () disappears. There may be cases when admission to work will depend not on the elimination of the circumstances that led to the suspension, but on other factors.

The procedure for issuing the suspension of an employee from work

order and documenting suspension depends on the reason for which the employee is suspended from work. In order to find out the exact order of registration, select and go to the corresponding page of the procedure.

The general procedure for processing the procedure for the removal of an employee next:

• draw up document(s) - ground(s) for removal. These can be acts fixing an act (for example, appearing at work in a state of intoxication, refusing to undergo a medical examination, etc.), memoranda, explanatory notes, decisions of bodies or officials;
• On the basis of the executed documents, an order is drawn up on suspension from work;
• After elimination of the reasons for the suspension, an order for admission to work is issued.

If the employee refuses to sign this or that document, then an act of refusal to familiarize is drawn up.

In case of temporary suspension and admission to work, they do not make an entry in the employee's work book and the employee's personal card. The period for which the employee was suspended from work is not included in the length of service Required to grant vacation ().

Liability for unlawful suspension

For unreasonable suspension employee, the employer is held liable:

• administrative according to Art. 5.27 Code of Administrative Offenses of the Russian Federation:
• for officials - a fine, and for a repeated similar violation - disqualification;
• For legal entity- fine or administrative suspension of activities.
• material according to, namely:
• payment of wages not received by the employee for the period of illegal suspension.

A subordinate who has begun to perform labor duties or is only planning to do so can be dismissed by his boss.

Article 76 of the Labor Code of the Russian Federation establishes the grounds on which the employer has the right to do this.

The list of grounds on which the employer acts allows you to save the subordinate from his abuses.

Cases when superiors illegally do not allow subordinates to work are not uncommon at present..

They are the subject of labor disputes considered by state-authorized bodies: the Labor Inspectorate, the Prosecutor's Office, and the court.

In the Labor Code of the Russian Federation there is no definition of what can be considered suspension from work. This gap is filled by jurisprudence.

Its analysis allows us to say that the removal from official duties- this is a temporary refusal of the employer to provide the employee with work due to labor agreement concluded between the two parties.

The purpose of removing personnel from work is to prevent the negative development of the situation in the form of risks and consequences if the person would remain in his place and continue to perform his duties.

IMPORTANT: To prevent a person from working for legitimate reasons is not a right, but a duty of the boss.

The reasons for dismissal from work are not closed. This means that laws may provide for other cases of exclusion of personnel from the workplace. Foundations:

1. presence at the workplace in alcoholic, narcotic, toxic intoxication;
2. failure to undergo a medical examination, training and testing of skills and knowledge in the field of labor protection;
3. identification on the basis of a medical examination of contraindications for an employee to engage in the type of activity that he carries out at the enterprise;
4. suspension for a temporary period (up to 2 months) of an employee's special right (for example, revocation of a transport management license), if this is related to his work duties;
5. requirements of officials authorized by laws and regulations, announcement of quarantine, etc.

The procedure for suspension from work

The algorithm of actions of the head depends on the rules fixed at the enterprise by the instruction on office work, as well as on the grounds for which there was no admission to official duties.

In some areas, a simplified procedure is provided(for example, in transport).

The procedure for dismissal from work is drawn up by order of the head of the company. This happens in most cases.

The order is accepted by the accounting department: this department must be notified of the situation, since in many cases we are talking about a suspension in the payment of wages.

The creation of a package of documents for the removal of an employee must be accompanied by the presence of written evidence of the occurrence of the situation that served as the basis for the removal.

Evidence can be:

• memorandum;
• service note;
• the act of fixing the case, etc.

This evidence can be useful in the event of a labor dispute..

Suspension period

The legislator indicates that the removal of an employee is temporary.

The employee will not be able to work until the reasons for his admission are not eliminated.

Deadlines depend on the grounds, as well as on the company(company) where the person works.

For example, in the case of guilty actions of a municipal employee and planning to introduce a disciplinary offense against him, he can be removed from his duties for no more than 31 days until this issue is resolved.

But the money content during this month is reserved for him.

Based on this, issues related to the timing of elimination should be decided on a case-by-case basis.. There is no single term for all employees employed in many production areas, service delivery, etc.

IMPORTANT: The boss may be notified that the reasons for the removal of an employee from work duties will be of a regular nature. Eliminating them is not possible.

In this situation, it makes no sense for the manager to remove the person: he must take care to transfer him to another position or dismiss him, but only if there are legal grounds for this action.

See more about the reinstatement process.

Pay during suspension

Suspension from work is not paid.

But there are exceptions to this general rule.

For example, if an employee was suspended from work who did not undergo training, a test of skills, knowledge in the field of labor protection, or a doctor’s examination (mandatory) not due to their guilty actions, he will be paid suspension from work (Labor Code of the Russian Federation, Art. 157) as for downtime .

If there is a need to temporarily remove a person from office, and he is suspected of a crime of article 114 of the Criminal Code of the Russian Federation, he is paid an allowance from the state in the amount of 5 minimum wages for the entire period of suspension.

FAQ

How to suspend an employee for medical reasons?

The non-admission of a subordinate to his position occurs on the basis of an order. And his the basis is the conclusion of doctors about contraindications to a particular position.

The doctor must indicate in his opinion a specific period during which the citizen will not be able to work in the same conditions. The execution of the procedure for not admitting an employee to his position depends on this period.

If the doctor indicated a period of less than 4 months, then the employer must offer his subordinate vacant positions in his enterprise.

If there are no such positions, or they do not suit the employee himself, then the suspension is issued for the entire period specified in the conclusion of the doctors. The workplace for this employee is retained, but wages are not accrued.

If the period specified in the medical report exceeds 4 months, then the suspension is not issued, but a permanent or temporary transfer to another position is issued.

If the employer has a position that is not suitable for this employee or he refuses them, then, according to Part 3 of Art. 73 of the Labor Code of the Russian Federation, the employment contract with this employee is terminated.

Can employees be suspended if they are suspected of stealing?

Guided by the norms of the Labor Code of the Russian Federation, namely Art. 76, which provides a complete list of grounds on which an employee can be removed, there are no rules regarding removal from work for the duration of an inspection and an internal investigation.

At the same time, in Part 7 of Art. 76 of the Labor Code of the Russian Federation, there is a rule that obliges the employer to remove employees from work at the request of bodies or officials authorized by federal laws and other regulatory legal acts of the Russian Federation.

In particular, the court has the right to require the employer to remove the employee from work.

What is suspension from work

Suspension from work of an employee means preventing him from performing the duties prescribed in the employment contract. The manager can remove an employee from work on the grounds specified in the Labor Code of the Russian Federation, and in other cases that are provided for by legal acts and federal laws. In case of occurrence, provided by law, the manager is obliged to remove the employee from work.

Suspend an employee own will or of their own free will, the leader has no right.

Suspension from work should not be confused with release from work. Exemption from work can be issued at the request of the employee. The release gives the employee a guarantee that his position and salary will be retained for him. In this case, there may be several grounds for exemption:

• in connection with the performance of public or state duties;
• professional development or training;
• blood donation;
• prevention of adverse effects of production factors on the course of pregnancy, etc.

When can an employee be removed from work?

Article 76 of the Labor Code of the Russian Federation specifies cases when an employee can be suspended from work. These include situations where:

• the employee appeared at the workplace in a state of alcoholic or drug intoxication. In this case, the employee undergoes a medical examination, which must be signed by the employee himself and other employees who witnessed this event.
• The employee did not pass a knowledge test or training in the direction of labor protection. This requirement is established by article 214 of the Labor Code of the Russian Federation. Failure to comply with the requirement prevents the employee from continuing to perform work duties.
• The employee does not have a certificate of mandatory medical examination. This includes routine examinations, and examinations of a psychiatrist in certain cases, and examinations for occupational diseases.
• Suspension from work for medical reasons or if contraindications are found for the employee to perform official duties.
• Suspension from work is also possible upon the expiration of the employee's special rights (driver's license, the right to carry weapons, etc.). That is, if the employee is unable to perform his duties in full. In this case, the manager can offer the employee another position in which the employee can receive a lower salary. A prerequisite is to find a job new position in the same place where the employee worked before the suspension, unless otherwise specified in the employment contract.
• At the request of persons authorized by regulations and federal laws. These persons may be labor inspectors or representatives of sanitary supervision.

Article 76 of the Labor Code of the Russian Federation does not voice full list grounds for removal, t.to. some cases are prescribed in other codes and acts.

Suspension time and salary during suspension

Regardless of the reasons for suspending an employee from work, the period of suspension implies the time required to eliminate the grounds. That is, if an employee appeared at work in a state of intoxication, he removes for one day and the next working day he must come to work.

If an employee is suspended due to failure to pass the certification in the field of labor protection, then the suspension period will be extended until the next exam and its passing. General rules suspension of an employee from work indicates that he will not receive wages for this period. However, he will retain his position.

There are exceptions where suspended employees can and should receive a paycheck.

For example, the federal law on state civil service The Russian Federation states that a civil servant who has committed an official misconduct may be suspended from work duties until the grounds for removal are eliminated or the issue of disciplinary liability is resolved, but with the preservation of wages. In this case, the period of his suspension may not exceed one month.

The Labor Code also provides for cases where forced leave is due to grounds beyond the control of the employee. In such situations, the employee temporarily does not work and receives payments for downtime. The grounds under which an employee receives payments include all the same grounds, but without the fault of the employee.

The procedure for suspension from work

If grounds are found for the removal of an employee, his immediate supervisor must draw up a memorandum addressed to the chief executive. The memorandum should indicate directly the very basis for forced leave.

The note must be signed by several witnesses and the specialist who conducted the examination (if the reason is alcohol or drug intoxication or a threat to pregnancy).

After the note is drawn up and sent to the director of the organization, it must be signed by the director or his deputy. After that, the director or deputy must issue an order.

This order must be signed by the employee who is being suspended. If he refuses to put his signature, then several other employees must sign instead of him, who will later be able to confirm the legality of the suspension in court.

For the period of forced leave of an employee, a corresponding mark is placed in the time sheet:

• "NB" - non-admission to work without payroll,
• "BUT" - non-admission to work with the preservation of wages.

After all grounds for suspension are eliminated, the employee can proceed to fulfill his labor obligations. No additional orders and statements need to be written. The beginning of his work is recorded in the work sheet.

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Suspension from work due to failure to pass industrial safety rules

Good day. Tell me how to remove an employee from work if he has not passed the industrial safety certification at RTN? What documents can be used for suspension? How to arrange this species punishment? Thank you.

Christina 08/06/2019 05:18

Leave during suspension

Hello, such a situation, today I was suspended from work, because I did not pass the medical commission. In three days I have a vacation, according to the schedule. Will he get paid?

Vyacheslav 13.12.2018 17:09

Attention! Promo code discounts are no longer valid

Dubrovina Svetlana Borisovna 13.12.2018 17:11

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Agree with colleague.

Zakharova Elena Alexandrovna 14.12.2018 09:00

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• Guarantees and compensation in case of accident at work and occupational disease
• Severance pay, compensation and other payments to employees in certain cases of termination of employment contracts
• Guarantees and compensation in case of liquidation of the organization, reduction in the number or staff of the organization's employees
• The procedure for providing guarantees and compensations to employees who combine work with education
• Guarantees and compensations for employees who combine work with secondary education or enter training
• Guarantees and compensations for employees who combine work with higher education, scientific degree
• Guarantees for employees elected to elective positions in state bodies, local self-government bodies
• Guarantees for employees elected to trade union bodies and commissions on labor disputes
• Guarantees and compensations for employees involved in the performance of state or public duties
• Remuneration of labor when combining professions (positions), expanding service areas, increasing the volume of work
• Compensation for work in areas with special climatic conditions
• Responsibility of the employer for violation of the terms of payment of wages and other amounts due to the employee
• Ensuring an increase in the level of real wages
• The rights of employees in order to ensure the protection of personal data held by the employer
• Remuneration of labor in the development of new industries (products)
• Payment for labor in the manufacture of products that turned out to be defective
• Remuneration of labor for the performance of work of various qualifications
• Remuneration of labor in other cases of performance of work in conditions deviating from normal
• Remuneration of labor of workers employed in work with harmful or dangerous working conditions

Maria Ivanova, lawyer

[email protected]

IN Labor Code The Russian Federation has not established a special concept of “suspension from work”. Suspension from work is understood as a forced prohibition of an employee to perform his duties, initiated by the employer or other authorized person.

Cases when an employer is obliged to remove an employee from work are listed in Art. 76 of the Labor Code of the Russian Federation. These include:

The appearance of an employee at work in a state of alcoholic, narcotic or other toxic intoxication;

Failure by the employee to undergo training and testing of knowledge and skills in the field of labor protection in the prescribed manner;

Failure by the employee to pass, in the prescribed manner, a mandatory medical examination (examination), as well as a mandatory psychiatric examination in cases provided for by federal laws and other regulatory legal acts of the Russian Federation;

Identification, in accordance with the medical report, of contraindications for the employee to perform work stipulated by the employment contract;

Suspension for a period of up to two months of the special right of the employee, if this entails the impossibility of the employee to fulfill the 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, which the employee can perform taking into account his state of health;

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

In other cases provided for by federal laws and other regulatory legal acts of the Russian Federation. It is also possible to be suspended for a period of up to four months - if it is established on the basis of a medical report that the employee needs to be transferred if such a transfer is impossible. This duty arises for the employer, regardless of the reason for such impossibility of transfer (the employee’s own refusal to transfer or the absence of a corresponding job for the employer). Suspension is carried out for the entire period specified in the medical report with the preservation of the place of work (position) (Article 73 of the Labor Code of the Russian Federation).

However, the mere fact indicated in the above article is not enough for the suspension to be recognized as lawful. Its correct design is of great importance. Let's look at an example.

R. filed a lawsuit against Astrakhangazprom LLC for reinstatement, recovery of average earnings for the time of forced absenteeism, and compensation for non-pecuniary damage. The claims were satisfied by the decision of the Krasnoyarsk District Court. The ruling of the Judicial Collegium for Civil Cases upheld the decision of the court of first instance. R. was in labor relations with the defendant and worked as an operator of technological installations. By order of the defendant, he was fired for appearing at work in a state of intoxication. The court, satisfying the plaintiff's claims, correctly established the circumstances relevant to the case and gave them a proper assessment. The fact that an employee appears at work in a state of alcoholic, narcotic or toxic intoxication must be proven by the employer. The state of alcohol, as well as toxic or drug intoxication of the employee, must be determined by the employer in the prescribed manner. According to the Temporary Instruction on the procedure for a medical examination to establish the fact of alcohol consumption and intoxication (approved by the Deputy Minister of Health of the USSR on September 1, 1988 N 06-14 / 33-14) (as amended and supplemented on August 12, 2003) a medical examination to establish the fact of alcohol consumption and intoxication is appointed in cases where the law provides for disciplinary liability for drinking alcohol or being intoxicated. The results of a medical examination to establish the fact of alcohol consumption and the state of intoxication can be considered valid provided that they were obtained during a medical examination performed in accordance with these instructions, and only methods and devices approved for use were used in laboratory studies. examinations. When considering the case, the court found that the medical examination protocol drawn up at the medical center of the NHI MSU cannot be reliable sufficient evidence of the employee's being in a state of intoxication, since it does not meet the requirements for the relevance and admissibility of evidence. According to the conclusions of the medical examination of R., conducted at the Narcological Dispensary, the fact of alcohol consumption was established, no signs of intoxication were detected. This conclusion was confirmed at the hearing by the narcologist. The witnesses interrogated at the hearing did not confirm the fact that the plaintiff was intoxicated. Since a legally significant circumstance for the dismissal of an employee under paragraphs. “b” of paragraph 6 of Article 81 of the Labor Code of the Russian Federation is not the fact of alcohol consumption, but the state of intoxication, the court’s conclusion that the dismissal of the employee was illegal and he is subject to reinstatement is reasonable.

Conclusion: Suspension from work must be properly documented.

The procedure for suspension can be described as a sequence of actions by the employer:

1. Identification of the circumstances specified in Art. 76 of the Labor Code of the Russian Federation.

2. Providing the employee with written notice of the proposed vacancies ah at the employer (other job). Since the obligation to offer other work from the employer arises only in two cases: if there is a medical certificate of temporary transfer to "light" work and in case of suspension of the special right of the employee, the passage of the considered stage of the offer by the employer of another job to the employee is provided only in these cases. If the employer agrees to the transfer, the standard procedure for transferring the employee to another position is performed.

3. In the absence of vacancies and other work that the employee can perform in all other cases, the issuance of an order to remove the employee from office with a mandatory indication of the period of suspension and reasons. The form of the order is arbitrary, since unified form this document is not legally approved.

4. Familiarization of the employee with the order under a personal signature. If he refuses to familiarize or certify the fact of familiarization with a signature - drawing up an act on this.

5. Actual suspension from work (non-admission to work).

6. After the elimination of the circumstances that caused the removal of the employee from work, the issuance of an order for admission to work and the actual admission of the employee to work. The employee must be familiarized with the order under a personal signature. If the employer refuses to sign, the commission draws up an appropriate act.

It is a common mistake for an employer to use a suspension from work as a disciplinary sanction. Let's look at an example.

K. filed a lawsuit against the defendant for reinstatement, recovery of wages, recovery of average earnings for the period of forced absenteeism, compensation for unused vacation and compensation for moral damages. In support of the claim, K. indicated that she worked for Royalty-Mebel LLC. According to the results of the next meeting of the founders of this society, she was removed from office for lack of confidence. The plaintiff asked that her removal from work be recognized as unlawful and that the defendant be ordered to allow her to work; recover from the defendant average earnings for the duration of the illegal suspension from work. From the explanations of the defendant's representatives, it follows that the reason for the dismissal of the plaintiff from work was distrust of her, caused by the violations she committed in her work. Thus, the defendant used this measure as a disciplinary sanction, intending to carry out the dismissal of the plaintiff, but did not comply with all the provisions of Art. 193 of the Labor Code of the Russian Federation of mandatory actions to terminate the employment contract. However, as the court pointed out, such a measure is not provided for by Art. 192 of the Labor Code of the Russian Federation, which establishes a list of disciplinary sanctions. Its application is not provided for by Art. 76 of the Labor Code of the Russian Federation, listing cases of possible suspension from work. Under such circumstances, the dismissal of the plaintiff from work is illegal. In connection with the above, the Sverdlovsky District Court of the city of Kostroma, by its Decision of June 25, 2010 in case No. 2-1931/10, satisfied K.'s claims: it recognized K.'s removal from work as illegal, ordered Royalty-Mebel LLC to allow K. to work.

Conclusion:

Suspension from work cannot be used asdisciplinary action.

Suspension can only be used on the grounds listed in the Labor Code. The following example shows how an employer applied a suspension for a wrong reason.

L. applied to the Kineshma City Court of the Ivanovo Region with a lawsuit against Ivgarant-N LLC to declare the order to remove her from work illegal, to recover wages for the time of forced absenteeism, and to compensate for moral damage. She motivated her demands by the fact that she worked at Ivgarant-N LLC as the chief accountant from 21.07.2010. On December 12, 2011, L. could not get to workplace, since her office was locked, on the same day the director of the Society familiarized the plaintiff against signature with the order to remove her from work, a copy of which he did not give out. Considering the actions of the employer to remove her from work as unlawful, L. asked to oblige LLC Ivgarant-N to cancel the order to remove her from work, to collect wages for the time of forced absenteeism from 12.12.2011 and compensation for non-pecuniary damage in the amount of 10,000 rubles. By the decision of the Kineshma City Court of the Ivanovo Region dated February 6, 2012, the claims were partially satisfied, Ivgarant-N LLC was obliged to cancel the order regarding the suspension of L. from the performance of his official duties, in favor of L., the average earnings for the period from 12.12. 2011 to 06.02.2012 inclusive, net of income tax individuals in the amount of 22,085.95 rubles, compensation for non-pecuniary damage in the amount of 1,000 rubles, expenses for paying for the services of a representative in the amount of 5,000 rubles. At the meeting the rest of the claim denied. The defendant filed an appeal, in which he asked the court's decision to cancel, to take a new decision on the case to refuse to satisfy the claims. It appears from the case file that Chief Accountant LLC "Ivgarant-N" L. by order N 21 dated 09.12.2011 was suspended from the performance of her duties for the duration of the internal audit. The argument of the appeal that the removal from official duties of an employee is not a suspension from work, which indicates the compliance of Order No. 21 dated 09.12.2011 with the requirements of Art. 76 of the Labor Code of the Russian Federation, the judicial board finds insolvent, arising from an incorrect understanding of the norms of the current Russian labor legislation. On the basis of the evidence presented in the case, the court found that since 09.12.2011, L. was deprived of the opportunity to perform her labor duties at her workplace due to the issuance of Order No. 21 by the employer. The court rightly assessed said order namely, as the removal of the plaintiff from work, despite the use in the order of the terminology “remove from the performance of official duties”, since the Labor Code of the Russian Federation does not provide for the concept of “removal from the performance of official duties” at all. An exhaustive list of grounds for removing an employee from work is given in Art. 76 of the Labor Code of the Russian Federation, and does not provide for the possibility of suspension from work in connection with an internal audit on the fact of the shortage of the company's chief accountant with limited liability based on the order of the sole executive body of such Company. Links of the appeal against the fulfillment by the defendant as an employer of the requirements of Art. 247 of the Labor Code of the Russian Federation to ascertain the causes and amount of material damage caused by the employee, as well as the need for the employer to fix traces of L.'s commission of a crime under Art. 160 of the Criminal Code of the Russian Federation, have no legal significance for the defendant to substantiate the legality of the order contested by the plaintiff on dismissal from work. The procedure established by the labor and criminal procedural legislation of the Russian Federation for bringing an employee to material or criminal liability in the event of a shortage of inventory items does not provide for the possibility of removing an employee suspected of embezzlement or misappropriation of valuables entrusted to him, by order of the employer in the absence of a request from a body or an official authorized to law for the application of an appropriate measure of restraint. In violation of Art. 56 of the Code of Civil Procedure of the Russian Federation, the defendant did not provide the court with evidence of the initiation of a criminal case against L. on charges of committing a crime and the application of such a preventive measure by the authorized bodies as suspension from office, provided for in Art. 114 Code of Criminal Procedure of the Russian Federation. The arguments of the appeal that after being suspended from work on 12/09/2011, L. made absenteeism on 12/13/2011, which gave grounds to the defendant to dismiss the plaintiff under paragraph "a" part 6 of Art. 81 of the Labor Code of the Russian Federation, as well as whether the employer has grounds for dismissing this employee on the basis of Part 7 of Art. 81 of the Labor Code of the Russian Federation in connection with the loss of confidence, do not affect the essence of the contested court decision, since they are outside the claims of L., resolved by the court of first instance in full accordance with Part 3 of Art. 196 Code of Civil Procedure of the Russian Federation. In addition, these arguments are hypothetical in nature, since in the court of appeal both parties confirmed that the basis for the dismissal of L. from Ivgarant-N LLC was her application for dismissal of her own free will of 02/07/2012, the corresponding dismissal order was issued by the respondent on 01/21/2012. Orders to dismiss the plaintiff for absenteeism or in connection with the loss of confidence by the defendant were not issued. Based on the foregoing, the Judicial Collegium of the Ivanovo Regional Court issued a ruling dated April 18, 2012 in case No. 33-635, which upheld the city court's decision and dismissed the appeal.

Conclusions:

1. The use of the terminology “remove from the performance of official duties” in the order is equivalent to the concept of “suspension from work”, since the Labor Code of the Russian Federation does not provide for the concept of “removal from the performance of official duties”, and in addition, in fact, means deprivation of the opportunity to work.

2. An exhaustive list of grounds for removing an employee from work is given in Art. 76 of the Labor Code of the Russian Federation, it does not provide for the possibility of suspension from work on other grounds, including in connection with an internal audit.

As a general rule, no salary is paid during the period of suspension from work. But there are exceptions to this rule.

In cases of dismissal 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 preliminary or periodic medical examination (examination) through no fault of his own, by virtue of part 3 of Art. 76 of the Labor Code of the Russian Federation, payment is made for the entire time of suspension from work as for a simple one (Article 157 of the Labor Code of the Russian Federation).

The Baltic City Court of the Kaliningrad Region, when considering the requirements of R.V.N. to CJSC "B" for the recovery of average earnings for the period of suspension from work from July 11, 2008 to August 15, 2008, recognizing that the employer had legal grounds for removal from work of the plaintiff, who had not been trained and tested in the field of labor protection after a long break in work as a driver, at the same time found that R.V.N. did not undergo training and testing of knowledge and skills in the field of labor protection through no fault of his own, but collected the average salary for the specified period in his favor. However, the court did not take into account that in this case, according to Part 3 of Art. 76 of the Labor Code of the Russian Federation, the time of suspension from work is regarded as downtime due to the fault of the employer, and, accordingly, downtime is paid in the amount of at least two-thirds of the average salary of the employee (part 1 of article 157 of the Labor Code of the Russian Federation). The incorrect application by the court of first instance of the norms of substantive law led to a change in the court decision in this part in the court of cassation. By the definition of the Judicial Board, it was decided to recover in favor of the plaintiff payment for downtime in accordance with Part 1 of Art. 157 of the Labor Code of the Russian Federation.

Important! The length of service giving the right to annual paid leave includes the time of inactivity during the subsequent restoration to same place, as well as the period of suspension of an employee who did not undergo a mandatory medical examination through no fault of his own (Article 121 of the Labor Code of the Russian Federation).

If it is necessary to temporarily remove the suspect or the accused from office in accordance with Art. 114 of the Code of Criminal Procedure of the Russian Federation, a suspect or accused who has been temporarily suspended from office has the right to a monthly state allowance, which is paid to him in accordance with paragraph 8 of part 2 of Art. 131 of the Code of Criminal Procedure of the Russian Federation in the amount of five minimum wages. In their meaning, these payments are procedural costs that are reimbursed at the expense of the federal budget or the funds of participants in criminal proceedings.

conclusions:

1. The employer is obliged to compensate the employee for the earnings not received by him in all cases of unlawful deprivation of his opportunity to work, including in the case of unlawful removal. Most often, such an action is recognized as illegal if the disqualification occurred on a basis that is not provided for by law, or there are no reasons at all for applying such a measure. Problems can also arise if the suspension from work is framed incorrectly.

2. The employer's payment for suspension time should be differentiated depending on the presence or absence of the employee's fault. We recall that according to Art. 157 of the Labor Code of the Russian Federation downtime:

Due to the fault of the employer, at least 2/3 of the average salary of the employee is paid;

For reasons beyond the control of the employer and employee, it is paid in the amount of at least 2/3 of the rate, salary (official salary), calculated in proportion to the downtime.

Note. Based on Art. 72.2 of the Labor Code of the Russian Federation, downtime is understood as a temporary suspension of work for reasons of an economic, technological, technical or organizational nature.

Therefore, if the circumstances due to which the employee is subject to removal arose through the fault of the employee, then such suspension does not need to be paid.

Analysis judicial practice shows that if there are mistakes made by the employer when suspending an employee from work, the probability of recognizing the suspension order as illegal and satisfying other requirements of the employee is quite high. For such disputes, more often than for other labor disputes, the parties reach agreement and conclude a settlement agreement.