All About Suspension: Don't Let Your Employer Fool You! Suspension of an employee from work.

By suspending an employee, the employer temporarily prohibits him from performing work duties under certain circumstances.

This measure is rarely used. Since we are talking about the direct relationship between the employer and the employee, the direct participation of the employee of the personnel department is necessary - the link between the two interested parties.

Suspension is not a disciplinary sanction, and its use as such is illegal.

Grounds and reasons

Article 76 of the Labor Code of the Russian Federation lists the situations in which the employee is necessarily suspended from work:

Procedure (registration of suspension from work)

How to apply for suspension from work? In many cases, the issuance of a suspension depends on the rules of the organization itself, grounds. In some industries - transport, food, public catering, this procedure is simplified.

If a circumstance is discovered that serves as a reason for preventing the employee from performing work duties, then it is recorded in writing.

For this, a memorandum addressed to the head or an act is drawn up. They are signed by the compiler and witnesses.

According to the general rules, the suspension is issued in the form of an order or instruction; a unified form has not been developed for them. Document signed by the head of the organization.

The order specifies:

If it is necessary to promptly remove, for example, a drunk employee, a simplified procedure is used.

Then the removal occurs at the initiative of the medical officer, based on the data of the pre-trip inspection, direct management. But an order or order will still be required, since such a measure is usually associated with the termination of payroll.

Wages don't always stop. If the circumstances due to which the employee was suspended did not arise through his fault, the accruals continue, but in the amount of 2/3 of the earnings.

Sometimes there is a need for a temporary transfer, for which the personnel department is looking for a vacancy.

Suspension of a pregnant woman from work occurs for medical reasons if she needs easier work. She keeps the average salary from her previous job.

Until a feasible job is found for her, she can exercise her right to release. In this case, it also retains the average earnings.

Sample letter of dismissal from work.

Kinds

There are such types of suspension:

• for the entire period of employment;
• temporarily until the reason for the suspension disappears.

The term of temporary suspension is determined by the circumstances, for example, a criminal case. It can be discontinued during production if it is no longer needed.

The same can be said about an employee who is a carrier of an infectious agent, but he is suspended until he is fully recovered.

Illegal suspension

In labor law, suspension from work can be illegal. Here they mean every reason that is not provided for by law, or the absence of sufficient grounds for it.

According to the norms of the Labor Code, then the employer compensates his employee for lost earnings. He may also be subject to disciplinary responsibility - a fine, disqualification, suspension of activities.

Timing

The suspension of an employee from the performance of his duties lasts the entire period until the circumstances that served as the basis for this are eliminated.

It is desirable that this period be limited to a certain time frame. But it is not always possible to install them. Then the condition is valid until certain events.

For example, someone suspended for failing a medical examination is allowed to work after he passes it.

Notification

With the order of removal, you need to familiarize the employee with a signature. If he refuses to sign, the content is read aloud to him and an appropriate act is drawn up.

Sometimes it makes sense to demand a written explanation, which will become evidence in the event of a dispute.

The employer must provide, at the request of the employee, a suspension order. The absence of such a document may be the result of dismissal for absenteeism.

Legal Consequences

Suspension ends:

• permission to work;
• transfer to another job;
• dismissal.

Each case requires an order. For its publication, a document is needed confirming the elimination of circumstances that prevented the employee from performing work.

Arbitrage practice

If the employee does not agree with the decision of the employer and considers it illegal, he has the right to go to court.

What the plaintiff (employee) can demand:

• recognition of the illegality of the order;
• recovery of lost wages, average earnings, sums for downtime, which took place through the fault of the employer;
• reinstatement (if the suspension was followed by dismissal);
• changes in the entry in the work book if he was fired;
• compensation for non-pecuniary damage and reimbursement of expenses for defense services.

As experience has shown, if the employer makes mistakes in the suspension procedure, then the probability of winning the case in court is quite high.

Maria Ivanova, lawyer

[email protected]

The Labor Code of the Russian Federation does not establish 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 obligation arises for the employer, regardless of the reason for such impossibility of transfer (the employee’s own refusal to transfer or the employer’s lack of a corresponding job). 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.

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 a written notice of the proposed vacancies with the employer (other work). Since the employer’s obligation to offer another job arises only in two cases: if there is a medical certificate on a temporary transfer to “light” work and if the employee’s special right is suspended, the passage of the considered stage of the employer’s offer 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 the unified form of 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.

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.

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).

Important! The length of service, which gives the right to annual paid leave, includes the time of inactivity upon subsequent reinstatement in the same place, as well as the period of suspension of an employee who has not undergone 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.

An analysis of judicial practice shows that if there are mistakes made by the employer when removing an employee from work, the probability of recognizing the removal 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.

There are certain grounds, based on which the manager is obliged to remove the worker from his position. These criteria are thoroughly described in article 76 of the Labor Code of the Russian Federation. The article will provide detailed information on what opportunities are available in the labor code (abbreviated as LC) for the dismissal of a worker.

In what cases does an employment contract terminate?

The process of terminating an employment contract can occur in the following cases.

1. By mutual desire.
2. The end of the term of the employment agreement - at the will of the employee, or at the will of the manager.
3. Transfer to another position at the will of the employee.
4. Refusal to go to work due to a change in management, ownership of property or in connection with reorganization.
5. Refusal to work due to changes in the terms of the employment agreement.
6. Refusal to transfer to another job due to non-compliance of health according to the medical certificate for the current position.
7. Unwillingness to go to work due to the transfer of the head to another place of work.
8. Circumstances beyond the control of both parties.
9. Failure to comply with the rules of the employment contract.

When is an employer obliged to suspend an employee from work and on what grounds?

Before answering the question, we note that there are two concepts in jurisprudence:

1. Suspension from work - the manager is obliged to dismiss the person .
2. Termination of the employment contract - the worker is temporarily dismissed with a salary delay, while his place of work remains with him.

In what cases is an employer obliged to remove an employee from his position? Focusing on, you can list the reasons for which the head is obliged to remove the employee from his position:

1. The employee is seen at the place of work under the influence of alcohol, drugs, toxic or other influences.
2. The employee has not passed the appropriate test of training and acquired skills in the field of occupational safety.
3. Refusal of preliminary or periodic medical examination. Additional details on what to do if an employee fails a periodic health check are available in this material.
4. Detection after passing a medical examination of any diseases, infections, etc.
5. In the event of a request by official bodies authorized by federal laws, and in other cases justified by federal or other regulations.

By the way, in certain cases, an order is prepared to be suspended from work for failing a medical examination - a sample in this article.

How to suspend an employee from work - the procedure for suspending an employee from work

The procedure for dismissing an employee depends on the reason, the sequence is as follows:

1. Documents are drawn up confirming the reason for dismissal: acts fixing the act, memorandum, refusal to undergo a medical examination, etc.
2. Based on existing documents, a suspension order is issued.
3. After eliminating the causes, an order is created that allows work.

How long is an employee's suspension from work?

The term also depends on the reason for this suspension. In addition, the period of suspension depends on the appropriateness of the setting, since in some cases it is impossible to establish it. For example, if a person has contracted an infectious disease, then it is unclear the time of his complete cure. Or, if the person is involved in a complex litigation, it will be difficult to answer this question. Focus on specific circumstances.

Sample order to dismiss an employee from work

The document of the order to dismiss the worker must have a serial number and is drawn up on the letterhead of the enterprise. It must also contain the following information:

1. Surname, name and patronymic and position of the dismissed.
2. The period for which the employee is suspended. Suspension in the order is issued for a time until all reasons for suspension are eliminated. If a case arises when a person needs to be suspended for up to 4 months, the manager is obliged to offer another position.
3. Payment for the period during which the employee is fired. The manager can pay for this period in the amount of 2/3 of the salary.
4. The name of the person who is obliged to monitor the progress of the process of compliance with the order.
5. Reason for dismissal. The order must mention the paper, the basis of which served for the dismissal, as well as the institution that issued it.
6. Position of the head and his signature.
7. The position of the person being suspended, his signature and transcript in case the person being suspended will challenge this decision in court.

An employer may temporarily suspend an employee from work for a number of reasons. The employee is not allowed to his direct duties for the reasons specified in the Labor Code of the Russian Federation and some regulations.

Unreasonable exclusion of an employee from his duties is prohibited by law. In addition, this fact must be correctly framed from a personnel point of view. But for a number of reasons, the removal of an employee is the responsibility of the employer.

The main reasons why the employer is obliged to prevent his employee from his immediate duties are listed in Art. 76 of the Labor Code of the Russian Federation. These include the following:

• the employee appeared at the workplace in a state of alcoholic, toxic or narcotic intoxication. But just "smell" is not a reason for suspension. The employee must be sent to a medical institution, where the fact will either be confirmed or refuted. The conclusion of the doctors must be in the hands of the employee.
  If it is not possible to conduct a medical examination, then the employer must independently draw up an act that will be signed not only by him, but also by two witnesses.
• the employee did not pass training or examination of knowledge in the field of labor protection in time.
  In Art. 214 of the Labor Code of the Russian Federation says that every employee is obliged to undergo training and instruction in safety and labor protection, regardless of his position and specialty. In addition, each employee is required to pass a test of this knowledge on time.
• the employee did not pass the mandatory medical examination on time, although this is necessary for the performance of his job duties. For example, a taxi driver did not pass a daily medical examination. The employer is obliged not to release him on flights. The exact list of categories of employees who are required to undergo a medical examination or a mandatory psychiatric examination is given in Art. 213 of the Labor Code of the Russian Federation.
• if the employee has a medical document in his hands, which confirms that the state of health of this employee does not allow him to perform the labor functions assigned to him;
• the employee has temporarily (up to 2 months) lost a special right, which is necessary for the performance of his immediate duties.
  For example, a security guard has lost his license to carry a weapon, and his job implies that the guard is on duty with a weapon and has the right to use it. But the special right can be suspended through no fault of the worker.
  The employer of an employee is obliged to offer him a vacant position that corresponds to professional skills. If the employee agrees, he signs the employer's offer for a temporary transfer.
  The employer must offer all suitable vacancies for this employee that he currently has at the enterprise. But only within the area where this employee is currently working. He may offer other vacancies in another locality, but only in cases where this is provided for by a collective or labor agreement.

However, in Art. 76 of the Labor Code of the Russian Federation, not all the grounds are given for which the employer is obliged to remove his employee from his labor duties. The circumstances of removal may be specified in other federal and regional acts.

The obligation to prevent the offending employee is retained by the employer until such time as all the circumstances of removal are eliminated. That is, if the reason for preventing an employee is his drug intoxication on a particular day, then he will not work on that particular day. Tomorrow he will have to undergo a medical examination again, which will confirm that there is no intoxication.

If the dismissal occurred through the fault of the employee himself, then these days he is not paid. But there may be exceptions. For example, if a civil servant has committed a disciplinary act that requires an investigation, then he is removed from his position, but he is paid a monetary allowance.

If the reason for the suspension is the actions or inaction of the employer himself, then he must pay for the forced downtime to his employees in accordance with the norms of the Labor Code of the Russian Federation. The same provision applies to downtime if the employee did not pass the labor protection knowledge test on time for a good reason. For example, during the inspection he was on sick leave, which is confirmed by the relevant document.

The suspension of an employee from work is legal in nature, the procedure is regulated by the Labor Code of the Russian Federation. About the cases in which the employer has the right to suspend from work, what documents should be drawn up in this case, and also how suspension differs from release from work, we suggest reading in our article.

Suspension from work is an action of the employer, who, for certain reasons, has the right not to allow the employee to perform his duties. Suspension from work is devoted to Art. 76 of the Labor Code of the Russian Federation, in which this fact is noted as a temporary measure that does not affect the change in the employment contract. However, the law provides for a number of cases when suspension from work may also entail such a disciplinary measure as dismissal. In our article, we will dwell in more detail on each of the grounds for removing an employee from work and consider the procedure for processing documents in each individual case. The suspension of an employee from work can be carried out both by the employer and by law enforcement authorities or officials who have the right to do so on the basis of certain regulatory legal acts. The employee is suspended from work in time until the elimination of the reasons that were the basis for the exclusion from work or removal from the performance of official duties.

The period of suspension from work until the elimination of the causes of the offending employee is not paid! Exceptions are cases of not passing training and testing knowledge on labor protection and medical examination through no fault of the employee.

Grounds for suspension from work

Article 76 of the Labor Code of the Russian Federation provides for 6 main reasons that may be a consequence for the removal of an employee from work. Let's look at each reason in more detail.

Appearing at work in a state of alcoholic, narcotic or other toxic intoxication

As you know, the appearance at work in the above state is a gross violation of labor discipline, which can serve as a full-fledged basis for the dismissal of an employee. Moreover, it is worth noting that this can also be applied if the employee was not at the workplace, but on the territory of the organization. In accordance with Part 2 of Art. 76 of the Labor Code of the Russian Federation, the employer is obliged to remove the employee from the performance of official duties if he appears at the workplace in a state of alcoholic, narcotic or toxic intoxication, regardless of the degree of intoxication. The actions of the employer must be properly documented, and the fact of intoxication is officially recorded and certified by a medical report or witness testimony.

We note that on the basis of Art. 81 of the Labor Code of the Russian Federation, if the fact of revealing a state of intoxication is revealed by an employee who is a member of a trade union organization, the testimony is drawn up by an act with the participation of a representative of the trade union.

The procedure for the employer to remove an employee who is in a state of intoxication includes the following steps:

• Drawing up an act with the participation of at least two witnesses. In the event of a trial, an act signed by several witnesses is considered as a written testimony. The act must include the full details of the employee, his position, a description of the state of intoxication, data and signatures of witnesses, the one who draws up the act and the one in respect of whom this document is drawn up.

If the employee refuses to sign the act, this fact is noted in the document, certified by the signatures of the compiler of the witnesses. Also, it is allowed to draw up a separate act to refuse to sign a delinquent employee.

• Conducting a medical examination. This is the most significant evidence of the state of intoxication of an employee, which is carried out in a specialized institution (or in a field laboratory). The result of the medical examination is a conclusion containing a clear detailed state of the person being examined.

Note that the employee has the right to refuse a medical examination. Also, the employee cannot be sent for examination by force.

An employee who was found at work in a state of any intoxication may begin to perform his duties the very next day, that is, after the removal of the grounds for suspension from work. However, the employer also has the right to refuse the offending employee to work the next day and apply a disciplinary sanction to him - dismissal.

The day when an employee was suspended from work for being in a state of intoxication cannot be regarded as absenteeism without good reason.

Failure to pass in the prescribed manner training and testing knowledge of labor protection

Russian labor legislation provides for mandatory training and testing of knowledge of newly hired and transferred workers on safety and labor protection (Article 212 of the Labor Code of the Russian Federation). In case of failure to undergo training and verification in this area, the employee must be suspended from work until the grounds are eliminated (part 1 of article 76 of the Labor Code of the Russian Federation). The testing of knowledge on labor protection among employees is carried out in the presence of members of the commission, the results are documented in a protocol. Employees who have not passed the knowledge test are required to undergo retraining no later than 1 month.

The suspension of an employee from work on this basis implies his exclusion from the performance of official duties until the end of training and knowledge testing.

Failure to pass the mandatory medical examination and psychiatric examination in accordance with the established procedure

In accordance with Art. 212 of the Labor Code of the Russian Federation, it is the responsibility of the employer to prevent employees from working without undergoing a medical examination and mandatory psychiatric examinations. If this fact is revealed, the employee is suspended from work in time until the moment of passing the inspection with the issuance of a conclusion.

Note that medical examinations and psychiatric examinations are carried out at the expense of the employer.

The presence of contraindications for the employee to perform the labor functions specified in the employment contract

In accordance with Part 1 of Art. 76 of the Labor Code of the Russian Federation, an employee who has contraindications for performing work under an employment contract on the basis of a medical examination must be removed from the performance of official duties. The basis for the removal of such an employee from work is a medical report. Based on Art. 73 of the Labor Code of the Russian Federation, an employee who has medical contraindications, with the written consent of the latter, must be transferred by the employer to another position. If a temporary transfer is necessary for up to 4 months in the absence of the required position in the organization, the employer is obliged to suspend the employee from work for the period specified in the medical report, while retaining his place of work. If it is necessary to transfer for a period of more than 4 months or permanently, in the absence of another free position corresponding to medical indications, the employment contract between the employer and the employee is terminated.

Suspension of the special right of an employee for up to two months

Based on Part 1 of Art. 76 of the Labor Code of the Russian Federation, an employee is suspended from work in the event of suspension of his special right for up to 2 months. For example, this may be a license, the right to drive a vehicle or carry a weapon, and other rights. If this basis entails the impossibility of the employee to perform his labor functions, the employer is obliged to offer the employee all the vacancies available in his area, in accordance with the specified requirements. The basis for the removal of an employee from work in accordance with the revealed fact of the suspension of a special right is a court decision. However, such suspension may be exercised due to the expiration of this right.

In case of deprivation or suspension of the special right of an employee for a period of more than 2 months, the employment contract with the employee must be terminated (part 1 of article 83 of the Labor Code of the Russian Federation).

Suspension from work at the request of authorities or authorized officials

The employer is obliged to remove the employee from the performance of official duties if required by the relevant authorities (part 1 of article 76 of the Labor Code of the Russian Federation). The general list of officials who have the right to remove an employee from work includes:

• federal labor inspectorate;
• specialized state inspections (gossanepidnadzor, gosgortekhnadzor and others);
• Judicial authority.

Upon receipt of a document on the removal of an employee from the performance of labor functions, the employer is obliged to carefully study the document for proper execution and the correctness of the decision made. If the document contains information about the dismissal from office in the form of a recommendation or request, the decision is made by the employer independently.