Having considered the issue, we came to the following conclusion:
The employer has the right (but is not obligated) to send the employee for a mandatory medical examination six months after the previous examination, and the employee is obliged to undergo such an examination. Part-time and part-time work do not affect the employee’s obligation to undergo inspections.
Rationale for the conclusion:
According to part two of the Labor Code of the Russian Federation, the employer is obliged, in cases provided for by labor legislation and other regulatory legal acts containing labor law norms, to organize, at his own expense, mandatory preliminary (upon admission to work) and periodic (during labor activity) medical examinations, other mandatory medical examinations, mandatory psychiatric examinations of workers, extraordinary medical examinations, mandatory psychiatric examinations of workers at their requests in accordance with medical recommendations with retention of their place of work (position) and average earnings for the duration of the said medical examinations, mandatory psychiatric examinations. In turn, the employee is obliged to undergo mandatory preliminary (upon employment) and periodic (during employment) medical examinations, other mandatory medical examinations, as well as undergo extraordinary medical examinations at the direction of the employer in cases provided for by the Labor Code of the Russian Federation and other federal laws(Labor Code of the Russian Federation). Thus, undergoing medical examinations, including preliminary and periodic ones, is mandatory only in cases provided for by law.
The obligation to conduct medical examinations of certain categories of workers is provided for by the norms of the Labor Code of the Russian Federation. In accordance with this article, mandatory preliminary and periodic medical examinations must be carried out by workers engaged in work with harmful and (or) dangerous working conditions (including underground work), workers engaged in work related to traffic, employees of organizations food industry, catering and trade, waterworks, medical organizations and child care institutions, as well as some other employers. According to part four of the Labor Code of the Russian Federation, harmful and (or) hazardous production factors and work, during the performance of which mandatory preliminary and periodic medical examinations are carried out, the procedure for conducting such examinations is determined by the federal executive body authorized by the Government of the Russian Federation. Today it is like this normative act, establishing the List of harmful and (or) dangerous production factors(hereinafter referred to as the List of Factors), List of Works during the performance of which mandatory preliminary and periodic medical examinations (examinations) of employees are carried out (hereinafter referred to as the List of Works) and the Procedure for conducting mandatory preliminary (upon employment) and periodic medical examinations (examinations) of employees, employed in heavy work and work with harmful and (or) dangerous working conditions (hereinafter referred to as the Procedure), is the Ministry of Health and Social Development of Russia dated April 12, 2011 N 302n.
The frequency of medical examinations is determined by the List of Factors and the List of Works, depending on the work performed by the employee and the factors affecting him, and can be either once a year or once every two years. At the same time, according to part one of the Labor Code of the Russian Federation, the employer is obliged to remove from work (not allow to work) an employee who has not undergone a mandatory medical examination in accordance with the established procedure, in cases provided for by the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation.
Accordingly, the employer is obliged to send the employee for a mandatory medical examination, and the employee (in turn) is obliged to undergo it before the expiration of a one-year or two-year period from the date of his previous examination. At the same time, the law does not establish a minimum period that the employer must withstand after the employee has passed the previous inspection, therefore he has the right to send the employee for a periodic inspection at any time before the expiration of the previous preliminary or periodic inspection (including six months after hiring) , and the employee is required to undergo an examination upon receipt of a referral from the employer.
The law provides for situations where the legal status of part-time employees differs from the legal status of employees for whom work is the main one: for example, guarantees and compensation related to training or work in the Far North are not provided to part-time employees (part one of the Labor Code RF), part-time workers cannot work more than half the standard working time for a given position (Labor Code of the Russian Federation), etc. However, according to general rule the legal status of part-time workers is no different from the legal status of employees working at their main place of work, unless otherwise provided by special norms of labor legislation. Since the law does not provide that employees performing part-time work specified in No. 302n are exempt from the obligation to undergo mandatory preliminary and periodic medical examinations, the employer, without any exceptions, is obliged to conduct medical examinations for all employees, regardless of whether they work on a part-time basis. main place or part-time.
Since, according to part four of the Labor Code of the Russian Federation, part-time work does not entail for employees any restrictions on the duration of the annual basic paid leave, calculation of length of service and others labor rights, then the fact that a part-time worker works 2 hours a day also does not affect his obligation to undergo medical examinations.
Prepared answer:
Expert of the Legal Consulting Service GARANT
Mazukhina Anna
Response quality control:
Reviewer of the Legal Consulting Service GARANT
Kudryashov Maxim
The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.
Periodic medical examinations are carried out in organizations in order to identify employees occupational diseases, pathologies, infectious diseases. The employer is responsible for organizing and paying for medical examinations. Hired employees must undergo a medical examination within a specified time frame. Failure to fulfill these obligations threatens each party with liability. Fines for failure to undergo a periodic medical examination will become a significant cost item for any organization and individual entrepreneur.
The Labor Code regulates that in cases provided for by law:
Law No. 302n specifies the procedure for conducting medical examinations and a list of work during which personnel must undergo regular examinations. Employees working in the following areas must undergo mandatory inspections:
For each participant in the relationship for organizing periodic medical examinations for violating the procedure established by law, the following penalties are provided:
Punishments for failure to undergo a medical examination are regulated by the Labor Code of the Russian Federation, the Criminal Code of the Russian Federation and the Code of Administrative Offenses of the Russian Federation. Timely completion of routine medical examinations will help employers avoid penalties and ensure that the health status of all employees meets the requirements.
Fines for failure to undergo periodic medical examination labor personnel defined by Part 3 of Art. 5.27.1 Code of Administrative Offenses of the Russian Federation. So, in accordance with this article, the punishment for employers will be as follows:
For repeated violations, the perpetrators will be punished under Part 5 of Art. 5.27.1 Code of Administrative Offenses of the Russian Federation. The fines will be higher:
Penalties are not the only punishment for repeated violations - the following sanctions may also be applied:
Criminal liability for non-compliance with labor protection rules is established by Art. 143 of the Criminal Code of the Russian Federation. This article will be applied to the employer if he deliberately allows people to work who have not undergone a medical examination or have certain medical contraindications, and as a result of such actions serious harm to the health of one or more people will be caused. The death of one or more people as a result of negligence in complying with the requirements of current legislation will also entail criminal liability.
In accordance with Art. 143 of the Criminal Code of the Russian Federation, offenders will face the following punishments:
If a hired employee who is required to undergo medical examinations fails to undergo the examination due to his own fault, the employer has the right to remove him from work. Basis – art. 76 Labor Code of the Russian Federation. No salary will be accrued in this case. Also, a disciplinary sanction can be applied to the violator in compliance with the procedures specified in Art. 193 Labor Code of the Russian Federation.
If, after all the measures taken, an individual still does not pass the medical examination, the employer can dismiss him (grounds: clause 5, part 1, article 81 of the Labor Code of the Russian Federation). Fines are not applied to employers in such cases.
There are situations when an employee was unable to undergo a medical examination in a timely manner for good reasons or due to circumstances beyond his control. Then, for the entire period of forced suspension, he will be paid a salary as for downtime.
Details for paying fines must be provided by the body that attracts the individual entrepreneur or legal entity to responsibility. In this case, it is the State Labor Inspectorate. Payment must be made through a bank so that you have documentary evidence on hand. If there are several fines, each of them must be paid separately. Receipts should be retained.
Organizations and individuals are given 60 calendar days to pay penalties. The countdown begins from the day the decision to impose a fine comes into force. Offenders are not required to send copies or original receipts to the authority that issued the order.
1.1. In accordance with Art. 214 of the Labor Code of the Russian Federation, the obligation of an employee in the field of labor protection is to undergo mandatory preliminary (upon entry to work) and periodic (during employment) medical examinations, other mandatory medical examinations, and the employee is also obliged to undergo extraordinary medical examinations at the direction of the employer in cases provided for Labor Code of the Russian Federation and other federal laws. Note 1.
The employer is obliged to ensure that employees are not allowed to perform their job duties without undergoing mandatory medical examinations, mandatory psychiatric examinations, and also in case of medical contraindications (paragraph 12, part 2, article 212 of the Labor Code of the Russian Federation).
In accordance with Part 2 of Art. 76 of the Labor Code of the Russian Federation, the employer suspends (does not allow to work) the employee for the entire period of time until the circumstances that were the basis for removal from work or non-admission to work are eliminated, unless otherwise provided by the Labor Code of the Russian Federation or other federal laws.
Note 1: The employer is obliged to organize medical examinations at his own expense.
2.1. If the employee does not belong to the category of persons who are required to undergo periodic medical examinations, you do not have the right to insist on a medical examination.
2.2. If the employee belongs to the category of persons who are required to undergo a mandatory medical examination, the employer must organize and pay for the medical examination.
Issue an order (instruction) to send the employee to undergo a periodic medical examination (Order for referral for medical examination) .
The order must indicate the place, date, time and timing of the medical examination, full name. employee sent for examination. Note 2.
The employee must be given a referral for a periodic medical examination, on the basis of which he must arrive at the medical organization within the prescribed period to undergo the examination.
2.3. If an employee refuses or evades a medical examination, for the legality of the dismissal it is necessary that the fact of the employee’s refusal or evasion to undergo a medical examination be recorded in writing.
For example, in the event of an employee’s failure to appear at a medical organization to undergo a medical examination, with a request to remove the employee from work and a description of the fact of violation on the part of the employee, the circumstances of the event, a memo can be submitted by the employee’s immediate supervisor, and an act drawn up detailed description events (Memo on suspension from work), (Act on the employee’s evasion from undergoing a mandatory medical examination) .
If there are no legal grounds for dismissal (or are not documented), the dismissal of the employee will be contested.
If an employee for whom periodic medical examination is mandatory does not complete the specified examination, proceed to step 3.
Note 2: the procedure for conducting periodic examinations is established by Order of the Ministry of Health and Social Development of Russia dated April 12, 2011 No. 302n “On approval of lists of harmful and (or) hazardous production factors and work, during which mandatory preliminary and periodic medical examinations (examinations) are carried out, and the Procedure for conducting mandatory preliminary and periodic medical examinations (examinations) of workers engaged in heavy work and work with harmful and (or) dangerous working conditions.”
The frequency of periodic inspections is determined by the types of harmful and (or) hazardous production factors affecting the employee, or the types of work performed.
If there is an established and documented fact that an employee has failed to undergo a mandatory periodic medical examination, the employer is obliged to remove the employee from work.
Refusal to undergo a medical examination may be due to good reasons, however, this does not exclude the need to remove the employee from work and only affects the possibility of bringing him to justice.
Issue an order (instruction) to remove the employee from work due to failure to pass a medical examination (Order to remove an employee from work) . Note 3.
The order must indicate the basis for the suspension and its duration, which should be determined by the event of passing a new medical examination.
Familiarize the employee with the order (instruction) to remove the employee from work (not allowing him to work).
The employee's familiarization with the order must be confirmed by his signature. At the request of the employee, give him a duly certified copy of the specified order (instruction).
If the employee refuses to familiarize himself with the order or to sign, draw up a report (indicating the date, time and place of drawing up the report) ( Act on the employee’s refusal to familiarize himself with the order of dismissal) .
Invite the employee to familiarize himself with the document drawn up against signature. In case of refusal, make a corresponding note in the act. Attach the order to the act. It should be stated in the text of the order itself that in connection with the employee’s refusal to familiarize himself or to sign, an act has been drawn up.
Enter information about the period of suspension from work on the employee’s time sheet. The law also does not contain requirements to make an entry about the suspension in the personal
card or work book employee.
You should request written explanations from the employee about the reasons for failure to undergo a mandatory medical examination in order to be able to assess the presence or absence of the employee’s guilt in failing to undergo a medical examination, since this will affect the terms of payment (non-payment) for the period of suspension and the possibility of bringing the employee to disciplinary action.
Note 3: if there are grounds established by law, the removal of an employee from work (preclusion from work) is an obligation and not a right of the employer.
Suspension has the status of a temporary measure. If the reasons for the suspension are unavoidable, it may result in transfer to another job or dismissal of the employee.
To eliminate the reason for the employee’s removal from work, set a new date for a mandatory periodic medical examination of the employee. Note 4.
Note 4: repeated refusal by an employee to undergo a mandatory medical examination after the imposition of a disciplinary sanction may become grounds for dismissal for repeated failure to comply job responsibilities according to clause 5, part 1, art. 81 Labor Code of the Russian Federation.
An employee may be allowed to work only after undergoing a mandatory medical examination, as a result of which a medical certificate will be issued confirming the absence of contraindications for work.
If the employee has undergone a mandatory periodic medical examination, the fact of which is confirmed by a medical report on the absence of contraindications to work, issue an order (instruction) to allow the employee to work and familiarize the employee with the order (instruction) (Order on admission to work after suspension). Note 5.
The order must indicate the date on which the employee is required to start work. The employee's familiarization with the order must be confirmed by his signature. At the request of the employee, give him a duly certified copy of the specified order (instruction).
If the reason that served as the basis for the suspension is not eliminated for some reason or is, in principle, irremovable, the issue of transferring the suspended employee to another job or dismissal should be considered.
Note 5: an order for admission to work may not be issued if the entire period of suspension was immediately recorded in a previously issued order for suspension from work.
In cases of suspension from work of an employee who has not undergone a mandatory medical examination through no fault of his own, he is paid for the entire period of suspension from work as idle time.
According to Art. 157 of the Labor Code of the Russian Federation, downtime (Article 72.2 of the Labor Code of the Russian Federation) due to the fault of the employer is paid in the amount of at least two thirds of the average wages employee. Downtime due to reasons beyond the control of the employer and employee is paid in the amount of at least two-thirds of the tariff rate, salary ( official salary), calculated in proportion to the downtime.
If an employee has not undergone a medical examination due to his own fault, the employee will not be paid wages during the period of suspension from work (preclusion from work), unless otherwise provided by the Labor Code of the Russian Federation or other federal laws. This follows from Part 3 of Art. 76 Labor Code of the Russian Federation. Note 6.
Note 6: As a general rule, the time of suspension is not included in the length of service giving the right to annual basic paid leave (Part 2 of Article 121 of the Labor Code of the Russian Federation), as well as during the period of work giving the right to early assignment of an old-age pension.
Also read with this:
The employer must organize mandatory medical examinations for certain categories of employees (paragraph 12, part 2, article 212 of the Labor Code of the Russian Federation). In turn, employees are required to undergo such examinations (paragraph 6 of Article 214 of the Labor Code of the Russian Federation).
If the employee has not passed the medical examination, the employer removes him from work (does not allow him to participate in it) (Article 76 of the Labor Code of the Russian Federation).
The Labor Code of the Russian Federation does not define a list of documents that an employer must draw up to remove an employee from work.
However, based on the meaning of Art. 76 of the Labor Code of the Russian Federation, it is enough for an employer to:
– complete it yourself or receive a document confirming that the employee has not undergone a medical examination. For more information about this, see paragraph 1.1 of this material;
– issue an order (instruction) on removal from work. For more information about this, see paragraph 1.2 of this material.
1.1. A document confirming that the employee has not undergone a mandatory medical examination
Documents that confirm the fact that an employee has not undergone a mandatory medical examination may be:
– an explanatory note from the employee about failure to pass the inspection;
– written refusal of the employee to undergo inspection;
– certificate of incapacity for work issued during the inspection period;
– documented information from medical institution about the employee’s failure to appear for inspection;
– an act of refusal of the employee to undergo a medical examination drawn up by the employer.
For example, when considering a dispute about the legality of removing an employee from work, the court examined the documents that served as the basis for issuing the corresponding order. These included an act of the employee’s refusal to undergo a medical examination and a message from a medical institution about the employee’s failure to appear for an examination.
Based on the evidence presented by the employer, the court found that the order to remove the employee from work was issued lawfully (Determination of the Moscow City Court dated December 20, 2011 in case No. 33-39156).
1.2. Order to remove an employee who has not passed a mandatory medical examination
The removal of an employee from work due to failure to undergo a medical examination is formalized by order. Its form has not been established, so the employer has the right to develop it independently.
The order should reflect:
– the basis for removal, which is provided for by federal law or other regulatory legal act (Part 1 of Article 76 of the Labor Code of the Russian Federation);
– period of suspension. It is advisable to determine the end of the suspension not by a specific date, but by an event - passing a medical examination. This will avoid the issuance of additional orders if the employee does not undergo a medical examination on time;
– circumstances indicating the presence or absence of the employee’s guilt in failing to undergo a medical examination. They affect the terms of payment (non-payment) for the period of suspension;
– terms of payment during the period of suspension;
– a list of documents that confirm failure to undergo a medical examination.
The employee must be familiarized with the order against signature. If the employer refuses to sign, the employer should draw up a corresponding document.
If an employee has not undergone a mandatory medical examination due to his own fault, then the employer may apply to him disciplinary action(paragraph “c”, paragraph 35 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).
In the work time sheet (unified form N T-12 or N T-13), it is necessary to record the period actually worked by the employee until the order for his removal was issued. The time of suspension is noted in the report card by affixing an alphabetic (NB) or numeric (35) code (suspension from work (preclusion from work) for reasons provided for by law).
An entry about suspension from work due to failure to undergo a mandatory medical examination is not entered into the employee’s work book. The indication of such information is not provided for by Decree of the Government of the Russian Federation of April 16, 2003 N 225 and Decree of the Ministry of Labor of the Russian Federation of October 10, 2003 N 69.
It is not necessary to enter information about the employee’s removal from work in his personal card (form N T-2), since this is not directly provided for by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 N 1.
As a general rule, wages are not accrued during suspension from work (preclusion from work). However, federal laws may provide for exceptions (Part 3 of Article 76 of the Labor Code of the Russian Federation).
For example, the period of suspension from work is paid as idle time (parts 1, 2 of Article 157 of the Labor Code of the Russian Federation), if the employee did not undergo a mandatory medical examination through no fault of his own.
An employee is allowed to work after passing a mandatory medical examination (Part 2 of Article 76 of the Labor Code of the Russian Federation).
Passing the inspection is confirmed by a conclusion issued by medical organization(clause 31 of the Procedure for conducting mandatory preliminary (upon employment) and periodic medical examinations (examinations) of workers engaged in heavy work and work with harmful and (or) dangerous working conditions, approved by Order of the Ministry of Health and Social Development of Russia dated April 12, 2011 N 302n ).
It is better to issue permission to work by order, since in this case the organization will have a document recording the end of the suspension period.
Since the unified form of such an order has not been approved, the employer can develop it independently. It is advisable to include the following information in the order:
– last name, first name, patronymic of the employee, his position;
– the date from which the employee must begin work;
– the reason for dismissal from work;
– instructions to the accounting department to resume payroll in accordance with employment contract;
– details of the medical report.
To avoid further disputes regarding the start date of work (and, accordingly, the question of whether absence from work constitutes absenteeism), the employee must be familiarized with the order against signature. If you refuse to sign, a corresponding act is drawn up.
Entry into the work book of an entry about the end of the period of suspension and admission to work is not provided for by law (Resolution of the Government of the Russian Federation of April 16, 2003 N 225, Resolution of the Ministry of Labor of Russia of October 10, 2003 N 69).
It is not necessary to make an entry on the end of the suspension period and permission to work on your personal card (form N T-2), since this is not directly provided for by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 N 1.
However, the employer will need such information when calculating the length of service that gives the right to annual paid leave.
For more information, see the “Human Resources Guide.” Annual basic paid leave.”
You can record information about the employee’s suspension (the basis and period of suspension, the presence or absence of the employee’s guilt in failing to undergo a medical examination) in section 10 “ More information” Form N T-2.
The organization of mandatory medical examinations for certain categories of employees () is mandatory for the employer. According to certain categories of workers, they are required to undergo such examinations.
When the reason for the suspension is eliminated, i.e. After the employee has passed a medical examination, the employee must be allowed to work. The employer draws up an order for permission to work, which he introduces to the employee against signature.
The time of suspension in the work time sheet (unified form T-12 or T-13) is noted by affixing an alphabetic (NB) or digital (35) code (suspension from work (preclusion from work) for reasons provided for by law).
At removal from work and permission to work are not recorded in the employee’s work book and the employee’s personal card. The period of suspension from work is not included in the length of service required to grant leave ().
