The employee was asked to come to work on a day off, he agreed, and the HR department issued an order to hire him to work on a day off. The employee came to work on a day off while intoxicated and was not allowed to work. HR found out about it on Monday. How can I retroactively issue a suspension from work? Thanks in advance.
Answer to the question:
The specific procedure for documenting the removal of an employee from work is not established by law. You can register this order in the Internal Labor Regulations.
In practice, if it is discovered that it is sufficient to remove the employee from work, this fact is recorded, for example, in a report or memo from the immediate supervisor. Next, it is recommended that the employee be sent for a medical examination to a specialized organization that has the appropriate license. Based on the results of the examination, a medical report or report will be issued, which will establish.
➤ Read also about retroactive hiring
If the employee refuses to undergo the examination, the refusal must be recorded in an act. In this case, the fact of intoxication can be confirmed by other evidence, for example, compiled without the participation of doctors. Moreover, the act must be drawn up directly on the day the employee is discovered at work in a state of intoxication, otherwise it will be impossible to prove this fact. The act is signed by at least two people.
Next, on the basis of supporting documents, an order is issued to remove the employee from work, indicating the reasons and duration of the suspension. The order should reflect the procedure for the period of suspension: thus, the period of suspension from work due to alcohol intoxication is not paid.
If an employee is found intoxicated at the workplace, the head of the unit in which the employee works must contact the head of the organization. The note should reflect the signs by which the employee’s condition is assessed as intoxication (for example, incoherent speech, impaired coordination of movements, the characteristic smell of alcohol, etc.).
Signs of intoxication are listed in, approved.
Next, it is recommended that the employee be sent for a medical examination to a specialized organization that has the appropriate license. Based on the results of the examination, a medical report or report will be issued, which will establish.
Payment for services when contacting medical organization for the examination, as a rule, is carried out at the expense of the employer. However, if the fact of intoxication is confirmed, these amounts can subsequently be recovered from the employee as direct damage caused to the employer ().
At the same time, the employee has the right to refuse to undergo examination (). The employee’s refusal to undergo examination must be recorded in a document.
In case of refusal to undergo a medical examination, the fact of intoxication can be confirmed by other evidence, for example, compiled without the participation of doctors. The legality of this approach is explained in the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 and confirmed by judicial practice (see, for example,). Moreover, the act must be drawn up directly on the day the employee is discovered at work in a state of intoxication, otherwise it will be impossible to prove this fact. The act is signed by at least two people.
It is also necessary to invite an employee who appears in a state of intoxication to submit his explanations in writing, since incoherent wording, illegible handwriting, and unclearly expressed thoughts can subsequently be considered as additional evidence of being in a state of intoxication.
After all documents confirming the employee’s intoxication have been completed, the procedure for removing the employee from work occurs according to.
Suspension from work due to appearing in a state of intoxication is issued for only one day. If the next day the employee again appears in a state of intoxication, it will be necessary to carry out the entire procedure for suspension from work again.
The appearance of an employee at work in a state of intoxication is considered.
2. Answer: How to formalize the removal of an employee from work
Irina Zhuravleva, lawyer, consultant on personnel records and labor disputes, author of the advanced training course “HR School”
The suspension is carried out by the employer unilaterally, without obtaining the written or other consent of the employee, without prior warning him of the upcoming suspension from work.
The specific procedure for documenting the removal of an employee from work is not established by law. In practice, employers act as follows.
The order must indicate the reasons for the employee’s removal from work and indicate the period of suspension. As a rule, the wording is indicated “until the circumstances that were the basis for removal from work are eliminated.” At the same time, if at the time of drawing up the order it is possible to reliably determine the period of suspension, then the order can indicate a specific date.
In addition, the order should reflect the procedure for the period of suspension.
The order should also contain the line “Bases”, listing all documents confirming the legality and validity of the issuance of the order.
The order of suspension from work must be familiarized to the employee against his signature. If you refuse to sign an order, a corresponding act is drawn up or a corresponding entry is made directly on the order itself.
Record of suspension from work in . By general rules there is no need to make this entry in . However, if necessary (for example, to ensure internal accounting) this information can still be reflected in a personal card, for example, in the section “ More information" Such information will be useful, in particular, when it is necessary to grant leave.
During the period of suspension of an employee from work, an alphabetic or numeric code is indicated depending on the payment procedure for this period (suspension from work with payment - BUT (or 34), without accrual of wages - NB (or 35)).
It will be useful for you to know about Removal of an employee from work in the material at the link.
An organization can establish a specific procedure for processing documents in its local regulations. In addition, it is necessary to take into account the basis for the debarment, which may also affect the documentation procedure.
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In some cases, the employer is obliged to remove the employee from work. In what cases this is required and how it is done, we will tell you in our material.
The main cases when an employer must suspend an employee from work (not allow him to work) include (Part 1 of Article 76 of the Labor Code of the Russian Federation):
Other cases when an employer is obliged to remove an employee from work include, in particular:
In general, the employee is suspended from work for the entire period of time until the circumstances that became the basis for suspension from work are eliminated (Part 2 of Article 76 of the Labor Code of the Russian Federation).
The fact of the employee's removal from work must be documented. As a rule, for this purpose a suspension order is issued. The basis for drawing up an order may be an act, a report or explanatory note, a conclusion and other documents. The order must be familiarized to the employee against signature. It is also important to document the removal from work because during the period of the employee’s removal from work, wages, as a rule, are not paid at all (Part 3 of Article 76 of the Labor Code of the Russian Federation). And the fact of such non-payment to the employer must be justified.
Let us remind you that if an employee is suspended from work because, through no fault of his own, he did not undergo training and testing of knowledge and skills in the field of labor protection or a mandatory medical examination, then the time of suspension is paid as downtime due to the fault of the employer.
Here is an order to remove an employee from work (sample). The example concerns a case where an order for removal from work for medical reasons is issued.
Temporary gap labor relations carried out on the basis of the order of the manager. Articles of the Labor Code of the Russian Federation 76, 331.1, 351.1 indicate the moments at which the employer is forced to remove an employee from his position. In this case, it is mandatory to draw up an order.
Reasons for removing a specialist from work:
- for medical reasons;
- for drunkenness;
- for failure to undergo a medical examination.
How to properly formalize a suspension from work?
First of all, the basis document (act or memorandum, certificate, medical report) necessary for drawing up the order is documented. Next, based on this document, an order is generated in free form.
To confirm the legality of the actions, a commission is created to review the material. The signatures of all commission members must be present.
There is no unified form; the order is drawn up on the organization’s letterhead.
Required information:
If the suspended employee refuses to familiarize himself with the order, the employer’s decision must remain the same. In addition to the package of documents, a statement of refusal is drawn up, signed by the manager and 2 more witnesses.
A stamp is affixed, recorded in the order log and noted on the time sheet (NO - suspension with pay, NB - without pay).
Frequent suspension orders due to drug or alcohol intoxication are a prerequisite for rupture employment contract with an employee.
The grounds for removal from work must not contradict labor legislation. Material and administrative liability is provided for officials and managers of enterprises.
Material - not received wages for the days that the employee was wrongfully suspended. Administrative is the imposition of a fine, which increases several times for repeated non-compliance with the law.
Fines for illegal release employee from work under Article 5.27 of the Administrative Code:
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Enterprise or person |
Violation | |
An order for suspension from work is drawn up in cases where the management of an enterprise, for some reason, has the need to prevent one of its subordinates from performing official duties.
FILES
To begin with, it should be said that removal from work is not a right, but an obligation of the employer.
It happens due to certain circumstances. The most common reasons include:
There are other reasons for removal, but they are less common and are more likely of a targeted nature.
You cannot simply dismiss an employee from work. To do this, you need to follow a certain procedure:
Only after this can a person be removed from performing his official functions.
It should be noted that a work ban is always temporary, so the period of suspension must also be included in the order form.
The direct function of drawing up an order for removal can be included in the responsibilities of any employee of the organization who has certain knowledge of Civil and Labor legislation RF, as well as experience in writing such orders. Typically this is:
At the same time, it is always worth remembering that regardless of who specifically writes the order, it is issued on behalf of the director of the enterprise and must be certified by him.
All orders issued in an organization must be based on something and justified in some way. Most often, the basis in this case is either from the head of the structural unit in which the suspended employee works, as well as an act that indicates a violation that led to removal from work. As a justification, you need to clearly formulate the reason, which is usually included in the document after the words “In connection with...”.
If you create an unsubstantiated order and do not make any references to legislation or internal documents of the company, in the event of inspections by regulatory organizations (for example, a labor inspectorate), it will be very easy to refute it, and even more so - for the lack of grounds for writing the order , the company's management may be brought to administrative liability.
To date, there is no standard unified sample order for suspension from work, so company representatives can write it in any form or according to the organization’s internal template. The only important thing is that the document in its structure complies with the norms of office work, and in its text and content - with the rules of the Russian language.
It is also necessary that the order include a list of certain information:
After this, the head of the enterprise includes in the order the employees responsible for its execution (usually the head of a structural unit or a personnel officer, but if these positions are not available in the organization, the director can take on this function).
The completed order must be signed by the director of the enterprise or a person authorized to act on his behalf (the use of facsimile autographs, i.e. printed in any way, is not allowed). Also, the order must be signed by the persons responsible for its implementation and the employee who is suspended from work.
If the latter refuses to sign the director’s order, this does not become grounds for canceling the order. In such cases, another document is drawn up - an act of refusal to sign the order (for this, two witnesses should be involved).
There is currently no strict need to certify an order using a seal or stamp, since since 2016 organizations have been exempted from the obligation to use stamped products in their work (unless this norm is included in their local regulations).
The order is usually drawn up in a single copy, but if necessary, additional copies can be made.
After drawing up and endorsement in the prescribed manner, it should be registered in the internal log book.
Then, during the period of validity, it must lie along with other orders of the director in a place closed to unauthorized persons, and after its relevance has expired, it can be sent to the archive of the enterprise, where it must be stored for at least five years.
Suspension from work is a temporary exclusion of an employee from performing his main job functions on the grounds specified in Art. 76 Labor Code of the Russian Federation.
Preventing an employee from working is not a right, but an obligation of the employer. But before that, he must formalize the suspension according to all the rules.
First of all, it is necessary to document the basis provided for in Art. 76 Labor Code of the Russian Federation. This is not yet an exhaustive list. An employee can also be suspended on other grounds, which are specified in federal laws and regulations.
For example, if an employee’s activities are related to viruses and diseases, then without preventive vaccinations he has no right to start work.
Suspension is formalized by an order, which is issued on the basis of documents confirming that the employee cannot begin to perform work. For example, on the basis of a medical examination of alcohol intoxication.
An order to remove an employee from work is drawn up on company letterhead and has a serial number. It must contain the following information:
If an employee refuses to sign an order, this is not a basis for canceling the employer’s decision to prevent this employee from working.
In case of refusal, the employer must draw up an act in which two more witnesses and the employer himself (or an authorized person) must sign.
The order is stamped by the employer. After this, it is registered in the manner prescribed by law in the order register under its serial number.
Suspension from work is a temporary measure that the employer is obliged to apply if the grounds specified in Art. 76 Labor Code of the Russian Federation. One of these reasons is alcohol intoxication.
In order to prevent such an employee from working, the employer must record the fact that he appeared at the workplace while intoxicated. This can only be done medical worker in a medical institution that is licensed to conduct examinations.
According to Methodical instructions Based on a medical examination, a medical professional can establish 5 states of alcohol intoxication of an employee. The punishment depends on how accurately the doctor determines the patient’s condition.
Based on the medical report, the employer must draw up an order to remove such employee from performing his duties.
The order is drawn up on the company’s letterhead and has its own serial number. The order contains the following information:
The employee must sign the order. This suggests that he is familiar with it. This is done in case the employee decides to challenge the employer’s decision in court.
If the employee does not want to sign the order, then the employer must draw up an act, which, in addition to him (or an authorized person), must be signed by 3 more witnesses.
Suspension from work due to alcohol intoxication may be a prerequisite for the dismissal of such an employee.
You can download a sample order to remove an employee from work in .doc format
