Transfer of an employee to light work or dismissal due to a medical report

Terms of transfer

Today, the labor legislation of the Russian Federation provides for four main conditions that allow the employer to transfer an employee:

transfer of an employee to another place is possible if it is determined by the presence of a medical certificate;
the medical report is recognized as legitimate and has legal force, since it was issued in strict accordance with the norms of labor law in force in the Russian Federation;
the employer can provide the employee with work that he can perform without harm to his health;
the employee signed an agreement to transfer to another workplace.

Similar conditions were derived in law enforcement practice on the basis of Article 73 of the Labor Code of the Russian Federation. It should be noted that the procedure for issuing a medical report is prescribed in numerous regulations, but Federal Law No. 52-FZ “On the sanitary and epidemiological welfare of the population” is recognized as one of the main ones.

For example, this law stipulates that persons who are carriers of pathogens of infectious diseases are recognized as the source of such diseases, therefore, with their written consent, they can be temporarily transferred to another job that does not harm health and does not contribute to the spread of infection.

Dismissal for medical reasons

Clause 5, Part 1, Art. 83 of the Labor Code of the Russian Federation provides that an employment contract is subject to termination if the employee is recognized as completely incapable of working in accordance with a medical certificate issued in the manner established by Order No. 441 .
Completely incapable of working, as a rule, are persons recognized as disabled, and those who have been assigned the 3rd degree of severity of limitation of the ability to work - the impossibility (contraindication) of carrying out work in connection with existing significantly expressed impairments of body functions ( para. 4 paragraphs “g” paragraph 6 of the Classifications and criteria used in the implementation of medical and social examination of citizens by federal state institutions of medical and social examination , approved by Order of the Ministry of Labor of the Russian Federation dated December 17, 2015 No. 1024n ).

So, if, according to the rehabilitation program for a disabled person, it is established that any work activity is contraindicated for the employee, such an employee will have to be fired. To do this, the employer issues an order to terminate the employment contract under clause 5, part 1, art. 83 Labor Code of the Russian Federation . No other documents (notifications, consent, employee statements) need to be drawn up.

Based on the order, entries should be made in the work book and personal card. An employee who is declared completely incapable of working in accordance with a medical report, in addition to the calculation on the last day of work, is paid severance pay in the amount of two weeks' average earnings ( Part 3 of Article 178 of the Labor Code of the Russian Federation ).

Employee refusal to transfer

Permanent or temporary transfer of an employee to another place of work is determined by Art. 72 Labor Code of the Russian Federation. This rule of law provides clear regulations on how such a procedure should take place. In particular, the Labor Code of the Russian Federation states that the employer must obtain written consent from the employee regarding the transfer.

But what if the employee refuses the transfer? In this case, Art. 73 of the Labor Code of the Russian Federation, which states that the employer in his actions must be based on the medical report and the period indicated in it for which the employee’s transfer is required:

if the conclusion states that the employee must be transferred for medical reasons to another job for a period of up to 4 months, then the employer is obliged to retain the subject of the labor relationship at his previous place of work. In other words, the employment contract is maintained for the entire period of the employee’s temporary absence from his workplace. In this case, the employee is suspended from work for the entire period specified in the conclusion, and also loses his financial earnings. This principle is fixed in paragraph 2 of Art. 73 Labor Code of the Russian Federation.
If, according to the conclusion, the employee requires a transfer for medical reasons for a period of more than 4 months, but the transfer is refused (or if there is no vacant position), then the employer has legal grounds for terminating the employment contract, that is, dismissing the employee. In this situation, Art. 77 Labor Code of the Russian Federation.

It should be noted that when transferring an employee or dismissing a person due to his refusal or lack of position, legislative regulations must be taken into account, which allows the interests and rights of the subject of labor relations to be respected. If the procedure is violated, the employee can appeal to the court, which will recognize the dismissal order as void, that is, invalid.

In case of refusal to cooperate: when will salary payments continue?

In some circumstances, payroll accruals are retained, in whole or in part.

For example, citizens will receive at least 2/3 of their earnings if the suspension is not related to their guilt. This rule is especially relevant for temporary transfers. When a woman is pregnant, it also remains effective. Transfer to other places with more benign conditions is often the result of medical indications and conclusions.

Translation rules for chief accountants, managers and their deputies

As for the transfer of managers, chief accountants and their deputies, the labor legislation of the Russian Federation provides for special conditions for the implementation of such a procedure in practice. In particular, in Art. 73 of the Labor Code of the Russian Federation (Part 4) states that if an employee refuses a vacant position or if there is no free workplace in the organization, his dismissal follows.

In this case, the period for which it is necessary to transfer to another job due to a medical report is not taken into account. Even if the time period is less than 4 months, the head of the organization has all legal grounds to terminate the employment contract with the employee. This possibility is stipulated by Art. 77 of the Labor Code of the Russian Federation.

But there is also a rule of law in labor legislation that is aimed at respecting the legitimate interests of employees of the above categories.

So, if written consent is obtained from the employee, then the employment contract is not subject to mandatory termination. The way out of this situation is simple - the chief accountant, manager or their deputies are suspended from work for the required period specified in the medical report, but at the same time the employee loses the right to any social benefits or wages. However, other conditions for financial payments should not be regulated by collective agreements or federal regulations.

Payroll upon transfer

If we turn to labor legislation that has legal force in the territory of the Russian Federation, then the calculation of wages when an employee is transferred to another job for medical reasons has several main nuances:

if an employee is transferred to a job that requires a lower salary, then for a month after the official publication of the order he will retain his previous earnings;
If an employee is injured or has an occupational disease at work (that is, the transfer is determined by objective reasons and not by the employee’s initiative), then the injured person will retain average earnings until a disability group is awarded or recovery is achieved. A similar norm is fixed in Art. 182 of the current Labor Code of the Russian Federation.

At the same time, an insurance premium is also charged on such income, addressed to the Pension Fund of the Russian Federation, as well as the Unified Social Tax. Earnings are subject to income tax withholding.

Thus, transferring employees based on a medical report is a rather complicated procedure, as it has numerous nuances. In addition, to this day there are legislative gaps in this area, which may lead to a violation of the legal rights and interests of employees who need a temporary transfer for health reasons on the part of the employer.

Today, the employer has every reason to transfer an employee to another job in accordance with a medical report. This possibility is clearly regulated by Art. 73 of the Labor Code of the Russian Federation, which contains both the conditions for such a transfer and the regulations for this procedure itself.

General provisions

Translation, within the meaning of Art. 72.1 of the Labor Code of the Russian Federation, means a change in labor function. In other words, assigning to the employee other duties than those he performed before. Transfer also means a transfer to some other department of the organization or the relocation of an employee together with the employer to another region.

Moreover, regardless of the reasons for the change of duties, the employee usually performs the work that meets his professional level. A transfer to a position requiring a qualification lower than that of the employee is permitted.

Important: the employer is not obliged to offer work that requires higher qualifications. However, this is not prohibited by law.

According to Part 1 of Art. 73 of the Labor Code of the Russian Federation, if an employee, due to health reasons, needs to move to another job that is not contraindicated for him, the administration of the organization is obliged to provide it. Moreover, such a transfer is possible only with the consent of the worker.

In other words, the employer cannot force an employee to perform a different labor function than that determined by the provisions of the labor contract concluded between them.

It should be taken into account that transfer for health reasons is always carried out on the basis of a medical report. Moreover, a certificate of incapacity for work or a regular certificate from a doctor does not replace it.

Terms of transfer

Today, the labor legislation of the Russian Federation provides for four main conditions that allow the employer to transfer an employee:

transfer of an employee to another place is possible if it is determined by the presence of a medical certificate;
the medical report is recognized as legitimate and has legal force, since it was issued in strict accordance with the norms of labor law in force in the Russian Federation;
the employer can provide the employee with work that he can perform without harm to his health;
the employee signed an agreement to transfer to another workplace.

Employee refusal to transfer

if the conclusion states that the employee must be transferred for medical reasons to another job for a period of up to 4 months, then the employer is obliged to retain the subject of the labor relationship at his previous place of work. In other words, the employment contract is maintained for the entire period of the employee’s temporary absence from his workplace. In this case, the employee is suspended from work for the entire period specified in the conclusion, and also loses his financial earnings. This principle is fixed in paragraph 2 of Art. 73 Labor Code of the Russian Federation.
If, according to the conclusion, the employee requires a transfer for medical reasons for a period of more than 4 months, but the transfer is refused (or if there is no vacant position), then the employer has legal grounds for terminating the employment contract, that is, dismissing the employee. In this situation, Art. 77 Labor Code of the Russian Federation.

Translation rules for chief accountants, managers and their deputies

But there is also a rule of law in labor legislation that is aimed at respecting the legitimate interests of employees of the above categories. So, if written consent is obtained from the employee, then the employment contract is not subject to mandatory termination.

The way out of this situation is simple - the chief accountant, manager or their deputies are suspended from work for the required period specified in the medical report, but at the same time the employee loses the right to any social benefits or wages. However, other conditions for financial payments should not be regulated by collective agreements or federal regulations.

About employee benefits

Upon dismissal under normal conditions, employees are entitled to the following compensation:

Social or bonus payments regulated by internal regulations of the company.
Severance pay equal to two weeks' earnings.
Compensation for basic and additional leave.
Balance of wages and temporary disability benefits.

Severance pay is available to those who are declared incapable of work but refuse to transfer to another position. The basis for the calculation is the average earnings received in the year before dismissal. Any payments are made according to the calculation certificate.

Payroll upon transfer

if an employee is transferred to a job that requires a lower salary, then for a month after the official publication of the order he will retain his previous earnings;
If an employee is injured or has an occupational disease at work (that is, the transfer is determined by objective reasons and not by the employee’s initiative), then the injured person will retain average earnings until a disability group is awarded or recovery is achieved. A similar norm is fixed in Art. 182 of the current Labor Code of the Russian Federation.