One of the reasons according to which an employer can dismiss an employee is illness that does not allow him to fully perform the duties assigned to him. First of all, it should be understood that the head of an enterprise does not have the right to independently decide whether the physical condition of his subordinate meets the necessary standards. Let's turn to the Labor Code of the Russian Federation. Paragraph No. 3 of Article 81 states that only a medical report can become the basis for considering a case of dismissal for health reasons under the Labor Code of the Russian Federation.
Initiation of a case for dismissal due to health reasons
The owner of the company can initiate a case for dismissal for medical reasons if his work in such a condition could be dangerous for others or in cases where the person is completely incapacitated. After the personnel service receives documentary evidence that there are medical indications for dismissal, it has the right, by order, to remove the person from work and his position. All other reasons involve resolving the problem without resorting to such an extreme measure as dismissal for health reasons.
Violation of labor discipline
Disciplinary standards for medical employees are established by Chapter 30 of the Labor Code of the Russian Federation. These rules are discussed in the employment contract when hiring an employee. If any of them is violated, the doctor may be fired or otherwise punished. Disciplinary violations include:
- Illegal action or inaction of a medical employee. Violations include the doctor’s reluctance to complete the necessary documentation, delays and refusal to carry out legitimate management tasks;
- Violation of the rules of the employment contract, job descriptions, internal regulations or failure to fulfill the duties prescribed in the Labor Code of the Russian Federation;
- A cause-and-effect relationship between a physician’s action or inaction and negative consequences for the patient.
Violation of established rules and regulations results in a reprimand or reprimand to the employee in writing. However, in case of gross violation of the rules, the manager has the right to fire the doctor. Such factors may be systematic lateness, violation of labor safety rules, theft in the workplace, showing up at work drunk, absenteeism or disclosure of medical confidentiality.
Disciplinary action in the form of dismissal must be carried out no later than 1 month from the date of the doctor’s misconduct. However, multiple punishments cannot be used. If the head physician reprimands an employee, then they no longer have the right to fire him.
In order to legally carry out dismissals and penalties for disciplinary violations, a medical institution needs to have strictly defined job descriptions. This will help avoid controversial issues about the violation.
Dismissal in case of refusal of a new position
The offered position does not always suit the employee in certain respects. Then he has the right to refuse the vacancy offered to him. If the period of his restoration exceeds four months, he risks being dismissed in connection with paragraph 8 of Article 77 of the Labor Code of the Russian Federation.
This fact is confirmed by the corresponding order, which the employee must familiarize himself with on the day of dismissal. Then he is given a work book and a full payment is made. According to Art. 81 of the Labor Code, paragraph No. 3, if an employee is dismissed for medical reasons, regardless of the reasons that caused the illness, the employee must be paid a benefit in the amount of his two-week salary.
Medical contraindications for pregnant women
Pregnant women and women with children under the age of one and a half years are noted separately from other workers in the Labor Code.
By virtue of Art. 254 of the Labor Code of the Russian Federation, pregnant women, in accordance with a medical report and at their request, have production standards and service standards reduced, or these women are transferred to another job that excludes the impact of adverse production factors, while maintaining the average earnings for their previous job.
For example, according to clause 13.2 of SanPiN 2.2.2/2.4.1340‑03 “Hygienic requirements for personal electronic computers and organization of work” , approved by the Chief State Sanitary Doctor of the Russian Federation on May 30, 2003, women from the time pregnancy is established are transferred to work, not associated with the use of a PC, or the time they work with a PC is limited (no more than three hours per work shift), subject to compliance with the hygienic requirements provided for by sanitary rules.
To carry out the transfer, the employee must submit a medical report on the transfer of the pregnant woman to another job in form 084/u, approved by Order of the USSR Ministry of Health dated October 4, 1980 No. 1030 . This order is currently no longer in effect, however, the Letter of the Ministry of Health and Social Development of the Russian Federation dated November 30, 2009 No. 14-6/242888 states that after the repeal of this regulatory act, no new sample forms were issued. In this regard, healthcare institutions, on the recommendation of the Ministry of Health and Social Development, use in their work to record their activities forms approved by Order of the USSR Ministry of Health No. 1030 .
At the same time, as Rostrud noted, this can be either a conclusion in form 084/u or a medical report in any form, containing, in particular, the signatures of the head of the medical organization, medical specialists who participated in the issuance of the medical report, their personal seals in accordance with Order No. 441 .
If, from the moment the pregnant woman submits her conclusion and application, the employer does not have suitable positions, until she is provided with another job that excludes exposure to adverse production factors, she should be released from work while maintaining the average earnings for all working days missed as a result at the expense of the employer. Release from work is carried out according to the order of the employer.
When pregnant women undergo mandatory medical examinations in medical organizations, they also retain the average earnings at their place of work.
Women with children under the age of one and a half years, if it is impossible to perform the previous job, are transferred at their request to another job with wages for the work performed, but not lower than the average earnings for the previous job until the child reaches the age of one and a half years.
The impossibility of performing the previous work by a woman who has a child under the age of one and a half years should be understood as cases where such work is incompatible with feeding the child and proper care for him, as well as with a certain type of working hours, the traveling nature of the work, the remoteness of the place of residence from the place of residence. work, etc. ( paragraph 3 of clause 22 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of January 28, 2014 No. 1 “On the application of legislation regulating the work of women, persons with family responsibilities and minors” (hereinafter referred to as Resolution No. 1 )).
If a woman is transferred to a lower-paid job, the employer is obliged to maintain her average earnings from her previous job until the child reaches the age of one and a half years ( part 4 of article 254 of the Labor Code of the Russian Federation , paragraph 4 of clause 22 of Resolution No. 1 ).
In what situations will a lawyer help you protect your rights?
If your contract was terminated while you were on vacation at the time, contact a lawyer immediately. He will help you assert your legal rights. After all, relying on subparagraph “a” of paragraph 3 of Art. 81 of the Labor Code of the Russian Federation - this is an illegal act. In addition, you should know that based on the same legal act, the employee cannot but be paid money for unworked vacation days used in advance.
The legislation of our country has many nuances and features. To understand them, you need to be a professional lawyer. Therefore, if you have been wrongfully dismissed for health reasons, the only chance to assert your rights is to contact a professional.
Reason for action
So, the employer can learn that an employee is contraindicated from working in his position based on the results of a medical examination conducted in the organization, if such an examination is mandatory for the employee (for example, if he works in difficult or dangerous working conditions), or from a medical examination. certificate that the employee submits independently.
The employer's actions depend on the employee's health status. In some cases, the employee must be transferred to another position, and in others, dismissed. This should be based on the recommendations given in the medical report. Please note that such a document can only be a medical report, and not a simple certificate or certificate of incapacity for work.
Such a medical report is issued in the manner established by Order of the Ministry of Health and Social Development of the Russian Federation dated May 2, 2012 No. 441 [1] (hereinafter referred to as Order No. 441 ). Conclusions are issued to citizens based on the results of medical examinations, medical examinations, clinical examinations, on the basis of decisions made by a medical commission, as well as in other cases when the legislation of the Russian Federation provides for the availability of a medical report.
This procedure does not apply if the legislation of the Russian Federation establishes a different procedure or form for issuing a medical report.
For the employer, the part of the medical report that contains the following conclusions is important:
- about the presence (absence) of a disease in an employee, risk factors for the development of diseases;
- on the presence of medical indications or medical contraindications for carrying out certain types of activities;
- on the compliance of the employee’s health status with the work assigned to him.
Medical reports can be issued:
– in any form (except for cases where the legislation of the Russian Federation establishes a different procedure for issuing a certificate or medical report or another form of a certificate or medical report) with the stamp of the medical organization;
– on the letterhead of a medical organization (if available).
Conclusions are signed by medical specialists involved in issuing a medical opinion, by the head of a medical organization, certified by the personal seals of medical specialists and the seal of a medical organization, the imprint of which must identify the full name of the medical organization corresponding to the name specified in its charter. If a medical opinion is issued by a medical commission of a medical organization, it is also signed by the members and head of the medical commission.
If an employee is diagnosed with a disability, the employer should be guided by a certificate confirming the establishment of the disability group and the degree of limitation of the ability to work, the form of which is established by Order of the Ministry of Health and Social Development of the Russian Federation dated November 24, 2010 No. 1031n , and the individual rehabilitation or habilitation program for a disabled person approved by the Order of the Ministry of Labor of the Russian Federation dated July 31. 2015 No. 528n .
The following can also be submitted as a medical report:
– certificates of the results of establishing the degree of loss of professional ability as a percentage in the form approved by Order of the Ministry of Health and Social Development of the Russian Federation dated October 20, 2005 No. 643 [2];
– rehabilitation programs for victims of industrial accidents and occupational diseases in accordance with Resolution of the Ministry of Labor of the Russian Federation dated July 18, 2001 No. 56 [3];
– a medical report based on the results of a periodic medical examination, which follows from the totality of the provisions of paragraph. 7 clause 13 , clause 31 of the Procedure for conducting mandatory preliminary and periodic medical examinations , approved by Order of the Ministry of Health and Social Development of the Russian Federation dated April 12, 2011 No. 302n .
Can they be fired for unsuitability after a periodic medical examination?
A medical institution conducting a periodic medical examination has the right to make a preliminary diagnosis of “acute (or chronic) occupational disease.” In this case, the relationship between the employee, employer, and medical institution is regulated by a special normative act - regulation, approved. Decree of the Government of the Russian Federation dated December 15, 2000 No. 967 (hereinafter referred to as Regulation No. 967).
According to clause 4 of regulation No. 967, an occupational disease can take one of two forms:
- spicy;
- chronic.
If an acute form of the disease is established, then:
- The medical institution sends an emergency notification about the occupational disease to Rospotrebnadzor and the employer within 24 hours.
- Rospotrebnadzor conducts an investigation into the cause of acute occupational disease and compiles a sanitary and hygienic description of working conditions.
- Based on the above characteristics and clinical data of the patient, the medical institution makes a final diagnosis of “acute occupational disease” and draws up a medical report.
If a chronic form of the disease is established, then:
- The notice is sent to Rospotrebnadzor within 3 days, which conducts an investigation and compiles a description of working conditions within 2 weeks.
- The medical institution sends the patient to the Occupational Pathology Center within a month. After the examination, the latter makes a final diagnosis of “chronic occupational disease” and draws up a medical report.
In both cases, the medical certificate is issued to the employee against receipt (clause 15 of regulation No. 967).
Important! Based on the received medical report, the employer takes measures, such as dismissal due to unfitness for health reasons.
