How to write for health reasons. How to write a letter of resignation for health reasons. Recognition of complete incapacity for work of an employee

Dismissal by on their own for health reasons is carried out on the basis of a medical opinion. On the one hand, this option for the termination of labor relations practically does not differ from the usual dismissal at the initiative of the worker. On the other hand, in case of deterioration in health, an employee is obliged to inform his superiors about this, which, in order to avoid penalties and legal proceedings, must comply as much as possible with a certain algorithm of actions. How to properly terminate an employment contract due to deterioration of the employee's health, you will learn further by reading the article.

Legislative regulation

The issue of dismissing an employee for health reasons is not allowed by any separate article Labor Code RF. On the contrary, the norms, one way or another concerning the problem under consideration, are scattered throughout the Labor Code of the Russian Federation, as well as in other legal acts.

So, within the framework of the Labor Code of the Russian Federation, in the event of the described circumstances, you can use the following provisions: Art. 73 (rules for the transfer of an employee in connection with medical indications), art. 76 (rules for suspension from employment), art. 77 (common reasons for graduation employment contract), Art. 80 (how can you stop labor Relations at the request of the employee), Art. 83 (if circumstances arise that do not depend on the will of the parties (paragraph 5)), Art. 137, 178, 182 (guarantees and compensation upon dismissal).

A whole block of normative acts regulates the issues of passing medical examinations or medical and social examinations, as well as obtaining the corresponding medical opinions. These include various orders of the Ministry of Health and Social Development and the Ministry of Labor of the Russian Federation.

Finally, the Constitution of the Russian Federation (part 2 of article 37) and the Code of Administrative Offenses of the Russian Federation (article 5.27) contain the concepts of forced labor and responsibility for the use of such labor.

Employee actions: application for dismissal (sample)

If an employee, whose health has deteriorated, does not want to continue his career, is not confident in his abilities, or is guided by other motives, then he has the right to resign of his own free will. At the same time, the fact that the reason for the dismissal is the deterioration of health brings some peculiarity.

In accordance with Part 3 of Art. 80 of the Labor Code of the Russian Federation, the organization terminates labor relations precisely from the date that the employee himself indicates. That is, if there is a condition that an employee leaves at his own request due to the inability to continue working for health reasons, the obligation to work out for two weeks is canceled.

In these circumstances, the employee writes a letter of resignation for health reasons. Like all appeals from working citizens, it is compiled in an arbitrary form. But for the convenience and uniformity of office work in the enterprise personnel service can develop a special form.

After receiving this application, the management of the organization issues a corresponding order, calculates and issues all the necessary documents.

Don't know your rights?

Identification of deterioration in the health of an employee

The deteriorating health status of an employee should not be confused with temporary disability. If the latter is drawn up with a certificate of incapacity for work (sick leave), then the first concept is confirmed by a medical certificate, which is issued in accordance with the order of the Ministry of Health and Social Development of the Russian Federation "On approval of the Procedure ..." dated 02.05.2012 No. 441n.

Information about the health of the employee may appear from the head of the organization in connection with his current illness or the passage of a medical commission (examination). By the order of the Ministry of Health and Social Development of the Russian Federation "On the approval of the Lists ..." dated 12.04.2011 No. 302n, as well as Art. 213 of the Labor Code of the Russian Federation defines a list of works where the passage of periodic medical examinations is mandatory.

In case of an identified deterioration of health, which is confirmed by a medical certificate or other document issued by the authorities medical and social expertise(order of the Ministry of Labor of the Russian Federation of January 29, 2014 No. 59n), the employee immediately informs his employer about this circumstance. Such a duty is provided for by Art. 214 of the Labor Code of the Russian Federation. In those enterprises where medical examinations are mandatory, managers will automatically learn the specified information. After receiving the relevant information from the employee, the employer initiates a certain procedure, which we will discuss below.

Employer's actions: notification, transfer or dismissal of an employee

Further, the employer should strictly observe all the nuances of interaction with an employee whose health condition has deteriorated to such an extent that he cannot continue to work in his position. The timeframes for the performance of this or that action are not established by the normative means, therefore, they must be carried out within reasonable limits and without delays. The procedure will be as follows:

The administration of the enterprise notifies the citizen of the availability of vacancies that may suit him in health. The notification is drawn up in any form, but it must necessarily contain the requisite for familiarization by the employee. Note that the employer is obliged to offer even lower and less paid vacancies (part 3 of article 81 of the Labor Code of the Russian Federation). If the employee accepts a proposal for another position, he sends the manager a written consent, on the basis of which the employee is transferred to another position (part 1 of article 73 of the Labor Code of the Russian Federation).
If a citizen refuses to transfer or the organization cannot offer him another vacancy, the following options are possible:
- Provided that it is expected to restore health within 4 months, the employer simply suspends the employee from work. Then the position remains with the employee, but he will not receive a salary during the suspension (part 2 of article 73 of the Labor Code of the Russian Federation). If we are talking about such positions as the head of the enterprise, his deputies and the chief accountant, then the dismissal is possible for a period determined by the agreement of the parties.
- If medical forecasts do not imply recovery, then the company may terminate the contract with the person on the basis of clause 8, h. 1, Art. 77 of the Labor Code of the Russian Federation (part 3 of article 73 of the Labor Code of the Russian Federation).
When an employee completely loses the ability to work and this is confirmed by a medical report, the employer is obliged to terminate the employment relationship for circumstances beyond the control of the parties (clause 5 of part 1 of article 83 of the Labor Code of the Russian Federation).

Guarantees and compensations

Dismissal due to poor health is a bleak event. Therefore, the legislator has initiated some compensatory measures. Unfortunately, compensation can be obtained only when the termination of the employment contract is made on the initiative of the authorities or due to circumstances beyond the control of the parties. These include, in particular, the following:

In the final calculation, no deduction is made for the received, but unworked annual paid vacation (paragraph 4 of part 2 of article 137 of the Labor Code of the Russian Federation).
Upon dismissal, it is paid severance pay which equals average salary in two weeks (paragraph 1 of part 3 of article 178 of the Labor Code of the Russian Federation).

In addition to compensation for dismissal, there is a guarantee in the event that the employee remains at the enterprise, but is transferred to a lower-paid job. It lies in the fact that the employee retains the same salary for one month (Article 182 of the Labor Code of the Russian Federation).

So, the fact that the health of an employee is deteriorating is a circumstance that a conscientious employer should be very attentive to. The most important thing in the situation that has developed in this way is to act immediately and accurately respect the rights of a citizen. In accordance with the Constitution of the Russian Federation and the Labor Code of the Russian Federation, the continuation of labor relations with a sick employee can be qualified as forced labor. This, in turn, may become a pretext for initiating administrative proceedings against the enterprise.

Something can happen in the life of every person, because of which his health deteriorates - for example, an injury or a disease that has been discovered. This circumstance can cause the employee to be unable to fulfill the previous labor duties.

How to competently part with an employee who has become disabled, having properly documented it?
What payments are due to a person leaving for work incapacity?
What features of such a dismissal are characteristic of an employee of the military service?

We consider this issue from the perspective of the Labor Code Russian Federation and employers' practices.

According to the Labor Code of the Russian Federation

The legislation of the Russian Federation says that each employee must be able to perform the professional duties assigned to him. If health does not allow this, then such labor is equated to forced labor, which is strictly prohibited by law. All subtleties related to termination of an employment contract for health reasons are governed by the following provisions of the Labor Code:

subparagraph a of paragraph 3 of Art. 81 of the Labor Code of the Russian Federation - an article of termination of an employment contract associated with an employee's inconsistency with his position for medical reasons;
paragraph 8 of Art. 77 of the Labor Code allows you to dismiss an employee if the organization does not have the opportunity to work in a position suitable for his current state, or he does not agree to take a suitable vacant position;
paragraph 5 of Art. 83 of the Labor Code of the Russian Federation provides for dismissal when a person can no longer work at all;
Art. 178 of the Labor Code of the Russian Federation stipulates benefits for dismissal.

Formulate correctly

The phrase "dismissed for health reasons" is often used in everyday life, but it should be noted that legally it is not consistent - in the legislation there is no such formulation of grounds for dismissal. This or that state of health of the personnel is ascertained not by the employer, but by medical institutions. If a person is currently unable to continue working, this may indicate temporary disability, that is, stay on sick leave. And this status of an employee makes his dismissal impossible.

Therefore, the correct wording would be "dismissal for medical reasons" or "due to the inability to fulfill their job duties."

Formulation in work book depends on the article under which the dismissal is made.

Not a step without KEK or MSEC

Neither the employee nor the employer has the right to adequately assess the physical ability to perform labor functions. This is the prerogative medical professionals, which must issue an appropriate conclusion.

If a disease incompatible with work in the previous position is detected during a preventive or routine examination, the conclusion is sent to the personnel department of the employee KEC- clinical expert commission. This conclusion must be endorsed by the chairman and all members of the KEC, certified by the seal of the medical institution and filed with the employee's medical history. This conclusion provides the basis for transfer to a suitable job.
If the reason for the disability is an injury, injury or other unforeseen event, it is analyzed MSEC- medical and social expert commission. In addition to the conclusion on partial or complete incapacity for work, the commission issues a rehabilitation card, which indicates the disability group assigned to the employee, as well as information on what types of activities a disabled employee can be admitted to and for what period. If the loss of incapacity for work is persistent, which makes further professional activity, the decision on this is also made by MSEC.

IMPORTANT INFORMATION! The employer does not have the right to make any personnel decisions without the medical opinion of the KEK or MSEK. Any dismissal without such a conclusion due to health conditions is considered illegal.

The employer was provided with a conclusion, what next?

Having received an appropriate medical certificate from a medical institution or the employee himself, the employer must immediately take adequate action. An employee in respect of whom such an opinion has been drawn up cannot continue to work as if nothing had happened - this threatens the employer with serious sanctions, since it is a violation of the employee's rights. Consider the options for the employer's actions, depending on the reactions of the disabled employee.

Partial or temporary incapacity for work... If the conclusion only restricts labor functions, the employer must provide the employee with the opportunity to use them to the extent permitted by the doctors. To do this, the employee should be offered a transfer to a position whose duties do not contradict the medical report:

if the employee agrees, such a transfer is carried out on a temporary or permanent basis (the consent must be confirmed in writing);
if there is no vacancy that meets the requirements or the employee's consent is not received, the dismissal is lawful in accordance with paragraph 8 of Art. 77 of the Labor Code of the Russian Federation.

Permanent complete disability. If a medical certificate has assigned an employee a disability group that negates his professional suitability, the employer cannot have a choice. Dismissal under clause 5 of Art. 83 of the Labor Code of the Russian Federation.

NOTE! Even if the employee still performs all duties flawlessly, the priority of the medical opinion is undeniable. If the performance of labor functions can be dangerous for the employee himself, the team or his clients, which is reflected in the medical certificate, he is shown a transfer to another position, the creation of special conditions or dismissal. If, however, reduced indicators or defects in work due to health conditions are recorded, this will be additional evidence of the competence of the medical conclusion.

Money matters

How will the employee's professional incompetence financially affect the employer? It all depends on the article of the Labor Code, according to which the employment contract is terminated or a transfer to a lighter position is made. The following options are possible here:

if, due to deterioration in health, the employee has transferred to a position that is paid lower than the previous one, then in the first month of work in a new capacity he must receive the same salary, and if the transfer is temporary, then the average earnings are paid until the restoration or complete loss of ability to work (no more 4 months);
if fired according to PP. a paragraph 3 of Art. 81, that is, the company does not have a vacancy suitable for his health, then, leaving work, the employee will receive an allowance in the amount of earnings for 2 weeks;
if there is a suitable vacancy, but the employee does not want to transfer to it (clause 8 of article 77), he will not be able to receive the allowance;
if the reason for the dismissal was clause 5 of Art. 83, that is, the employee is released due to the complete loss of the opportunity to work, such a circumstance does not depend on the will of the parties, therefore, severance pay is not required.

Dismissal of a soldier

If a soldier is no longer fit for service for health reasons, the procedure for his release is called commissioning... The issues of the compliance of his health and the passage of military service are regulated by the Federal Law "On Military Duty military service", Namely by subparagraph 6 of paragraph 6 of Art. 51. A soldier has the right to transfer to another position or leave the service if his health does not allow him to continue.

The medical indications must be confirmed by the conclusion of the VKK - the military medical commission. If the conclusion speaks of partial fitness for service, then the consent of the soldier is required for dismissal.

The obligatory reasons for the commissioning of a soldier are:

the conclusion of the VKK about complete unfitness for service;
restriction on health, if a military contractor does not have the right in his position to rise above the sergeant-major-conscript.

In case of expulsion from the Armed Forces, the commissioner is entitled to the following payments:

one-time allowance - 2 salaries for employees less than 20 years old, 7 salaries - for "veterans" of the service;
if a soldier was awarded a state award, the compensation is increased by one more salary;
a bonus for conscientiousness (it is necessary if at the time of commissioning a military man was in his post) - a quarter of a monthly salary or maintenance, for cadets - 15%;
material aid for the year of departure - monthly salary.

ATTENTION! Payments can be canceled due to some unseemly circumstances provided for by the Federal Law, for example, deprivation of military rank, a court sentence on imprisonment, failure to comply with contract requirements, etc.

As of: 16.01.2006
Magazine: Handbook of a personnel officer
Year: 2006
Author: Chepik S. A,
Topic: At the initiative of the employer, For other reasons, Permanent translation for another job
Heading: Personnel practice

The Labor Code of the Russian Federation contains three grounds for termination of labor relations related to the physical condition of the employee: in connection with the complete loss of the employee's ability to work (clause 5 of article 83 of the Labor Code of the Russian Federation); in connection with the refusal of the employee to transfer to another job due to the state of health in accordance with the medical report (clause 8 of article 77 of the Labor Code of the Russian Federation); in connection with the inadequacy of the employee for the position held or the work performed due to the state of health in accordance with the medical report (subparagraph “a”, clause 3 of article 81 of the Labor Code of the Russian Federation).

What is the difference between the procedure for terminating an employment contract on each of these grounds? What features are provided by the legislator when terminating labor relations in these cases? This will be discussed in the article offered to the attention of readers.

Termination of an employment contract due to circumstances due to the state of health of the employee refers to cases of termination of labor relations at the initiative of the employer.

Differences in the grounds for dismissal related to the health of the employee

Termination of labor relations due to complete loss of ability to work (clause 5 of Article 83 of the Labor Code of the Russian Federation) must be distinguished from other cases of dismissal related to the physical condition of the employee: due to his inadequacy for the position held or work performed for health reasons, as well as dismissal due to the fact that the work performed is contraindicated for the employee.

In contrast to the inadequacy of the employee for the position held for health reasons or the presence of contraindications to the performance of the work for which he was hired, if the employee is recognized as completely incapacitated in accordance with the medical report, the employment relationship with the employee must be terminated due to his complete loss of ability to work.

Upon presentation by the employee of a medical certificate, on the basis of which the employee is recognized as completely incapacitated, the employer is obliged to terminate the employment relationship with him.

There are also differences between the dismissal of an employee in connection with his refusal to transfer to another job due to a state of health in accordance with a medical opinion (clause 8 of article 77 of the Labor Code of the Russian Federation) and dismissal due to his inadequacy for the position held or work performed due to a state of health in in accordance with the medical report (subparagraph “a” of clause 3 of article 81 of the Labor Code of the Russian Federation).

Comparing these grounds for termination of labor relations, we can conclude that in the first case, labor relations are terminated when the performance of a certain work is contraindicated for the employee (part 2 of article 72 of the Labor Code of the Russian Federation), and in the second case - when the employee can perform the work entrusted to him, but the state of his health affects the quality and / or volume of work performed by him (sub. “a”, clause 3, article 81 of the Labor Code of the Russian Federation).

This conclusion is confirmed in the Resolution of the Plenum of the Supreme Court of the Russian Federation of 03.17.04 No. 2 “On the Application by the Courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as the Decree of 03.17.04).

With regard to the termination of labor relations under paragraph 8 of Art. 77 of the Labor Code of the Russian Federation, it should be noted that according to Art. 4 of the Labor Code of the Russian Federation, the employer's requirement for the performance of labor duties, if this work endangers the life or health of the employee, is referred to as forced labor. As you know, forced labor is prohibited (paragraph 2 of article 37 of the Constitution of the Russian Federation). In this regard, if an employee is attracted to work that is contraindicated for him for health reasons, the employer's official may be held administratively liable for violation of labor and labor protection legislation on the basis of Art. 5.27 of the Administrative Code of the Russian Federation. This article provides for liability in the form of an administrative fine in the amount of 5 to 50 minimum wages. Therefore, upon receipt of a medical opinion stating contraindications to the performance of work, the employer is obliged to immediately transfer the employee to another position, and in the absence of a suitable job or if the employee refuses to take the position offered to him, terminate the employment relationship with him.

Quoting the document

In case of termination of the employment contract under sub. “A” clause 3 of Art. 81 of the Labor Code of the Russian Federation, the employer is obliged, in particular, to provide evidence confirming that the state of health of the employee, in accordance with the medical report, prevented him from properly performing his job duties. It should be borne in mind that if the employee properly performs his job duties, however, it will be found that he

needs, in accordance with the medical opinion, to provide other work due to the fact that the work performed is contraindicated or dangerous for the team of workers or the citizens served by him, by virtue of Part 2 of Art. 72 of the Labor Code of the Russian Federation, if the employee refuses to transfer to another existing job that is not contraindicated for him for health reasons, or if there is no appropriate work in the organization, the employment contract with the employee is terminated in accordance with paragraph 8 of Art. 77 of the Labor Code of the Russian Federation.

Resolution from 17.03.04

Note!

If, in a situation where the performance of an employee's work duties is contraindicated for him (or dangerous for others) according to a medical opinion, the employer is obliged to transfer the employee to another job (or terminate his employment relationship), then in a situation where the employee does not correspond to the position held for health reasons , the employer has the right to terminate the employment relationship with him, but is not obliged to do so

As for the case of termination of labor relations under sub. “A” clause 3 of Art. 81 of the Labor Code of the Russian Federation, the situation here is somewhat different. If there is a disease that does not allow the employee to perform the work for which he was hired efficiently and in full, the employer has the right:
- transfer the employee, with his consent, to another position, which he can occupy in accordance with his state of health;
- terminate labor relations with him (in the absence of a suitable vacant position or the employee's disagreement to take the position offered to him).

In principle, like other cases of termination of labor relations at the initiative of the employer, despite its seeming simplicity, termination of labor relations for reasons related to the health of the employee is fraught with many difficulties. And in order to avoid possible disputes with the employee in the event of termination of employment on the basis of sub. “A” clause 3 of Art. 81 of the Labor Code of the Russian Federation or on the basis of clause 8 of Art. 77 of the Labor Code of the Russian Federation, the employer must strictly fulfill all the necessary conditions.

Medical checkup

As can be seen from the wording of sub. “A” clause 3 of Art. 81 of the Labor Code of the Russian Federation, a condition for the possible termination of an employment contract is the availability of a medical certificate confirming the employee's inadequacy for the position held due to health conditions. The medical report is also the basis for the transfer of the employee to another position (and if it is impossible to transfer - termination of labor relations with him) on the basis of Part 2 of Art. 72 of the Labor Code of the Russian Federation.

The employer has the right to send an employee to pass medical examination only if the employee performs work for which a medical examination is established. This applies to workers engaged in heavy work and work with harmful or dangerous conditions labor, as well as at work related to the movement of transport, workers Food Industry, as well as employees whose working conditions are associated with harmful production factors(Article 213 of the Labor Code of the Russian Federation).

The lists of harmful and hazardous production factors and works, during which medical examinations are carried out, are approved by the order of the Ministry of Health and Social Development of Russia dated August 16, 2004 No. 83 “On approval of lists of harmful and (or) hazardous production factors and works, during which preliminary and periodic medical examinations are carried out (surveys), and the procedure for conducting these examinations (surveys) ”. The order lists the harmful and dangerous production factors in which medical examinations are performed. These factors include various chemicals, biological substances that can affect the health of workers; physical factors such as vibration, occupational noise, and a variety of factors labor process: moving heavy loads, working with electronic computers, etc. The order approved the work in which preliminary and periodic medical examinations are carried out.

In the event that an employee holds a position that is not in any way connected with harmful or dangerous factors and for which there is no requirement for medical examinations, the employer has no right to oblige the employee to undergo a medical examination, even if there is a decrease in the employee's working capacity due to an unsatisfactory condition. his health. Of course, the employer has the right to recommend him to undergo a medical examination.

On the other hand, according to Art. 21 of the Labor Code of the Russian Federation, the employee is obliged to immediately inform the employer about the occurrence of a situation that poses a threat to the life and health of people, which means, including the obligation to report circumstances that threaten the life and health of the employee (Article 214 of the Labor Code of the Russian Federation). If the employee refuses to inform the employer, information that the performance of the assigned work is contraindicated for him for health reasons is provided, the employer will not be liable for possible harm caused to the employee by the performance of the contraindicated work.

In the event that an employee performs work that provides for the passage of medical examinations, refusal or evasion of the employee without good reason from a medical examination will be a failure or improper performance through the fault of the employee of the labor duties assigned to him (sub. “c” clause 35 of the decree of 17.03.04).

At the time of the medical examination, employees who are obliged in accordance with the law to undergo such an examination are retained average earnings(Article 185 of the Labor Code of the Russian Federation).

To undergo a medical examination, the employer gives the employee a referral for presentation to the attending physician of the medical and preventive institution conducting the examination. The form of the referral is not approved by the current legislation, and it is drawn up in any form. In the direction, the employer must indicate harmful, hazardous and production factors affecting the employee.

By the way ...

In 2006, 1.9 billion rubles will be allocated from the budget of the Social Insurance Fund of the Russian Federation for prophylactic medical examination of Russians employed in production with harmful and hazardous working conditions. One of the goals of prophylactic medical examination is to identify the links between disease and work in certain conditions.

At the first stage, employees of the coal industry, metallurgy, mechanical engineering, transport and communications will be able to undergo additional medical examination.

The total number of working citizens who will undergo medical examination next year is 3.5 million people.

Information about the health of Russians, obtained as a result of medical examination, will go to the information base of the FSS. Based on the results of the medical examination, a health passport for each Russian will be drawn up.

FSS guarantees the impossibility of unauthorized access or theft of the information base. The information will only be available to doctors.

The person conducting medical examinations is the attending physician of a medical and prophylactic institution who provides medical assistance to a citizen on an ongoing basis (at the place of residence, at the place of work or under a compulsory medical insurance contract). The attending physician can also be a general practitioner of a health center, workshop or territorial area, or a doctor general practice(family doctor) working in a medical and prophylactic organization (hereinafter referred to as the “Medical and preventive institution”).

A medical and prophylactic institution has the right to conduct medical examinations and issue conclusions with a license, where the right to perform work and services for the examination of professional suitability must be specifically indicated.

Based on the results of a medical examination, a medical and prophylactic institution has the right to:
- issue a conclusion confirming the absence of contraindications to the performance of the relevant work;
- issue an opinion containing recommendations on the need to transfer the employee for health reasons to another job or other recommendations for employment;
- if it is necessary to conduct additional research beyond the capabilities of this institution, as well as in case of detection of general diseases or abnormalities in the state of health, send an employee to the Center for Occupational Pathology or another specialized medical institution for medical and social examination (MSE).

The medical and social examination establishes the degree of disability and gives recommendations for the employment of an employee.

Note!

If the employee is contraindicated to work with harmful, hazardous substances and production factors, the medical and prophylactic institution is obliged to send the employer a copy of the opinion of the clinical expert commission within three days.

It should be borne in mind that workers do not always agree with the conclusions of the medical institution. In this case, they have the right to apply for a medical and social examination or to appeal the opinion of the ITU in court (Article 50 of the Fundamentals of the legislation of the Russian Federation on health protection dated July 22, 1993 No. 5487-1; hereinafter - the Fundamentals of Health Protection).

In addition to the conclusion of a medical and preventive institution, recommendations regarding the need to transfer an employee for health reasons to another job can be given by the attending physician of the state, municipal and private health systems during the examination of the employee's temporary disability (Article 49 of the Fundamentals of Health Protection).

Termination of the employment contract under sub. “A” clause 3 of Art. 81 of the Labor Code of the Russian Federation

Upon dismissal of an employee under sub. “A” clause 3 of Art. 81 of the Labor Code of the Russian Federation, first of all, it is necessary to keep in mind that the basis for terminating an employment contract is the employee's inconsistency with the position held or the work performed.

The employer is obliged to prove the inadequacy of the employee for the position held for health reasons

As mentioned above, in accordance with paragraph 31 of the Decree of 03/17/2004 to terminate the employment contract under sub. “A” clause 3 of Art. 81 of the Labor Code of the Russian Federation, the employer is obliged, in particular, to provide evidence confirming that the state of health of the employee, in accordance with the medical report, prevented him from properly performing his job duties. Thus, in addition to fulfilling the condition on the presence of a medical certificate stating the disease, the employer may terminate the employment relationship on the basis of Art. “A” clause 3 of Art. 81 of the Labor Code of the Russian Federation only if the specified physical condition of the employee affects the performance of his job duties. In other words, partial disability is not a reason for dismissing an employee or transferring him if he properly performs his work duties and the work performed is not contraindicated for him for health reasons. In addition, for dismissal, disability must be persistent and not temporary.

E. worked nurse physiotherapy room in the Kabardino-Balkarian Republican Medical and Physical Training Dispensary. By order of the head physician of the dispensary dated 04/27/98, she was dismissed on the grounds provided for in paragraph 2 of Art. 33 of the Labor Code of the Russian Federation, - in connection with the revealed inconsistency of the employee with the position held for health reasons.

Considering the dismissal unlawful, E. applied to the court with a claim to reinstate her at work, collect wages for the time of the forced absence from work and compensation for moral damage. The court of first instance dismissed E.'s claims.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation on December 10, 1998 overturned the court decisions on the following grounds. In accordance with paragraph 2 of Art. 33 of the Labor Code of the Russian Federation, an employment contract may be terminated at the initiative of the administration in the event of a revealed inconsistency of the employee with the work performed due to a health condition that prevents the continuation of this work.

As explained by the Plenum of the Supreme Court of the Russian Federation in paragraph 22 of the resolution of 12.22.92 “On some issues of the application of legislation by the courts of the Russian Federation when resolving labor disputes”(As amended by the resolutions of the Plenum of 12/21/93 and 10/25/96), termination of the employment contract due to the employee's inadequacy for the work performed for health reasons is possible with a persistent decrease in working capacity, which prevents the proper performance of labor duties, or if the performance of labor duties, taking into account the health status of the employee, it is contraindicated or dangerous for members labor collective or the citizens it serves.

It has not been established in the case that E. has a persistent illness that prevents her from continuing to work with the defendant.

As can be seen from the copy of the certificate of the Republican dermatovenerologic dispensary dated 17.04.98, available in the file, E. was registered with the diagnosis “chronic eczema of the left hand”; needs to be transferred to work, not related to substances that destroy the skin, for a period of one month.

The grounds for the dismissal of the plaintiff were a certificate from the polyclinic No. 1 in Nalchik dated 20.04.98, according to which E. has eczema of both hands with frequent exacerbations.

At the same time, it can be seen from the materials of the case that the plaintiff first applied for eczema to the Republican dermatovenerologic dispensary on April 9, 1998, where she was registered in the dispensary. There is no evidence in the case that she went to polyclinic No. 1 in Nalchik and that she was registered there for eczema. The diagnosis named in this certificate does not correspond to what is indicated in the certificate of the dermatovenerologic dispensary.

However, the court of first instance did not find out either these contradictions, or whether E.'s incapacity for work is temporary or permanent, and whether it can serve as a reason for terminating the employment contract on the grounds provided for in paragraph 2 of Art. 33 of the Labor Code of the Russian Federation.

Termination of labor relations on the basis of clause 8 of Art. 77 of the Labor Code of the Russian Federation

In the event that the employee properly performs his job duties, however, it turns out that he needs, in accordance with the medical opinion, to provide another job due to the fact that the work performed is contraindicated for him or is dangerous for the team of employees or the citizens he serves, the employer is obliged to transfer the employee to another existing job that is not contraindicated for him for health reasons, and if there is no corresponding vacant position in the organization or if the employee refuses to take the position offered to him, terminate the employment contract with the employee in accordance with paragraph 8 of Art. 77 of the Labor Code of the Russian Federation.

In addition to transfer to another job (or, depending on the circumstances, termination of employment), if contraindications for the employee to perform work stipulated by the employment contract are identified in accordance with the medical report, the employer is obliged to suspend the employee from work for the entire period of time until the circumstances that have arisen the basis for the suspension of an employee from work or non-admission to work (Article 76 of the Labor Code of the Russian Federation). During the period of suspension from work, the employee's wages are not charged, with the exception of cases provided for federal laws... Of course, an appropriate order must be issued on the suspension of the employee from work, with which the employee must be familiarized.

Transfer of an employee to another job

The two grounds for the termination of employment that we are considering provide for the obligation of the employer to transfer the employee, with his consent, to the existing vacant position, which the employee can occupy in accordance with his qualifications, work experience and state of health. With regard to dismissal due to the inconsistency of the employee with the position held, this obligation is enshrined in Part 2 of Art. 81 of the Labor Code of the Russian Federation, in relation to dismissal under paragraph 8 of Art. 77 of the Labor Code of the Russian Federation, the obligation to offer a vacant position is reflected in the very basis of dismissal - “the employee's refusal to transfer to another job due to the state of health in accordance with the medical report”.

If there is a vacant position in the organization that the employee can take taking into account his qualifications, work experience and health status, as well as with the employee's consent, take the position offered to him the employee must be transferred to it. Moreover, if the employee is transferred to a lower-paid job in the order of Part 2 of Art. 72 of the Labor Code of the Russian Federation, he retains his previous average earnings within one month from the date of transfer (Article 182 of the Labor Code of the Russian Federation).

It should be borne in mind that in the event of a dispute in connection with the dismissal of an employee under sub. “A” clause 3 of Art. 81 or according to clause 8 of Art. 77 of the Labor Code of the Russian Federation, the employer will be obliged to provide evidence indicating that the employee refused to transfer to another job or the employer was not able (for example, due to the lack of vacant positions) to transfer the employee with his consent to another job in the same organization (p. . 31 Resolution of 17.03.04). Of course, the offer of another vacant position to the employee must be made in writing, that is, by giving him the appropriate notice against receipt. In the event that the employee refuses to sign for the receipt of the notification, it is necessary to draw up an act stating that the employee was offered to take one or more vacant positions. It should be noted that the employer must offer the employee all available vacant positions that the employee could take, taking into account his qualifications, work experience and health status. In a situation where the employer did not have suitable vacant positions, confirmation of the impossibility of transferring the employee to another position will be staffing table organizations that record the absence of vacant positions that the employee could take on the date of termination of the employment contract.

If the employee refuses to transfer to the vacant position offered to him or in the absence of appropriate work in the organization, labor relations with the employee are terminated on the basis of sub. “A” clause 3 of Art. 81 of the Labor Code of the Russian Federation or on the basis of clause 8 of Art. 77 of the Labor Code of the Russian Federation (depending on the circumstances).

Guarantees and compensations

It should be borne in mind that upon termination of an employment contract on the basis of sub. “A” clause 3 of Art. 81 of the Labor Code of the Russian Federation, an employment contract cannot be terminated during the period of temporary disability of the employee and during the period of being on vacation (annual basic paid, additional, educational, unpaid leave wages and etc.).

In addition, upon dismissal under sub. “A” clause 3 of Art. 81 of the Labor Code of the Russian Federation, money cannot be withheld from an employee for unworked days of vacation used in advance (Article 137 of the Labor Code of the Russian Federation). In addition, the employee is paid a severance pay in the amount of two-week average earnings (Article 178 of the Labor Code of the Russian Federation). Meanwhile, upon termination of labor relations on the basis of paragraph 8 of Art. 77 of the Labor Code of the Russian Federation, such guarantees are not provided.

It should also be borne in mind that on the basis of sub. “A” clause 3 of Art. 81 of the Labor Code of the Russian Federation, an employer cannot terminate an employment relationship with a pregnant woman (Article 261 of the Labor Code of the Russian Federation). It is impossible to terminate labor relations with a pregnant woman and on the basis of paragraph 8 of Art. 77 of the Labor Code of the Russian Federation. If there are medical contraindications for performing work, a pregnant woman must be transferred by the employer to another job while maintaining the average earnings from the previous job (Article 254 of the Labor Code of the Russian Federation). In this case, the employee is released from work until the issue of providing her with another job is resolved while maintaining the average earnings for all missed working days.

In conclusion, we note that upon termination of labor relations due to the revealed inconsistency of the employee with the position or work performed for health reasons, continuous work experience is retained by the employee if the break in work has not exceeded three months (subparagraph "c" clause 4 of the Rules for calculating continuous work experience workers and employees in the appointment of benefits for state social insurance, approved by the decree of the Council of Ministers of the USSR of 13.04.73 No. 252).

HR administration

Keywords:

1 -1

Termination of an employment contract with an employee for health reasons is a fairly common and common practice. When a sick employee is dismissed, the employer acts in accordance with the requirements of the Labor Code of the Russian Federation, which clearly spell out the possible conditions for dismissal, as well as its documentary registration.

Grounds for dismissal for health reasons

There are many reasons for dismissal for health reasons. For example, the employee himself, tired of performing his official duties, decided to quit in order to rest and recuperate. Or the director of the plant, noticing that the employee is working through force, came to the disappointing conclusion about the need for dismissal.

The reasons given cannot be considered grounds for dismissal from a legal point of view. An employee, in the event of these circumstances, can resign solely at his own request or by agreement of the parties, and not for health reasons. And it would be against the law to fire an employee only on the basis of the employer's desire.

The legal grounds for dismissal here are medical reports from one of two instances:

Clinical Expert Commission (KEC).
Medical and Social Expert Commission (MSEC).

Only after receiving such an opinion, the employer opens up ways to take further steps with the aim of dismissal.

MSEC is authorized to establish the degree of work capacity (disability). There are three groups of disabilities:

Group 3 - decreased ability to work;
Group 2 - complete loss of professional ability to work without the need for constant outside care;
Group 1 - complete loss of professional ability to work with the need for constant outside care.

However, obtaining a medical certificate is not yet a basis for dismissal. There are several typical cases of dismissal for health reasons:

Obtaining disability of the first group and recognition of the complete incapacity for work of the employee.
The person can no longer perform the previous job, and there is no other job that he could cope with in the firm.
The employee was offered a vacant position, feasible for his physical capabilities, but he refused it.

Dismissal in connection with the occurrence of these situations is detailed in the provisions of the Labor Code of the Russian Federation and other legislative documents. Moreover, each specific group provides for the corresponding procedure.

Step-by-step passage of the dismissal process

The process of dismissal for health reasons, in an order summarizing all cases, includes the following sequential stages:

Passage of medical commissions.
Providing medical reports to the employer.
Offering an employee a different position or job.
Registration of the order.
Record in the work book.
Issuance of due payments.

Passing the medical commission

The employee himself is interested in the examination by the medical commission. It happens that a worker, in order to keep workplace or a position, for some time hides his illness from the leadership. This cannot be done according to two main criteria:

Without asking for medical help and continuing to work, regardless of health, the employee can thereby dramatically worsen his own physical condition, get sick with a more serious illness, allow the creation emergency situation and even die.
A sick worker may not be able to cope with their official duties and thereby harm both yourself and your colleagues.

Article 21 of the Labor Code of the Russian Federation explicitly provides for the obligation of the employee to inform the management of problems with his health, which can lead to a risk for the entire working team. Routine medical examinations are provided only at enterprises with harmful conditions production. At such companies, the next scheduled medical event will directly show the deterioration of the employee's health, and will pave the way for further medical research of his health.

But in most organizations, such routine medical examinations are not carried out. Therefore, the employee must himself require the passage of such medical control and notify the employer about it. It is best for both the employee and his boss to make such a notification in writing.

After receiving a notification about the need for a health study, the head of the enterprise should send the employee to doctors for further research. However, the employee can undergo a medical examination at his own discretion. If, after a medical examination, the employee did not provide a medical report, then the employer cannot build his conclusions based only on subjective signs. In this case, the management is relieved of responsibility for possible harm to the patient's health.

In the case when the primary medical tests presented by the employee to the management show a dangerous deterioration in health, the employer is obliged to send the employee to undergo a medical and social examination.

The procedure for registration of a medical examination

The decision of the medical and social examination is drawn up in the form of an opinion. This document must be handed over to the management of the enterprise within three days after the date indicated in the medical report.

However, only the medical-social and clinical-expert commissions have the right to draw conclusions about the degree of the employee's ability to fulfill their labor relations. And, most importantly, only the conclusion of these commissions gives grounds for the employer to take further steps to dismiss.

On the basis of medical indications, the commission comes to conclusions about the complete or partial incapacity for work of the client. With complete disability, the issue of dismissal is not questioned. Upon recognition of partial incapacity for work, the continuation of the dismissal process has several options:

work in an accessible position for health reasons;
dismissal due to refusal from a new job that has no medical contraindications;
dismissal for lack of a position or workplace in the organization that corresponds to the employee's health level.

And also an employee can ask for dismissal on his own initiative in the form of dismissal of his own free will or by agreement of the parties. In the latter case, the issue of dismissal is not associated with the state of health, which entails the absence of special severance payments.

It should be noted that while the employee is on sick leave, he can be dismissed only when the enterprise is liquidated. All other cases provide for the dismissal of the employee only after he leaves the sick leave.

The procedure for offering an employee another job

If an employee is recognized as partially able-bodied, the head of the enterprise is obliged to offer him a position that allows him to work as he can and does not carry a health risk to himself, colleagues, or the enterprise itself.

It is allowed for a new feasible job to be lower paid.

Such a proposal must be drawn up in any form and only on paper. If you do not agree to go to new position, the employee must record his decision in a written statement indicating the reason for the refusal. He should formalize his disagreement in the form of non-discrepancy, for example, it is necessary to write the phrase "I refuse the proposed position."

The refusal statement is drawn up by the employee with his own hand and certified by his personal signature. Only if such a document and a medical certificate are in hand, dismissal for health reasons is allowed on the basis of Article 77 of the Labor Code of the Russian Federation.

The proposal for the transfer for health reasons to a vacant workplace is drawn up in two copies. The document must be signed by the head of the company and registration number... Both copies are given to the employee for review and signature. One copy is given to the employee, while the other remains in production.

The proposal for transfer to another job for health reasons is drawn up in any form in two copies

In the event that the worker does not want to sign on the document, in the presence of three witnesses, an appropriate act is drawn up, on which the witnesses and the leader put their signatures.

If the employee agrees to a new job, he draws up a statement of consent, and the personnel department of the enterprise draws up an order for transfer and an additional agreement to the previous employment contract. This supplement takes into account the recommendations of the doctor or the medical board and fixes the period for which the worker is transferred to the new duty station. And also here the size of the salary or monthly salary is indicated.

IN additional agreement it is necessary to indicate the terms of the transfer, its reasons and the amount of salary

At the end of the specified transfer time, the management of the companies is obliged to return the employee to the previous place of work. If the employee and the management express a mutual desire to leave the employee in a new place, then such a place becomes a permanent one, about which an entry is made in the work book.

Registration of the order

The order of dismissal for health reasons must have a link to an article of the Labor Code of the Russian Federation that is suitable for this situation. If possible, the employee is removed from work for a while, while retaining his place of work. The following options are provided for recording the reason for dismissal:

In the order of dismissal, there must be a reference to the medical report

Complete loss of the ability to perform work (paragraph 5 of article 83). Here it is necessary to have a medical certificate confirming the complete incapacity for work of the employee.
Refusal to transfer to another job due to a serious illness (paragraph 8 of article 77). With this development of events, when the employee refuses to transfer to another job and asks him to fire, the entrepreneur is obliged to fire him under this article.
The inability of an employee to perform work due to illness (subparagraph "a" of paragraph 3 of article 81). This formulation is used when an employee's illness has a negative effect on qualitative indicators work performed. And in this case, the management should offer the employee an easier job. If an employee refuses such work or there is no suitable place at all in the enterprise, then his employer has the right to fire him under this article.

The order of dismissal for health reasons, as well as orders of dismissal for other reasons, are executed on a standard T-8 form.

The order of dismissal for health reasons is carried out on a standard form in the form of T-8

Employment record

All entries in the work book are drawn up based on the requirements of two main documents:

Rules for maintaining and storing work books (Government Decree No. 225 dated 04.16.2003).
Instructions for filling out work books (Resolution of the Ministry of Labor and social development No. 69 dated 10.10.2003).

Only the wording of the grounds for dismissal, set forth and strictly outlined in article 84.1 of the Labor Code of the Russian Federation, is allowed. Any free statement of reasons for dismissal other than those specified in this article is not permitted. In this case, reference is made to the available medical report.

A record of the termination of the contract for health reasons is made, as in other cases of dismissal, on the day the order is issued and the employee is discharged. In most cases, the last day of work is considered the date of dismissal. If an employee leaves after taking his last vacation at this enterprise, then the last day of the vacation will be considered the date of dismissal at his request.

Depending on the circumstances of the dismissal, there are three main options for recording:

The employment contract was terminated due to the employee's refusal to transfer to another job, which is necessary for him in connection with a medical opinion, paragraph 8 of part 1 of article 77 of the Labor Code of the Russian Federation.
The employment contract was terminated due to the lack of work for the employer, necessary for the employee in accordance with the medical report, paragraph 8 of part 1 of article 77 of the Labor Code of the Russian Federation.
The employment contract was terminated due to circumstances beyond the control of the parties, due to the recognition of the employee as completely incapable of labor activity in accordance with the medical report, paragraph 5 of the first part of Article 83 of the Labor Code of the Russian Federation.

In column 3 of the work book, the entry of the grounds for dismissal is allowed to begin with the words:

Fired;
"The employment contract has been terminated";
"The employment contract has been terminated."

All three of these formulations are correct and have the right to exist.

Abbreviations are not allowed in the work book. After signing cadre worker must be signed by the employee indicating that he is familiar with the record

It should be noted that no abbreviations are allowed in the entry. For example, you cannot write the Labor Code of the Russian Federation, but you need to fix the full name - the Labor Code of the Russian Federation.

Issuance of required documents

The main document issued upon dismissal for any reason is the work book.

Quite a lot of other documents are issued along with the work book. The enterprise is obliged to issue most of such additional certificates at the first request of the employee. All these numerous papers can be roughly divided into mandatory and others.

Mandatory documents include:

calculation sheet;
certificate of income in the form of 2-NDFL.

They are usually issued upon dismissal along with a work book. However, the employee may need other documents as well. And the entrepreneur cannot ponder on the topic "whether the employee really needs them or not." In order not to break the law, the employer must issue them.

The most frequently requested references are:

income statements for different periods of work;
reports on insurance deductions;
certificate SZV-STAZH;
extract from SZV-M;
copies of orders for employment, dismissal, transfers, advanced training, awards, incentives and others;
medical book.

And the employee may also need other, less often requested, documents on the passage of labor activity or participation in certain events (for example, in the elimination of the Chernobyl accident).

Calculation of the dismissed and the issuance of payments

Upon dismissal, a full payment is made with the employee. Regular payments due to an employee upon termination of employment include:

wages for days worked last month before dismissal;
compensation for unused days vacation;
payments provided additionally in the employment contract at a specific enterprise upon dismissal of an employee;
severance pay.

The provision on additional payments does not fit into the employment contract of far from all organizations in order to help the employee financially hold out until he finds new job... Upon dismissal for health reasons, such payments become especially relevant.

Severance pay is paid in case of dismissal for health reasons on the basis of Article 83 of the Labor Code of the Russian Federation. The calculation of severance pay is somewhat different from the calculation of wage payments and vacation pay. The initial data are the average daily wage and the number of employees worked for Last year days.

To determine the average daily earnings, the formula is used: SDZ = salary / OD. The salary here denotes the total salary for the last year worked, and the OD is the number of days worked during this period.

The calculation of the severance pay itself is carried out according to the formula: VP = SDZ × RD. Here RD is the number of working days in the month following the month of dismissal.

Income tax on severance pay not exceeding three times the average salary is not withheld (Article 217 of the Tax Code of the Russian Federation). For the regions of the Far North, six times the average monthly earnings are taken.

And also in case of dismissal for health reasons, a two-week allowance for the disabled is paid, the amount of which is calculated based on the size of the average monthly salary.

It should be emphasized that the employer is obliged to make all payments on the day of dismissal of the employee.

The employer's responsibility if the employee continues to work when "not allowed"

In general, an employer does not have the right to dismiss an employee solely on the grounds that he has become ill and can no longer perform his previous job for health reasons. In this case, the employer must provide the employee with a feasible job. Failure to provide such work is punishable by law. Dismissal of an employee without offering him another job is only possible if, according to a medical opinion, he cannot perform any work at all. Typically, such circumstances arise when a person receives a disability of the first group.

However, there is another side to the coin. The employer does not have the right to keep an employee in a position that is contraindicated for him for health reasons, even if the employee asks to keep him in this job. The employee's assurances that he fully copes with such work, in this case, are not sufficient grounds.

On the contrary, if a worker leaves a job that is not suitable for him on the basis of a medical certificate, the manager is brought to administrative responsibility. On the basis of part 3 of article 5.27.1 of the Code of Administrative Offenses of the Russian Federation, a fine of 15 to 25 thousand rubles is imposed on such a "compassionate" head of an enterprise or individual entrepreneur. The organization on which such a violation was committed is subject to a more substantial fine in the amount of 110 to 130 thousand rubles.

Dismissal of an employee for health reasons is a complex and responsible procedure. Compliance necessary conditions and the procedure for terminating a contractual relationship with an employee who is dismissed for health reasons requires a good knowledge of the legal framework.

In an organization that is an employer, it can happen both the most common situation, when the employee submits an application and indicates that he wants to resign of his own free will, and atypical, when the employee needs to be fired for another reason or at the initiative of the employer. The head of the organization, the personnel officer and the lawyer need to act in such a way as to avoid mistakes in this process. The cost of a mistake is quite high - the employee is reinstated by the court at work and compensation is paid to him for forced truancy, as well as possible complaints from the inspection authorities. The employee's task is to submit those documents that will allow him to quit his job at the right time and without conflict with the employer. Dismissal for health reasons is one of the difficult legal situations at the enterprise.

How to properly fire an employee for health reasons

There are two options for dismissing an employee in such a situation:

Dismissal of your own free will,
Dismissal due to circumstances beyond the control of the parties to the employment contract.

In the first case, everything is simple and familiar. The employee submits a letter of resignation for health reasons. The employee of the personnel department accepts it, registers it. An employment contract can be terminated on the day of the employee's request if the work performed by him can no longer be performed by him according to a medical opinion. If the state of health allows the employee to perform his labor function, then the employment contract can be terminated with him within two weeks, starting from the date of submission of the application. In practice, the employee is fired immediately on the day of the application. If an employee does not want to be fired for health reasons, then dismissal of his own free will for him - the best option... In this case, the work book will contain a link to article 80 of the Labor Code of the Russian Federation.

In the second case, the procedure for dismissal is different. The basis for dismissal is a medical certificate, which indicates that the employee has become completely incapable of work. Usually, he is assigned 1 disability group. However, in some cases, an employee may retain general ability to work, but be unable to work in his profession / specialty or in his position. In this case, the employer's task is to first offer the employee any job he has that does not require full working capacity, which will not be hindered by the employee's health condition. Dismissal of an employee is possible if he refused all types of offered work or the employer did not find such work. For example, the driver transport company could partially lose sight and be unfit for work in the previous position. But he can stay with the same employer to work as a dispatcher. Therefore, in this case, his dismissal without offering options for another job will be hasty.

If, nevertheless, there is a dismissal, then you do not need to receive applications from the employee. His consent to dismissal is also not required. The employer issues an order of dismissal, setting out in it the data of the medical report on the state of health of the employee. A copy of the medical report is placed in the personal file of the dismissed person. On the day of termination of the employment agreement, settlement is made.

If an employee has a complete loss of ability to work, he cannot perform any work, then it makes no sense to offer him other types of activities and positions. The work book contains a link to article 83, paragraph 5 of the Labor Code of the Russian Federation. The calculation is made immediately upon termination of the employment contract.

Other issues related to the employee's incapacity for work

One of frequently asked questions, equally worried about the employer and the employee, is it possible to fire an employee who was absent for health reasons at work for absenteeism? If the employee has a medical certificate that at the time of absence for work he was incapable of work, then his dismissal on the basis of truancy is considered illegal. The employee must be reinstated, even if he is still not able to work.

Sometimes employers have to reinstate the disabled and immediately fire them for health reasons. For an employee, this is fundamental, since dismissal for absenteeism is dismissal on a guilty basis, and dismissal for health reasons is not.