Order on removal from work of the base. Suspension order

Suspension from work is a temporary exclusion of an employee from performing his main labor functions on the grounds specified in Art. 76 of the Labor Code of the Russian Federation.

Preventing an employee from work is not a right, but an obligation of the employer. But before that, he must issue a suspension in accordance with all the rules.

First of all, it is necessary to document the basis provided for in Art. 76 of the Labor Code of the Russian Federation. This is not yet an exhaustive list. An employee can also be suspended on other grounds, which are specified in federal laws and regulations.

For example, if an employee's activities are associated with viruses and diseases, then without preventive vaccinations, he does not have the right to start work.

Suspension is formalized by an order, which is issued on the basis of documents confirming that the employee cannot start work. For example, on the basis of a medical examination of alcohol intoxication.

An order to suspend an employee from work is drawn up on the letterhead of the enterprise and has a serial number. It must contain the following information:

• full name and position of the dismissed employee;
• if necessary, you can also indicate the name of the structural unit where this employee works;
• the period for which the employer does not allow the employee to perform his immediate duties. Suspension is issued for a period until the reasons for non-admission are eliminated. If it is necessary to issue a suspension for up to 4 months, then the employee must be offered a transfer to another position;
• methods of payment for the period when the employee is not allowed to work. The employer has the right not to pay for this period, but can pay as a simple one - in the amount of 2/3 of the employee's tariff rate;
• full name and position of the person who is charged by the employer with the duty to control the execution and compliance with the order;
• grounds on which the employer dismissed the employee. You need the document itself, its number and date, as well as the name of the institution that issued this document. If the basis for non-admission is several documents, then it is necessary to list them all;
• the position of the head, his personal signature and its transcript;
• position, personal signature and its transcript of the employee who is suspended from work. The employee must put his signature as a sign that he is familiar with the order. This is done in case the employee decides to challenge the decision of the employer in court.

If the employee refuses to sign the order, this is not grounds for canceling the employer's decision not to allow this employee to work.

In case of refusal, the employer must draw up an act, which must be signed by two more witnesses and the employer himself (or an authorized person).

The order is stamped by the employer. After that, it is registered in the order established by law in the register of orders under its serial number.

Suspension from work due to alcohol intoxication

Suspension from work is a temporary measure that the employer is obliged to apply if the grounds specified in Art. 76 of the Labor Code of the Russian Federation. One such reason is alcohol intoxication.

In order to prevent such an employee from working, the employer must record the fact that he appeared at the workplace in a state of intoxication. This can only be done by a medical worker in a medical institution that is licensed to conduct an examination.
According to the Guidelines for Medical Examination, a medical worker can establish 5 states of alcohol intoxication of an employee. The punishment depends on how accurately the doctor determines the patient's condition.

Based on the medical report, the employer must draw up an order to remove such an employee from his duties.

The order is drawn up on the letterhead of the enterprise and has its own serial number. The order contains the following information:

• full name and position of the employee to be removed;
• if there is a need, then the structural unit must also be indicated;
• the period for which the employer does not allow the employee to work. As a rule, such a period is the period that is necessary to eliminate the grounds for non-admission. In this case, a period is needed for the employee to sober up;
• the document on the basis of which the order is drawn up. It is necessary to indicate the number and date of the document, as well as the medical institution that issued this document;
• full name and position of the person who is entrusted with the supervisory function for the execution and observance of the order;
• position, personal signature of the employer or his authorized person with a transcript;
• position, personal signature and transcript of the signature of the employee who is suspended from work;
• Date of preparation.

The employee must sign the order. This indicates that he is familiar with it. This is done in case the employee decides to challenge the employer's decision in court.
If the employee does not want to sign the order, then the employer must draw up an act, which, in addition to him (or an authorized person), must be signed by 3 more witnesses.

Suspension from work due to alcohol intoxication may be a prerequisite for the dismissal of such an employee.

Download

You can download a sample order to suspend an employee from work in .doc format

The suspension from work of the Labor Code of the Russian Federation provides for in the cases listed in Art. 76 of this legislation. At the same time, such a measure is one of the most frequent reasons for employees to apply to the labor inspectorate or court. For information on how an employer can correctly arrange such a procedure, read our article.

The procedure for dismissal from work at the initiative of the employer

Suspension of an employee from work is his temporary exclusion from the performance of direct official duties. Cases when the employer has every right to prevent an employee from entering his workplace can be seen in Art. 76 of the Labor Code of the Russian Federation:

• finding a person under the influence of alcohol, drugs and other toxic substances;
• the employee's lack of medical and psychiatric access to his professional activities;
• medical contraindications identified by the results of the next medical examination and incompatible with his work activities;
• requirements of state bodies or officials authorized to do so in accordance with the legislation of the Russian Federation.

During the suspension from work, the employee is not charged the salary due to him.

In practice, situations are not uncommon when the removal of an employee was recognized by the judicial authority as illegal. Therefore, the employer should be attentive to this procedure and not violate the requirements of Art. 76 of the Labor Code of the Russian Federation. Otherwise, if such a suspension is considered illegal, it will be recognized as forced absenteeism, and the employer will be held financially responsible for their actions.

All working days of forced absenteeism will have to be paid to the employee. The employee is entitled to the payment of lost earnings, which could have been accrued to him if he had been at the workplace and performed his labor functions. In case of forced absenteeism, an employee can also count on monetary compensation for moral damage caused.

Each removal of an employee from his work, as well as his absence from the workplace, should be recorded in an act. To draw up such a document, it is necessary to create a commission, which can also include members of the labor protection department. In the future, this will help confirm the legality of the actions of the employer.

How to draw up an act on the absence of an employee at work, you will learn from our article "Act on the absence of an employee at the workplace - sample" .

Suspension of an employee from work for medical reasons

A number of professions and positions provide for the passage of primary and subsequent medical examinations. For example, workers in the field of catering and food products: sellers, bartenders, cooks, waiters, laborers and others. Employees of educational institutions are subject to mandatory passage of a psychiatric commission: kindergarten teachers, teachers of secondary and higher educational institutions, teachers in schools.

If the employee has not passed the necessary commission and has not received a proper medical opinion on his admission to work, then he may be suspended from work. In the event that during the next medical commission he did not receive admission to work, he is also suspended from work until a corresponding positive medical opinion is received.

At the same time, if an employee was recognized as a disabled person of group 1 according to a medical and social examination and is unable to work, then the employer may terminate the employment contract with him. If disability of group 2 or 3 is not established, and the person does not want to work anymore, then he can quit of his own free will (Article 80 of the Labor Code of the Russian Federation).

Find out about the procedure for dismissing an employee at your own request from our article "The procedure for dismissal of one's own free will" .

If the employee wishes to stay at work, the employer is obliged to create working conditions suitable for his further work in accordance with the individual rehabilitation program.

The dismissal of an employee from work is formalized by the relevant order of the head of the organization. It should reflect the reasons why the employee is not allowed to work. The order will serve as the basis for the payroll accountant to suspend payroll. You can download a sample order for the removal of an employee from work on our website.

In addition to the act and the order, the employee’s explanatory note about the refusal to undergo a medical commission, a medical report received by the employee, a memorandum and others can also confirm the legality of the employer’s actions.

Results

Cases of dismissal of an employee from work are prescribed in Art. 76 of the Labor Code of the Russian Federation. Each such suspension must be documented: by a special act, order, and others. If the suspension is found to be illegal, the employer will be liable to the employee.

In situations where an employee commits certain violations of the labor charter, the employer may decide to temporarily suspend him from performing his duties. When the authorities have to resort to this type of disciplinary action, what is the procedure and content of the corresponding order to amend? The answers are later in the article.

Legal grounds

Among them:

• suspension from work due to alcohol intoxication, as well as narcotic or other toxic substances;
• for failure to pass a knowledge test in relation to the field of labor protection (in the same way as they are expelled from educational institutions on the basis of the relevant ones, but not permanently);
• suspension from work for failure to pass a medical examination;
• suspension from work for medical reasons, which confirm the impossibility of further work by the employee;
• in connection with the shortage, if it occurred through the fault of the employee.

Thus, the reason for the removal of an employee from work may be his incapacity or a serious violation of the labor charter of the organization and the legislation of the Russian Federation.

Read how employees are fired due to loss of employer's trust

The procedure for dismissal from work at the initiative of the employer

Depending on the situation, the procedure for the removal of an employee from the performance of his duties may vary.

Let's analyze the most common cases:

• When an employee appears in a state of alcoholic or drug intoxication, the employer must draw up an act on the spot describing the situation, behavior and explanations of the violator. Suspension occurs without delay;
• If an employee refuses to undergo a medical examination if possible. Usually in organizations this procedure is carried out at the expense of the employer. When an employee pays, refusal is not grounds for suspension from work;
• If an employee refuses to undergo training for advanced training. These courses are paid for by the organization, so waivers are not accepted here. If the employee, nevertheless, refuses, the employer gets the right to temporarily remove him from work at the enterprise.

All of the above grounds must be documented, otherwise the employer does not have the right to remove the employee from work.

Required documents:

• memorandum from the head of the working unit;
• act, signed by the head of the unit and other employees.

If there is evidence, an appropriate order is issued. The document is approved by the employer, after which it is transferred to the employee for review. If he does not provide good reasons, which, according to the law, cancel the decision, it comes into force.

It is important to remember that the removal of a citizen from work is a temporary measure, and it has three options for further development:

• employee recovery;
• dismissal;
• transfer to another position.

During the time period while the employee is suspended from work, he does not receive a salary. An exception is when the suspension was carried out for reasons beyond the control of the employee (illness, emergency circumstances in the family, etc.), or if he is an employee of the Department of Internal Affairs. Payment terms are regulated.

Order to remove an employee from work

In order to carry out the procedure for removing an employee from work, the employer draws up and draws up an appropriate order.

• the reason for the removal of the employee from the performance of official duties;
• the time period during which the employee will be suspended from work;
• the conditions under which the suspended employee will be paid wages;
• the presence or absence of a replacement, during the specified period;
• date of issue of the order;
• employer's signature.

Thus, if this is an order to suspend an employee from work for failing a medical examination, the document indicates the relevant information. If this medical examination is carried out at the expense of the company, then the employer is obliged to remove the employee from work if he refuses the procedure.

You can download the form of this order.

Consequences

But what happens after the removal of an employee from work?

Much depends on the reason for the suspension. If it does not depend on the employee, then the conditions are significantly softened: the right to receive wages is retained, the term is limited by the capabilities of the dismissed person, and there are no entries in the labor.

However, if an employee was suspended due to appearing at work in a state of alcoholic or drug intoxication, or he refused to undergo a mandatory medical examination, then the situation changes radically.

First - he is temporarily deprived of the right to carry out, for a certain time, labor activity, as well as to appear at the workplace. This "works" regardless of the reason for the suspension. If an employee is injured or ill, he himself is not able to be at work. If the reason for the decision was a violation of the labor charter, the appearance is prohibited by order of the employer and on the basis of the labor legislation of the Russian Federation.

Second - as mentioned above, the employee is temporarily deprived of the right to receive wages, except in cases where the suspension was not through his fault.

Third, depending on the severity of the misconduct committed and compliance (or violation) by the employee with the requirements related to suspension, he either gets the right to return to work, or is transferred to another position, or loses his job permanently.

Can it be disputed?

Employees who are removed from the work process rarely agree with the employer's decision, but in what cases do they have the right to challenge it?

To find out, you need to consider illegal grounds for suspension from work. The list includes all the requirements of the employer that are not supported by the labor legislation of the Russian Federation. The latter are listed above. To be sure that you are right, you can contact a qualified lawyer for advice.

If an employee was suspended from work illegally, he can apply to the labor inspectorate with a request to reinstate him in his previous position and / or challenge the employer's order. An alternative option is to file a statement of claim to cancel the suspension in the Magistrate's Court at the place of residence or workplace address.

• reinstatement at work in the previous position;
• payment to the employee of wages for the entire period of forced absenteeism, or the corresponding difference if there has been a reduction in the salary paid;
• changing the wording of the reason for suspension/dismissal;
• change in the date of suspension/dismissal;
• monetary compensation for moral and material damage.

In order for an employee to recover from a disputed suspension, the employer issues an order reversing the order that gave rise to the dispute.

Recovery procedure

If the employee agrees with the issued order for temporary suspension from work, he retains the right to be reinstated in his previous post. In fact, he was not fired, and this decision is temporary.

Upon the expiration of the specified period of suspension from work or as a result of a court order, the employer must follow the following procedure:

• Issue an order to reinstate the dismissed in his previous position - in accordance with Article 106 of the Federal Law No. 229 "On Enforcement Proceedings". The document states:
  • period of forced absenteeism;
  • the amount of monthly earnings, which is paid on a mandatory basis (if the restoration occurred as a result of legal proceedings);
  • monetary compensation for non-pecuniary damage (if the restoration took place in court);
• To formalize relations with the employee who replaced this post during the period of suspension. Options:
  • Transfer to another position, if any;
  • In the absence of an alternative position - dismissal, with the payment of two weeks of average earnings as a severance pay (under article);
• Make an appropriate entry in the work book of the reinstated employee, canceling the information about the dismissal (if any). Design rules, by columns:
  • a serial number is entered in column 1;
  • in column 2 - the date of the change;
  • in column 3 the following is written: “The entry under this number is invalid, restored to the previous job”;
  • Column 4 indicates a link to the employer's order to reinstate the employee in his previous position;
• Registration of a personal card of the restored. In particular, the correction of the record of dismissal. This process is not legally described, therefore, usually the relevant information is simply crossed out, and the “additional information” column indicates that the restoration was carried out in accordance with the decision of the court or the labor inspectorate, if any;
• Appropriate amendments are made to the work schedule (unified form

Digest release date - 31.08.2012

Articles and expert advice:

The following are expert consultations to consider the issue of suspension of an employee from work in relation to specific situations:
1. Question: The employee did not pass the mandatory medical examination in a timely manner, as a result of which he was suspended from work by the employer. During the suspension from work, is the employer entitled to involve the employee with his consent to perform the duties of a temporarily absent employee in another profession that does not require a medical examination? If so, how is it better to formalize and take into account in the report card? (Expert consultation, 2012)
2. Question: In the organization, employees work in shifts. Due to the absence of an employee who should work on the specified day, an employee was left at work, whose days off began as part of the schedule. With a delay of three hours, an employee came to work, whose shift fell on the specified day. Can an employer prevent an employee who has come to work on the grounds that an employee who has a day off has already left for work? (Expert consultation, 2012)
3.Question: The organization carries out activities related to cargo transportation. When undergoing a medical examination by a driver - an employee of the organization, it was revealed that he was unfit to work as a driver due to a violation of the functions of the hearing organs and he needed to be transferred to another permanent job not related to driving. The organization offered the employee the vacancies it had, but the employee did not take any actions indicating his consent to be transferred to one of the proposed vacant positions. Is the organization entitled in this case to dismiss the employee in connection with the refusal of the offered vacancies? (Expert consultation, 2012)
4.Question: The production shops work around the clock, the directorate and the personnel department work during the daytime from Monday to Friday. How is it correct in such conditions to formalize the suspension from work of an employee who came to work on a night shift in a state of intoxication? (Expert consultation, 2012)
5.Question: The employer suspended the employee from work until he underwent a medical examination. Since then, the employee has not been to work. What action can an employer take regarding a suspended employee? Can the employer in this situation cancel the suspension order and dismiss the employee for absenteeism? (Expert consultation, 2012)
6.Question: An employment contract has been signed between an individual and an organization. The employee works on a rotational basis during the night shift. The employer suspended the employee from work due to the fact that he fell asleep at the workplace (however, in connection with this circumstance, the organization did not suffer any damage). Is the employer's actions legal? (Expert consultation, 2012)
7.Question: The employee is suspended from work, wages are not paid. Does the employer pay sick leave during the period of suspension of the employee from work? (Prepared for the ConsultantPlus system, 2012)
8. Question: An employee of the organization (cashier) was suspended from work due to a shortage of funds in the cash desk, the theft of which the employer suspects this employee. The employer prepared a corresponding statement about the theft to the police and ordered the employee to be suspended from work for the duration of the investigation. Did the employer do the right thing by removing the employee? What are the negative consequences of such a dismissal? (Expert consultation, 2011)
9.Question: The employee missed an unscheduled briefing on labor protection related to a change in the technological process due to the absence of the immediate supervisor due to illness, who was supposed to carry out the briefing. As a result of the lack of instruction, the employee was suspended from work. During the period of suspension of the employee from work, the employer has the opportunity to temporarily transfer the employee to another job. Can an employer demand a transfer from an employee? Is it legal for an employee to refuse a transfer? (Expert consultation, 2011)
10. Question: The employer established the fact that the employee was in a state of intoxication at the workplace, the employee himself did not deny this fact. The worker had sluggish speech, unsteady gait, reddening of the skin, and the smell of alcohol. A commission was set up to confirm the fact of the worker's intoxication. In what form should the specified commission draw up an act on the presence of an employee in a state of intoxication at the workplace? (Expert consultation, 2011)
11. Question: An employee of the organization was entrusted with a task related to labor duties, which he had to complete by a certain date (two days). However, the employee did not begin to execute it. Does an employer have the right to suspend an employee from work for non-fulfillment of direct job duties? (Expert consultation, 2011)
12. Question: An employee was hired by an organization for a position that did not correspond to his education. When hiring, the employer did not have any questions about this. Two months later, the organization carried out certification of employees for compliance with their positions. The employee did not pass this certification due to the lack of a document on education corresponding to the position held. Can an employer suspend an employee from work until the required training has been completed? (Expert consultation, 2011)
13.Question: The employer (computer company) obliges employees (programmers) to undergo a medical examination, indicating that the employees did not pass it when they were hired. Employees refuse to undergo a medical examination, referring to the fact that they do not belong to employees for whom the passage of a medical examination is mandatory. Does the employer have the right to remove employees from work in this case? (Expert consultation, 2011)
14.Question: The employee is employed at work with harmful working conditions and, accordingly, must undergo periodic medical examinations. He came to a medical institution to undergo an examination, but could not pass it due to the fact that his card was lost in the registry of a medical institution. The employer suspended the employee from work due to failure to pass a medical examination. During the period of suspension from work, wages were not accrued to the employee. The employee applied to the employer with a demand to pay for the suspension period based on 2/3 of the employee's salary, since the medical examination was not passed for reasons beyond the control of either the employee or the employer. Is his claim correct? (Expert consultation, 2011)
15. Question: An employee was suspended from work for failing to pass training and testing knowledge and skills in the field of labor protection in the prescribed manner through his own fault. Is the period of time during which the employee was suspended from work included in the length of service giving the right to annual paid leave? (Prepared for the ConsultantPlus system, 2011)
16. Question: An employee of a medical institution did not pass a mandatory periodic medical examination due to his own fault, as a result of which he was suspended by the employer from performing work. Is the period during which the employee was suspended from work paid before undergoing a medical examination in the prescribed manner? (Prepared for the ConsultantPlus system, 2011)
17. Question: On the basis of the request of which official or body are we obliged to remove the employee? ("HR Department of a commercial organization", 2011, N 12)
18.Question: The audits carried out in the organization have repeatedly revealed serious violations in the rules of accounting. The head of the organization decided to dismiss the chief accountant in order to prevent further deterioration of the state of affairs in the organization. Are the leader's actions correct? Is it possible to dismiss the chief accountant on the basis of audit reports? (Expert consultation, 2010)
19.Question: The employer, on his own initiative, suspended an employee with an infectious disease from work on the basis of the risk of infecting other employees who are in the same premises as the carrier of the disease. There was no possibility of temporary transfer to another job that was not associated with the risk of spreading the disease. Is this action of the employer legal? (Expert consultation, 2010)

The documents presented in the digest are included in the "ConsultantPlus" System.

Drawing up an order for suspension from work occurs in cases where the management of the enterprise, for some reason, has the need to prevent one of the subordinates from performing official duties.

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Most common reasons for suspension

To begin with, it should be said that suspension from work is not a right, but an obligation of the employer.

It happens due to certain circumstances. The most common reasons include:

• the employee does not have a medical book with the necessary marks on the state of health;
• medical contraindications;
• lack of information about familiarization with the internal rules of labor protection at the enterprise;
• the arrival of an employee at work in an inadequate state (drug, toxic, or alcohol intoxication).

There are other reasons for removal, but they are less common and are more of a point character.

The procedure for suspension from work

You can’t just take and remove an employee from work. To do this, you need to follow a certain procedure:

1. First of all, you should draw up a documentary basis in writing (for example, write an act), which must comply with the Labor Code of the Russian Federation (Article 76), as well as other federal laws and local regulatory legal regulations of the company.
2. Then, on this basis, a separate order is drawn up, which specifies the reason for suspension from work, as well as the position and full name of the employee.

Only after that a person can be removed from the performance of his official functions.

It should be noted that the ban on work is always temporary, so the period of suspension must also be included in the order form.

Who makes the order

Directly, the function of drawing up a removal order can be included in the duties of any employee of the organization who has certain knowledge of the Civil and Labor legislation of the Russian Federation, as well as experience in writing such orders. As a rule, this is:

• personnel officer;
• specialist of the legal department;
• Secretary;
• company director.

At the same time, it is always worth remembering that regardless of who specifically writes the order, it is issued on behalf of the director of the enterprise and must be certified by him.

How to back up an order

All orders issued in an organization must be based on something and justified by something. Most often, in this case, the basis is either from the head of the structural unit in which the dismissed employee works, as well as an act that indicates a violation that resulted in suspension from work. As a justification, it is necessary to clearly formulate the reason, which is usually entered in the document after the words "In connection with ...".

If you form an unjustified order and do not make any references in it to the norms of legislation or internal documents of the company, in the case of inspections by regulatory organizations (for example, the labor inspectorate), it will be very easy to refute it, and even more so - for the lack of grounds for writing an order , the management of the company may be held administratively liable.

Formation of a suspension order

To date, there is no standard unified sample of a suspension order, so company representatives can write it in any form or according to the internal template of the organization. It is only important that the document in its structure complies with the norms of office work, and in terms of text and content - the rules of the Russian language.

It is also necessary that the order includes a list of certain information:

• the name of the company in which it is published;
• its number according to the internal document flow of the company;
• date and place of compilation;
• position and last name, first name and patronymic of the employee who has been suspended from work;
• the reason for creating the order (in other words, to indicate the essence of the claim against the employee);
• date or period of suspension from work;
• references to the basis and justification (the act in which the violation is recorded, a memorandum or memo from the head of the department in which the dismissed employee works).

After that, the head of the enterprise introduces into the order the employees responsible for its execution (usually this is the head of a structural unit or a personnel officer, but if these positions are not available in the organization, the director can take on this function).

Rules for issuing an order

The finished order must be signed by the director of the enterprise or a person authorized to act on his behalf (the use of facsimile autographs, i.e. printed in any way is not allowed). Also, the order must be signed by the persons responsible for its implementation, and the employee who is suspended from work.

If the latter refuses to put his signature under the order of the director, this does not become a basis for canceling the order. In such cases, another document is drawn up - an act of refusal to sign the order (two witnesses should be involved for this).

There is no strict need to certify an order with a seal or stamp now, since since 2016 organizations have been exempted from the obligation to use stamp products in their work (unless this rule is included in their local acts).

After drafting the document

The order is usually drawn up in a single copy, but if necessary, additional copies can be made.

After drawing up and endorsement in the prescribed manner, it should be registered in the internal register.

Then, during the period of validity, it must lie along with other orders of the director in a place closed to access by unauthorized persons, and after its relevance expires, it can be sent to the archive of the enterprise, where it must be stored for at least five years.