Is it possible to apply a disciplinary sanction for not passing a medical examination? Medical examinations of employees - the procedure for conducting mandatory, periodic and extraordinary medical examinations In connection with the passage of a medical examination
Periodic medical examinations are carried out in organizations in order to identify occupational diseases, pathologies, and infectious diseases among employees. The employer is obliged to organize and pay for medical examinations. Hired employees must undergo a medical examination within the prescribed time frame. Failure to comply with these obligations threatens each of the parties with liability. Penalties for not passing periodic medical examination will become a tangible cost item for any organization and individual entrepreneur.
The legislative framework
- Law on the protection of the health of citizens dated 21.11.2011 No. 323-FZ;
- Order of the Ministry of Health and Social Development of Russia on mandatory medical examinations dated April 12, 2011 No. 302n;
- TK RF.
The Labor Code regulates that in cases provided for by law:
- the employer must arrange for mandatory medical examinations (Article 212 of the Labor Code of the Russian Federation),
- the employer does not have the right to allow citizens who have not passed a medical examination to perform labor duties (Article 212 of the Labor Code of the Russian Federation),
- employees are required to undergo preliminary and periodic medical examinations (Articles 213, 214 of the Labor Code of the Russian Federation).
Law No. 302n specifies the procedure for conducting medical examinations and a list of works in the course of which personnel must undergo regular examinations. Mandatory examinations must be carried out by employees employed in the following areas:
- education;
- healthcare;
- public catering;
- social sphere;
- food industry;
- construction;
- motor transport;
- home service, etc.
Responsibility for non-compliance with legal requirements
For each participant in relations on the organization of periodic medical examinations for violation of the procedure established by law, the following penalties are provided:
- the medical institution bears administrative and legal responsibility for the quality of the medical examination and the validity of the conclusions;
- the employee is responsible for the timely appearance for the examination;
- the employer will have to be responsible for the lack of proper organization of medical examinations and for the admission to work of persons who have not passed the examination.
Penalties for failure to pass a medical examination are regulated by the Labor Code of the Russian Federation, the Criminal Code of the Russian Federation and the Code of Administrative Offenses of the Russian Federation. Timely completion of scheduled medical examinations will help employers avoid penalties and make sure that the health of all employees meets the requirements.
Administrative responsibility of employers
Penalties for not passing a periodic medical examination labor personnel Part 3 of Art. 5.27.1 of the Code of Administrative Offenses of the Russian Federation. So, in accordance with this article for employers, the punishment will be as follows:
- For officials- 15-25 thousand rubles;
- for individual entrepreneurs - 15-25 thousand rubles;
- For legal entities- 110-130 thousand rubles.
For repeated violations, the perpetrators will be punished under Part 5 of Art. 5.27.1 of the Code of Administrative Offenses of the Russian Federation. In this case, the fines will be higher:
- for organizations - 100-200 thousand rubles;
- for individual entrepreneurs and executives - 30-40 thousand rubles.
Penalties are not the only penalty for repeat offences, the following sanctions may also apply:
- the work of individual entrepreneurs and companies can be suspended for up to 90 days;
- officials may be disqualified for a period of 1 to 3 years.
Criminal liability
Criminal liability for non-compliance with labor protection rules is established by Art. 143 of the Criminal Code of the Russian Federation. This article will be applied to the employer in the event that he willfully allow to work persons who have not passed a medical examination or who have certain medical contraindications, and as a result of such actions, serious harm will be caused to the health of one or more people. The death of one or more people as a result of negligence to comply with the requirements of applicable law will also result in criminal liability.
In accordance with Art. 143 of the Criminal Code of the Russian Federation, offenders will face the following penalties:
- a fine (including for failure to pass a periodic medical examination by hired personnel) - up to 400 thousand rubles;
- compulsory work (180-240 hours);
- corrected work (up to 2 years);
- forced labor (up to 1 year);
- imprisonment (up to 1 year).
What should an employer do if an employee fails a medical examination?
If a hired employee who is required to undergo medical examinations does not pass the examination through his own fault, the employer has the right to remove him from work. Basis - Art. 76 of the Labor Code of the Russian Federation. There will be no payroll for this. Also, a disciplinary sanction can be applied to the violator in compliance with the procedures specified in Art. 193 of the Labor Code of the Russian Federation.
If, after all the measures taken, the individual has not passed the medical examination, the employer may dismiss him (the basis is clause 5, part 1, article 81 of the Labor Code of the Russian Federation). Penalties to employers in such cases do not apply.
There are situations when an employee could not undergo a medical examination in a timely manner for good reasons or due to circumstances beyond his control. Then, for the entire period of forced suspension, he will be paid a salary as for downtime.
How and where to pay fines?
Details for paying fines must be provided by the body that holds the individual entrepreneur or legal entity liable. In this case, it is the State Labor Inspectorate. Payment must be made through a bank so that documentary evidence is available. If there are several fines, each of them must be paid separately. Receipts should be kept.
Organizations and individuals are allotted 60 calendar days. The countdown starts from the date of entry into force of the decision to impose a fine. Offenders are not required to send copies or original receipts to the issuing authority.
Passing a medical examination is the direct responsibility of each employee and this must be strictly monitored by the employer. Failure to pass a medical examination is considered a clear violation and will entail big problems for both the employee and the organization as a whole. A person undergoes a medical examination primarily for the purpose of preventing and detecting diseases that may interfere with work. The illness of an employee will affect his work, which will subsequently affect the overall productivity and efficiency of the organization.
For refusing to undergo a medical examination, the employer has every right to remove the employee from his position until the moment (or, in certain cases, even impose a disciplinary sanction, on the basis of Article 192 of the Labor Code of the Russian Federation), until he passes the mandatory examination and does not present official medical documents.
Suspension from work due to failure to pass a medical examination in 2018
Given disciplinary punishment is temporary. The worker is suspended for a certain period of time for violation labor relations, which are regulated in Article 76 of the Labor Code of the Russian Federation. It is the responsibility of the employer to conduct inspections, they are both preliminary and periodic. On the subordinates is the duty of their passage in without fail. This is stated in article 212 of the Labor Code of the Russian Federation. Otherwise, an order is issued on suspension from work for failure to pass a medical examination (a sample is attached).
Also, according to article 213 of the Labor Code of the Russian Federation, employees who work in difficult working conditions must undergo all types of examinations for a more thorough examination of their health status.
Obligations of the employer to organize medical examination of employees
The direct obligation of the employer is to prevent the employee from working, if there are full grounds for this, prescribed in Art. 76 of the Labor Code of the Russian Federation. One of the types of such grounds is the failure to pass a mandatory medical examination. The employer is also required to ensure that the medical center has the appropriate license. It is necessary to draw up a list of workers for medical examination.
The employer is obliged to provide the medical center with the following data:
- a complete list of employees with their names and positions;
- the names of jobs where workers in the organization work;
- list all the factors that adversely affect the health of employees.
Based on these data, the timing of the examinations is set. The employer is obliged to pay for all medical examinations independently.
You can read more about when an employer is obliged to remove an employee from work.
Which employees are required by law to undergo a medical examination?
In the Labor Code of the Russian Federation, namely in Art. 266 and Art. 348-3 spelled out who must undergo preliminary and mandatory medical examinations.
The following categories of employees are subject to mandatory inspection:
- workers in the food and light industry;
- preschool and school educational organizations;
- catering workers, etc.
By the way, about situations in which an order for suspension from work due to alcohol intoxication is required, is described in another article.
How much time is required according to the Labor Code of the Russian Federation for a medical examination?
There is no fixed term for medical examination in the legislation. Terms depend on the agreement with the medical center. The contract is considered binding on the person undergoing the inspection. Exceeding the deadlines will be calculated as a violation of the law, according to Art. 192 and Art. 193 of the Labor Code of the Russian Federation.
Suspension due to failure to pass medical examination
In connection with the failure to pass a medical examination, the employee may not be allowed to perform his duties. Therefore, the employer should adhere to the following procedure.
Suspension procedure:
- Registration of the received document, which confirms the absence of the employee's medical examination.
- Issuance of an appropriate dismissal order.
- Order registration.
- Familiarization of the employee with the order.
- Inspection payment as downtime.
- Registration of the deadline in the time sheet.
- Issuance of an admission order after the violation has been eliminated.
- Registration of the relevant admission order.
- Familiarization with this order of the employee.
Thus, in order to fulfill the conditions of the Labor Code of the Russian Federation and remove an employee on the basis of the law, it is necessary to follow all the above points. Since an employee can file a complaint against the employer if his rights have been violated.
Question: Does the manager have the right to dismiss an employee (part-time worker; on an ongoing basis) if he has not passed the mandatory medical examination. What articles of the Labor Code can be appealed. Explain the complete process of dismissal.
Answer: The grounds for termination of an employment contract are specified in Chapter 13 Labor Code RF.
The employer does not have the right to terminate the employment relationship with the employee who did not pass the mandatory medical examination, because. such a basis is not provided by the Labor Code. In accordance with Art. 212 of the Labor Code of the Russian Federation prohibits the admission of employees to the performance of their labor duties without passing mandatory, that is, established by state authorities or local government, medical examinations. An employee who has not passed the appropriate medical examination and has started work, in accordance with Art. 76 of the Labor Code of the Russian Federation must be suspended by the employer from work. The dismissal of an employee who has not passed a mandatory medical examination is not a right, but an obligation of the employer.
At the same time, it should be remembered that the categories of workers for whom a mandatory medical examination is provided are specified in the Labor Code of the Russian Federation itself or Order of the Ministry of Health and Social Development of the Russian Federation of August 16, 2004 N 83 "On approval of lists of harmful and (or) dangerous production factors and work, during the performance of which preliminary and periodic medical examinations (examinations) are carried out, and the Procedure for conducting these examinations (examinations).
employer at the expense own funds is obliged to send the employee for a medical examination, and the latter must pass it.
An appropriate order for the main activity should be issued on the passage of a medical examination. Before issuing a suspension order, one of the following documents must be verified:
- act drawn up at the place of work. Usually this document is issued if, instead of undergoing a medical examination, the employee was at his workplace, although it can be drawn up in other cases;
- documented information from a medical institution about the absence of an employee for a medical examination;
- a written refusal of the employee to undergo a medical examination;
- a certificate of incapacity for work, for a period coinciding with the date of the medical examination, or other documents confirming the absence of the employee for a medical examination.
After the employer has recorded the employee's failure to pass the honey. inspection, he has the right to issue a removal order. The order must necessarily indicate the surname, name, patronymic and position of the employee, the grounds on which he is suspended from work, as well as the period of suspension. In this case, the period is determined not by the date, but by the event - until the moment of passing the medical examination (part 2 of article 76 of the Labor Code of the Russian Federation). With the order of removal, you need to familiarize the employee against signature. In case of refusal to sign, an appropriate act is drawn up. It must be remembered that the obligation to issue an order to re-send an employee for a medical examination lies with the employer, so it is advisable to familiarize the employee with the order while he is at the workplace. If the failure to pass the medical examination was due to the fault of the employee, then he can be brought to disciplinary responsibility (Article 192 of the Labor Code of the Russian Federation). If an employee is subject to disciplinary action, then you must first ask him for an explanation of the reasons for not passing the inspection. In case of their disrespect, the employer has the right to issue an order to apply a disciplinary sanction.
In this situation, an employment relationship with an employee can be terminated if:
- the employee was previously brought to disciplinary responsibility, and less than a year has passed since the moment of bringing to responsibility (part 1 of article 194 of the Labor Code of the Russian Federation);
- the reason why the employee did not pass the mandatory medical examination during the mandatory medical examination is not “respectful”;
- for the fact that the employee did not pass the medical examination on time, the employer brought him to disciplinary responsibility.
When these three conditions are met, the employer has the right to terminate the employment contract with the employee under clause 5, part 1, art. 81 of the Labor Code of the Russian Federation, namely for repeated non-fulfillment by an employee without good reasons work duties, if he has a disciplinary sanction.
This position is supported in paragraph 35 of the Resolution of the Plenum Supreme Court RF dated March 17, 2004 N 2 "On the application by courts Russian Federation of the Labor Code of the Russian Federation". The plenum of the Armed Forces of the Russian Federation indicates that non-fulfillment by an employee without good reason is non-fulfillment of labor duties or improper performance due to the fault of the employee of the labor duties assigned to him (violation of the requirements of the law, obligations under an employment contract, rules of internal work schedule, job descriptions, regulations, orders of the employer, technical rules, etc.). The Plenum, among other things, refers to such violations the refusal or evasion without good reason from a medical examination of workers in certain professions.
The employer must arrange for mandatory medical examinations for certain categories of employees (paragraph 12, part 2, article 212 of the Labor Code of the Russian Federation). In turn, employees are required to undergo such inspections (paragraph 6 of article 214 of the Labor Code of the Russian Federation).
If the employee has not passed a medical examination, then the employer removes him from work (does not allow him to work) (Article 76 of the Labor Code of the Russian Federation).
- What documents need to be issued to remove an employee from work if he has not passed the mandatory medical examination?
The Labor Code of the Russian Federation does not define a list of documents that an employer must draw up in order to remove an employee from work.
However, according to the meaning of Art. 76 of the Labor Code of the Russian Federation, it is enough for an employer:
- issue it yourself or get a document confirming that the employee has not passed a medical examination. For more details, see clause 1.1 of this material;
- issue an order (instruction) on suspension from work. For more details, see clause 1.2 of this material.
1.1. A document confirming that the employee has not passed the mandatory medical examination
Documents that confirm the fact that the employee did not pass the mandatory medical examination may be:
- an explanatory note from the employee about the failure to pass the inspection;
- a written refusal of the employee to undergo an inspection;
- certificate of incapacity for work issued during the inspection;
- documented information from a medical institution about the absence of an employee for an examination;
- an act on the employee's refusal to undergo a medical examination drawn up by the employer.
For example, considering the dispute over the legality of the removal of an employee from work, the court studied the documents that served as the basis for issuing the relevant order. These included an act on the employee's refusal to undergo a medical examination and a message from a medical institution about the employee's failure to appear for examination.
Based on the evidence presented by the employer, the court found that the order to remove the employee from work was lawfully issued (Decision of the Moscow City Court dated 12/20/2011 in case No. 33-39156).
1.2. Order to dismiss an employee who has not passed a mandatory medical examination
The suspension of an employee from work in connection with the failure to pass a medical examination is issued by order. Its form has not been established, so the employer has the right to develop it independently.
The order should include:
- grounds for removal, which is provided for by federal law or other regulatory legal act (part 1 of article 76 of the Labor Code of the Russian Federation);
- suspension period. It is advisable to determine the end of the suspension not by a specific date, but by an event - the passage of a medical examination. This will avoid publishing additional orders if the employee does not pass the medical examination again on time;
- circumstances indicating the presence or absence of the employee's fault in failing to pass the medical examination. They affect the terms of payment (non-payment) of the suspension period;
- terms of payment during the period of suspension;
- a list of documents that confirm the failure to pass a medical examination.
The employee must be familiarized with the order against signature. In case of refusal to sign, the employer should draw up an appropriate act.
If the employee did not pass the mandatory medical examination due to his own fault, then the employer may apply a disciplinary sanction to him (paragraph “c”, paragraph 35 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2).
- Registration of a time sheet upon dismissal of an employee who has not passed a mandatory medical examination
On the time sheet ( unified form N T-12 or N T-13), it is necessary to record the period actually worked by the employee until the issuance of an order to remove him. The time of suspension is noted in the report card by putting down an alphabetic (NB) or digital (35) code (suspension from work (non-admission to work) for reasons provided for by law).
- Registration of a work book upon dismissal of an employee who has not passed a mandatory medical examination
Record of suspension from work due to failure to pass a mandatory medical examination in work book employee is not included. The indication of such information is not provided for by Decree of the Government of the Russian Federation of April 16, 2003 N 225 and Decree of the Ministry of Labor of the Russian Federation of October 10, 2003 N 69.
- Registration of a personal card in case of dismissal of an employee who has not passed a mandatory medical examination
It is not necessary to enter information on the suspension of an employee from work in his personal card (form N T-2), since this is not expressly provided for by Decree of the State Statistics Committee of the Russian Federation of 01/05/2004 N 1.
- Payment for the time of suspension of an employee who has not passed a mandatory medical examination
By general rule wages for the period of suspension from work (non-admission to work) are not accrued. However, federal laws may provide for exceptions (part 3 of article 76 of the Labor Code of the Russian Federation).
For example, the period of suspension from work is paid as a simple one (parts 1, 2 of article 157 of the Labor Code of the Russian Federation) if the employee did not pass the mandatory medical examination through no fault of his own.
- Registration of an order for admission to work after passing a mandatory medical examination
An employee is allowed to work after passing a mandatory medical examination (part 2 of article 76 of the Labor Code of the Russian Federation).
The inspection is confirmed by a conclusion that issues medical organization(clause 31 of the Procedure for conducting mandatory preliminary (when applying for a job) and periodic medical examinations (examinations) of workers engaged in hard work and work with harmful and (or) dangerous working conditions, approved by Order of the Ministry of Health and Social Development of Russia dated April 12, 2011 N 302n ).
It is better to issue an admission to work by order, since in this case the organization will have a document fixing the end of the suspension period.
Since the unified form of such an order has not been approved, the employer can develop it independently. It is advisable to include in the order the following information:
- surname, name, patronymic of the employee, his position;
- the date from which the employee must start work;
- reason for dismissal;
- an instruction to the accounting department to resume accrual wages in accordance with an employment contract;
- details of the medical report.
In order to avoid further disputes regarding the start date of work (and, accordingly, the question of whether absence from work is absenteeism), the employee must be familiarized with the order against signature. In case of refusal to sign, an appropriate act is drawn up.
- Registration of a work book when an employee is admitted to work after passing a mandatory medical examination
The legislation does not provide for making an entry in the work book about the end of the period of suspension and admission to work (Decree of the Government of the Russian Federation of 16.04.2003 N 225, Resolution of the Ministry of Labor of Russia of 10.10.2003 N 69).
- Registration of a personal card when an employee is admitted to work after passing a mandatory medical examination
It is not necessary to make a record of the end of the suspension period and admission to work on a personal card (form N T-2), since this is not expressly provided for by Decree of the State Statistics Committee of the Russian Federation of 01/05/2004 N 1.
However, the employer will need such information when calculating the length of service that gives the right to annual paid leave.
For more information, see the Human Resources Guide. Annual basic paid leave.
You can record information about the dismissal of an employee (the basis and period of suspension, the presence or absence of the employee’s fault in not undergoing a medical examination) in section 10 “ additional information» forms N T-2.
A dispute has reached the Supreme Court of the Russian Federation on the legality of holding an employer administratively liable for failure to conduct mandatory medical examinations of employees. The organization was fined by the state labor inspector due to the fact that they were not sent to undergo a medical examination Regional Manager in sales, as well as the head of the logistics and pricing department and a specialist in the same department. Mandatory medical examinations for these employees was explained by the fact that the main activity of the employer was wholesale machines, equipment and accessories. And by virtue of the provisions of the order of the Ministry of Health and social development RF dated April 12, 2011 No. 302n work in organizations Catering, trade, buffets, catering units, including transport, are included in the list of works, during the performance of which mandatory preliminary and periodic medical examinations (examinations) of employees are carried out (Decree of the Armed Forces of the Russian Federation of December 6, 2017 No. 34-AD17-5) .
The employer believed that the relevant norm applies only to organizations whose activities are related to the sale of food products. In addition, employees whose medical examinations were not organized were engaged in administrative work and did not participate directly in the sale of products.
The court rejected these arguments, stating that the requirement to conduct medical examinations for workers employed in trade organizations applies to all trade workers, regardless of the type of product sold.
It should be noted that Rospotrebnadzor has repeatedly expressed the opinion that employees of organizations selling non-food products are not required to undergo medical examinations (information dated July 28, 2017, letter dated June 5, 2013 No. 09-5228-13-16). But the specialists of Rostrud and the FMBA of Russia adhere to the opposite point of view.
The accountant did not pass the medical examination - you will be fined
The Supreme Court confirmed that all employees of trade organizations must undergo a medical examination. Even if the company sells equipment, and the employee is a manager and communicates with customers only by phone. If an employee is allowed to work without a medical examination, you will have to pay a fine.
What's happened?
The State Labor Inspectorate fined a company that sells machinery and equipment. During the inspection, the inspectors found that the manager, the head of the logistics department and the logistician did not pass the medical examination. The inspectors considered this a violation and issued a fine. The businessman lost the district and regional court and brought the case to the Supreme. The judges recognized the fine as justified - the businessman paid 120,000 ₽.
Decision of the Supreme Court on medical examination dated 06.12.2017
No. 34-AD17-5 (PDF)
What does it mean?
All employees of trade organizations, public catering, buffets and catering units, including those in transport, are required to undergo a medical examination once a year (clause 15 of Appendix No. 2 to the order of the Ministry of Health of April 12, 2011 No. 302n). If the management allows employees to work without a medical examination, this is an administrative violation (Article 212 of the Labor Code of the Russian Federation).
Rospotrebnadzor used to believe that employees of department stores are not required to undergo a medical examination, because there are no such requirements in the order of the Ministry of Health (Rospotrebnadzor letter dated June 5, 2013 N 09-5228-13-16). The State Labor Inspectorate went the other way. There are no exceptions in the order of the Ministry of Health for certain types trade or positions, so the rules apply to all employees of trade organizations.
At the trial, representatives of the company tried to prove that the requirement applies only to organizations that trade food products. A medical examination should be held by employees who are in contact with the goods and communicate directly with customers. The judges considered the businessman's arguments unconvincing and refused. There was a precedent.
What does it threaten?
If an employer allows an employee to work without a medical examination, he will face a fine (clause 3, article 5.27.1 of the Code of Administrative Offenses of the Russian Federation):
- for individual entrepreneurs - from 15,000 ₽ to 25,000 ₽;
- for organizations - from 110,000 ₽ to 130,000 ₽.
The law provides for a fine for “allowing an employee to perform his job duties without passing ... periodic medical examinations.” That is like for one worker. But in the case of that company, they took 120,000 rubles for three.
The state labor inspectorate is very likely to fine a merchant employer if it finds that one of its employees has not passed a medical examination. Given the precedent, it would be next to impossible to challenge the fine in court. To avoid problems, send all your employees for a medical examination.
The Supreme Court confirmed that all employees of sales organizations must undergo medical examinations, even office workers of non-food companies. If a labor inspector finds that one of the employees is working without a medical examination, the employer will be fined. To avoid problems, send all your employees for a medical examination.
The amount of the fine for not passing the medical examination
Penalty for not passing a medical examination - is it provided or not? In our article you will find the answer to this question. You will also find out what the amount of such a fine is and when other types of liability may be applied for the violation in question.
Mandatory medical examinations at the enterprise
The employer is responsible for organizing (including issuing referrals) and paying for all types of medical examinations and examinations provided for by the Labor Code of the Russian Federation (clause 11, part 2, article 212). At the same time, he is obliged not to allow persons who have not passed the indicated medical examinations to work (clause 12, article 212 of the Labor Code of the Russian Federation).
Applicants who have not passed the mandatory medical examination, the employer must refuse to apply for a job. Working employees who have not passed the inspection must be removed from the performance of labor duties (Article 76 of the Labor Code of the Russian Federation). Similarly, it is worth doing in cases where the indicated persons during the examination reveal contraindications to work. 
Otherwise, when checking regulatory authorities, the employer risks being held administratively liable. Moreover, in some cases, even the onset of criminal liability is possible.
Administrative responsibility of the employer for the failure of the employee to undergo a medical examination
In 2013, the Code of Administrative Offenses of the Russian Federation was supplemented by Art. 5.27.1, part 3 of which provides for punishment for the admission to work of persons who have not passed a medical examination (or who have passed, but have contraindications), in the form of a fine. Moreover, the fine is very significant, since its size is:
- For individual entrepreneurs- from 15,000 to 25,000 rubles;
- officials - from 15,000 to 20,000 rubles;
- organizations - from 110,000 to 130,000 rubles.
- Individual entrepreneurs and officials will pay from 30,000 to 40,000 rubles;
- organizations - from 100,000 to 200,000 thousand rubles.
- for individual entrepreneurs and organizations - suspension of operation for up to 90 days;
- for officials - disqualification for a period of 1 to 3 years.
In the event that the relevant violations are committed repeatedly (during the period when the person is considered subjected to administrative punishment), liability already arises under part 5 of the article in question. The amount of the fine increases:
In addition, in the second case, as an alternative to a fine, the law provides for other types of administrative penalties:
Criminal liability of the employer for admission to work without a medical examination
The provisions of Art. 143 of the Criminal Code of the Russian Federation for persons who have been entrusted with the obligation to comply with the rules of labor protection, establish criminal liability for their violation. Deliberate admission to work of a person who has not passed the mandatory medical examination (as well as having contraindications to work) under certain conditions may result in a guilty verdict under this article. This is possible if the actions of the perpetrator were in a causal relationship with the onset of consequences in the form of at least causing serious harm to the health of one person.
Sanction Part 1 Art. 143 of the Criminal Code provides for the following penalties:
- Fine. It can either be assigned in a fixed amount (from 5 to 400,000 rubles), or calculated as the earnings of the convicted person for a period of 2 weeks to 18 months.
- Mandatory work (from 180 to 240 hours).
- Correctional labor (from 2 months to 2 years).
- Forced labor (from 2 months to 1 year).
- Imprisonment (from 2 months to 1 year). At the same time, as an additional punishment, a punishment in the form of a ban on holding certain positions (from 6 months to 1 year) can be imposed, and the term of the ban begins to be calculated only after serving the main punishment.
What to do with an employee who has not passed the medical examination?
It has already been noted above that the employer has every right to refuse to conclude an employment contract due to a failure to pass a medical examination, but if the examination is not passed by a working employee, to remove him from work. At the same time, according to part 3 of Art. 76 of the Labor Code, the suspension period is not payable if the employee is to blame for this circumstance. Can the employee also be held liable in this case?
Passing medical examinations is the duty of the employee (Article 214 of the Labor Code of the Russian Federation). For its non-fulfillment without good reason, a disciplinary sanction can be imposed in compliance with the procedures provided for in Art. 193 of the Labor Code of the Russian Federation. Such a conclusion follows from the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 (subparagraph “c”, paragraph 35). If, after the first penalty, the employee does not pass a medical examination, then he can be fired under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation - and arbitrage practice only confirms such an approach (see the appeal ruling of the Moscow City Court dated 08/04/2016 in case No. 33-30043/2016). The law does not provide for a fine for not passing a medical examination for negligent employees.
Thus, the employer is obliged to organize and pay, and the employee - to undergo medical examinations. In case of failure to fulfill these obligations, each of the parties to the employment relationship may be brought to justice. various types responsibility.
Penalties for violations of labor protection legislation
Since 01/01/2015, changes have been made to the Code of Administrative Offenses, namely Article 5.27.1. Violation of state regulatory requirements for labor protection contained in federal laws and other regulatory legal acts of the Russian Federation (introduced by Federal Law No. 421-FZ of December 28, 2013) warning or imposition of an administrative fine on officials in the amount of two thousand to five thousand rubles; on persons carrying out entrepreneurial activity without formation of a legal entity - from two thousand to five thousand rubles; for legal entities - from 50 thousand to 80 thousand rubles. 2. Violation by the employer of the established procedure for conducting special evaluation working conditions at workplaces or its non-conduct - entails a warning or the imposition of an administrative fine on officials in the amount of five thousand to ten thousand rubles; for persons engaged in entrepreneurial activities without forming a legal entity - from five thousand to ten thousand rubles; for legal entities from 60 thousand to 80 thousand rubles. 3. The admission of an employee to the performance of his labor duties without undergoing training and testing knowledge of labor protection requirements in the prescribed manner, as well as mandatory preliminary (when applying for a job) and periodic (during employment) medical examinations, mandatory medical examinations at the beginning of the working day (shift), mandatory psychiatric examinations or in the presence of medical contraindications - shall entail the imposition of an administrative fine on officials in the amount of fifteen thousand to twenty-five thousand roubles; for persons engaged in entrepreneurial activities without forming a legal entity - from fifteen thousand to twenty-five thousand rubles; for legal entities - from one hundred and ten thousand to one hundred and thirty thousand rubles. Will there be a fine on the legal entity for each failed medical examination (SOUT)? And if it is for each employee, in what document is it?
For violation labor law on several grounds provides for administrative liability in accordance with Art. Art. 5.27, 5.27.1 of the Code of the Russian Federation on administrative offenses. Responsibility rests with the employer for each violation of labor legislation and labor protection legislation separately.
If an organization has violated each paragraph of Article 5.27.1 of the Code of Administrative Offenses of the Russian Federation, it will be fined for each reason. At the same time, if we assume the company did not conduct a special assessment of the working conditions of employees, the number of which is, for example, 10 people. Then she will be fined once, and not 10, that is, not for each employee.
Rationale: Since the beginning of 2015, the Code of Administrative Offenses of the Russian Federation has identified two main articles establishing liability for violation of labor laws. In Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, fines are prescribed for violation of labor legislation and other regulatory legal acts, and in Art. 5.27.1 of the Code of Administrative Offenses of the Russian Federation - fines for violation of state regulatory requirements for labor protection. Previously, a general wording was contained, in case of violation of labor legislation, one administrative offense was formed, regardless of the number of violations identified under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation. Currently, the legislator has identified specific violations for which separate fines have been established.
The Code of Administrative Offenses of the Russian Federation provides for a separate fine for failure to conduct a special assessment of working conditions (part 2 of article 5.27.1 of the Code of Administrative Offenses of the Russian Federation). If the employer has not established in the employment contract the working conditions at the workplace and has not indicated a specific day for the payment of wages, which are mandatory for inclusion in the employment contract in accordance with Art. 57 of the Labor Code of the Russian Federation, then he may be subject to administrative liability under Part 3 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation as for improper execution of an employment contract. If the employer does not issue pay slips to employees in violation of Art. 136 of the Labor Code of the Russian Federation, then a fine is provided for this offense in accordance with Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.
The Decree of the Supreme Court of the Russian Federation of August 15, 2014 N 60-AD14-16 establishes that each of the revealed facts of violation of labor legislation forms an independent administrative offense under Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.
Thus, violations of various articles of the Labor Code of the Russian Federation form several independent offences. In addition, from 01/01/2015 the statute of limitations for violation of labor legislation has increased - it is one year (part 1 of article 4.5 of the Code of Administrative Offenses of the Russian Federation).
Accordingly, in case of violation of labor legislation and legislation on labor protection during the inspection, the employer may be held administratively liable and a fine is imposed for each misconduct separately.
Each of the facts of violation of labor and labor protection legislation revealed as a result of the audit, including the failure to conduct a special assessment of working conditions, the failure to include working conditions at the workplace and specific dates for the payment of wages in the employment contract, failure to notify employees in writing about constituent parts wages (non-issuance of pay slips), the admission of an employee to work without undergoing training and testing knowledge of labor, without mandatory medical examinations, forms an independent administrative offense, for which a separate fine can be imposed on the organization in accordance with the norms of the Code of Administrative Offenses of the Russian Federation.
Responsibility for violation of labor protection requirements
Responsibility for violation of labor protection requirements lies with both the employer and employees, but not equally. In this article, we will talk in detail about what types of responsibility for safety at work are, as well as what penalties are provided for violations.
From this article you will learn:
Violation of OT requirements is a punishable act from the point of view of the law. This is logical, because the legislation was developed on the basis of statistics and analysis of real situations, "TB is written in blood."
Criminal liability for violation of labor protection requirements
A criminal case is initiated if serious consequences are recorded. There is an opinion that serious consequences are only the death of people. This is inaccurate. Infliction of severe damage to health, significant expenses for the enterprise, harm to the environment (air, soil, water, animal world, plantations, etc.).
The specificity of criminal liability is that, if it exists, a circle of perpetrators is established (as opposed to, for example, administrative liability, which can be imposed on the organization as a whole). So, a specific individual and not legal. Most often this is the head of the enterprise. But it is possible to attract both his deputy and the Trudovik, it all depends on what official duties assigned to employees.
A worker died at a construction site: loose scaffolding fell on him. When analyzing the situation, it turned out that the head of the organization could not properly ensure the safety of the work and relied on "maybe". The result - "places not so remote" for the head for a period of 2 years and the payment of compensation to the family of the deceased worker.
The Criminal Code contains a large list of articles that accurately allocate liability by type of violation. So, article 217 of the Criminal Code speaks of explosive objects. It is important that the case will be initiated, even if the explosion did not directly occur, but there was only a threat.
Articles 250-251 regulate the harm to nature and air. The consequence of violation of sanitary norms will be the initiation of a case under Article 236, etc.
The definition of damage to the enterprise depends on the amount. So, if as a result of a violation of the rules of industrial safety, more than 500,000 rubles were caused damage, a criminal case is opened.
Damage to health is assessed through a forensic medical examination.
Any of the cases that occurred due to incorrect organized production work is interpreted as grievous harm and entails legal proceedings:
● loss of hearing, vision, speech, functions of an organ or the organ itself, mental disorders;
●irrecoverable disfigurement of the face;
●disease with drug addiction or substance abuse;
●complete or permanent (not less than one third) disability.
Criminal liability for violation of labor protection is established, in particular, by Article 143 of the Criminal Code. Depending on the severity and mass nature of the tragic consequences, the perpetrators can be punished by various measures, which are most often used in a court decision as part of the punishment.
So the options are:
Other Liability
Disciplinary liability for violation of labor protection requirements
The management, based on Article 192 of the Labor Code, has the right to impose a disciplinary sanction on the employee. It can be a remark, a reprimand, and even dismissal.
Of course, the measure of responsibility should be comparable to the fault, for example, it is impossible to lay off an employee because of a minor flaw. It is also impossible to impose two penalties for one identified violation.
Traditionally, when a violation is detected, the employee writes an explanatory note. Analysis of the causes of the misconduct allows, if possible, to mitigate the punishment and prevent future violations.
Unlike other types of liability, disciplinary punishment is removed automatically after 12 months, unless, of course, during this time the employee has committed new violations.
An employee can apply to the administration of the enterprise with a request to remove the penalty if he can prove his position. If you do not agree with the disciplinary action, you can contact the commission for labor disputes. It is important that the appeal be filed no later than 90 days from the date of collection.
In addition to ordinary employees, persons responsible for labor protection at the enterprise may be subject to disciplinary liability. For example, the responsibility of the manager for violation of labor protection requirements in the form of failure to conduct a safety briefing on a particular machine when the employee started work and was injured.
An employee has the right to refuse work if the organization does not comply with its obligation to ensure workplace safety, for example, to provide PPE. In this case, no disciplinary action can be taken.
Administrative liability for violation of labor protection requirements
This type of responsibility can be held by all employees of the organization, "from the bottom to the top." The punishment is imposed, guided by Article 5.27.1 of the Code of Administrative Offenses of the Russian Federation.
The decision to impose a penalty is within the competence of the GIT employees or the heads of the State Supervision bodies (fire, for example). If a case is filed on an administrative violation, it is considered in court.
What are the possible violations?
Violation of requirements federal laws and other normative acts of the Russian Federation.
For this, a fine is imposed or a warning is issued according to the severity of the violation.
If a fine is imposed on a specific employee, its size ranges from 2,000 to 5,000 rubles. Legal entities are fined in the amount of 50,000 to 80,000 rubles. Approximately the same proportion will be observed for other fines.
Violation during the conduct or non-conduct of the SOUT.
In this case, for violation of labor protection standards, officials are fined by the inspector of the State Inspectorate for 5,000-10,000 rubles, a legal entity - from 60,000 to 80,000 rubles.
For example, the SOUT at the enterprise was carried out with a gap of several weeks from the date of the previous audit. This is a serious violation, and the organization was fined 50,000 rubles.
Violation regarding the admission of employees (lack of briefings, medical examinations, testing knowledge of OT, etc.).
An employee who committed a violation will pay a fine of 15,000 to 25,000 rubles, an organization - from 110,000 to 130,000 rubles.
The amount of the fine is multiplied by the number of identified employees with access violations. So, for example, if 5 people did not pass a medical examination on time, the company will pay at least 550,000 rubles. and will be required to conduct a medical examination as soon as possible.
Violation of the presence of PPE.
This violation is considered very serious and is punishable by heavy fines. So, the company will pay 130,000-150,000 rubles. for each employee without PPE, an official - from 20,000 to 30,000 rubles.
Repeated misdemeanor.
Penalties for a secondary violation are maximized and range from 30,000 to 40,000 rubles. for the responsible person. An organization can be punished in the amount of 100,000 to 200,000 rubles. In some cases, the activity of the enterprise is suspended for up to 90 days.
No penalties compensate for the consequences of the administrative violations committed, however, the requirements of the laws must be fulfilled after the penalties in full.
Liability for violation of labor protection
Liability is compensation by the employee to the employer for material damage caused as a result of violation of safety requirements.
Wherein we are talking not about compensation for possible and lost profits, but about damage that has actually been caused and proven (Article 238 of the Labor Code). If the employee himself received some damage as a result of his own actions, the management may refuse to pay.
The amount and schedule of payments is usually determined by the employer. Based on the status of the employee, the employment contract and the history of their relationship, he can insist on full or partial compensation.
An employee accidentally spilled a glass of tea on the appliance. Since eating and drinking was strictly prohibited in the workplace, he had to compensate the company for the cost of repairing the device.
In order for the employee to bear liability, necessary:
- reaching the age of majority;
- proof of harmful actions violating OT requirements or inaction;
- confirmed material damage to the enterprise.
Civil Law
Civil liability arises from the employer to employees if he is guilty of violating the OT. First of all, it includes compensation for harm, penalties, losses, if someone has suffered. Article 234 states that the management is obliged to reimburse the income of the employee if, through the fault of the administration, his right to work was limited.
An employee was injured due to workplace was not equipped with protective equipment. He must be paid both the lost earnings and the verified medical rehabilitation costs.
Responsibility of an employee for violation of labor protection requirements
So, having considered all types of liability arising in case of violation of OT, let's summarize.
An employee may be subject to material or disciplinary liability if he violates or does not comply with the requirements of the law and the employer.
Actions that led to damage to the organization are also subject to punishment.
What are the job security responsibilities of each employee?
Responsibility of officials for violation of labor protection rules
Leading and responsible employees have more powers, but, accordingly, their obligations to the law also grow. The responsibility of the employer for violation of labor protection requirements is regulated in employment contracts, spelled out in the codes. And the punishment is often very serious, up to imprisonment.
All of the above types of liability relate primarily to officials.
If, when considering a specific situation, signs of an administrative or criminal offense are revealed, the punishment will be in accordance with the Code of Administrative Offenses or the Criminal Code.
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