The medical examination is overdue, what should I do?

Responsibility for untimely medical examination during a prosecutor's inspection

Hello! I work in a clinic as a psychologist (I am not a medical worker), I am currently on vacation. Today the acting head nurse called me and said that my fluorography results were overdue, and that I urgently needed to undergo it, because today they had a prosecutor’s inspection. Since I’m not in the city, I can’t go through the flurry, to which I received the answer: “Well, you give it to me!” You’ll get it in the neck!” Am I really responsible for completing my classes on time? (Medical books are kept by the senior nurse). Will I face a fine/reprimand for this?

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According to Art. 214 of the Labor Code of the Russian Federation, an employee is required to undergo periodic (during work) medical examinations , other mandatory medical examinations, as well as undergo extraordinary medical examinations at the direction of the employer.

According to Art. 192 of the Labor Code of the Russian Federation for committing a disciplinary offense, that is, failure or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to bring the employee to disciplinary liability, as well as in accordance with the terms of the Regulations on remuneration or bonuses, or reduce his bonus, or not charge in full.

2017-06-26 13:03:53

Love

All my periodic examinations were completed on time, except fluorography, and that was due to the fault of the head nurse, since if she had told me that something was wrong with me, then I would have passed naturally, I can’t keep everything in my head.
Moreover, the medical books are kept by her. I didn’t really understand the relationship between the failed fluorography and the failure to fulfill one’s labor obligations. I fulfill them in full, and in accordance with the employment contract.

The organization has given you a referral for a periodic medical examination, following which you should receive a conclusion from a medical organization stating that you have passed the medical examination.

According to clause 12-14 of the Order of the Ministry of Health and Social Development of Russia dated April 12, 2011 N 302n “On approval of lists of harmful and (or) hazardous production factors and work, during the performance of which mandatory preliminary and periodic medical examinations (examinations) are carried out, and the Procedure for conducting mandatory preliminary and periodic medical examinations (examinations) of workers engaged in heavy work and work with harmful and (or) dangerous working conditions"

12. After a person applying for work has completed a preliminary examination by a medical organization, a conclusion is drawn up based on the results of the preliminary (periodic) medical examination (hereinafter referred to as the Conclusion).

13. The Conclusion indicates: the date of issue of the Conclusion; last name, first name, patronymic, date of birth, gender of the person applying for work (employee); employer's name; name of the employer's structural unit (if any), position (profession) or type of work; name of the harmful production factor(s) and (or) type of work; the result of the medical examination (medical contraindications were identified or not identified). The conclusion is signed by the chairman of the medical commission indicating the surname and initials and certified by the seal of the medical organization that conducted the medical examination.

14. The conclusion is drawn up in two copies, one of which, based on the results of the medical examination, is immediately given to the person entering work or who has completed a periodic medical examination, and the second is attached to the medical record of the outpatient.

I didn’t really understand the relationship between not undergoing fluorography and failure to fulfill my labor obligations.

Fluorography is part of the medical examination.

According to Art. 21 of the Labor Code of the Russian Federation The employee is obliged to comply with labor protection requirements, and Art. 214 of the Labor Code of the Russian Federation directly indicates the employee’s obligation to undergo medical examinations.

According to paragraphs. V. clause 35 Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 (as amended on November 24, 2015) “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” when considering a case on the reinstatement of a person dismissed under paragraph 5 of part one of Article 81 of the Code , or to challenge a disciplinary sanction , it should be taken into account that failure by an employee to perform without good reason is a failure to fulfill labor duties or improper performance through the fault of the employee of the labor duties assigned to him (violation of legal requirements, obligations under an employment contract, internal labor regulations, job descriptions, regulations, employer orders, technical rules, etc.).

Such violations, in particular, include:

refusal or avoidance without good reason from a medical examination of workers in certain professions, as well as the employee’s refusal to undergo special training during working hours and pass exams on labor protection, safety precautions and operating rules, if this is a mandatory condition for admission to work.

Judicial practice only confirms this approach (see the appeal ruling of the Moscow City Court dated 08/04/2016 in case No. 33-30043/2016)

What should you do if your medical examination is overdue and your employer refuses to pay for it?

Arranged from 02.17.17 without prior medical assistance. inspection. . A conflict situation arose with the new management, which influenced the decision not to pay for my initial medical examination. I was on sick leave from 03/14/2017 to 04/05/17. Now it turns out I don’t have permission to work, the employer says - go ahead yourself, I won’t pay. And he was suspended from work. How was I? Maybe I should write some kind of official letter to the director?

Also, in this case, should the employer pay for each day of downtime in accordance with the Labor Code of the Russian Federation?

Good day, Sergey.

Art. 212 and 213 of the Labor Code of the Russian Federation provide for the employer’s obligation to organize, at his own expense and the organization’s funds, the following:

applicants for vacancies of urgent primary medical commissions;
employees of the enterprise, during the period of their work, undergo scheduled medical examinations; employees of the enterprise, with the same condition, unplanned diagnostic examinations on their initiative, with the preservation of their workplace and average salary for the period of the examination. Downtime (Article 72.2 of this Code) due to the fault of the employer is paid in the amount of at least two-thirds of the employee’s average salary. Downtime due to reasons beyond the control of the employer and employee is paid in the amount of at least two-thirds of the tariff rate, salary (official salary), calculated in proportion to downtime. Downtime caused by the employee is not paid.

Is it a violation to delay a medical examination by 1-2-3 months?

The company is big. Some categories of workers must undergo periodic medical examinations once a year. To do this, we organize a medical examination at a medical company once a year for everyone. But there are employees for whom, by the time the medical examination begins, more than a year has already passed by 1.2, 3 months or more. Is this a violation? After all, the employee will still undergo a medical examination every year?

Having considered your question, we can say the following: currently, the procedure for conducting preliminary and periodic medical examinations is regulated by the Order of the Ministry of Health and Social Development of Russia dated April 12, 2011. No. 302n “On approval of lists of harmful and (or) dangerous production factors and work, during which preliminary and periodic medical examinations (examinations) are carried out, and the Procedure for conducting preliminary and periodic medical examinations.”

In addition, there are a number of industry documents, each of which regulates the procedure for conducting medical examinations in a particular type of activity.

The validity of a medical report during a medical examination can vary from one year to two years, in general, at least once every two years, depending on the position held and the specifics of the work. In this case, the frequency of inspections is regulated by the above-mentioned order.

Thus, the validity period of a medical certificate is determined individually in accordance with the position held and factors of the labor process.

In this situation, there is a risk that if Rospotrebnadzor conducts an inspection during the period when the periodic medical examination expires and before the periodic examination is carried out again, the employer may be held administratively liable.

And also after the expiration of the conclusion on the medical examination of the employee, he cannot be allowed to work until he undergoes a periodic medical examination.

In your situation, it seems less risky to send the employee for a medical examination before the end of the year from the date of passing the preliminary medical examination with all employees (which is not prohibited). Or organizing individual medical care for him. inspection.

Details in the materials of the Personnel System:

Answer: When is it necessary to conduct a mandatory medical examination of an employee?

Employees subject to mandatory medical examination

Employees performing certain types of work undergo mandatory medical examinations at the expense of the organization. This category of personnel includes, in particular:

employees engaged in heavy work and work with harmful (dangerous) working conditions (including underground work) (Article 213, 330.3 of the Labor Code of the Russian Federation);
employees engaged in work related to traffic (Articles 213 and 328 of the Labor Code of the Russian Federation, Article 23 of the Law of December 10, 1995 No. 196-FZ);

employees of food industry enterprises, public catering and trade, water supply facilities, medical and preventive care and children's institutions (Article 213 of the Labor Code of the Russian Federation);
departmental security officers (Article 6 of the Law of April 14, 1999 No. 77-FZ).

Lists of harmful and dangerous production factors and work that require mandatory medical examinations are given in Appendices 1 and 2 to the order of the Ministry of Health and Social Development of Russia dated April 12, 2011 No. 302n.

In addition, there are a number of industry documents, each of which regulates the procedure for conducting medical examinations in a particular type of activity. They must be followed by organizations that are subject to these documents. This procedure is confirmed by both Article 213 of the Labor Code of the Russian Federation and Article 24 of Law No. 323-FZ of November 21, 2011. For example, mandatory medical examinations are provided for employees engaged in:

Also, employees under 18 years of age and professional athletes undergo mandatory medical examinations (Articles 69, 266, 348.3 of the Labor Code of the Russian Federation).

The procedure for conducting mandatory medical examinations of employees engaged in work with harmful (hazardous) production factors is given in Appendix 3 to the order of the Ministry of Health and Social Development of Russia dated April 12, 2011 No. 302n. The rules for medical examination of drivers are established in the letter of the Ministry of Health of Russia dated August 21, 2003 No. 2510/9468-03-32. For all other categories of employees for whom special medical examination rules are not established, these documents can also be applied.

The employer is obliged to organize medical examinations of employees by concluding an appropriate agreement with a medical institution (clause 6 of the Procedure approved by order of the Ministry of Health and Social Development of Russia dated April 12, 2011 No. 302n) . In this case, the medical institution must have a license for medical activities (clause 46, part 1, article 12 of the Law of May 4, 2011 No. 99-FZ).

Also, the employer has the right to introduce positions of medical workers into the staff and create units (doctor’s office, health center, medical office, medical unit and other units) that provide medical care to the organization’s employees, and can conduct medical examinations (for example, pre-trip) in its own medical center, provided that The medical center has a license for medical activities and the right to conduct preliminary and periodic medical examinations (clause 4 of article 24 of the Law of November 21, 2011 No. 323-FZ, clause 46 of part 1 of article 12 of the Law of May 4, 2011 No. 99-FZ, clause 4 of the Procedure approved by order of the Ministry of Health and Social Development of Russia dated April 12, 2011 No. 302n).

Mandatory medical examinations are divided into three types:

This classification is provided for by the provisions of Part 1 of Article 213 of the Labor Code of the Russian Federation and paragraphs 1, 18 of the Procedure approved by Order of the Ministry of Health and Social Development of Russia dated April 12, 2011 No. 302n.

In addition, for certain categories of employees, mandatory medical examinations (examinations) may be provided at the beginning of the working day (shift), as well as during and (or) at the end of the working day (shift). The time spent undergoing such medical examinations (examinations) is included in working hours. This procedure is provided for in Part 3 of Article 213 of the Labor Code of the Russian Federation. For example, employees engaged in underground work are required to undergo such medical examinations (Article 330.3 of the Labor Code of the Russian Federation).

Preliminary examinations are carried out upon hiring. Their goal is to determine, before concluding an employment contract, whether a candidate can apply for a particular position due to health reasons.

If the preliminary medical examination is carried out in a medical institution, the candidate must be given a referral. In the direction issued to an applicant for a position in hazardous (hazardous) work, indicate the harmful (dangerous) production factors that the employee will encounter after being hired for a vacant position. In addition, in the direction indicate:

employer's name;
form of ownership and type of economic activity of the organization according to OKVED;
name of the medical organization, actual address of its location and OGRN code;
type of medical examination (preliminary);
last name, first name, patronymic, date of birth of the applicant;
name of the structural unit of the organization (if any) in which the candidate will be employed;
the name of the position (profession) of the applicant or the types of work that he will perform.

The direction is issued to the person against his signature. The employer must organize a record of issued referrals.

Such requirements are contained in paragraphs 7, 8 of the Procedure approved by order of the Ministry of Health and Social Development of Russia dated April 12, 2011 No. 302n. Due to the current lack of a unified referral form, the organization has the right to develop it independently.

Periodic mandatory medical examinations are carried out during the entire period of an employee’s work in the organization for a specified duration. Their goal is to monitor the health status of employees and timely detection of occupational diseases.

To conduct periodic medical examinations, the organization creates a list of employees who:

are exposed to harmful production factors specified in the list approved by order of the Ministry of Health and Social Development of Russia dated April 12, 2011 No. 302n . Harmful factors are also determined based on the results of workplace certification and during laboratory research and testing;
carry out work according to the list approved by order of the Ministry of Health and Social Development of Russia dated April 12, 2011 No. 302n.

Send the approved list to the territorial body of Rospotrebnadzor within 10 days (clause 21 of the Procedure approved by order of the Ministry of Health and Social Development of Russia dated April 12, 2011 No. 302n).

Based on this list, make a list of employees who need to undergo periodic inspection. If a medical examination is carried out in relation to employees engaged in harmful (dangerous) work, it must indicate the harmful (dangerous) production factors affecting the employees.

A list of employees by name is sent to the medical organization no later than two months before the start date of the periodic medical examination agreed upon with this organization (clause 23 of the Procedure approved by order of the Ministry of Health and Social Development of Russia dated April 12, 2011

Didn’t pass a medical examination at work, what should the employee and employer do in this case, responsibility

Organizations use contract labor from individuals in their activities. In cases established by law, the company administration must send these individuals to undergo a medical examination. An employee may be allowed to perform his duties only after a medical examination. It is important to know, if an employee has not passed a medical examination at work, what to do in this situation.

The employer's obligation to organize medical examinations of employees

The current provisions of the regulations establish the employer’s obligation to carry out medical examinations of its employees. The company administration must organize medical examinations at its own expense.

Moreover, this rule applies to preliminary, periodic and extraordinary medical examinations. While employees undergo a medical examination, their jobs are retained and average earnings are paid.

Preliminary inspection is carried out only in relation to persons applying for work; periodic inspection must be carried out in cases determined by the norms of legislation and the carried out special assessment and assessment system.

Extraordinary ones are carried out either on the initiative of the administration or the employee himself, if it is clear that due to health reasons he cannot cope with his work responsibilities. Indications for conducting a medical examination are also established at the legislative level.

Who is required to undergo a medical examination?

The list of persons for whom a medical examination is mandatory is determined by labor standards:

Employees, if they are under 18 years of age.
Employees whose workplace, according to the carried out special safety regulations, is exposed to hazardous and harmful factors.
Workers in the food industry, catering organizations, direct trade enterprises.
Employees who work on a rotational basis.
Enterprise employees whose workplaces are underground.
An employee of companies whose activities are carried out in the territories of the Far North and equivalent regions.
Private security workers.
Professional athletes.
Employees of educational institutions.
Workers associated with the transport department.

Timing and frequency of medical examination

A medical examination is a set of procedures aimed at identifying an employee’s occupational diseases and preventing the risk of their development. It is carried out in specialized medical institutions.

For each profession, the period and frequency of undergoing a medical examination are established.

The following types of medical examinations can be distinguished:

Preliminary - carried out in relation to certain categories of employees at the time of their entry to work.
Periodic - carried out at certain intervals in accordance with SOUTH regulations, legal norms, etc. For each profession, the frequency of sending an employee for medical examinations is established. In this case, the frequency of medical examinations can be established by law from one to four times a year. For example, catering workers must undergo a medical examination once a year, workers whose workplace is underground - once a year, personnel caring for the elderly and young - 4 times a year, etc. Factors affecting the employee’s workplace also influence; for them, the frequency is established by the SOUT.
Pre-trip and post-trip medical examination is carried out in relation to transport workers due to the fact that the life and health of not only them, but also those around them depends on their health. Provided before they go on shift and after it. Therefore, they are carried out daily.
Extraordinary - carried out at the initiative of the employee or employer.

What to do if an employee does not pass a medical examination?

Procedure for dismissal from work

First of all, it is necessary to document the occurrence of a fact that allows the employee to be removed.

If the employee has not passed the medical examination

In the organization, employees undergo medical examinations. Based on the results of the next examination, the clinic sent the employer a conclusion that the employee was unfit and could not work in this position. The employer does not have any vacant positions for which the employee could perform work taking into account existing contraindications. What sequential actions must the employer take? How to make a record in the workbook?

An employer who has received a medical certificate that an employee is unfit for work in his position (employees, that is, specialists or managers) or profession (workers), should take the following actions.

1. According to paragraph 5, part 1, art. 76 of the Labor Code of the Russian Federation, the employer is obliged to remove from work (not allow to work) an employee if, in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, contraindications for the employee to perform work stipulated by the employment contract are identified. Thus, the first step is issuing an order to remove the employee from work.

The order is drawn up in any form and signed by the head of the organization. The employee should be familiarized with the contents of the order against signature. During the period of suspension from work, the employee is not paid wages.

From the norms of Art. 76 of the Labor Code of the Russian Federation it follows that suspension from work in this case does not depend on the will of the employer, but on the presence of medical contraindications established by the medical institution (Decision of the Moscow City Court dated 03/02/2011 in case No. 33-5685, Appeal determination of the Moscow Regional Court dated 21/07 2014 in case No. 33-15624/2014).

2. The employer is obliged to notify the employee about the absence of vacancies at all or vacancies that are not contraindicated for the employee for health reasons.

The notification is drawn up in any form, signed by the head of the organization and handed to the employee against signature (Article 73 of the Labor Code of the Russian Federation) (Appeal ruling of the Lipetsk Regional Court dated September 10, 2014 in case No. 33-2401/2014).

3. At the same time, it is necessary to check the period for which the employee is declared unfit for work .

If the period is less than four months, then the suspension is issued before the expiration of the period specified in the conclusion (since, as follows from the question, the employer does not have vacancies for transferring the employee to another position (paragraph 2 of Article 73 of the Labor Code of the Russian Federation)). After the specified period, the employer issues an order to allow the employee to work, and the employee continues to work in his position/profession.

If the period for which the employee is declared unable to perform his work is more than four months or is not indicated in the medical report, and the employer does not have vacancies for such an employee, then the employee must be dismissed in accordance with clause 8 of part 1 of article 77 of the Labor Code of the Russian Federation following the appropriate procedure. In this regard, a dismissal order is issued, indicating as the basis for its issuance a medical report and a certificate of the absence of vacancies suitable for the employee, taking into account his competencies and health status.

The order can be issued in the unified form No. T-8 or in another form determined by the employer. The employee’s dismissal order must be submitted against signature. If the order cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it under signature, a corresponding entry is made on the order.

4. It is necessary to make an entry in the employee’s work book (example).

Example

5. Make a record of the employee’s dismissal in accordance with the wording in the work book in the employee’s personal card (Form No. T-2 or the form used in this personnel service). The entry in the work book should also be familiarized to the employee against a signature in the personal card (clause 41 of the Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books” (as amended on March 25, 2013)).

6. On the last day of work, issue the employee a work book . In this case, the employee must sign in the book recording the movement of work books and inserts in them.

7. Dismissal under clause 8, part 1, art. 77 of the Labor Code of the Russian Federation provides the employee with additional guarantees . So, in accordance with paragraph 5 of Part 2 of Art. 137 of the Labor Code of the Russian Federation cannot be withheld from an employee vacation pay for unworked vacation days, and the employee is also paid severance pay in the amount of 2 weeks of average earnings (Part 3 of Article 178 of the Labor Code of the Russian Federation).

Thus, on the day of dismissal, the employee must not only be paid all wages due to him and compensation for unused vacation, but also severance pay in the amount of 2 weeks' earnings.

An employment contract with the heads of organizations (branches, representative offices or other separate structural units), their deputies and chief accountants who, in accordance with a medical report, need a temporary or permanent transfer to another job, if the transfer is refused or the employer does not have the corresponding job, is also terminated in accordance with clause 8, part 1, art. 77 Labor Code of the Russian Federation. However, the employer has the right, with the written consent of these categories of employees, not to terminate their employment contract, but to suspend them from work for a period determined by agreement of the parties. During the period of suspension from work, wages are not accrued to these employees, unless this is provided for in a collective or labor agreement.

Yu. Yu. Zhizherina, HR Director

The article was published in the magazine “Personnel Solutions” No. 8, 2015.