Full text of Art. 73 of the Labor Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice on Article 73 of the Labor Code of the Russian Federation.

An employee who needs to be transferred to another job in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, with his written consent, the employer is obliged to transfer to another job available to the employer that is not contraindicated for the employee for health reasons.
If an employee who, in accordance with a medical report, needs a temporary transfer to another job for a period of up to four months, refuses the transfer or the employer does not have the corresponding job, then the employer is obliged to suspend the employee from work for the entire period specified in the medical report while maintaining his job ( positions). During the period of suspension from work, wages are not accrued to the employee, except in cases provided for by this Code, other federal laws, collective agreements, agreements, and employment contracts.

If, in accordance with a medical report, an employee needs a temporary transfer to another job for a period of more than four months or a permanent transfer, then if he refuses the transfer or the employer does not have the corresponding job, the employment contract is terminated in accordance with paragraph 8 of part one of Article 77 of this Code .

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 terminated in in accordance with paragraph 8 of part one of Article 77 of this Code. The employer has the right, with the written consent of these employees, not to terminate their employment contract, but to remove 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, except for the cases provided for by this Code, other federal laws, collective agreements, agreements, and employment contracts.

Commentary on Article 73 of the Labor Code of the Russian Federation

1. The commented article deals with a special case of transfer related to the protection of an employee who cannot continue to perform his work function due to deteriorating health.

The impossibility of continuing his previous work under the employment contract must be established in relation to the employee, confirmed by a medical report. So, for example, from the appeal ruling of the Supreme Court of the Republic of Bashkortostan dated December 25, 2012 in case No. 33-14161/2012, it follows that the employer lawfully applied Art. 73 of the Labor Code of the Russian Federation, taking into account the fact that the work provided to the employee was associated with psycho-emotional stress, proceeded according to the schedule, which was contraindicated for him according to the certificate issued by the health care institution.

The procedure for issuing a medical report is currently established by order of the Ministry of Health and Social Development of the Russian Federation dated May 2, 2012 N 441n. In accordance with paragraphs 10, 12-13 of this Procedure, a medical report can be issued to an employee based on the results of medical examinations, medical examinations, medical examinations, as well as decisions made by a medical commission, and in other cases.

The medical report must contain a comprehensive assessment of the citizen’s health status, including, in particular, a description of the examination and (or) treatment performed and their results; assessment of the validity and effectiveness of diagnostic and treatment measures, including the prescription of medications; substantiated conclusions about the presence (absence) of a citizen of a disease (condition), risk factors for the development of diseases, about the compliance of the employee’s health status with the work assigned to him.

Certificates are usually drawn up in any form with the stamp of a medical organization or on the letterhead of a medical organization (if available), signed by a doctor (paramedic, midwife), certified by the personal seal of the doctor and the seal of the medical organization.

As for the loss of professional ability by an employee as a result of industrial accidents and occupational diseases, in this case the degree of loss of professional ability is established by the medical and social examination institution as a percentage at the time of examination of the victim. At the same time, if there are grounds, the victim’s need for medical, social and professional rehabilitation is determined, and the victim can also be recognized as disabled (clauses 2, 3 of the Rules for determining the degree of loss of professional ability to work as a result of industrial accidents and occupational diseases, approved by decree of the Government of the Russian Federation dated October 16, 2000 N 789).

Order of the Ministry of Health and Social Development of the Russian Federation dated October 20, 2005 N 643 approved forms of documents on the results of the establishment by federal state institutions of medical and social examination of the degree of loss of professional ability in percentage and recommendations for filling them out.

2. It is possible that an employee who has received an appropriate medical certificate does not present it to the employer.

Here it should be borne in mind that in accordance with Part 1 of Art. 9 of the Federal Law "On the Fundamentals of Protecting the Health of Citizens in the Russian Federation" state authorities and local government bodies, medical organizations and other organizations interact in order to ensure the rights of citizens in the field of health protection and bear, within the limits of their powers, responsibility for ensuring guarantees in the field of health protection, established by the legislation of the Russian Federation.

At the same time, according to Part 1 of Art. 13 Federal Law “On the Fundamentals of Protecting the Health of Citizens in the Russian Federation” information about the state of a citizen’s health and his diagnosis, and other information obtained during his medical examination and treatment constitute a medical secret. An exception is cases specified by law, including the threat of the spread of infectious diseases (clause 2, part 4, article 13 of the Federal Law “On the fundamentals of protecting the health of citizens in the Russian Federation”).

At the same time Art. 88 of the Labor Code of the Russian Federation establishes that the employer does not have the right to request information about the employee’s health status, with the exception of information that relates to the issue of the employee’s ability to perform a job function.

Consequently, the employer (if he has suspicions regarding the state of health of the employee and in his interests) has the right to contact a medical organization with a request to provide information about the state of health of the employee related to the issue of the employee’s ability to perform a job function, and receive a response that can then serve as the basis for transferring the employee to another job in accordance with the medical report. This is indicated, in particular, in the ruling of the Primorsky Regional Court dated October 1, 2012 in case No. 33-8667.

3. Article 76 of the Labor Code of the Russian Federation provides that the employer does not have the right to allow an employee to return to his previous work if, in accordance with a medical report, contraindications for its performance are identified.

Therefore, the moment the employer is informed of the contents of the medical report is related to:
- with the termination of his right to demand that the employee perform work under the same conditions;
- with the obligation to ensure the removal of the employee from work provided for by the employment contract, until the issue of changing or terminating it is resolved, or until the expiration of the period during which, according to a medical report, contraindications apply.

As the commented article establishes, in this case the employer is obliged to transfer the employee to another job that is not contraindicated for the employee for health reasons. The harmlessness of a new job in relation to the identified health condition of the employee must be carefully examined by the employer (in this case, consultation with specialists is advisable).

Here we can talk about either a temporary transfer or a permanent one, depending on what period is indicated in the medical report.

The employer is obliged to offer the employee in writing all available vacancies that correspond to the employee’s professional level and are not contraindicated for him due to health reasons, or, also, to inform the employee in writing about the absence of such.

The period during which the employer is obliged to take appropriate measures is not established in the article commented on. It seems that the employer should take the above actions immediately so as not to interfere with the employee’s exercise of his right to work.

According to Art. 182 of the Labor Code of the Russian Federation, when transferring an employee who, in accordance with a medical report, needs to be provided with another job, to another lower-paid job with a given employer, he retains the average earnings for his previous job for one month from the date of transfer (see).

When transferring due to a work injury, occupational disease or other work-related health damage, the average salary is retained until permanent loss of professional ability to work is established or until the employee recovers.

Also, for example, clause 4 of Art. 14 of the Law of the Russian Federation of May 15, 1991 N 1244-1 “On the social protection of citizens exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant” establishes in relation to citizens who received or suffered radiation sickness, other diseases, and disabled people as a result of the Chernobyl disaster, what they receive additional payment up to the amount of previous earnings when transferred for medical reasons to a lower-paid job until the restoration of working capacity or until disability is established.

It is important to remember that the transfer of an employee to another job in accordance with a medical report, like any transfer not related to emergency situations, is possible only with the written consent of the employee. Accordingly, the employee has the right to both provide his consent to the transfer and refuse it.

4. The commented article considers cases when the medical report implies the need to transfer the employee to another job, but the employer does not have another job suitable for the employee based on his health, or the employee refuses the transfer. In this case, we may talk about the need for translation established by a medical report:
- for a period of up to four months. In this case, the employer is obliged to suspend the employee from work for the entire period specified in the medical report while maintaining his place of work (position). Thus, there is a kind of expectation by the employer for the employee’s recovery. After the expiration of the period specified in the medical report, the employee can begin performing his previous work (during his absence, the employer may hire another employee under a fixed-term employment contract).

However, during the period of suspension from work, the employee is not paid wages. Exceptions may be provided for by the Labor Code of the Russian Federation, other federal laws, a collective bargaining agreement, agreements or directly an employment contract.

Suspension from work is carried out by an appropriate order from the employer, the basis of which is a medical report, the employee’s written refusal of an offered job that is suitable for him due to health conditions, or evidence of its absence from the employer.

It should also be noted that in Part 2 of Art. 33 of the Federal Law “On the Sanitary and Epidemiological Welfare of the Population” refers to persons who are carriers of pathogens of infectious diseases, if they can be sources of the spread of infectious diseases due to the characteristics of the production in which they are employed, or the work they perform. Such workers, with their consent, are temporarily transferred to another job that is not associated with the risk of the spread of infectious diseases, and if transfer is impossible, on the basis of decisions of the chief state sanitary doctors and their deputies, they are temporarily suspended from work with the payment of social insurance benefits.

Consequently, in this case, in order to remove an employee from work, a corresponding resolution of the indicated officials is necessary;
- for a period of more than four months, as well as when establishing the need for a permanent transfer of the employee to another job in accordance with a medical report. In this case, the employment contract may be terminated (the employee’s refusal to transfer to another job, which is necessary for him in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer does not have the corresponding job).

Considering that termination of an employment contract on this basis is a rather serious step, and in judicial practice there are frequent cases of employees filing claims for reinstatement upon dismissal under clause 8 of Part 1 of Art. 77 of the Labor Code of the Russian Federation, the employer should pay special attention to the content of the medical report.

For example, the court found that, according to the conclusion of the health care institution, S.’s illness—an acute respiratory viral infection complicated by nasopharyngitis—after treatment and discharge to work did not interfere with her performance of her work duties. The conclusion was advisory in nature and did not indicate the need to transfer the plaintiff to another job.

At the same time, the employer did not take action to establish a diagnosis that prevented the plaintiff from performing his job duties. The court considered that S.’s dismissal was in accordance with paragraph 8 of Part 1 of Art. 77 of the Labor Code of the Russian Federation was carried out by the employer without sufficient grounds (see the appeal ruling of the Moscow City Court dated November 14, 2012 in case No. 11-27078).

At the same time, the commented article establishes not the right, but the obligation of the employer to consistently take all prescribed measures upon receipt of a medical report indicating that the employee is unable to perform his previous work.

Thus, in accordance with the final act of the healthcare institution, A. was contraindicated from working in contact with dust, irritating and sensitizing substances. According to the measurement data of dust content parameters at the employer’s enterprise, an increased dust content was established in A.’s work area. The court, having concluded that while continuing to work in her previous position, A.’s health condition could have worsened, considered her dismissal according to clause 8 of Part 1 of Art. 77 of the Labor Code of the Russian Federation (see the appeal ruling of the Supreme Court of the Republic of Bashkortostan dated December 11, 2012 in case No. 33-14219/2012).

It is noteworthy that in this case it is possible to terminate the employment contract during the period of temporary incapacity for work of the employee.

As stated in the ruling of the Supreme Court of the Russian Federation dated November 25, 2011 N 19-B11-19, it establishes a ban on the dismissal of an employee during the period of temporary disability and while on vacation (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur) only at the initiative of the employer . However, such grounds for dismissal as the employee’s refusal to transfer to another job, which he needs in accordance with a medical report, do not apply to the grounds for termination of an employment contract at the initiative of the employer, according to Part 1 of Art. 81 Labor Code of the Russian Federation.

5. In accordance with a medical report, employees may need temporary or permanent transfer to another job, whom the legislator groups into a separate group, namely:
- heads of organizations;
- heads of branches, representative offices or other separate structural divisions of the organization;
- deputy heads of both the organizations themselves and their separate structural divisions;
- chief accountants.

As follows from the definition of the Supreme Court of the Russian Federation dated November 25, 2011 N 19-B11-19, if workers from the specified categories refuse to transfer or if the employer does not have the corresponding work, the employment contract is terminated on the basis of clause 8, part 1 of Art. 77 of the Labor Code of the Russian Federation, regardless of how long a transfer to another job is necessary.

In other words, even in the case when it follows from the medical report that the transfer period is no more than four months, such workers are not subject to removal from work while retaining their place of work (position), which is associated with their performance of the most important (including managerial) functions and the need for the employer to take operational measures aimed at the smooth operation of the organization.

Despite the fact that the legislator does not establish an obligation for the employer to remove managers, their deputies and chief accountants from work, with the written consent of these employees, he may decide not to terminate the employment contract with them.

In this case, it is possible to remove employees from work for a period determined by agreement of the parties, including more than four months. In any case, such period cannot be less than specified in the medical report.

As a general rule, during the period of suspension from work, wages are not accrued to these employees, with the exception of cases provided for by the Labor Code of the Russian Federation and other federal laws, collective agreements, agreements, and employment contracts.

Another comment to Art. 73 Labor Code of the Russian Federation

1. When transferring an employee for medical reasons, the initiator of such transfer is the relevant medical organization. The basis for the corresponding medical report is a change in the employee’s health status, i.e. the emergence of a factor that is objective for the parties to the employment contract. As noted above, a medical certificate issued in the prescribed manner about the employee’s need for transfer to another job is mandatory for the employer, but the transfer can only be carried out with the written consent of the employee.

2. As follows from the content of the commented article, the fate of an employment contract with an employee who needs a transfer for health reasons, but refuses such a transfer, as well as if the employer does not have the corresponding work, is determined by the period of transfer.

If the period of transfer to another job according to a medical report does not exceed four months, then if the employee refuses the transfer or the employer does not have the appropriate work, the employee is suspended from work with the payment of his wages suspended.

Persons who are carriers of pathogens of infectious diseases, if they can become sources of the spread of infectious diseases due to the characteristics of production or the work they perform, with their consent, are temporarily transferred to another job that is not associated with the risk of the spread of infectious diseases. If it is impossible to transfer on the basis of decisions of the chief state sanitary doctors and their deputies, they are temporarily suspended from work with the payment of social insurance benefits (Article 33 of the Federal Law of March 30, 1999 N 52-FZ “On the Sanitary and Epidemiological Welfare of the Population”).

If, due to a medical report, an employee needs a temporary transfer for a period of more than four months or a permanent transfer, then if he refuses the transfer or if the employer does not have the appropriate work, the employment contract is terminated in accordance with clause 8 of Art. 77 TK.

3. Parts 2 and 3 of the commented article determine the fate of the employment contract in different ways.

If the circumstances specified in Part 3 of the commented article occur, the employment contract is terminated from the moment the employer receives a medical certificate (if the employer does not have the relevant work) or from the moment the employee refuses the proposed transfer. Contrary to the mandatory nature of this rule, an employment contract can be preserved by agreement of the parties (for example, an employee is suspended from work until the expected moment when a corresponding vacancy arises at the employer, regardless of the fact that the expected period of its occurrence exceeds four months and cannot be determined accurately at all).

If the medical conclusion is based on the fact that the period of temporary incapacity for work of the employee will not last more than four months, then if it is impossible to transfer to another job in the event of the employee’s refusal or lack of corresponding work, the employee is suspended from work and the employment contract with him is preserved by virtue of the direct instructions of the law. It should be assumed that the law establishes the maximum duration of temporary disability during which a suspended employee retains his job, but not the number of such suspensions. If an employee returns to work at the end of the relevant period, he must be provided with work according to the labor function stipulated by the employment contract. In the event of a new period of incapacity for work, the rules established respectively in part 2 or part 3 of the commented article are again subject to application.

The question remains open: what are the legal consequences if the employee’s incapacity for work actually lasted more than four months?

It seems that if by the end of the four-month period (or a period of shorter duration specified in the medical report) the employee has undergone a new medical examination and a new medical report has been issued to him, then the rules provided for, respectively, part 2 or 3 of the commented article should be applied. In other words, the new medical report cannot be “reverted”, and, therefore, if, according to it, the employee’s incapacity for work is limited to four months, then the rules established by part 2 of the commented article apply; if its duration is expected to be more than four months or is permanent, then it is possible to apply the norm provided for in Part 3 of the commented article.

4. On the transfer of women to another job due to pregnancy or the presence of children under the age of one and a half years, see Art. 254 TC and commentary to it.

Consultations and comments from lawyers on Article 73 of the Labor Code of the Russian Federation

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System and observer

Let's define a system as an object whose existence is beyond doubt.

An observer of a system is an object that is not part of the system it observes, that is, it determines its existence through factors independent of the system.

The observer, from the point of view of the system, is a source of chaos - both control actions and the consequences of observational measurements that do not have a cause-and-effect relationship with the system.

An internal observer is an object potentially accessible to the system in relation to which inversion of observation and control channels is possible.

An external observer is an object, even potentially unattainable for the system, located beyond the system’s event horizon (spatial and temporal).

Hypothesis No. 1. All-seeing eye

Let's assume that our universe is a system and it has an external observer. Then observational measurements can occur, for example, with the help of “gravitational radiation” penetrating the universe from all sides from the outside. The cross section of the capture of “gravitational radiation” is proportional to the mass of the object, and the projection of the “shadow” from this capture onto another object is perceived as an attractive force. It will be proportional to the product of the masses of the objects and inversely proportional to the distance between them, which determines the density of the “shadow”.

The capture of “gravitational radiation” by an object increases its chaos and is perceived by us as the passage of time. An object opaque to “gravitational radiation”, the capture cross section of which is larger than its geometric size, looks like a black hole inside the universe.

Hypothesis No. 2. Inner Observer

It is possible that our universe is observing itself. For example, using pairs of quantum entangled particles separated in space as standards. Then the space between them is saturated with the probability of the existence of the process that generated these particles, reaching its maximum density at the intersection of the trajectories of these particles. The existence of these particles also means that there is no capture cross section on the trajectories of objects that is large enough to absorb these particles. The remaining assumptions remain the same as for the first hypothesis, except:

Time flow

An outside observation of an object approaching the event horizon of a black hole, if the determining factor of time in the universe is an “external observer,” will slow down exactly twice - the shadow of the black hole will block exactly half of the possible trajectories of “gravitational radiation.” If the determining factor is the “internal observer,” then the shadow will block the entire trajectory of interaction and the flow of time for an object falling into a black hole will completely stop for a view from the outside.

It is also possible that these hypotheses can be combined in one proportion or another.

1. Article 73 of the Labor Code of the Russian Federation is devoted to the transfer to another job of an employee who, in accordance with a medical report, needs such a transfer. In accordance with the commented article, it is possible to transfer an employee not only to another permanent job, but also to a temporary one, if, in accordance with a medical report, the employee needs a temporary transfer to another job. The presence in the Labor Code of special rules governing the procedure for the transfer of an employee who, in accordance with a medical certificate, needs to be transferred to another job, makes it possible to resolve many problems that arise in practice.

2. In accordance with Part 1 of the commented article, the employer’s obligation to transfer an employee to another job (permanently or temporarily) arises if the following conditions are met: 1) such a transfer is necessary in accordance with a medical report; 2) the medical report was issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation; 3) the employer has relevant work and it is not contraindicated for the employee due to health reasons; 4) the employee has given written consent to be transferred to another job.

3. If an employee who, in accordance with a medical report, needs a temporary transfer to another job, refuses the job offered by the employer or the employer does not have the appropriate job, then there are two possible solutions to this problem depending on the period for which the transfer is needed:

• 1) if the period for which the transfer is required does not exceed 4 months, then the employer is obliged to suspend the employee from work for the entire period specified in the medical report while maintaining his place of work (position) (Part 2 of Article 73 of the Labor Code of the Russian Federation);
• 2) if a temporary transfer to another job is necessary for the employee for more than 4 months or if the employee needs a permanent transfer to another job, then the employment contract with the employee is terminated on the basis of clause 8 of Part 1 of Art. 77 (Part 3 of the commented article).

Special rules are established for employees holding positions of heads of organizations (branches, representative offices or other separate structural units), their deputies and chief accountants. An employment contract with such employees who, in accordance with a medical report, need a temporary transfer to another job, in the event of their refusal to transfer or if the employer does not have the corresponding work, is terminated on the basis of clause 8 of Part 1 of Art. 77 of the Labor Code, regardless of how long, in accordance with the medical report, they need to be transferred to another job. At the same time, the employer has the right, with the written consent of these employees, not to terminate their employment contract, but to remove them from work for a period determined by agreement of the parties.

When dismissing employees on the basis of clause 8, part 1, art. 77 of the Labor Code, they are paid severance pay in the amount of two weeks’ average earnings (see commentary to Article 178).

4. During the period of removal of employees from work in cases provided for in Part 2 and Part 4 of Article 73 of the Labor Code of the Russian Federation, wages are not accrued to them. The exception is cases provided for by the Labor Code, other federal laws, collective agreements, agreements, and employment contracts.

An employee who needs to be transferred to another job in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, with his written consent, the employer is obliged to transfer to another job available to the employer that is not contraindicated for the employee for health reasons.

If an employee who, in accordance with a medical report, needs a temporary transfer to another job for a period of up to four months, refuses the transfer or the employer does not have the corresponding job, then the employer is obliged to suspend the employee from work for the entire period specified in the medical report while maintaining his job ( positions). During the period of suspension from work, wages are not accrued to the employee, except in cases provided for by this Code, other federal laws, collective agreements, agreements, and employment contracts.

If, in accordance with a medical report, an employee needs a temporary transfer to another job for a period of more than four months or a permanent transfer, then if he refuses the transfer or the employer does not have the corresponding job, the employment contract is terminated in accordance with paragraph 8 of part one of Article 77 of this Code .

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 terminated in in accordance with paragraph 8 of part one of Article 77 of this Code. The employer has the right, with the written consent of these employees, not to terminate their employment contract, but to remove 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, except for the cases provided for by this Code, other federal laws, collective agreements, agreements, and employment contracts.

Publications on the topic

Article 73 of the Labor Code of the Russian Federation talks about the conditions for transferring an employee to another job in accordance with a medical report. In accordance with Article 73 of the Labor Code of the Russian Federation, the employer is obliged to transfer an employee who needs to be transferred for medical reasons to another job for a period of up to four months. The text of Article 73 of the Labor Code of the Russian Federation also states that if the employee refuses to transfer or the employer does not have a suitable job, the employee is suspended from work for the period specified in the medical report.

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New edition of Art. 73 Labor Code of the Russian Federation

An employee who needs to be transferred to another job in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, with his written consent, the employer is obliged to transfer to another job available to the employer that is not contraindicated for the employee for health reasons.

If an employee who, in accordance with a medical report, needs a temporary transfer to another job for a period of up to four months, refuses the transfer or the employer does not have the corresponding job, then the employer is obliged to suspend the employee from work for the entire period specified in the medical report while maintaining his job ( positions). During the period of suspension from work, wages are not accrued to the employee, except in cases provided for by this Code, other federal laws, collective agreements, agreements, and employment contracts.

If, in accordance with a medical report, an employee needs a temporary transfer to another job for a period of more than four months or a permanent transfer, then if he refuses the transfer or the employer does not have the corresponding job, the employment contract will be terminated.

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 terminated in in accordance with paragraph 8 of part one of Article 77 of this Code. The employer has the right, with the written consent of these employees, not to terminate their employment contract, but to remove 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, except for the cases provided for by this Code, other federal laws, collective agreements, agreements, and employment contracts.

Commentary on Article 73 of the Labor Code of the Russian Federation

Changing the terms of the employment contract that defines the labor function assigned to the employee is also made taking into account the above articles of the Code. However, if the work previously assigned in accordance with the employment contract is subsequently recognized as contraindicated for the employee for health reasons, the employer, as provided for in Article 73 of the Labor Code of the Russian Federation, is obliged to transfer such an employee to a job that is not contraindicated for him for health reasons.

The documentary basis for the transfer is a medical report issued in the manner prescribed by law. Such a conclusion can be obtained by the employer on its own initiative (upon request) or provided by the employee himself.

Transfer to another job on the basis provided for in Article 73 of the Labor Code of the Russian Federation can be either permanent or temporary. In practice, the situation under consideration can be resolved by the parties to the employment contract in accordance with one of the following options:

1. An employee (not one of the managers of the enterprise, their deputies and chief accountants) due to health reasons needs to be transferred to another job for a period of up to four months, more than four months, or permanently. If there is such work (including those requiring lower qualifications) - about which the employee should be immediately notified in writing - with the written consent of the employee, a change is made to the corresponding condition of the employment contract. After this, the employee is transferred to another job. Before providing work that is not contraindicated to the employee for health reasons, the employer, as provided for in paragraph 4 of part one of Article 76 of the Labor Code of the Russian Federation, is obliged to remove him from performing previously assigned work.

2. An employee (not one of the managers of the enterprise, their deputies and chief accountants) due to health reasons needs to be transferred to another job for a period of up to four months. The employer has such work and has offered it to the employee in writing. However, the employee does not give written consent to the transfer. In this case, the employer, as provided for in paragraph 4 of part one of Article 76 of the Labor Code of the Russian Federation, is obliged to remove the employee from performing previously assigned work until the expiration of the period specified in the medical report, retaining the employee’s previous place of work.

3. An employee (not one of the managers of the enterprise, their deputies and chief accountants) due to health reasons needs to be transferred to another job for a period of more than four months or permanently. The employer has such work and has offered it to the employee in writing. However, the employee does not give written consent to the transfer. In this case, the employee is subject to dismissal on the grounds provided for.

4. An employee (not one of the managers of the enterprise, their deputies and chief accountants) due to health reasons needs to be transferred to another job for a period of more than four months or permanently, but the employer does not have such a job, which is documented. In this case, the employee is also subject to dismissal on the grounds provided for in paragraph 8 of part one of Article 77 of the Labor Code of the Russian Federation.

5. An employee from among the managers of the enterprise, their deputies and chief accountants, due to health reasons, needs a temporary or permanent transfer to another job. If there is such work (including those requiring lower qualifications) - about which the employee should be immediately notified in writing - with the written consent of the employee, a change is made to the corresponding condition of the employment contract. After this, the employee is transferred to another job. Before providing work that is not contraindicated to the employee for health reasons, the employer, as provided for in paragraph 4 of part one of Article 76 of the Labor Code of the Russian Federation, is obliged to remove him from performing previously assigned work.

6. An employee from among the managers of the enterprise, their deputies and chief accountants, due to health reasons, needs a temporary or permanent transfer to another job, but the employer does not have such a job, which is documented. In this case, the employee is subject to dismissal on the grounds provided for in paragraph 8 of part one of Article 77 of the Labor Code of the Russian Federation.

With the written consent of the employee, the latter is not dismissed, but is suspended from work, as provided for in paragraph 4 of part one of Article 76 of the Labor Code of the Russian Federation, for a period determined by agreement of the parties. Similarly, the above situation is resolved if the employer has another job that the employee can perform taking into account his state of health and existing qualifications, and such work is offered to this employee in writing, but the latter does not give written consent to a temporary or permanent transfer.

Let us note, to summarize, that wages in all of the above options are calculated for employees suspended from work only in cases provided for by law, a collective agreement, an agreement or directly in an employment contract. On the transfer or dismissal of an employee to another job, an order (instruction) on the transfer or dismissal (termination of the employment contract) is issued, respectively.

As noted above, a transfer to another job can be temporary or permanent. At the same time, the Labor Code of the Russian Federation also provides for other situations, the occurrence of which may entail the need to transfer the employee to another job. For example, by written agreement of the parties, an employee may be transferred to another job (including one requiring lower qualifications) to replace a temporarily absent employee, whose job is retained in accordance with the law (for example, on a long business trip). According to Article 72.2 of the Labor Code of the Russian Federation, such a transfer is allowed for the entire period of temporary absence of the employee.

It is noteworthy that a temporary transfer may subsequently take on a permanent nature, for example, if, after the expiration of the transfer period, the employee’s previous job was not provided and he, without requiring the provision of one, continues to work at the place of transfer. Remuneration, as a rule, is made according to the work actually performed by the employee.

An order (instruction) is issued regarding the transfer of the employee.

Another comment on Art. 73 Labor Code of the Russian Federation

1. When transferring an employee for medical reasons, the relevant medical organization acts as the initiator of such transfer. In turn, the basis for the corresponding medical report is a change in the employee’s health status, i.e. the emergence of an objective factor for the parties to the employment contract. As noted above, a medical certificate issued in the prescribed manner about the employee’s need for transfer to another job is mandatory for the employer, but the transfer can only be carried out with the written consent of the employee.

2. As follows from the content of Art. 73 of the Labor Code, the fate of an employment contract with an employee who needed a transfer for health reasons, but refused such a transfer, as well as if the employer does not have the corresponding work, is determined by the period of transfer.

3. If the period of transfer to another job, according to a medical report, does not exceed four months, then if the employee refuses the transfer or the employer does not have the appropriate job, the employee is suspended from work with the payment of his wages suspended.

Persons who are carriers of pathogens of infectious diseases, if they can become sources of the spread of infectious diseases due to the characteristics of production or the work they perform, with their consent, are temporarily transferred to another job that is not associated with the risk of the spread of infectious diseases. If it is impossible to transfer on the basis of a resolution of the chief state sanitary doctor or his deputies, they are temporarily suspended from work with the payment of social insurance benefits (Article 33 of the Federal Law of March 30, 1999 N 52-FZ “On the Sanitary and Epidemiological Welfare of the Population”).

4. If, in accordance with a medical report, the employee needs a temporary transfer for a period of more than four months or a permanent transfer, then if he refuses the transfer or the employer does not have the appropriate work, the employment contract is terminated in accordance with clause 8 of Art. 77 Labor Code of the Russian Federation.

5. Thus, parts 2 and 3 of Art. 73 of the Labor Code of the Russian Federation determine the fate of an employment contract in different ways.

Upon the occurrence of the circumstances specified in Part 3 of Art. 73, the employment contract is terminated from the moment the employer receives a medical certificate (if the employer does not have the corresponding work) or from the moment the employee refuses the proposed transfer. It should be noted, however, that despite the mandatory nature of this rule, an employment contract by agreement of the parties can be preserved (for example, an employee is suspended from work until the expected moment when a corresponding vacancy arises with the employer, regardless of the fact that the expected period of its occurrence exceeds four months and generally cannot be determined precisely).

If the medical conclusion is based on the fact that the period of temporary incapacity for work of the employee will not last more than four months, then if it is impossible to transfer to another job in the event of the employee’s refusal or lack of corresponding work, the employee is suspended from work and, therefore, the employment contract with him is preserved by virtue of a direct instruction law. It should be assumed that the law establishes the maximum duration of temporary disability during which a suspended employee retains his job, but not the number of such suspensions. Accordingly, if an employee returns to work at the end of the relevant period, he must be provided with work according to the labor function stipulated by the employment contract. In the event of a new period of incapacity, the rules established respectively by Part 2 or Part 3 of Art. 73 Labor Code of the Russian Federation.

At the same time, the question remains open what are the legal consequences if the employee’s incapacity for work actually lasted more than four months.

It seems that if by the end of the four-month period (or a period of shorter duration specified in the relevant medical report) the employee has undergone a new medical examination and a medical report has been issued to him, then the rules provided for in Part 2 or Part 3, respectively, must be applied. Art. 73 Labor Code of the Russian Federation. In other words, the new medical report cannot be “reverted” and, therefore, if, according to it, the employee’s incapacity for work is limited to four months, then the rules established by Part 2 of Art. 73 TK; if its duration is expected to be more than four months or is constant, then it is possible to apply the norm provided for in Part 3 of Art. 73 Labor Code of the Russian Federation.

6. On the transfer of women to another job due to pregnancy or the presence of children under the age of one and a half years, see Art. 254 of the Labor Code of the Russian Federation and commentary to it.

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