Dismissal for the appearance of an employee at work in a state of intoxication. Dismissal for appearing at work in a state of alcohol

How to fire an employee and save your reputation? One of the unpleasant reasons to fire an employee is dismissal for drunkenness. This is a common situation these days. There is an article in the Labor Code that regulates the relationship between the employer and the employee in this case. It happens that the manager turns a blind eye to drunkenness at work for some time. Especially if the employee is a good specialist and a promising person. But everything has a limit. An employee who regularly abuses alcohol will soon lose his professionalism and can cause irreparable harm to the company's image.

If an employee came to work drunk or abused during the working day, it is better not to ignore it. Even if this happened for the first time, it is worth holding a warning conversation for preventive purposes. Otherwise, this fact will be considered unnoticed and will entail repetition. Drunkenness in the workplace will progress, which will negatively affect the atmosphere in the team, and perhaps other employees will begin to follow the example. If such an immoral person appeared at work, it is necessary to stop her illegal actions.

There is an article in the Labor Code, thanks to which an employer can fire an employee for a single appearance at work drunk.

Explanatory - this is the first warning, which may be the last. Consider the procedure for dismissing an employee in accordance with the Labor Code.

How to fire an employee for drinking at work

The dismissal of an employee is possible only when he was noticed in a state of intoxication directly at his workplace, on the territory or at another facility where he was in the direction of the employer (on a business trip, at a branch of the company, at the customer's facility). If he is seen in a state of intoxication not in his own work time, then you can limit yourself to a warning. In the case of an irregular working day, it is already more difficult. If an employee drank on the territory of the enterprise at a time when he should not be there, then no court will find him guilty. Even if he drank before the start of the working day and was detained at a checkpoint, this is also not considered a reason for dismissal. It is impossible to dismiss a minor employee without the consent of the state labor inspectorate and the commission on minors. It sounds rather strange, but you cannot dismiss a pregnant woman who is able to alcohol intoxication according to the TK article. The Labor Code spells out how to dismiss an employee and how he can protect himself upon dismissal.

The actions of the employer are not very different if the territory in which the organization is located is Ukraine. In this case, the article changes Labor Code and some features appear. For example, women who have a child or children under the age of 3 and who have a child (children) under the age of 6 cannot be fired under this article if this child needs home care. The Labor Code protects single mothers who are intoxicated and have a child under the age of 14 or a disabled child from losing their jobs. The same applies to fathers who raise a child without a mother or a mother who stays in a medical institution for a long time, guardians and trustees. It turns out that they have a reason to drink at work and go unpunished. Entries in the work book are made, referring to the corresponding paragraph 7 of Art. 40 Labor Code of Ukraine.

Please note right away that intoxication is a medical concept, and a common person not entitled to draw an unambiguous conclusion. Without being a specialist, it is difficult to establish, since many of the symptoms of intoxication are characteristic of other conditions: great excitement, stress, high fever, poisoning, etc. Only a medical examination can help in resolving this issue.

How to correctly record the state of intoxication of an employee

The immediate supervisor of an employee who appeared at the workplace in a drunken state, or any colleague, informs the head of the company or the acting officer about the fact of the violation. A commission is appointed to conduct an internal investigation, which draws up an act and sends it for a medical examination.

Drawing up an act upon dismissal for drunkenness

The act of appearing at work in a state of intoxication will be evidence of the revealed fact in court. But the Labor Code does not explain how to do it correctly. So, we act ourselves: we find a sample on the Internet and adjust it for our case, thus fixing intoxication. It must be remembered that if the dismissal procedure is carried out incorrectly, the employee can sue the employer in court. An entry in the work book about dismissal under subp. "b" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation can put an end to not only further career but also on the possibility of finding a job in the future. Therefore, the employee will do his best to challenge the fact that he was fired for drunkenness.

Judicial practice shows that often a decision is made to reinstate a worker. This may happen due to the existence of “pitfalls” in the Labor Code. They can be avoided if the employment contract thoroughly prescribes all the points of the relationship between the employee and the employer. Here are the main points for the correct writing of the act:

The act is drawn up in two copies and given to all participants against signature. An employee can win a court case if he proves that there were no grounds for dismissal under the article for drunkenness, including if an act was not drawn up. As a result, the employee is reinstated, and the employer may be forced to pay moral damages. An explanatory note, if one was written earlier, is also attached to the case.

Often an employee for whom a dismissal order is being prepared refuses to undergo a medical examination. Be sure to record this in the act. According to the Labor Code of the Russian Federation, the duties of employees do not include passing a medical examination for alcohol intoxication; it is impossible to force him to do this according to the law. And yes, there is a fee for this process. Send the employee for examination to a specialist and the initiator will have to pay for it. If signs of intoxication are detected, you can further try to recover damages from him. Send the violator to the procedure to determine the degree of intoxication as soon as possible, because the signs may disappear within a few hours. As a result of visiting the doctor, a protocol will be drawn up in the form No. 155 / y, the conclusion of which gives the right to dismiss under subpara. "b" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation.

A dismissal order is prepared, signed by the head of the company, and the employee is immediately removed from the work performed. A sample order can be found online. During the period of clarification of the cause of the condition that has arisen, the employee will be considered not at the workplace. This is a kind of employer insurance against unnecessary costs. Working time after suspension from work for drunkenness is not paid and is not included in the vacation record. In order for everything to be 100% legal, make an entry in the time sheet, putting down the letter code "NB" or the numeric code "35". This will be the basis for non-accrual wages.

According to the Labor Code, the manager is obliged to remove the drunk employee from work. The behavior of a person under the influence of alcohol is unpredictable. If not taken care of, a drunk person can harm himself or another worker with possible death. In this case, the leader may be held criminally liable. It's worth protecting yourself.

How to punish an employee for drinking at work

If a drunk worker behaves aggressively, tries to use force, feel free to call the police or an ambulance. After compiling the documents described above, a decision is made what will be the next step - dismissal for drunkenness or forgiveness of a negligent employee. If the decision to say goodbye to the employee is firm, then an appropriate entry is made in the work book. It is prescribed that the employment contract was terminated at the initiative of the employer in connection with the appearance at the workplace in a state of intoxication, the article of the Labor Code on the basis of which this happened is indicated.

According to the Labor Code, on the day of dismissal, the employer must pay the employee for wages and unused vacation days and issue him a work book. Naturally, in this case, the severance pay is out of the question. When an employee in a state of intoxication behaves peacefully, but the expediency of dismissal is obvious, it would be better to agree with him on dismissal by agreement of the parties.

The best alcohol prevention in the workplace is advocacy healthy lifestyle life. This primarily concerns the habits of celebrating holidays, birthdays, and personal events. And nowadays, many companies have vetoed alcohol. You can celebrate the celebration at work, but only with soft drinks and sweets.

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The appearance at work of an employee in a state of alcoholic or other intoxication can cause severe disciplinary punishment and even dismissal. But the employer must act carefully, because the presence of intoxication still needs to be proven. The employee can subsequently challenge his dismissal in court, and the court must be satisfied that there was sufficient evidence for the reduction.

Subparagraph “b” of the sixth paragraph of Article 81 of the Labor Code of the Russian Federation, which was edited in 2006, states that drunk attendance at work means that an employee is in such a state not only directly at his workplace, but also in general on the territory of a company or other facility , where he carried out the instructions of the leadership.

The drunkenness itself not a legal, but a medical term. Its signs can be, for example, reddening of the skin of the face, a change in pulse, tremor of the hands, the presence of an obvious smell of alcohol from the mouth, slurred speech. However, many of these can occur in a person with a high fever or as a result of medication. This should also be taken into account.

In what cases is it possible?

The law provides for the possibility dismissal of an employee even after his one-time exit to work drunk, as this is a serious misconduct leading to a breach of labor obligations. But the head can reduce not always and not all employees who are in such a state.

Persons under the age of majority may be dismissed only after the confirmation of the trade union body or a special commission dealing with the affairs of minors and protecting their rights. This is spelled out in article No. 269 of the Labor Code.

The employer does not have the right to terminate the contract with a pregnant woman, even if she came to work in a drunken state. According to article 261 of the Labor Code, a pregnant woman can be fired only in the event of the liquidation of the enterprise.

It is also impossible to reduce a worker in hazardous production who has been accidentally intoxicated as a result of toxic poisoning. Such an offense is not subject to punishment, since it was committed without intent.

In itself, the presence of alcohol in the blood is not a reason for dismissal, since intoxication means its certain concentration in the body. This is 0.5 ppm, which can be determined after drinking 75 grams of vodka or half a liter of beer with a weight of 80 kilograms.

According to the Labor Code, sanctions against an employee can only be applied if he is intoxicated. An employee who was on the territory of the enterprise in a state of intoxication cannot be reduced if this happened during his non-working hours, for example, after the end of the work shift, on holidays, weekends, etc.

Options for the development of events

Since toxic or drug intoxication is quite difficult to prove to a non-specialist, it is best to immediately conduct a medical examination of the employee.

The leader must take care about evidence that the employee went to work or was drunk at the workplace. First, a special act must be drawn up, then signed by three witnesses. This document is especially necessary in the event that the employee has refused a medical check, as this refusal is recorded in it. The act also lists the signs by which intoxication was determined.

If an employee behaves inappropriately, fights and scandals, then it makes sense to call the police. Police officers can take him to a medical sobering-up station or to the nearest department. Then additional evidence will appear, which will be recorded in a special report of the Department of Internal Affairs or in the form of a medical certificate from the sobering-up station.

Representatives of the trade union organization, if he is a member of one, may be involved in the verification of the employee. The called ambulance team can also record in writing signs of poisoning by alcohol or other substances by writing out a certificate. But call the police or an ambulance only in special cases.

How to fix drunkenness?

To draw up an act proving the presence of a subordinate in a state of intoxication, the employer must convene a commission of at least three people. It may include the immediate head of the structural unit, a lawyer and a specialist responsible for safety and labor protection.

Conducting a medical examination should not violate the law. Only specialists - narcologists or psychiatrists from narcological dispensaries or other medical institutions can be invited for examination. You can't call the first doctor you see. according to an advertisement in a newspaper, since he may not have the appropriate certificate and license for this type of activity. All procedures must comply with the instructions.

Employee has the right to refuse passage medical examination, you should not force him to do it against his will. But then a special act is issued confirming this refusal.

First required document- this is an act indicating that a person was in a state of intoxication at the workplace. The form of drawing up the act can be arbitrary, but it must indicate the date, the data of the employee and his position, the degree of intoxication, the period of suspension from work, at the end the manager and witnesses sign.

Another mandatory proof is a medical report signed by medical specialists. Also, the employee must, upon subsequent appearance at work, give explanations, that is, write an explanatory note. All of these documents are transferred for storage to the personnel department. The manager may require them for consideration in order to decide on the punishment of such an employee.

Procedure for issuing an order

The first thing an employer should do in the event of such a violation in his enterprise is remove the offending employee from work. This is a mandatory requirement for the head of the organization. He may be held liable in the event of accidents caused by the presence of a person in a state of intoxication at work.

For the correct removal, a separate order should be issued, which can be signed by the head of the entire company or structural unit. With an order punishable must be familiarized with signature. The time sheet counts the number of hours worked before the employee was suspended. Also, a special note is made in the report card, which means that from a certain date the employee was not allowed to work on the basis of the current legislation, the salary during this period is also not charged to him.

In the event of a final decision to dismiss an employee, an order is drawn up. It indicates the date, then the document is assigned a number. All information about employment, transfers, qualifications is also indicated, it is imperative to prescribe specific reasons for dismissal and a link to an article in the Labor Code of the Russian Federation.

The order is given a name, then the date and signature are put. There is an article for dismissal for drunkenness. This is the sixth part of Article 81, namely subparagraph “b”. In accordance with the order, all payments are made to the employee, and a work book is also issued. There is no severance pay in this case.

Other types of employee punishment

Exist various options penalties that an employer may apply. This:

1. Dismissal.
2. Comment.
3. Rebuke.

When choosing a sanction should be guided by how the employee was characterized for the duration of the organization. If he showed himself well, he had no other disciplinary sanctions, then you can agree to terminate the contract by mutual agreement of the parties. An entry in the work book about dismissal under this article can have a very negative effect on a future career.

The employee may try to prove in court that the procedure was carried out illegally. If there is insufficient evidence, then it is better for the employer to apply a milder method of punishment - a reprimand or a remark.

Drunkenness, being in a state of intoxication is a very serious disciplinary violation at work, for which punishment is provided. Even a single appearance of an employee drunk gives the manager the right to fire him. An entry must be made in the employee's work book, which practically crosses out his career. But all this requires such evidence as, for example, a medical examination. An act is also drawn up in which the state of the subordinate is recorded. For this, witnesses are required.

Unfortunately, drinking alcohol in the workplace or showing up to work while intoxicated is not uncommon. The employer has the right to dismiss such an employee, but only by correctly filling out all the necessary papers.

Dismissal for alcohol intoxication is a disciplinary sanction, which is provided for by Art. 81 of the Labor Code of the Russian Federation. But the fact of misconduct must be recorded correctly, and all documents must also be drawn up correctly. Otherwise, such an employee may sue for wrongful dismissal.
If personnel and medical documents are drawn up incorrectly, the court recognizes the fact that the dismissal did not occur in accordance with the Labor Code of the Russian Federation. After that, the employee is subject to reinstatement in the same position. The employer must pay him wages for forced absenteeism, and in some cases, also compensate for non-pecuniary damage.

In pp. 6 p. 6 art. 81 of the Labor Code of the Russian Federation states that the employer has the right to dismiss an employee for a single appearance at the workplace in a state of intoxication. But there is a limitation - dismissal for drunkenness in the workplace.

That is, if the employee has already appeared at work in an inadequate condition (that is, he drank before the start of the working day) or was seen with a bottle after the shift, then this does not threaten him. The only thing is that if he comes to work in this form, he is threatened with removal from his labor functions and a reprimand. If he is noticed after the shift in such a state, and in the morning he comes to work normal, then the employer does not have the right to apply sanctions to him.

But if an employee drank alcohol (both before the start of the working day, and after it) on the territory of the employer, this may be the reason for the employer to initiate an internal investigation. Such actions of an employee are a violation of the labor and work process, and can lead to unpleasant consequences with other employees.

However, not all employees can be fired for such a violation. There are certain categories that have "immunity":

• underage worker. Even if he is drunk and there is a medical report, he can be fired only after receiving written permission from the guardianship authorities or from the labor inspectorate;
• dismissing a pregnant woman on such a basis is possible, but difficult. It is necessary to prove that she was drunk, and did not take alcohol-containing medicines that the attending physician prescribed for her.

Article of the Labor Code of the Russian Federation for dismissal for drunkenness

Dismissal for drunkenness is provided for in Art. 81 of the Labor Code of the Russian Federation. But in order for the employee not to sue, it is necessary to observe all the nuances of such a process.

To do this, it is necessary to correctly identify exactly alcohol intoxication. Violation of speech and coordination of movement can cause stress in a person or signs of an incipient illness. Therefore, it is worth paying attention to other symptoms that are inherent in alcohol intoxication. This:

• aggressive behavior;
• the skin on the face turned red;
• pupil dilation;
• the employee carries verbal nonsense;
• he had hallucinations;
• appropriate odor from the mouth.

If the employee has these signs, then doctors can be called to fix the fact. Only if there is a medical report on the condition of the employee, you can continue the procedure for applying to him disciplinary action in the form of layoffs.

Now we need to get the paperwork right. For this you need:

• write a report. This is done by the person who found the employee in such a state. The note is drawn up in the name of the head of the structural unit or in the name of the director. The purpose of such a note is to inform management about a violation of labor discipline. The form of the document is free, but must be written;
• management reviews this memo and decides to investigate the case. For this, a special commission is being assembled. But first you need to issue an order on the convocation and composition of the commission. Its members must be at least 3 employees, it does not have to be management positions. It can be absolutely any employees of the enterprise;
• the commission does not make a decision on this employee, it only records the fact that he was at the workplace in a state of intoxication. To do this, an act is drawn up, which describes in detail:
  • present characteristics alcohol intoxication - smell, impaired coordination, etc.;
  • the actions he takes;
  • other signs that may indicate that he is drunk.
• need to call the doctors. Only they can reliably confirm the state of intoxication. In this case, you must obtain the written consent of the employee to undergo a medical examination. If he refuses the procedure, it is necessary to draw up an appropriate act. If the employee agrees, then the arrival of doctors or transportation of the employee to the medical facility, as well as all necessary medical procedures, is carried out at the expense of the employer. If intoxication is not confirmed, then the employer does not have the right to demand compensation from the employee for these expenses. It is impossible to call an ambulance, since it is not their responsibility to carry out such a procedure. Important! The legal blood alcohol limit is 0.16 ppm. This value may be due to the fact that the employee uses drugs containing alcohol or, corny, drank kvass or kefir. If the alcohol content in the blood exceeds this indicator, then the doctors draw up a protocol in the prescribed form 155 / y;
• after that, the employee must take a written explanation of the fact that happened. You need to do this after it becomes normal. In a state of intoxication, he is unlikely to give intelligible explanations. The employee has the right to refuse to give written explanations. Then you need to make another act. If he writes an explanatory note, then it is filed with the act of fixing intoxication, which was drawn up by the relevant commission;
• now all documents are transferred to the company's management for further investigation and decision on the problem.

A director or other person authorized to make relevant decisions may take the following actions:

• fire the employee. This happens if drunkenness is systematic;
• apply other disciplinary action. As a rule, if an employee is highly qualified and responsible, and the state of alcoholic intoxication is noticed behind him for the first time, the management manages to reprimand.

If it was decided to dismiss the offending employee, then an appropriate order must be drawn up. The text of the document lists all the signs and evidence found. You must indicate the full name of the supporting document and put the date of its execution. The order must be made known to the employee. He must sign it. If he refuses to do this, then you need to draw up an appropriate act, which will be signed by the head of the dismissed employee and two witnesses.

On the last working day, the dismissed employee receives all his documents, as well as a full calculation, which includes:

• wage for actually worked days from the beginning of the month to the day of dismissal;
• compensation for unused vacation;
• severance pay is not supposed, since the basis for dismissal is the guilty actions of the employee.

He should receive:

• his work book, which will indicate that he was dismissed on the basis of paragraphs. 6 p. 6 art. 81 of the Labor Code of the Russian Federation;
• certificate in the form 4-FSS;
• certificate in the form 2-NDFL.

As practice shows, with such a wording in the work book, it is almost impossible to get a good and paid job again. Therefore, if there is such an opportunity, you need to try to persuade the boss to quit by agreement of the parties or on their own initiative. As a rule, if an employee worked well and had no complaints, employers meet halfway and terminate the contract not “under the article”. The presence of such a wording is a “wolf ticket” for paid work.

If an employee performs the labor functions of a driver at an enterprise, then he is also threatened with dismissal for drunkenness while driving. The procedure for terminating an employment relationship is exactly the same as for drunkenness at the workplace, but here the evidence will be the protocol of the traffic police inspector, a medical examination and a court decision to deprive such a driver of a special right - that is, the right to dismiss a vehicle. And since his labor duties are directly related precisely to the management of the vehicle, then carry out his labor activity He will no longer be in this position.

The basis for issuing a dismissal order will be a court decision to deprive this employee of a driver's license for a certain period. The driver must be familiarized with this order against signature. If he does not sign the order, then an appropriate act must be drawn up. On the last working day, the dismissed employee receives the calculation and all documents in his hands.

If there is an opportunity to negotiate with the employer, it is better to use it and try to quit not “under the article”, but under own will or by agreement of the parties.

This is the best way out of this situation, especially if the driver did not have such complaints before and was not a participant in such incidents. After the return of the rights, it will still be possible to get a job as a driver again.

Dismissal for appearing at work in a state of intoxication

The current legislation currently provides for several grounds for termination employment contract at the initiative of the employer; All of them are enshrined in Art. 81 of the Labor Code (LC) of the Russian Federation. One of these grounds is provided for in paragraphs. "b" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation, termination of an employment contract concluded for an indefinite period, as well as a fixed-term employment contract before its expiration at the initiative of the employer in the event that an employee appears at work in a state of alcoholic, narcotic or other toxic intoxication.

On this basis, according to the explanation given in the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts Russian Federation of the Labor Code of the Russian Federation", employees who were during working hours at the place of performance may be dismissed. job duties in a state of alcoholic, narcotic or other toxic intoxication. Dismissal on this basis may also follow when the employee during working hours was in such a state not at his workplace, but on the territory of this organization, or he was on the territory of the facility where, on behalf of the employer, he had to perform a labor function.

The Labor Code (LC) of the Russian Federation classifies the state of alcoholic, narcotic or other toxic intoxication as a single gross violation of labor duties.

Therefore, the employer must find out if there is any fault in the actions of the employee, i.e. voluntarily bringing oneself into a state of alcoholic, narcotic or toxic intoxication (as opposed to taking drugs containing narcotic substances as prescribed by a doctor; from alcoholic, narcotic or toxic intoxication associated with a violation of the technological process; from taking the listed substances by mistake).

Note. Medic Commentary

Conventionally, there are three degrees of alcohol intoxication: mild alcohol intoxication, moderate intoxication and severe alcohol intoxication. The content of alcohol in the blood with mild intoxication, as a rule, is 0.5 - 1.50 / 00, with moderate intoxication - 1.5 - 2.50 / 00, with severe - 2.5 - 30 / 00. With an increase in the alcohol content in the blood to 3 - 50/00, severe poisoning develops with a possible fatal outcome. A higher concentration of alcohol in the blood is considered fatal.

According to Art. 192 of the Labor Code of the Russian Federation for committing a disciplinary offense through the fault of an employee, the employer has the right to apply the following disciplinary sanctions:

Comment;

Rebuke;

Dismissal under the relevant articles (Article 81 of the Labor Code of the Russian Federation).

In pp. "b" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation introduced the concept of "state of intoxication".

In medicine, the following conditions are distinguished associated with the use of alcohol or other narcotic and psychotropic drugs and substances by a person:

1. Sober, no signs of alcohol consumption.

2. The fact of alcohol consumption was established, no signs of intoxication were detected.

3. Alcohol intoxication.

4. Alcoholic coma.

5. The state of intoxication caused by narcotic or other substances.

6. Sober, there are violations of the functional state, requiring suspension from work with a source of increased danger for health reasons.

Figures and facts. Violation of coordination of movements and weakening of attention after taking even small doses of alcohol reduce labor productivity in skilled workers by an average of 30%, and with a moderate degree of intoxication - by 70%. When taking 30 ml of vodka, the number of errors among typesetters, typists, operators increases significantly; when taking 150 ml of vodka in diggers and masons, muscle strength decreases by 25% and labor productivity decreases.

Under single gross violation labor duties, for which an extreme measure of disciplinary responsibility can be applied to the employee - dismissal under paragraphs. "b" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation, - only the conditions specified above in positions 3 - 5 are subject. Other conditions associated with the use of alcohol and not falling under the concept of "alcohol intoxication" can be qualified as disciplinary offenses and entail the application of such disciplinary sanctions as a remark and reprimand, including repeatedly.

Only medical professionals can establish what kind of condition is taking place, and only as a result of a series of procedures carried out as part of a medical examination, the results of which should be recorded in a medical report. To do this, employers should be guided by general rules conducting a medical examination of citizens, which are contained in paragraph 2 of the Interim Instruction of the Ministry of Health of the USSR dated 01.09.1988 N 06-14 / 33-14 "On the procedure for a medical examination to establish the fact of alcohol consumption and intoxication."

Despite the fact that the examination is a legally impeccable way to determine the state of alcohol intoxication and its degree, it is very difficult for most employers to use it. Indeed, according to Art. 33 of the Law of the Russian Federation on the protection of the health of citizens of July 22, 1993 N 5487-1 (as amended on June 30, 2003), a citizen has the right to refuse medical intervention or demand its termination.

The most streamlined procedure for establishing the state of alcoholic intoxication exists in organizations of transport, electric power industry and other especially dangerous industries. In such organizations, before allowing an employee to work, the doctor must conduct a medical pre-trip, pre-flight or pre-shift examination. The results of such an examination are either recorded in special journals or recorded in "sobriety protocols".

Since the breakdown of ethyl alcohol in the body is a transient process, it is recommended that a drunk worker be brought for a medical examination within two hours from the moment signs of consumption are discovered. alcoholic beverages(for example, drinking 50 g of vodka allows you to detect alcohol vapors in the exhaled air after 1 - 1.5 hours, 100 g of vodka - within 3 - 4 hours; 100 g of champagne - within an hour; 500 g of beer - within 20 - 45 minutes).

Medical examination should be carried out in specialized rooms of narcological dispensaries by psychiatrists-narcologists and doctors of other specialties who have been trained both directly in institutions and on-site in vehicles specially equipped for this purpose. Some ambulances, in which examinations are carried out, are a mobile medical laboratory, separate ambulance substations have special licenses for this type of medical service, and the devices used for examinations are certified. When conducting laboratory studies, only methods and devices permitted by the Ministry of Health and Social Development of Russia should be used.

non-compliance given condition invalidates the medical opinion. In the event of a trial, the court will recognize it as inadmissible and will not consider it as evidence. However, by a court decision, the medical worker who conducted the examination may act as a witness on behalf of the employer.

Based on the medical examination, a conclusion is formulated, which characterizes the state of the subject at the time of the examination (not only confirmation of the fact that the employee has consumed alcohol, but the state of intoxication). The results of the survey are reported to the subject immediately after the examination. Persons who brought the person being examined to determine the fact of alcohol consumption or intoxication are given a protocol of medical examination. In the absence of an accompanying person, the examination protocol is sent by mail to the address of the organization that sent the citizen for examination (in this case- employer).

Note. The examination of alcohol intoxication is based on a clinical assessment of the condition based on the analysis of behavior, as well as autonomic and neurological disorders. An objective confirmation of the clinical assessment is the determination of the alcohol content in blood, urine or saliva by standard laboratory methods. Various kinds of indicator devices are also used to detect alcohol in the exhaled air. Examination of alcohol intoxication is carried out on the proposal of officials (employees of the Ministry of Internal Affairs, administration at the place of work). In some industries (transport companies), sobriety control is a clause in the labor agreement between the employee and the administration.

The doctor (paramedic) who performs the examination draws up a medical examination protocol in the prescribed form in two copies. Having completed the protocol, the doctor (paramedic) offers the subject to make a detailed record of familiarization with the results of the examination.

Dictionary of personnel management. A disciplinary offense is an offense committed in the sphere of official relations and encroaching on the mandatory procedure for the activities of certain groups of people: workers, employees, military personnel, students.

An employee's refusal to undergo a medical examination is recorded in the medical documentation and signed by the person who refused the examination, as well as by the medical worker. Subsequently, this extract from the medical records can be used by the employer.

The courts, guided by paragraph 42 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation", accept as evidence of the state of intoxication not only medical reports, but also other evidence: memos, testimonies, an act about the appearance of an employee in a state of intoxication. In this case, the main document will be a correctly drawn up act.

The act is drawn up in free form. If, however, it is not uncommon for employees to appear at the workplace in a state of intoxication, it is possible to develop a special form for such an act with partially entered information, which, if necessary, can be simply and quickly filled out. The indispensable details of the act are the date, place and exact time its composition, names and positions of at least two independent witnesses (it is better if they are employees of other departments).

The legislation does not establish who is authorized to draw up an act on the appearance of an employee at work in a state of intoxication. Since control over compliance with labor discipline, as a rule, is assigned to personnel officers, it is they who constitute such an act. It is recommended to include in the composition of the commission the head of the structural unit of the organization, in whose subordination is the violating employee, an occupational health and safety specialist and a lawyer. You can include other officials.

When drawing up the act, the commission should describe in detail the external signs of intoxication that the employee has (especially if there is no other evidence besides the act). Such signs are:

The smell of alcohol in the exhaled air;

Fume from the mouth;

Violation of coordination of movements;

Instability of position (up to the fall);

staggering gait;

Tremor (trembling) of the fingers;

Irritability, aggressive behavior;

Lack of concentration;

Inadequate reaction to words and actions;

Misunderstanding of questions;

incoherent speech;

Scanned tone of speech;

Swearing and obscene language against others.

An act that states the appearance of an employee at work in a state of intoxication is drawn up on the same day, and presented for review the next day. The employee must be familiarized with the act on receipt, and also invited to submit his explanations. However, sometimes the following entry appears in the act: "It was not possible to familiarize the employee with the act due to the employee's misunderstanding of the appeals addressed to him."

An employee who appears at work in a state of alcoholic intoxication must be asked for explanations in writing. The demand for explanations can be made both at the time the employee is found in a state of intoxication, and after that. If the employee refuses to give explanations, it is necessary to draw up a commission act (at least three people) on the refusal to give explanations.

When drawing up this act, corrections and erasures are not allowed. Upon dismissal of a delinquent employee under paragraphs. "b" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation, drawing up an act is mandatory. When issuing an order for dismissal on this basis, a reference to the act is mandatory.

In accordance with Art. 76 of the Labor Code of the Russian Federation, the employer must suspend from work an employee who appears at work in a state of intoxication for the entire period of time until the circumstances that are the basis for suspension from work or exclusion from work are eliminated.

If the fact of the appearance of an employee in a state of intoxication is confirmed by a medical report, then it should indicate the time after which the level of alcohol drugs and psychotropic substances in the blood will drop to the norm that does not interfere with the performance of work.

The decision of the employer to remove the employee from work (prevention from work) is formalized by order of the head of the organization.

The order lists the circumstances that served as the grounds for the dismissal of the employee, as well as documents that confirm the existence of these grounds, and the period for which the employee is suspended from work must also be indicated. In the order, in addition, it is advisable to give an order to the accounting department to suspend payroll for the period of suspension. This order is subject to approval by the head of the legal department or the lawyer of the enterprise and the chief accountant. The employee must be familiarized with the order against receipt; in case of refusal to sign, an appropriate act is drawn up.

How long is a worker suspended for showing up at work in a state of intoxication? Part 2 of Art. 76 of the Labor Code of the Russian Federation establishes that the employer suspends (does not allow to work) the employee for the entire period of time until the circumstances that were the basis for suspension from work or exclusion from work are eliminated.

In numerous comments of the Labor Code of the Russian Federation, it is recommended that an employee who appears in a state of intoxication be suspended from work for one day. This advice is carried over from Art. 38 of the Labor Code of the Russian Federation, according to which the administration of the enterprise was ordered not to allow an employee who appeared at work in a state of intoxication, in a state of narcotic or toxic intoxication, to work on that day (shift). In fact, everything is much more complicated.

Production processes in Russia for last decade have undergone significant changes - the degree of automation of technological operations in certain industries has increased significantly. The Labor Code of the Russian Federation was adopted at a time when the emphasis was only on mechanization of work and manual labor, and, consequently, the time for "sobering up" was allotted "until tomorrow" - exactly that much was required to return the ability to hold a hammer. Although, if you look at the local regulations large enterprises, where the work was automated and the slightest negligence of the production dispatcher could lead to accidents, the management took up to two or three days to rid the body of alcohol (unless, of course, they fired immediately).

Do not make mistakes, do not "get into the position" of an employee by suspending him for one day. Health legislation operates with such a concept as the severity of intoxication. Alcohol intoxication of moderate and mild degree does not require special therapy, and one can really talk about sobering up the next day. As for the severe degree of intoxication, subject to medical intervention, the duration of treatment is 2 days.

Only after the medical procedures have been carried out, the employee will be able to fully manage his actions after 2 days. If we are talking about alcohol abuse (use with harmful health effects), chronic alcoholism, then it will take from 10 to 25 days to treat and remove from the state of alcohol intoxication. With narcotic or toxic intoxication it is even more difficult. Therefore, try to still get a medical report, which will indicate the period after which the level of alcohol, narcotic and psychotropic substances in the blood will drop to the established norm.

What document is used to formalize the suspension from work?

The Labor Code of the Russian Federation does not resolve procedural issues of suspension from work of an employee who appears in a state of intoxication; does not indicate on the basis of which administrative document the removal should be carried out; does not specify which official should issue such a document.

If an employee came to work in a state of intoxication, what should the head of the structural unit (the immediate supervisor of this employee) do: send information to the head of the organization and wait for his decision, or act independently? It all depends on whether job description the authority of the head to remove the employee from work (not to be allowed to work). If he is endowed with such authority, then his demand to stop work is legal and binding on the employee. Then the head of the department (workshop, section, etc.) draws up a memorandum (report) and immediately submits it to the directorate. In parallel with this, he invites employees of the personnel department and other specialists to draw up an act on the appearance of an employee at work in a state of intoxication. All these documents (memorandum, report, act) are the basis for the issuance by the head of the organization or his deputy of a written order (instruction) to remove the employee from work. The order (instruction) must be drawn up in any case, since it is on its basis that the employee is not paid wages.

What to put in the timesheet for an employee suspended from work due to alcohol intoxication? If the suspension from work occurred at the beginning of the working day, even before the time sheet was filled out, then on the basis of the suspension order, the time sheet must be marked "NB" (suspension from work / exclusion from work without pay) and zero hours worked. If the employee was suspended after the “turnout” was put in the report card, then in the column of hours worked, it is necessary to put as many hours as the employee actually worked before the suspension.

Since efficiency is important in this matter, care should be taken to "adjust" the scheme and system of interaction between linear structural divisions with the personnel department and management even at the stage of development and introduction of general local regulations into organizations.

Should I be fired? Suspension from work of an employee who appeared in a state of intoxication, in accordance with the Labor Code of the Russian Federation, is not a disciplinary sanction. The requirement of Art. 76 of the Labor Code of the Russian Federation is a condition for ensuring the safety of the employee, as well as preventing possible accidents and violations of the production process.

However, the state of intoxication according to paragraphs. "b" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation qualifies as a gross violation of labor duties, and, therefore, a disciplinary sanction may be imposed for appearing at work in a state of intoxication.

An extreme measure of disciplinary responsibility is the termination of the employment contract at the initiative of the employer. The manifestation of such an initiative is not an obligation, but the right of the employer, therefore, he can independently determine the measure of disciplinary action: either make a remark (for the first time), or reprimand (for the second) and, finally, dismiss when he sees fit. Providing in Art. 81 appearance at work in a state of intoxication, the legislators provided the opportunity to dismiss the employee from the first time.

In practice, often, in order not to create problems for the employee with subsequent employment, they take a letter of resignation from him at his own request and dismiss him on the appropriate basis. However, it is necessary to keep all documents confirming the fact that the employee was in a state of intoxication at the workplace, even after his dismissal of his own free will. This will be quite reliable "insurance" in the event that a dismissed employee files a lawsuit in court for reinstatement, since the letter of resignation was written under pressure, and the dismissal was due to the nitpicking of management.

So, if the decision to dismiss an employee for appearing at work in a state of intoxication is nevertheless made, it is necessary to collect all the documents available in this case and, on their basis, issue an order to terminate the employment contract according to unified form N T-8. To do this, the following documents must be available, samples of which are given in the section "Experience of organizations: corporate documents":

The act of the appearance of an employee at the workplace in a state of intoxication (Appendix N 1);

Memorandum addressed to the head of the company with a description of the disciplinary offense and the resolution "Dismiss" (Appendix N 2);

Protocol of medical examination;

Order (instruction) on the removal of an employee from work (Appendix N 3);

Explanatory note of the employee or an act of refusal to give explanations (Appendix N 4).

After the order is issued (Appendix N 5), an entry is made in the dismissal register (Appendix N 6) and a work book is filled in, in which an entry must be made with reference to paragraphs. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation (Appendix N 7).

Statistics. Absenteeism for heavy drinkers ranges from 35 to 75 working days a year. According to the American telephone company "Bell", absenteeism among heavy drinkers is 5 times more common than among non-drinkers. Every year, the French industry through the fault of "alcoholic" diseases loses 8 million working days. Among industrial workers in the United States, there are more than 2 million patients with chronic alcoholism. Temporary disability from injuries, "alcoholic" diseases, as well as exacerbation of chronic diseases associated with alcohol use, in the United States is about 30 million days a year. 40% of British companies consider alcohol abuse one of the main reasons for the systematic absence of employees from the workplace. According to the Occupational Health and Safety Inspectorate, 14 million workdays are missed every year in the UK due to drunkenness.

Senior Lecturer

departments of management

Moscow Institute of Tourism

and hospitality

"Personnel officer. HR records management", 2008, N 3

If an employee showed up at work in a state that gives reason to suspect that he is drunk or in a state of narcotic or other toxic intoxication, you should not immediately come into conflict with him. It is necessary to record the fact of intoxication, for example, to call a doctor for examination or to accompany the employee to a sobering-up station, drug treatment clinic or other medical institution and obtain a conclusion on the employee's condition.

And it is desirable for an individual entrepreneur to be present at the examination of the employee in person. This is necessary in order to understand whether the survey is conducted with violations. Their reason is both the negligence of the employees of the medical institution, and the refusal of the employee to conduct an examination, as a result of which the doctors may not carry out the necessary tests. If the certificate of examination reflects that the employee refused to take tests, then from the moment of receipt of the specified certificate individual entrepreneur it must be understood that the examination was not carried out in full and such an act is not proper evidence that the employee was in a state of intoxication. In order for the dismissal not to be declared illegal by the court with the corresponding consequences for the individual entrepreneur, you should insure yourself and take care of other evidence.

Despite the fact that the examination is a legally impeccable way to establish alcohol intoxication, it is quite difficult to use it for a very banal reason - the unwillingness of the employee to undergo a medical examination. If the employee resists and does not want to go to a healthcare facility, we can assume that the first part of the task has been solved (about the second - a little later). You can resort to the services of security (if any) or call the police for help. True, in the latter case, it must be remembered that the request of the entrepreneur to deliver the employee, who is in a state of intoxication, to a medical facility, police officers are not required to fulfill (although more often than not, they still help than refuse). You can go the other way - call an ambulance (stating on the phone a more or less plausible reason for the call (for example, poisoning) and ask the doctors to record in writing the fact that the employee was intoxicated.

As a result of the examination, a medical certificate may be issued, which will establish one of the following conditions of the employee:

1. sober, no signs of alcohol consumption;
2. the fact of alcohol consumption was established, signs of intoxication were not detected;
3. alcohol intoxication;
4. alcoholic coma;
5. state of intoxication caused by narcotic or other substances;
6. sober, there are violations of the functional state, requiring suspension from work with a source of increased danger for health reasons.

It should be noted that the current legislation does not directly establish the need for a medical certificate for the dismissal of an employee on the grounds we are considering. Moreover, the decision of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 contains an indication that “the state of alcoholic ... intoxication can be confirmed both by a medical report and other types of evidence, which must be appropriately assessed by the court.” Such evidence may include:

• witness's testimonies;
• acts on the appearance at work in a state of alcoholic, narcotic or other toxic intoxication;
• memos of officials.

Let's figure out how they can and should be arranged.

An individual entrepreneur should not particularly rely on oral testimony in court (if the case goes to court). By the time the labor dispute with the dismissed person is considered, yesterday's workers-witnesses themselves can quit, “forget” what exactly happened, not come to the court session, etc. Therefore, it is preferable to still draw up an act, which, being signed by several employees, can be considered as written testimony.

Act on the appearance of an employee in a state of alcoholic (drug, etc.) intoxication drawn up in free form, but it must indicate:

1. date, place and time of compilation;
2. FULL NAME. and the position of the person who drew up the act;
3. persons (preferably at least two) in whose presence the act is drawn up. Ideally, if these are persons who are not related to the offender at work, for example, employees of other departments);
4. the state of the employee, which should be described in as much detail as possible, indicate external signs that give reason to assume that the employee is drunk (incoherent speech, unsteady gait, lack of coordination, presence of smell, etc.);
5. signature of the person who drew up the act;
6. signatures of the persons present at the drawing up of the act.

A sample act is given in Example 1.

The employee may refuse to put a mark on familiarization on the act. In this case, it is necessary to draw up another act - on the employee’s refusal to sign, or make an appropriate note (“the employee refused to sign on the act”) on the first act.

Then it is necessary to invite the employee to provide written explanations about what happened. If he refuses to provide such explanations, another act is drawn up, a sample of which is given in Example 2.

And yet, it must be borne in mind that the presence of only an act and / or a memo about the appearance of an employee in a state of intoxication without a medical opinion sharply reduces the entrepreneur's chances of proving the legality of the employee's dismissal on this basis.

The reason for this state of affairs is the judicial practice, which for many years has developed in such a way that the courts recognized only a medical report as evidence of the dismissal of employees under this article, since from the point of view of judges, only a qualified specialist, that is, a doctor, can determine the real state of an employee. Therefore, it is possible to formalize the dismissal of an employee only if all the documents listed above are on hand, that is, a medical report, acts and memos.

If all documents are available, you can issue an order for his dismissal in a unified form No. T-8. The text of the order should indicate the grounds for dismissal - for appearing at work in a state of intoxication with reference to subparagraph "b" of paragraph 6 of Article 81 of the Labor Code of the Russian Federation, and at the end of the order, provide a link to the completed documents as a basis. A sample order is in Example 4.

In addition, upon dismissal, a note-calculation must be drawn up upon termination of the employment contract with the employee (form No. T-61). It is issued in a standard way, as well as in other cases of dismissal. After issuing the order, it is necessary to familiarize the employee with it under the signature and make the final payment.

You should also give the employee a work book with a record of dismissal, ask him to sign in the work book (see Example 5) and in the Movement Record Book work books and inserts in them about obtaining a work book.

Then you should complete the execution of the employee's personal card (form No. T-2), entering the reason for the dismissal of the employee there and asking him to sign on the fourth page of the card (see Example 6).