Article of the Labor Code of the Russian Federation alcohol intoxication. Dismissal for drunkenness - how to catch an employee

Current version of the Labor Code – dated July 1, 2017, dismissal for drunkenness has not changed since 2006. Regulated by clause 6, art. 81 Labor Code of the Russian Federation, subparagraph “b”. Today, according to this subclause, it is possible to dismiss an employee who appears at the workplace or the territory of the enterprise not only in a state of alcoholic intoxication, but any other (drug, toxic, another question is that they are more difficult to detect and prove).

Note! According to the law, you don’t have to be a “complete alcoholic” to say goodbye to your job. To receive a payment, you only need to show up drunk at work once.

Dismissal for drunkenness is a procedure that has extremely negative consequences for the employee and often becomes the basis for counterclaims from the former employee and litigation. Therefore, it is important to comply with all procedural aspects in accordance with the Labor Code, let’s consider them.

How does the procedure work?

To dismiss someone for drunkenness, you do not need the consent of the trade union - the intention of management and properly executed documents are sufficient. The exception is a person who has not reached the age of majority. According to Article 269 of the Labor Code of the Russian Federation, in this case, the consent of the authorities involved in the affairs of minors will be required. Who else cannot be fired if they show up to work while intoxicated?

A pregnant woman (they are fired only for several reasons: liquidation of the organization, agreement of the parties, at the request of the employee herself).

If the incident occurred during a period that is not a working period according to the production calendar. That is, dismissal for drunkenness at a corporate party held on an official holiday is impossible.

If the employee’s behavior does not involve intent or criminal negligence. For example, a situation where an employee inhaled vapors of toxic substances while performing official duties, or never “used” and felt unwell after the first glass at a buffet table - in this case there is no offense. Due to such intoxication, dismissal is unacceptable.

Examination of the state of intoxication is the most difficult, since the issue is not legal, but medical. It is regulated by law, but in practice it turns out to be too complicated for many employers. After becoming familiar with the procedure, it no longer matters to them how to fire an employee and under what article - it is better to do everything with a minimum of hassle. This benefits the employees themselves and gives them a good chance of reaching an agreement.

Attention: the manager has the opportunity and right, but not the obligation, to fire for drunkenness. If the offender admits the offense and undertakes to continue to comply with the standards of decent behavior and is a valuable personnel, a compromise can be made. In some cases, an employee can write a letter of resignation of his own free will. Many managers prefer to sign it rather than go through the red tape with the acts - in this case, the dismissed person will be able to avoid an unseemly record that will affect his future career.

Importance of Medical Examination

The subordinate never came to work drunk, but it happened that all the signs were there. Was he drunk or feeling very bad? How is the presence of alcohol in the blood determined? It should be understood that intoxication must be proven from a medical point of view. Many of the external signs (slurred speech, awkward movements, shiny eyes, inappropriate behavior) are possible under the following conditions: stress, illness, poor health, side effects of medications prescribed by a doctor.

The smell of alcohol in itself is not evidence; perhaps a jar of rubbing alcohol was accidentally knocked over on an employee, or he was forced to rinse a sore tooth after visiting the dentist.

Blood alcohol concentration is determined in ppm. There are five stages of intoxication, light - 0.5 to 1.5 ppm, heavy, fifth - from 5 to 6. But external manifestations are too individual.

It is noteworthy: Article 81 of the Labor Code is formulated in such a way that it is impossible to get rid of an employee who “uses” at work; it is necessary that he be in an inadequate state. That is, it is impossible to count for drunkenness in the workplace, even if ten witnesses saw their colleague pour himself a glass and drink it. It is necessary to prove that this glass had negative consequences.

Despite the importance of a medical report, the Labor Code, according to the Supreme Court of the Russian Federation, does not oblige it to be carried out. The dismissal procedure does not necessarily imply the presence of a medical protocol in the package of documents. The court can side with the employer without him, the main thing is that other evidence is convincing. There are precedents in judicial practice when a dismissed person tried to challenge his dismissal for drunkenness, claiming that a medical examination was not carried out on him, but the court considered the testimony of eyewitnesses, the employee’s work performance before the precedent, and the drawn up report documenting the case as sufficient evidence.

How to conduct a medical examination

Dismissal under an article for drunkenness does not have to be accompanied by a medical examination, but if it was decided to carry it out exclusively according to the rules, otherwise its results are easily disputed in court and can even be turned against the employer. The instructions that must be followed were approved back in 1988 (edited on August 12, 2003). Full title of the document: Temporary instructions on the procedure for a medical examination to establish the fact of alcohol consumption and intoxication. Below are the most important points:

Referral for examination - within 24 hours. Later it no longer makes sense.
Not only the manager, but also any other citizen who wants to protest the drawn up act recording the fact of appearing at work while drunk can send a complaint.
An employee can undergo the procedure on his own initiative if he considers the act unfair and wants to have evidence in hand.
Upon referral, the offender must be notified of his right to refuse the procedure.
At least 2 witnesses must be present.
Refusal of the procedure is documented in an act, certified by the signatures of the manager and two witnesses (at least).
An employee is sent only to official institutions (drug dispensary, district hospital, etc.). On-site examination is possible in specially equipped vehicles.
The doctor is informed of the reasons that necessitated the examination.
The person being examined must have a document proving his identity.
The narcologist draws up a protocol in 2 copies. All devices and techniques used by the doctor must be permitted by law. This is a subtle point - the discrepancy between the equipment and the required parameters is easy to protest.

In the document, the doctor clearly formulates the discovered facts. In addition to the extremes: the employee is sober or intoxicated, intermediate ones are also possible. For example, a citizen who was examined drank alcohol, but this had no consequences, there were no signs of intoxication. It can also be established that visible disturbances (gait, hand tremors, etc.) are the result of other reasons, for example, health problems. In this case, there is no alcohol intoxication.

Attention: the ambulance does not conduct examinations - this is prohibited.

The procedure for dismissal under article for drunkenness

What exactly should you do if there is no doubt that the employee is intoxicated? There are a number of activities that are universal and should be taken. Not all of the points described below are mandatory from the position of legislators, but all are desirable and will help you avoid a lot of trouble if you have to prove your case in court. The procedure for dismissal under an article for drunkenness:

Obtain the testimony of several other persons. Perhaps the culprit’s colleagues from other departments.
Suspend the employee from work. This point is not required, but desirable. According to Art. 79 of the Labor Code of the Russian Federation, there is such a requirement by law. This is logical: an inadequate condition will most likely prevent the employee from performing work functions and may even harm both himself and others - his boss is responsible for this. An order (instruction) is drawn up regarding the removal. An employee’s refusal to sign this document does not affect its validity; it comes into force regardless of his wishes. The refusal simply needs to be recorded by drawing up an appropriate act.
Draw up a report on the employee’s appearance in an inappropriate manner. The form is free, you can download ready-made samples. In addition to the standard details, signs that prove the fact of intoxication must be written down. The time frame for removal from work and information about referral to medical care should be indicated. inspection. You need to pay attention to the document; it will be the main basis (in addition to the medical opinion) if you have to defend your decision in court.
Medical examination. It should be carried out according to the letter of the law - as described above.
Demand an explanation from the sobered employee. It is not always possible to obtain it from the employee who has been at fault, but it is advisable. Dismissal for showing up at work in an inadequate state is precisely a disciplinary sanction (Article 192 of the Labor Code of the Russian Federation). If you refuse to write an explanatory note, you should draw up an act.
Order of dismissal - it is prepared according to the rules indicated below. The period is one month from the moment of the incident (Article 193 of the Labor Code of the Russian Federation). Within 3 days - familiarization of the dismissed person with the order. He must sign the document. In case of refusal, a report is drawn up.
Entry in the work book. HR people know how important accuracy is here. The wording may vary, but must include the reason and reference to Art. – “subparagraph “b” of paragraph 6 of part 1 of Art. 81 of the Labor Code of the Russian Federation.” No cuts.
Attention! All acts or employee refusals to familiarize themselves with them must have at least three signatures: the signature of the boss and two witnesses (indicating their positions).
On the day of dismissal, a book and other necessary documents are issued, the final payment is made in accordance with the law - the procedure is general here, regardless of the grounds for which the employee is dismissed.

Drawing up an order

The order is drawn up according to the standard T-8 form. Such documents must contain the following details:

Serial number and date.

Full name and position of the person to be dismissed.

Why was he fired? The reason is described as briefly as possible, but without abbreviated words. Be sure to refer to Art. TK. This entry is similar to the entry in the work book. Discrepancies are prohibited.

A detailed list of documents is written down that prove the validity of the dismissal. In case of dismissal of an employee for drunkenness, the following must be attached: a medical report, an act, acts of refusal, if the dismissed person refused to sign them.

Details of the manager, signatures: manager, dismissed.

Conclusions: dismissals for “unfair” reasons are one of the most difficult moments for a personnel employee. It is necessary to comply with all the points prescribed by law. Particular attention should be paid to the medical examination - it must comply with the Instructions. If it was decided not to conduct it, or the employee refused it, the certificate will be confirmed; it is important to enlist the support of several witnesses.

You can only be fired for appearing drunk at work: an employee being in such a state outside of work, even during working hours, does not provide reasons for dismissal on the grounds in question. The “work” referred to in sub. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation recognizes:

directly the employee’s workplace;
employer's territory outside the workplace;
the territory of the facility where the employee works on behalf of the employer.

Sometimes the question arises about the possibility of dismissing an employee who is caught drunk at the entrance of an enterprise. The courts, as a rule, recognize such dismissal as legal with the following motivation: the territory of the checkpoint refers to the general territory of the employer (for example, the appeal ruling (JSC) of the Vologda Regional Court dated 02/08/2013 No. 33-507/2013). The dismissal of a drunken employee caught in such a state at the entrance of the customer organization, on the territory of which the person works on behalf of management, is also lawful on similar grounds (decision of the Moscow Regional Court dated December 14, 2010 in case No. 33-24139).

Circumstances of time: was it working time?

In order to dismiss an employee under sub. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, he must be drunk during his working hours, which is determined in the labor regulations, labor contracts, and shift schedules. Circumstances of the time directly affect the possibility of dismissal for drunkenness at work. So, for example, if a drunk arrest at a checkpoint took place before the start of the working day, then the dismissal will be considered illegal (for example, JSC Yaroslavl Regional Court dated October 18, 2012 in case No. 33-5617).

Taking into account this requirement of the law, it is impossible to dismiss an employee who:

during his lunch break he drank alcohol at work, after which (before the end of the break) he left work;
drank alcohol at work after the end of the working day;
came to work drunk on my day off, on a vacation (any kind) or sick leave.

It is worth noting that the courts have a common position regarding the situation when an employee was drunk while en route to a business trip. The interior of a train, plane or other vehicle cannot be classified as a workplace, and the travel time cannot be classified as working time. Therefore, it is impossible to dismiss such an employee for drunkenness at work (cassation ruling of the Novosibirsk Regional Court dated February 24, 2011 in case No. 33-1212/2011).

Recording the fact of intoxication for the purpose of dismissal for drunkenness

If you suspect that an employee is drunk, it is recommended, first of all, to record the fact of intoxication. The presence of evidence of such an employee’s condition is the third necessary condition for his legal dismissal.

The state of intoxication can be confirmed not only by a medical report, but also by other evidence. This was also indicated by the Plenum of the Supreme Court of the Russian Federation in paragraph. 3 clause 42 of resolution No. 2 of March 17, 2004 (hereinafter referred to as resolution No. 2).

Sometimes it is not possible to carry out an examination for objective reasons. For example, there is no medical facility of the appropriate profile nearby, or the employee is against the examination, and it is possible only if voluntary consent is given (like any medical procedure performed without vital indications).

IMPORTANT! It is recommended to start by drawing up a report on appearing at work while intoxicated, even if the employee agreed to undergo an examination. It must be borne in mind that a person has the right to refuse this procedure at any time (both before and during its implementation).

There are many court decisions indicating that it is possible to prove intoxication without a doctor’s opinion. The employer's chances of winning a dispute about the legality of dismissal increase if there is a body of evidence - an act, a report, witness testimony, a report/memorandum (see, for example, JSC Arkhangelsk Regional Court dated 02/06/2013 in case No. 33-539/2013).

Creation of a commission to draw up an act

In some organizations, there is a permanent commission to record the drunken state of employees. If one does not exist, then it is better to create it.

To do this, it is necessary to issue an order in free form. It is advisable to display in it:

the basis for the order (usually a report on the discovery of a drunk employee);
the purpose of creating the commission;
composition of the commission indicating full names and positions;
validity period of the commission (it is possible to create a commission without limiting the validity period, that is, on an ongoing basis).

How to draw up a report against an employee who is drunk?

The commission report must be drawn up on the day the employee was caught drunk at work. Moreover, it is recommended to do this as quickly as possible for obvious reasons: after just a few hours it will be difficult to prove the fact of intoxication.

The form of the act has not been approved, but it is advisable to include in it:

place, date and time of compilation;
information about the employees who drew up the act;
information about an employee found to be intoxicated;
signs indicating intoxication.

Regarding the last point: in 2016, a new procedure for medical examination to determine the fact of intoxication came into force (approved by order of the Ministry of Health of the Russian Federation dated December 18, 2015 No. 9 33n, hereinafter referred to as the procedure). Clause 6 of this document defines signs of intoxication, each of which is sufficient to warrant referral for examination, including if the employer suspects that the employee is drunk:

unsteady posture and gait;
alcoholic smell;
speech disorders;
sudden change in facial skin color.

These signs may be characteristic of some diseases, so the employee’s condition should be described in detail. Based on all the circumstances, the act makes an appropriate conclusion.

The act is signed by all members of the commission, after which it is highly advisable to familiarize the offending employee with it against his signature. If he refuses to sign or, due to his state of intoxication, cannot sign the document, the act should be read out loud and the appropriate note should be made in it.

Medical opinion as evidence of intoxication

After drawing up the report, it is necessary to invite the employee to undergo an examination procedure at a medical institution. According to clause 3 of the procedure, it can only be carried out by organizations with a license for medical practice, which includes, among other things, the service of examination for intoxication. A conclusion issued by a medical institution without an appropriate license will not be accepted by the court as evidence of the legality of the dismissal of an employee.

If the employee agrees to the procedure, he is given a referral (subclause 5, clause 5 of the procedure). The form of this direction is free.

The examination must include 5 actions (item 4 of the order). These include tests of biological fluids, examination, and a breathalyzer test. If any action was not carried out and/or is not reflected in the conclusion, the court may consider the dismissal illegal.

By the time of the examination, the external signs of intoxication recorded by the employer in the report may disappear and, as a result, be absent from the doctors’ report. There is judicial practice according to which dismissal in such situations is recognized as lawful. In this case, the time elapsed from drawing up the report to the medical examination was taken into account (for example, JSC Yamalo-Nenets District Court dated October 24, 2013 in case No. 33-2269/2013).

At the same time, if such signs are not described in the act (or the act is absent), and the examination revealed only the fact of drinking alcohol (without external signs of intoxication), the dismissal may be considered illegal (for example, JSC Primorsky Regional Court dated 07/09/2015 in the case No. 33-5668). Note that this confirms the need in all cases to promptly draw up a report with a detailed description of the employee and his condition.

Suspension from work duties before dismissal for drunkenness

After establishing the fact of intoxication, the employer is obliged to remove the offender from work (Part 1 of Article 76 of the Labor Code of the Russian Federation). The time of suspension will not be considered absenteeism, but wages will not be accrued for this time.

The removal must be formalized by an order, the unified form of which does not exist. It is advisable to include:

information about the employer;
information about the employee (full name, position);
indication of the circumstances of the dismissal - state of intoxication;
a link to documents confirming the fact of intoxication;
period of removal from work duties.

According to Part 2 of Art. 76 of the Labor Code of the Russian Federation, an employee cannot be allowed to work during the period of persistence of the circumstances for which he was suspended. In the case of intoxication, determining such a period can be difficult, because sometimes the state of intoxication is so severe that it may not pass for several days.

IMPORTANT! If the employer, having established the fact of intoxication, nevertheless allowed the offender to work, then responsibility for possible negative consequences (damage to property, injuries) falls on him. And responsible officials who did not carry out the suspension, being aware of the situation, may be punished for violating labor safety rules - as under Art. 5.27.1 Code of Administrative Offenses of the Russian Federation, and under Art. 143 of the Criminal Code of the Russian Federation.

How to fire someone for drunkenness at work? Order of dismissal (sample)

Download the order form

Dismissal for drunkenness at work is nothing more than a disciplinary measure. Therefore, it is necessary to be guided by the rules on the imposition of such rules established by the Labor Code of the Russian Federation.

Before making a decision on dismissal, you should request an explanatory note from the employee (Part 1 of Article 193 of the Labor Code of the Russian Federation). Failure to comply with this requirement entails the dismissal being declared illegal (JSC St. Petersburg City Court dated September 23, 2014 No. 33-14346/2014).

It is best to do this after the end of the suspension period. If you request an explanation immediately after discovering someone drunk at work, the court may find a violation, indicating that the employee’s intoxication resulted in his inability to write a correct explanation.

The form of the explanatory demand has not been established. It is still recommended to put it in writing and give one copy to the employee against his signature, and if he refuses to sign it, draw up a report.

After 2 working days (this is the period during which the explanatory note must be written), the employer has 2 options:

If an explanation is not provided, then a report is drawn up about this. A written request for an explanation and an act of failure to provide it will be sufficient for dismissal.
If the employee has written an explanatory note, the reasons for the misconduct indicated by him should be assessed and, taking into account its severity, the type of disciplinary sanction should be determined. It is possible that the employee was poisoned by toxic fumes at work, resulting in toxicological intoxication.

IMPORTANT! The employer should remember that, by virtue of Art. 261 of the Labor Code of the Russian Federation, a pregnant woman cannot be fired for the offense in question. Therefore, it will be necessary to apply another type of penalty to her (JSC Khabarovsk Regional Court dated 05/08/2015 in case No. 33-2767/2015).

There is nothing complicated in drawing up an order for dismissal for drunkenness. A sample of it can be found on our website. It should be remembered that it is enough to issue only one order - dismissal, since in this case it is precisely this that is the disciplinary sanction. That is, there is no need to issue a separate order to impose disciplinary liability.

Proportionality of the penalty in the form of dismissal to the violation

The courts do not always recognize dismissal as commensurate with the gravity of such an offense as showing up drunk at work. Therefore, in each specific case, the employer should pay more attention to the explanations provided by the offending employee, as well as evaluate the previous behavior of the offender and his attitude towards work in general. This was indicated by the Plenum of the Armed Forces of the Russian Federation (clause 53 of Resolution No. 2), and this is also stated in Part 5 of Art. 192 Labor Code of the Russian Federation.

Thus, the Tver Regional Court, in its ruling dated March 10, 2015 in case No. 33-687, declared the dismissal illegal, citing the following reasons:

The employee has been working at the company for a long time.
Disciplinary sanctions have never been taken against the employee before.
The employee is close to retirement age.
There were no negative consequences for the misconduct for the employer.

Thus, before making a decision to dismiss an employee for appearing drunk at work, you should once again assess the situation and make sure that there are mandatory conditions for terminating the employment contract, such as:

sufficient evidence of intoxication;
establishing the employee’s guilt in the onset of intoxication;
appearing drunk at the workplace and during working hours.

You can only fire someone for drunkenness if these facts are combined; one of them is not enough. In addition, the employer should consider imposing a non-dismissal penalty based on the employee's characteristics.

Drunkenness harms not only the health of the drinker, but also the efficiency of work at the enterprise. So, according to statistics, an alcoholic can miss 30-70 working days in a year. Moreover, if we consider all cases of employee absence from work, then almost half occur among people who drink. Moreover, a person under the influence of alcohol poses a threat to the safety of the production process. For this reason, the number of injuries in the workplace is growing, and the number of industrial accidents is also increasing. However, labor legislation provides for dismissal under articles for drunkenness. Often this is the most extreme measure that management resorts to after unsuccessful attempts to come to an amicable agreement with such an employee.

Grounds for dismissal

The legal basis for dismissing an employee for systematically being drunk at work is the Labor Code of our country, namely its articles numbered 81, 76, 193 and 192.

Based on this code, you can fire a person who appears at work while intoxicated. Moreover, this condition means not only alcohol intoxication, but also stupefying the mind with narcotic or other toxic substances. Even if he was not at the workplace, but was at the facility or territory of the organization in such a state, he could be fired for drunkenness.

Important: dismissal of an employee is possible only if the state of intoxication is confirmed by a medical examination and considered by the court.

In addition to the MO, there must be other evidence. For example:

an act recording the fact that an employee was intoxicated at work;
an explanatory note written by the drunken employee himself;
reports from other employees.

Russian legislation provides several grounds for dismissing an employee at the initiative of the employer. And one of them is the termination of a permanent employment contract or the dismissal of a person who was intoxicated at the workplace.

According to the current Labor Code (LC), management has the right to punish drunkenness in the workplace. For this purpose, any disciplinary sanction may be applied:

comment;
rebuke;

Recording the fact of intoxication

If an employee is found drunk at work, this fact must be correctly recorded, which in the future can be evidence and grounds for dismissal under the article. To do this, follow the following sequence of actions:

First, you need to draw up a report on the presence or appearance of an employee in a drunken state at work. There is no clear form for this document, so it can be drawn up in any form. The act must be certified by the signatures of two employees acting as witnesses.
If the reprimand does not help the employee come to his senses, then an order is issued to remove him from the work process. This is not a unified document that can be drawn up in any form.
The employee must explain in writing his presence at the workplace in a state of intoxication. To do this, he is given a notice of request for a written explanation of the fact of intoxication at work. Typically, a person is given two days to submit a written explanation. If no explanatory notes were submitted to the authorities within this period, then the procedure involves drawing up an act of refusal to give an explanation. This act must be certified by the signatures of two employees who act as witnesses.
Next, an official document is drawn up - a memo about appearing at work while drunk. This note is written directly by the production manager himself and can be submitted in any form. It must be supported by an act recording the fact of appearing at work while intoxicated, an explanatory note from the employee himself, or an act that confirms the employee’s refusal to submit an explanatory note.

Sequence of dismissal

The step-by-step actions of the management of the organization where the dismissed employee works look like this:

An order of dismissal for drunkenness is drawn up. In essence, this is an order to terminate the employment contract (employment contract) with the employee. This document must correspond to a unified form numbered T-8 or T-8a.
This order is recorded in a special journal for registering orders relating to personnel.
A settlement note must be drawn up when terminating an existing (employment) contract. This document must correspond to Form T-61. On the day of dismissal for drunkenness, a settlement is made with the employee. He is paid a salary; if he was not on vacation this year, then compensation for unused vacation must be paid, and other payments may also be made.
Before dismissing an employee, he must be given an order regarding his dismissal for review. After familiarization, he must sign his autograph. If a person refuses to do this, then a note about his refusal is made on the order. It is recommended to prepare a statement stating that the employee refused to familiarize himself with the order. This act must be signed by two witnesses and the author of the document.
A record of dismissal is made in the employee’s personal card. The entry must correspond to the T-2 form and be certified by the signature of the personnel department employee and the signature of the dismissed person. If he decides to put his signature, then a corresponding note must be made on the card.

After an employee’s work activity at a given enterprise is completed, a dismissal entry is made in his work book. In this case, making the corresponding entry is done as follows:

in the first column the serial number of this entry is written;
the second column records the date of dismissal;
in the third column there should be a record of the reason for dismissal (it must comply with the wording of the Labor Code of the Russian Federation and be accompanied by links to the article number, its part and paragraph);
the fourth column records the document on the basis of which the person was fired.

Important: all entries in the book must be certified by the signature of management or an employee of the HR department, the seal of this organization, as well as the autograph of the employee himself.

The dismissed employee must receive a work permit with a note of dismissal or termination of the contract on the day of dismissal. An entry must be made in the journal for recording the movement of employee work books. If on this day the employee refuses to pick up the work book, then he is sent a notification that he must pick up this document or give his consent to send it by mail.

Attention: according to the Labor Code of Russia, the employer must give the work book to the employee no later than within 3 working days from the date of dismissal. It is prohibited to send a book by mail without the employee’s consent.

Medical examination

It is possible to assert that an employee is drunk at work only on the basis of a medical examination. It can be carried out as quickly as possible from the moment the employee appears drunk, since after some time the alcohol will be eliminated from the body. The results of the medical examination as to whether the employee was sober or drunk are necessarily recorded in the medical report.

Some employers may experience certain difficulties in carrying out the medical examination procedure, since a person has the right to refuse a medical examination or demand termination of the procedure at any time.

The MO procedure works most effectively and is streamlined in transport industries, in electric power industry institutions, as well as in other dangerous production enterprises, where it is very important that all employees are sober. In such organizations, a medical examination is usually carried out before the start of the working day, and its results are recorded in “sobriety protocols”.

Important: the medical examination procedure is carried out by narcologists in special rooms of medical narcological clinics.

Sometimes an employer, for one reason or another, may simply not be able to deliver an employee to such a clinic. In this case, the examination can be carried out in mobile medical laboratories, which are organized on the basis of ambulances. Typically, such laboratories use certified instruments, and the ambulance teams themselves are licensed to carry out such activities.

The order of the MO procedure:

Conclusions about a person’s condition are made not only based on an assessment of his behavior, neurological reactions and autonomic disorders, but also based on tests for determining alcohol in the blood, urine and saliva. Such analyzes are carried out only by methods approved by the Ministry of Health and Social Development of the Russian Federation.
In addition, indicator devices can be used to determine the concentration of ethanol in exhaled air.
The doctor conducting the examination must draw up a protocol in two copies. After this, the person being examined must read the protocol and sign.
Refusal to undergo an examination is also documented and signed by the person who refused to carry out the medical examination procedure, as well as by a medical professional. This extract from medical records can be used by the employer.
After the examination, the results of this procedure must be immediately announced.
The Ministry of Defense protocol must be handed over to people who brought an employee under the influence of alcohol to the procedure. If there are no such accompanying persons, then the protocol is sent by mail to the specified address of the organization.

If methods and devices that are not included in the list of approved means were used to conduct a medical examination, then the medical report loses legal force. If the case comes to trial, the court will not consider such a conclusion as evidence. But the medical professional who conducted the examination can still act on the side of the employer.

Now you know whether you can be fired for being drunk at work. As you can see, they can. Moreover, a bad entry in the work book about this dismissal for drunkenness can become a stumbling block on the path to finding a new job. They may simply not want to hire such an employee for fear of repeating the story of drunkenness. So it’s better not to take risks and not drink at work.

There are plenty of cases when drunk people are present at their workplaces. The consequences of showing up to work in this manner can be very different. Dismissal under an article for drunkenness is a completely legal procedure. To make a shameful entry in an employee’s work book, the employer needs very little. Such a dismissal can subsequently ruin many attempts to get a job again and make a career. “Office” drunkenness can bring other troubles.

Attention!

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Slightly drunk employee: the essence of the problem

Let’s say that yesterday there was a stormy feast with copious libations, and today your health is far from the best. In this case, you need to go to work. Most solve the problem using the principle of treating like with like. That is, they get hungover. The condition seems to be improving: the head becomes clearer, the hands do not tremble, the stomach calms down, and so on. And now the man is in service. Another option is to drink alcohol during your lunch break. Almost everywhere you can find people who like to wash down a plate of borscht with a can of beer, supposedly to improve digestion.

Such an employee may not feel drunk at all. However, this is not a question of real sobriety, but only of sensations. Many people with a long history of alcoholism need a solid portion of alcohol to “get the hang of it.” However, regardless of their sensations, there is a certain dose of ethanol in the blood, which poisons the body in full swing, dulls reactions, and reduces the performance of the brain.

A supposedly sober employee can easily violate safety standards, make a mistake at work, and let down his colleagues and the entire organization. All this - without the slightest awareness of their mistakes and insufficiently adequate behavior.

How does it all look from the outside, and what are the consequences? The smell of fumes, yesterday and today, insufficiently coherent speech, loss of precision of movements - this is what the colleagues of a tipsy employee feel and see. If such an employee is part of a long chain, the whole process can be disrupted and go wrong. And it doesn’t matter whether we are talking about working with documents (for example, completing a complex project) or about conveyor production.

The situation is even more serious if a person comes to work with a significant dose of alcohol in his blood.

Drunk employee: a nuisance or a real threat?

At a certain dose of alcohol, a person’s intoxication is no longer in doubt. Drunkenness is recognized by many signs: an incorrect gait, a slurred tongue, and so on. How responsible and correct will the actions of such a person be in the performance of official duties? In most cases, the likelihood of full-time work for such an employee is very close to zero. This is the simplest example of drunkenness in the workplace, and the consequences can be very unfavorable.

If a clearly inebriated employee usually works with customers, what impression will he make on his visitors? What opinion will be created about the department where this person works, about the entire organization as a whole? Damage to reputation and loss of customers are the most likely consequences.

In production, a drunk worker creates defective products; he can spoil raw materials or damage the intermediate results of someone else's work. There are also frequent equipment breakdowns, which are caused by inappropriate behavior and errors in the operation of equipment. Finally, the most unpleasant consequences are injuries and even deaths in the workplace. But a drunk employee can not only get hurt himself, but because of him, harm can also be caused to his co-workers.

The latter situation is already a full-fledged trial, including under a criminal article. It will involve not only the employee who “took it on his chest,” but also his immediate superiors, people responsible for labor protection, and other management of the enterprise. How complete will the company’s activities be against the backdrop of endless checks and other procedures? And most importantly: is someone’s health or life not too high a price for a dose of alcohol?

What measures can an employer take?

If an employee is found drunk at work for the first time, he may well get away with temporary suspension and a warning.

The first measure is regulated by Article 76 of the Labor Code of the Russian Federation. In this case, the employee is not allowed to work until he sobers up. The employer decides how much time to allocate for this; usually the period is one or two days. No sick leave, the employee is counted as downtime. Of course, there is no payment either.

Prevention is another measure. If everything was limited to a conversation, the offending employee can be sure that he was lucky. Perhaps the bosses took into account some unfavorable circumstances in the subordinate’s life or simply value him as an employee. A more unpleasant option is a written warning. It will remain in your personal file and can significantly complicate career advancement.

Finally, a drinking employee can be fired for drunkenness in the workplace; there is an article in the Labor Code of the Russian Federation about this. However, to apply the last two measures a certain procedure must be followed.

Medical examination and violation report

The degree of intoxication of an employee is not determined by eye. Difficulty speaking, a swaying gait and the smell of alcohol can be explained by illness, stress, or taking certain medications. To convict an employee of drunkenness, everything must be documented.

The procedure may vary at different enterprises, but in general terms it boils down to the following:

Information about a supposedly intoxicated employee should be sent to his immediate supervisor.
A commission is created and an internal investigation begins.
The result of the commission’s work is a special act. It describes the current situation and indicates the signs by which the employee was suspected of drunkenness. The act is signed by members of the commission, employee-witnesses and the offender himself.
A drunk employee may be required to write an explanatory note. If this happens, the document is attached to the act.
If a supposedly intoxicated employee refuses to admit to being intoxicated, the employer may offer a medical examination. It is to offer, and not to oblige, this question is purely voluntary. The employee’s refusal to contact the medical board must also be recorded in the report.
If he agrees, the employee undergoes a medical examination. This is a paid procedure, the costs are covered by the employer. If the employee’s guilt is confirmed, the funds spent will most likely be later deducted from wages or recovered in some other way.

If the employee’s drunkenness is confirmed, the offense is considered proven. And then the employer can only determine how exactly the employee will be punished.

Legal Disclaimers

Can dismissal under an article for drunkenness be illegal and unjustified? Of course. Not all employers are 100% conscientious. If the dismissal procedure was carried out with violations, the employee has the right to resolve the issue through the courts.

If the case comes to court, then the employer will have to fully and clearly justify the dismissal of the employee under Article 81 of the Labor Code of the Russian Federation. This will not be possible if an employee caught drinking at work was found drunk at the end of the working day.

Simply being present at the workplace drunk is one thing, but performing your duties while drunk is quite another. If the employee proves that this was exactly the situation, the court may side with him and cancel the decision to dismiss him under the “drunk” clause. Plus, the employer will be obliged to hire the employee again, and even pay a simple fee. Of course, how the boss-subordinate relationship will develop after this is a separate question.

It is impossible to simply fire a minor employee or a pregnant woman for drunkenness in the workplace. In such situations, the employer is obliged to involve the labor inspectorate and (if necessary) the commission for minors.

Another situation is intoxication, which occurs as a result of any technological violations at work, and not after drinking alcohol. In this case, the state of intoxication occurs unintentionally, therefore, there can be no penalty in this regard.

How to improve relations with an employer?

Leaders are mostly ordinary people. The easiest way for a guilty employee is to try to come to an agreement and resolve the problem peacefully.

Every adult decides for himself whether to take alcohol or not. However, the question of whether to drink or not to drink in the workplace should not arise at all. And if the problem of giving up alcohol cannot be solved by simple willpower, then more effective measures are needed. In this case it is necessary:

realize that the problem of alcohol abuse exists and is fraught with many unpleasant consequences;
want to solve this problem;
consult a narcologist and get examined;
undergo a course of treatment.

It is possible that a narcologist will prescribe medications. This refers to drugs for aversion to alcohol. When using such drugs, the liver stops producing special enzymes that break down ethanol. As a result, drinking alcohol results in simply terrible health, and in the most severe cases, death can even occur. Such treatment must be applied with full awareness of the consequences of an alcoholic relapse. But such therapy is a good reason to improve relations with the employer. Even before you finish taking your medications, you can bring a certificate to the service. The boss may well appreciate the employee’s efforts and abandon the idea of dismissing him. However, one should not count on further tolerance from leaders.

The article of the Labor Code for drunkenness does not stipulate the degree of intoxication of the employee. Even just coming to work drunk can be grounds for dismissal. What happens next? Difficulties finding a new job, stress, financial problems. Perhaps a more than successful career will be interrupted. All of these potential negative consequences of drinking at work should, if possible, be assessed very carefully. And make the only right decision: there is work to be done - alcohol is prohibited.

Attention!

The information in the article is for informational purposes only and does not constitute instructions for use. Consult your healthcare provider.

E.Yu. Zabramnaya, lawyer, PhD n.

Punishment for drunkenness at work

How to record an employee appearing at work in a state of intoxication and bring him to disciplinary action

If an employee shows up to work drunk or gets drunk at work, this cannot be left to chance. Not only does he set a bad example for others, but he can also cause serious trouble: breaking equipment, injuring someone, or injuring himself. You need to react quickly, before the employee, firstly, has done something wrong, and secondly, has not sobered up. The Labor Code allows an employer to fire an employee even for appearing drunk at work once, because this is a gross violation of labor duties. th. Let's see how to do it correctly.

What is showing up to work while intoxicated?

You can be fired for appearing in a state of intoxication specifically At work, then eats b subp. “b” clause 6, part 1, art. 81 Labor Code of the Russian Federation;:

<или>directly at your workplace;
<или>on the territory of the organization;
<или>at another site where he works on behalf of the employer (for example, he performs installation work for a contractor, is on a business trip )Determination of the Perm Regional Court dated January 19, 2011 No. 33-454; Rulings of the Moscow Regional Court dated March 31, 2011 No. 33-7115, dated December 14, 2010 No. 33-24139.

We tell the manager

You can fire an employee for drunkenness only if he was caught doing it during HIS working hours on the employer’s premises I subp. “b” clause 6, part 1, art. 81 Labor Code of the Russian Federation; clause 42 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2.

Plus, dismissal can follow only for appearing in a state of intoxication during working hoursArt. 91 Labor Code of the Russian Federation. These should be working hours specifically for that employee, and not just company hours. For example, if he drank on company premises while on vacation, on leave, or on sick leave, then he cannot be fired I. The courts even recognize as illegal the dismissal of an employee who showed up in a state of intoxication 40 minutes before the start of his shift and was detained at a security checkpoint. m Determination of the Perm Regional Court dated July 15, 2010 No. 33-5883.

Attention

Only pregnant women cannot be fired for drunkenness at Art. 261 Labor Code of the Russian Federation.

Drunkenness must be documented. The Labor Code does not explain how to do this. Meanwhile, the courts reinstate those fired for drunkenness precisely because the employer could not prove in court that the employee was drunk n Determination of the St. Petersburg City Court dated March 15, 2011 No. 33-3463/2011.

Let's look at how you need to act to make your dismissal flawless.

We detect intoxication

As practice shows, this sequence of actions is best.

STEP 1. The drunken employee's immediate supervisor or any colleague informs the head of the company or other official authorized to make decisions on personnel matters about the employee's appearance in a state of intoxication. For example, an employee who came to replace him at work after drinking could also report this.

The goal is to inform the company's management about what happened so that they can order an internal investigation.

STEP 2. The head of the company issues an order in any form to appoint a commission to conduct an internal investigation. It must record the personal composition of the commission tasked with conducting the official investigation (usually 3 people), and its powers.

The powers of the commission should include:

identifying signs of intoxication in an employee;
sending the employee for a medical examination;
drawing up a report on his appearance in a state of intoxication;
written request and receipt of written explanations from the employee;
collection of testimony from other workers who witnessed the incident.

STEP 3. The commission sends the employee for a medical examination. In most cases, drunk workers refuse to undergo a medical examination. Unfortunately, it is impossible to force them to do this by law, because the Labor Code of the Russian Federation does not require workers to undergo a medical examination in this case.

If the employee agrees to a medical examination, he can be sent b clause 2 of the Temporary Instruction on the procedure for medical examination to establish the fact of alcohol consumption and intoxication, approved. Ministry of Health of the USSR 01.09.88 No. 06-14/33-14 (hereinafter referred to as the Temporary Instruction):

<или>to a drug treatment clinic;
<или>to any treatment and preventive institution where there is a psychiatrist-narcologist or a doctor of another specialty who has undergone special training (at the same time, the medical institution does not require any special license to conduct a medical drug examination, which is confirmed by the court s Determination of the Moscow Regional Court dated December 14, 2010 No. 33-24139).

We warn the manager

You cannot fire an employee for drunkenness if the medical examination report states:

<или>“sober, no signs of alcohol consumption”;
<или>“the fact of alcohol consumption was established, no signs of intoxication were identified”;
<или>

Moreover, doctors can conduct medical examinations both directly in these institutions themselves, and on-site in specially equipped cars.

Please note that medical examination is a paid procedure. The Labor Code of the Russian Federation does not directly say who pays for it in such a situation - the employer or the employee. But it is logical that if an employee is sent for a medical examination by the employer and the employee later turns out to be sober, then the company pays for this procedure. You can try to take this amount into account in other expenses. X subp. 49 clause 1 art. 264 Tax Code of the Russian Federation. If the employee shows signs of intoxication, then the cost of the medical examination can be recovered from him as damage caused by the employer Yu Art. 238 Labor Code of the Russian Federation.

During the medical examination, the doctor will draw up a protocol according to form No. 155/ at approved Ministry of Health of the USSR 09/08/88 No. 694, which th pp. 4, 6, clause 14 of the Temporary Instructions:

<или>will be handed over to the person who delivered the employee to the medical facility;

It is better to escort a drunk employee to a medical facility for examination. This needs to be done as quickly as possible. In some cases, signs of intoxication may disappear within a couple of hours after drinking alcohol.

<или>If there is no accompanying person, it will be sent to your company by mail. The employee himself will not be given a protocol; he will only be informed of the result of the examination.

In the final part of the protocol, the doctor will indicate one of the following conditions: th clause 13 of the Temporary Instructions:

<или>sober, no signs of alcohol consumption;
<или>the fact of alcohol consumption was established, signs of intoxication were not identified;
<или>alcohol intoxication;
<или>alcoholic coma;
<или>a state of intoxication caused by narcotic or other substances.

Showing up to work while under the influence of drugs can also result in dismissal. But if in some cases, if an employee refuses a medical examination, the employer can prove the employee’s alcohol intoxication in another way (by drawing up a report based on witness testimony), then in practice it is possible to fire someone for appearing at work while intoxicated only if there is a medical examination report. After all, only a specialist can accurately determine that this is drug intoxication;

<или>sober, there are functional impairments that require removal from work with a source of increased danger for health reasons.

STEP 4. The commission draws up a report in any form about the employee appearing at work in a state of intoxication. The act must indicate:

time and place of its compilation;
f. And. O. and positions of commission members;
signs that allowed the commission to come to the conclusion that the employee was intoxicated.

We warn the employee

If the employee believes that he is unfairly accused of drunkenness, then it is better for him to undergo a medical examination. After all, if he refuses this, then in court his refusal may be regarded as an indirect confirmation of drunkenness A Determination of the Nizhny Novgorod Regional Court dated August 24, 2010 No. 33-7465/2010.

These are the same signs that allow traffic police officers to assume that the driver is intoxicated (the smell of alcohol on the breath, speech impediments, unsteady posture, change in color of the skin of the face, behavior inappropriate for the situation )clause 3 of the Rules for examining a person who drives a vehicle for alcohol intoxication... approved. Decree of the Government of the Russian Federation dated June 26, 2008 No. 475.

The commission should not just record these features in the act, but try to describe them in as much detail as possible.

Let us give an example of drawing up such an act.

Report of appearing at work while intoxicated

Moscow

Compilation time: 10 hours 5 minutes

Based on Order No. 37-k dated 08/09/2011, a commission consisting of:
Chairman of the Commission Ivashchenko G.P. - accountant,
commission members:
Glebova K.D. - recruitment manager;
Zaikina V.D. - head of the office

has drawn up this act as follows:

August 9, 2011 Head of Marketing Service Prokopovich V.S. reported the appearance at 9:45 a.m. of the marketing service manager Alexander Sergeevich Peshkov in a state of alcoholic intoxication at his workplace.

Having checked this information, the commission, as of 10:50 a.m. on August 9, 2011, established that Peshkov had A.S. signs of intoxication.

The commission found Peshkov A.S. reclining on his desk. After this, the commission stated that A.S. Peshkov’s gait was unsteady, unsteady, coordination of movements when walking is impaired, there is a strong smell of alcohol from the breath and redness of the skin of the face and neck.

The commission suggested Peshkov A.S. give written explanations for appearing at work while intoxicated. Peshkov A.S. verbally explained his condition by saying that he had celebrated a friend’s birthday all night the night before from 08/08/2011 to 08/09/2011. At the same time, Peshkov A.S. swore obscenely at the members of the commission and tried to throw a heavy object (a flower pot) at them.

Peshkov A.S. sent for medical examination to a drug treatment clinic on 08/09/2011.

From undergoing a medical examination Peshkov A.S. refused:

I was familiarized with this act on 08/09/2011:

A.S. Peshkov

Refused to familiarize himself with the act against signature:

The employee is given 2 working days to provide written explanations regarding the fact of appearing at work while intoxicated. As a rule, they are calculated from the date following the day of their request (that is, the day the act was drawn up )Art. 193 Labor Code of the Russian Federation. Therefore, draw up an act of failure to provide explanations not immediately after the employee refuses to give them, but after 2 days.

Removing a drunkard from work

Simultaneously with the determination of the employee’s intoxication, it is necessary to prepare an order signed by the head of the organization to remove this employee from work s Art. 76 Labor Code of the Russian Federation.

An order for suspension from work can be issued arbitrarily, for example like this.

Limited Liability Company "Prestige"

Order on suspension from work No. 40-k

Moscow

In connection with the appearance of the marketing service manager Alexander Sergeevich Peshkov at work while intoxicated

I ORDER:
dismiss the marketing service manager A.S. Peshkov. from work to sobering up.

Base:
Report on the appearance of an employee at work in a state of intoxication dated 08/09/2011, b/n.

The employee must be familiarized with the order of suspension from work in the presence of witnesses. If he refuses to familiarize himself with the order against signature, draw up a report about this in any form with the participation of witnesses. Or, in order not to produce a lot of paperwork, instead of drawing up a separate act, you can make a record of the employee’s refusal to familiarize himself with the order directly on this order itself.

We reflect the removal in personnel documentation

We warn the manager

Supervisor MUST remove a drunk employee from work s Art. 76 Labor Code of the Russian Federation.

If the behavior of a drunk employee leads to:

<или>to serious harm to health (himself or another employee);
<или>to the death of a person

then the manager may be held criminally liable And Art. 143 of the Criminal Code of the Russian Federation.

The period of suspension from work “for drunkenness” is not paid and is not included in the vacation period. I Art. 121, art. 76 Labor Code of the Russian Federation. Reflect this period:

in the work time sheet, putting down the letter code “NB” or the numeric code “35” (“Suspension from work (preclusion from work) for reasons provided for by law, without accrual of wages”);
in section X of the employee’s personal card according to form No. T- 2 (indicate that the employee was suspended from work due to appearing at work while intoxicated during such and such a period).

Punishing a drunkard

So, you have all the documents confirming that the employee appeared drunk at work. The manager only has to choose a disciplinary sanction (reprimand, reprimand or dismissal), and you need to prepare the appropriate order. In this case, it is necessary to take into account the severity of the offense committed, the circumstances under which it was committed, the previous behavior of the employee and his attitude towards work. at Art. 192 Labor Code of the Russian Federation; clause 53 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2. And if the employee is good and has committed a disciplinary offense for the first time in a long time working in the company, then perhaps he should not be fired immediately. Moreover, he can be reinstated e Determination of the St. Petersburg City Court dated August 31, 2009 No. 11614. Also, if there is not enough evidence of the employee’s intoxication, it is better to limit yourself to milder sanctions than dismissal (a reprimand or reprimand).

We warn the manager

If the dismissed employee will then be reinstated by the court, then the company will have to pay him the average salary for the entire period of forced absence, and perhaps also compensate for moral damage d Art. 234, Art. 237 Labor Code of the Russian Federation.

The order to announce a reprimand or reprimand is drawn up in any form, and the order to dismiss - according to the unified form No. T- 8approved Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1. In the column of the order “Base (document, number, date)” you must refer to all documents drawn up during the official investigation. Do not forget that an order to bring an employee to disciplinary liability must be issued within a month from the day following the day the employee’s misconduct was discovered A Art. 193 Labor Code of the Russian Federation.

The following entry is made in the work book about the dismissal of an employee.

On the day of dismissal, pay the employee for wages and unused vacation days, and also issue him a work book. at Art. 84.1, Art. 127, art. 140 Labor Code of the Russian Federation. The employee does not need to pay any severance pay O Art. 178 Labor Code of the Russian Federation.

Of course, the best proof of an employee’s intoxication is a doctor’s conclusion based on the results of a medical examination. However, it is not always possible to obtain it, because many workers refuse to undergo such a medical examination. Therefore, sometimes it makes sense to resort to “external help”. So, if a drunk employee behaves aggressively (boisterous), call the police. If he is unwell, it is better to call an ambulance.

In the case where a drunk employee behaves quietly, but you are sure that you no longer need such an employee, then it may be easier to negotiate with him about dismissal by agreement of the parties. n Art. 78 Labor Code of the Russian Federation.