February, 2018: Obligatory medical examinations for employees of wholesale and retail companies: position of the supreme court
According to the position of the Supreme Court, all companies carrying out wholesale and/or retail activity are obliged to conduct obligatory medical examinations of employees.
Source: the Decision of the Supreme Court of the Russian Federation No. 34-AD17-5 dated December 6, 2017
Facts of the case
The State Labor Inspectorate conducted an elective visiting audit of a company carrying out wholesale trade of the machinery and equipment. As a result of the audit, it was revealed that the company has allowed employees to work, despite they had not undergone medical examination. In this regard the company was held liable under par. 3 of art. 5.27.1 of the Russian Code of Administrative Offences and was fined in the amount of 120,000 rubles.
The company challenged the fine in court, justifying its position by the fact that it is not engaged in retail sales of food products, therefore medical examinations of employees are not obligatory.
All courts, including the Supreme Court, recognized the prosecution as lawful and concluded that all organizations trading both food and non-food products whether both retail or wholesale are required to carry out the medical examinations of employees.
Grounds for carrying out the medical examinations of employees
Grounds for obligatory medical examinations of employees are established by the Order of the Ministry of Health and Social Development of Russia dated 12.04.2011, No. 302n (the "Order").
According to p. 15 of Appendix No. 2 to the Order, obligatory medical examinations are set for employees working in areas of catering, trading, buffets, food warehouses, and also on transport. This provision has not been changed since the Order’s effective date, but enforcement practice was not consistent.
Law enforcement practice and positions of the state authorities
Previously, positions of the state authorities, regarding the list of works requiring the medical examinations of employees differed.
Rospotrebnadzor adhered to the position that medical examinations are obligatory only for employees directly contacting with the food raw materials and / or food products. (see http://rospotrebnadzor.ru , answers on questions received before and during public discussions of the results of the law enforcement practice of Rospotrebnadzor dated May 25, 2017).
Rostrud position on this issue has changed. In August 2016, a position was published on the Rostrud information portal that only employees working in the sphere of food trading are subject to medical examinations. Then in October 2017 the opposite position was published. According to this position all employees working in wholesale and / or retail sphere are subject to obligatory medical examinations (including those engaged in the trading of non-food products), see http://онлайнинспекция.рф .
In practice, there were cases when the State Labour Inspectorate or Rospotrebnadzor prosecuted or prescribed to eliminate violations when the companies trading non-food goods engaged employees who had not undergone medical examination.
Nevertheless, companies succeeded in challenging the relevant prescriptions (see, for example, Decision of Samara Regional Court dated November 11, 2016 No. 4a-1336/2016, Decision of the Tenth Arbitration Appeal Court of December 22, 2016 in case No. A41-40720 / 16).
However, in December 2017, the Supreme Court of the Russian Federation took a directly opposite position that all employees working in wholesale and / or retail sphere are required to undergo medical examinations, irrespective of the products sold.
Consequences and recommendations
In accordance with p. 3 of art. 5.27.1 of the Russian Code of Administrative Offences the admission of an employee to perform job duties without passing obligatory preliminary and periodic medical examinations incurs a fine on officials from 15,000 to 25,000 rubles; on individual entrepreneurs - from 15 000 to 25 000 rubles; on entities - from 110 000 to 130 000 rubles.
Following the Supreme Court Decision, we suppose that the risk of administrative responsibility for engaging in work employees not undergone a medical examination is increasing.
In order to exclude such risk, we recommend to the companies carrying out wholesale and / or retail activity to conduct medical examinations of employees (preliminary – when hiring and periodically - once a year).