2.2 General conditions of and grounds for the emergence, maintenance, modification, suspension and termination of the labour law status of a medical employee

Let us now turn to a more detailed study of the prerequisites, conditions and legal basis for the special labour law status of a medical employee.

We would agree with A.I. Ivanov, who in a sense stated that the prerequisite for entering into a respective labour relationship is the fact that a medical employee has a special labour law personality.^[447] The latter, according to the doctrine of labour law, represents the unity of the passive labour law capacity and the active labour law capacity.^[448] Therefore we cannot agree with the position of A.I.

Mikhailov, who believes that in order to enter into labour relations medical employees should only have a special passive labour law capacity (without the respective active labour law capacity).^[449]

M.A. Drachuk believes that it is necessary to distinguish between the employee and the individual who is outside an employment relationship.^[450] This author considers the latter one as a possible or potential (and not just the actual) party to an employment relationship. This party does not exercise - despite having them generally - the rights and duties belonging to legal status of an employee, but these rights and duties are still there in a latent form.

As far as can be concluded from the abstract of the thesis by M.A. Drachuk, this author, while discussing the "latent" form of the status of a person, essentially talks about legal personality (and she considers legal personality as one of the elements of the legal status of a subject of labour law). This means that M.A. Drachuk to some extent replaced the conventional name of the well-known legal institution of "legal personality" with some kind of its name the "latent form of legal status." The necessity of that seems rather dubious.

It should be noted that the law expressly ties the fact that a person has certain special labour law personality with having special education or special training.^[451] This includes medical employees too.

The doctor must have higher professional medical education and undergo special postgraduate training (in the form of internship and (or) traineeship), while the position of a nurse requires secondary professional medical education (Article 100 of the Fundamentals, as well as the provisions of other regulations^[452]).

As for the grounds for the emergence of the medical employee’s labour law status, it is necessary to agree with A.I. Ivanov ^[453] and V.V. Fedin^[454], who believe that the basis for that is the legal fact of the relevant employee’s entering into an employment contract. V.V. Fedin also rightly pointed out that only with the latter’s entry into force the individual acquires a quality of an employee.

The same position is held by the authors of the Course of Russian Labour Law: the branch (labour) and special personality of a person can be manifested in only one way, i.e. by entering into a particular employment relationship with a particular employer.¹⁹⁴ Only after the conclusion of an employment contract the professional rights and duties of an employee may be implemented. Until this moment, these rights and duties may be not implemented at all, shall the medical employee work by a different specialty (profession).

We can therefore conclude that the ground for the emergence and existence of the special labour law status of a medical employee is the employment contract. However, the specificity of labour of medical employees is that in order to maintain this status the employment contract is not enough. A number of the other conditions must be met. In particular, for proper performance of their duties medical employees are expected to continue to maintain: (1) the appropriate level of their theoretical knowledge and practical skills, (2) the required level of personal health.

These circumstances are reflected in the respective requirements (conditions) established in the law. These requirements (conditions) of maintenance of the labour law status of a medical employee include: (1) practice in the field of specialty without a break of five years,¹⁹⁵ (2) successful certification to confirm the qualification category every five years of continuous work in the profession - if the position in the staffing chart requires a higher, the first or second category of ^{[455] [456] qualification196, (3) successful passage of periodic medical examinations - for certain categories of employees197, (4) additional training at least every five years throughout the entire practice in the profession.198}

Requirements (conditions) for maintenance of the labour law status of a medical employee, enshrined in the norms of law, constitute the differentiation of legal regulation of labour of this category of employees. In the case of noncompliance with these requirements (conditions), the employer is obliged to suspend such workers, terminate or deny their employment.

Nowadays, the development of medical science and practice has taken a fairly rapid pace, which requires constant training by updating the knowledge and skills of those who are involved in in this industry. In connection with the ^{[457] [458] [459] continuing medical education and with a number of other circumstances (conditions) the medical employee’s special labour law status may modify and acquire new (additional) features.}

By modification in this status we understand the changes in one or more of its constituent elements: rights, duties, liabilities, etc. The special labour law status of medical employees changes primarily by expanding their powers with a complex of additional rights, duties and liabilities.

For example, a neurologist, who acquired knowledge and skills in a more narrow field manual therapy and received the corresponding certificate of the expert, is expanding his special legal personality, that is a prerequisite for the expansion of his special labour law status. The real expansion of this status will only take place in the event of his transfer to work in this position (with his current employer), or when he took this position at the outset of his employment (with another employer).

And it is the moment when the respective doctor, as a result of the modification in his special labour law status, will become subject to differentiated rules of law (in particular, norms-additions that establish benefits to manual therapists: additional leave and shorter working hours, higher salary).

Under current laws, the conditions for a modification in the labour law status of medical employees are: (1) continuing education;^[460] (2) scientific degree (degree of candidate or doctor of sciences) or academic status;^[461];(3) assignment, promotion, removal or deprivation of qualification category;^[462]; (4) assignment of special titles (e.g., "Distinguished Doctor of the Russian Federation");^[463] (5) certain length of service in the specialty;^[464] (6) other circumstances specified by the labour contract and the local regulations of the employer.

As it has been already mentioned above, the basis for the emergence and existence of the special labour law status of medical employees is the employment contract in force. From that it follows that the special labour law status of a medical employee may be suspended only when the professional himself is suspended from his work in accordance with any provision of Article 76 of the RF Labour Code, or ofpart 2 of Article 351.1 of the RF Labour Code..

Due to the specifics of medical practice the most likely of those grounds are:

(1) suspension of the medical employee who failed to pass in a prescribed manner the compulsory medical test (examination) or the compulsory psychiatric examination when required by the Labour Code, other federal laws and regulations of the Russian Federation,

(2) suspension of the medical employee in case if it is established in accordance with the medical opinion issued under the procedure established by federal laws and other regulations of the Russian Federation that found him to be physically unable to perform labour under his labour contract,

(3) suspension of the medical employee upon receipt from the law enforcement agencies of the information that the employee is prosecuted for the crimes referred to in the paragraphs 3 and 4 of part 2 of Article 331 of the Labour Code.

Suspension of the special labour law status of a medical employee entails the following legal consequences: in the period of suspension medical employees cannot exercise most of their labour rights and duties, and are not responsible for failure to fulfill these duties (due to the suspension). Their rights and duties remain static rather than dynamic. However, a part of the rights of the employee is still intact, in some cases he has a right to a compensation for idling in accordance with Article 157 of the RF Labour Code in connection with the suspension. In addition, for the period of suspension he retains a place of work and position.

A ground for termination of the special labour law status of a medical employee is the termination of the employment contract (Articles 71, 77 of the RF Labour Code). In that situation, no special rights, duties and liabilities may take effect until a new employment contract with the same or another employer is concluded. Since the special legal personality of the medical employee is a necessary prerequisite for his special labour law status, in some cases, termination of this status may be preceded by the termination of the special legal personality of the medical employee, which is carried out on the basis of a judicial decision or as a result of the circumstances provided for by law.

Termination of special labour law personality is one of the types of limitations on the labour law personality (general one, not special one). Limited labour law personality means that the employee may participate only in certain employment relationships, or that he may implement his ability to work only in a specific order.

The circumstances, in which the special labour law personality of a medical employee, can be divided into the two groups based onto such criteria as the length of the period for which this personality ceases.

The first group comprises the circumstances involving the termination of the special labour law personality of the medical employee for a limited period of time (it is specified in the law and (or) in a judicial decision, document of an official, etc.).

Such circumstances include:

(1) refusal of the employee as to the transfer to another job if this transfer is necessary it in accordance with a medical opinion issued in the manner prescribed by federal laws and other regulations of the Russian Federation, or when the employer lacks a required position (Article 73, paragraph 8 part 1 Article 77 of the RF Labour Code),

(2) the employee\'s conviction under a judgment in force to the punishment, which excludes the possibility to continue the work (paragraph 4 part 1 Article 83 of the RF Labour Code),

(3) disqualification (paragraph 8 part 1 Article 83 of the RF Labour Code; Article 3.11, section 4 Article 6.29 of the RF Code on Administrative Offences),

(4) expiration or suspension for a period of more than two months, or deprivation of the employee’s special right or license in accordance with federal laws and other regulations of the Russian Federation, if as a result the employee is unable to perform his duties of an employee under his employment contract (paragraph 9 part 1 Article 83 of the RF Labour Code).

For example, medical employee cannot enter into an employment contract: (1) while serving a criminal sentence depriving him of the right to engage in medical practice, until the end of the sentence, (2) if he is physically unable to work, until recovery, if the recovery is possible (3) while serving an administrative penalty of disqualification, until the end of the sentence, and (4) before the qualification exam and obtaining a new certificate of a specialist, in the case of termination of his professional certificate.

The second group of circumstances comprises the circumstances involving the termination of the medical employee’s special labour law personality for life, and such circumstances imply that it is impossible to renew this legal personality in future. It should be noted that such circumstances make the special labour law personality cease only in respect of those medical employees who perform certain specific professional functions, the functions based on position, specialty and qualifications. These circumstances are related to having a criminal record, including the one withdrawn and repaid, as well as the fact of initiation of criminal prosecution, for those medical employees, whose labour activity is connected with the medical care of minors (if the persecution is related to the commission of the offenses referred to in Article 351.1 of the RF Labour Code).

In case of one of the above circumstances, the special labour law personality and, respectively, the special labour law status of this category of medical employees may terminate. Consequently, they cannot be allowed to work by their specialty and will have to get retraining in order to obtain another medical or other specialty, not related to the work with minors. Termination of an employment contract in this case will take place on the basis of paragraph 13 part 1 Article 83 of the RF Labour Code. Thus, the specialized (differentiated) labour law status component of this category of medical employees comprising a set of rights, duties and liabilities in the field of providing medical care to minors will cease to exist.