Let's start with the fact that a disabled person is a person who has a health disorder with a persistent disorder of body functions. Such a violation is caused by diseases, consequences of injuries or defects. It leads to limitation of life activity and causes the need for social protection of a person (Article 1 of the Law of November 24, 1995 No. 181-FZ (hereinafter referred to as Law No. 181-FZ)).
A person recognized as disabled is issued a certificate confirming the fact of disability, indicating its group. Along with the certificate, he receives an individual rehabilitation program.
Disability and its group are determined by special federal institutions - the Bureau of Medical and Social Expertise (hereinafter referred to as ITU). A citizen can be referred to such a bureau by:
- an organization providing medical and preventive care, regardless of its organizational and legal form;
- body providing pensions;
- social protection body.
A certificate confirming the fact of disability is issued in a certain form. It was approved by order of the Ministry of Health and Social Development of Russia dated November 24, 2010 No. 1031n.
Checking the certificate and IPR
First, you need to check the disability certificate and individual rehabilitation program (hereinafter referred to as IPR) of the disabled person for the presence of signatures and seals. These documents must be signed by the head of the ITU bureau where the employee underwent the examination, and certified with the seal of this bureau. After checking the documents, copies of them should be kept in the personal file of the disabled employee.
The IPR is of a recommendatory nature for a disabled person. He has the right to refuse one or another type, form and volume of rehabilitation measures, as well as the implementation of the program as a whole (Article 11 of Law No. 181-FZ). Therefore, an employee can only bring a disability certificate to work in order to receive general disability benefits provided for by the Labor Code.
The IRP of a disabled person includes certain types, forms, volumes, terms and procedures for the implementation of medical, professional and other rehabilitation measures. Their goal is restoration, compensation for impaired or lost body functions, restoration, compensation for the abilities of a disabled person to perform certain types of activities (Article 11 of Law No. 181-FZ).
Attention
Refusal of a disabled person from the IRP as a whole or from the implementation of its individual parts relieves the employer of responsibility for the implementation of such a program. At the same time, a disabled person does not have the right to expect to receive compensation in the amount of the cost of rehabilitation measures provided free of charge (Article 11 of Law No. 181-FZ).
IPR of a disabled person must be implemented regardless of the organizational and legal forms and forms of ownership of the employer. This means that everything will need to be done to create the working conditions for the employee that are prescribed in his IPR.
You will also need to make a note about the completion (or non-compliance) of specific rehabilitation measures. The mark must be certified by the signature of the responsible person, for example, the head of the company, personnel officer, accountant, and the seal of the organization.
Answers to frequently asked questions
In the situation regarding leave for disabled people under the Labor Code of the Russian Federation in the Russian Federation, many questions arise. Let's look at the most popular ones and give answers to them.
What responsibility does the employer bear for refusal to provide rest or violation of established deadlines?
According to the law, a fine ranging from 1,000 to 5,000 rubles is charged for reducing the deadline or missing a schedule. If the manager commits another similar violation, he must pay from 30,000 to 50,000 rubles. In addition, as additional measures, suspension of activities for up to three months, as well as disqualification for up to three years, is possible.
Is leave at their own expense available to disabled people under the Labor Code of the Russian Federation during a probationary period in companies of the Russian Federation?
An employer must provide 60 unpaid days at the request of an employee with a disability. In this case, the two-month period is not taken into account in the general probationary period. In addition, the manager has the right to dismiss a person by informing him in writing 72 hours in advance and notifying him of the “failure” of the test.
What needs to be written on a timesheet that controls working hours?
According to the law, the document is marked with the code OT and the numbers 09. If the vacation period falls on a Saturday, Sunday or a day off, the letter B and code 26 are put.
What to do if a disabled employee has not completed the 28 days required by the Labor Code of the Russian Federation?
In such circumstances, the remaining time is carried over to the next year. Compensation is paid as agreed. This does not apply to two additional days, because they are not transferred and will expire if not used.
Legal dismissal
The recognition of an employee as completely incapable of work in accordance with a medical report is a circumstance in which the employment contract is subject to termination. Reason – clause 5 of part 1 of Article 83 of the Labor Code.
The classifications and criteria used when conducting MSE are determined by order of the Ministry of Health and Social Development of Russia dated December 23, 2009 No. 1013n.
Let’s say an employee is recognized as disabled with the ability to work 3rd degree. Ability to work – the ability to work in accordance with the requirements for the content, volume, quality and conditions of work. Limitation of the ability to work of the 3rd degree implies the inability to do any work or its impossibility (contraindicated). This degree of limitation of one of the main categories of human life activity belongs to group I disability. In this case, the employment contract with such an employee can be terminated on the basis of clause 5 of part 1 of Article 83 of the Labor Code.
Limitation of the ability to work 1st degree assumes that the employee is able to work under normal conditions with a decrease in qualifications, severity, intensity or a decrease in the volume of work. As well as the employee’s inability to continue working in his main profession while maintaining the ability to perform lower-skilled work under normal working conditions. This degree of limitation corresponds to disability group III.
Limitation of the ability to work 2nd degree implies the ability to perform work in specially created working conditions with the use of auxiliary technical means or with the help of other persons. This degree of limitation corresponds to disability group II.
We hire a disabled person
This means that if an employee is recognized as a disabled person of group II or III, then he can be dismissed at his own request on the basis of Article 80 or by agreement of the parties on the basis of Article 78 of the Labor Code.
Transfer to another job
An employee recognized as disabled can continue to work, but only under the working conditions recommended for him in the IPR. In this case, two options can be provided for the IPR. The first is a change in working conditions without changing the terms of the employment contract. The second is a change in the terms of the employment contract, including transfer to another job.
Changes to the terms of the employment contract must be formalized by agreement.
If it is not possible to create for a disabled person the conditions specified in the IPR, the employee must be transferred to another job.
If such a possibility exists and the employee has given his consent, a transfer agreement should be concluded with him. It will also be necessary to issue a transfer order in Form No. T-5. These unified forms were approved by Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1.
The transfer of an employee to another job is reflected in section III of his personal card in form No. T-2*.
The transfer did not take place
If there is no suitable vacancy or the employee refuses to transfer, the employment contract with him is subject to termination. In this case, clause 8 of part 1 of article 77 of the Labor Code is indicated as the basis for dismissal.
There is no need to notify the employee of dismissal in advance in such a situation.
However, the right of all workers to receive, within a reasonable time, information about the termination of their employment is provided for by paragraph 4 of Article 4 of Part II of the European Social Charter, ratified by Law of June 3, 2009 No. 101-FZ. Thus, having decided to dismiss a disabled employee, he should still be warned in advance. Before the expiration of this warning, the employer is obliged to remove the employee from his previous job. During the period of such suspension, wages are not accrued (Article 76 of the Labor Code of the Russian Federation).
An employee’s application is not necessary to issue an order to terminate an employment contract. It is issued on the basis of a medical report. The employee must be familiarized with the order against signature. If it is not possible to bring the order to the attention of the employee or the employee simply refuses to read it under signature, a note about this must be made on the order.
By the way, at the employee’s request, he will need to provide a certified copy of the dismissal order.
The day of termination of the employment contract in all cases is the last day of work, with the exception of cases where the employee did not actually work, but retained his place of work (position). This means that the employment contract is terminated on the day specified in the dismissal order, even if the employee was suspended from work on that day.
Attention
The establishment of working conditions for disabled people in collective or individual labor contracts that would worsen the situation of disabled people in comparison with other employees is not allowed. We are talking, in particular, about wages, working hours and rest periods, the duration of annual and additional paid leave, etc.
On the day of termination of the employment contract, it is necessary to make a settlement with the employee, including paying compensation for unused vacation. Deduction for unworked vacation days for the employee in question, if the vacation was provided to him in advance, is not made.
Severance pay is paid in the amount of two weeks' average earnings.
If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after he submits a request for payment.
On the day of termination of the employment contract, the employee is issued his work book. The following entry should be made in it: “Dismissed due to the employer’s lack of work required in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, paragraph 8 of part one of Article 77 of the Labor Code.” It is this option for filling out a work record that is provided for in paragraph 5.2 of the Instructions for filling out work books (approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69).
If it was not possible to issue a work book on the day of termination of the employment contract (for example, the employee was not at the workplace), the employee must be notified of the need to appear for the work book or agree to have it sent by mail. From the date of sending this notification, the employer is released from liability for the delay in issuing the work book.
The nuances of providing leave for disabled people
There are 3 key points here:
- unused rest days are retained by the disabled employee in full - they are reissued for the next year with a corresponding note in the vacation schedule;
- disabled people can partially replace their vacation with monetary compensation;
- for working pensioners with a disability group, additional leave is set at 60 days, although ordinary people who continue to work in retirement can only count on 2 weeks.
Sick leave on vacation
If a disabled employee falls ill during his main vacation, he has the right to:
- extend the vacation for the number of days indicated on the certificate of incapacity for work, or postpone them to a time favorable to oneself;
- receive monetary compensation.
Here it is necessary to clarify that if a disabled person is not sick himself, but is caring for a child or a disabled relative, sick leave payment is not expected, as well as extension/postponement of leave.
If there are several days left from the main vacation
These days are not lost, but transferred to the next period. When drawing up a vacation schedule, non-vacation days remaining from the previous vacation are also indicated.
How to replace vacation with cash compensation
It will not be possible to completely convert vacation into monetary terms - this is contrary to the provisions of the current legislation. However, according to the Labor Code, part of the vacation exceeding 28 calendar days can be replaced with a financial payment. Important! Additional leave without pay cannot be replaced by monetary compensation, regardless of its duration.
Leave without pay
According to Article 128 of the Labor Code, working disabled people are entitled to at least 60 days of unpaid leave. Such leave is provided on the basis of a written application from the employee, and the head of the company cannot refuse it.
It is noteworthy that the law does not prohibit enterprise managers from extending unpaid leave, but this remains at the discretion of the management.
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Article 128 of the Labor Code of the Russian Federation “Leave without pay”
If there are days of unpaid leave left
Unlike the main one, vacations taken at your own expense cannot be transferred to the next year. If an employer recalls an employee early from unpaid leave, of course, with the latter’s consent, the remaining days must be taken off until the end of the calendar year.
If you get sick during your vacation at your own expense
Days on a certificate of incapacity for work are not paid and are not transferred. In addition, illness during a vacation at your own expense is not a reason to increase its duration.
The director refuses leave
This usually happens in situations where a disabled employee applies for unpaid leave, to which, by the way, he has a legal right. In this case, the manager or organization faces a fine in the amount (Article 5.27 of the Code of Administrative Offenses of the Russian Federation):
- for an official - up to 5,000 rubles;
- for an enterprise - up to 50,000 rubles.
In case of repeated offense, the amount increases:
- for an official - up to 20,000 rubles;
- for an enterprise - up to 70,000 rubles.
Please note that if we are talking about violation of labor laws in relation to several employees, fines can be cumulative.
Annual leave
In general, the annual basic paid leave is 28 calendar days. Disabled people are granted annual leave of at least 30 calendar days (Article 115 of the Labor Code of the Russian Federation, Article 23 of Law No. 181-FZ). Moreover, such extended leave is due regardless of whether the employee was disabled during the entire working year for which he was granted leave or not.
It should be borne in mind that if, after establishing disability, an employee resigns, then compensation for vacation must be paid to him in proportion to the time when he was recognized as disabled.
Let's say that part of the working year for which leave is granted falls during the period when the employee was not yet disabled. Then for this part he is granted leave at the rate of 28 calendar days per working year. And for the part that falls on the period after the employee was recognized as disabled - at the rate of 30 calendar days per working year.
Mandatory provisions
People with disabilities receive financial assistance from the state; in addition, they are provided with a number of social benefits.
However, the amount of such support often leaves much to be desired, therefore, if health allows, citizens with disabilities can carry out entrepreneurial and labor activities. It is noteworthy that most enterprises have quotas for the employment of disabled people. The employer is obliged to create and equip special workplaces for disabled workers (Part 1, Article 22 of Law No. 181-FZ). The number of such places is established by the executive authorities of the constituent entities of the Russian Federation for all organizations and institutions on the basis of established quotas for people with disabilities.
Of course, comfortable working conditions are created for such employees (Order of the Ministry of Labor of Russia No. 685n dated November 19, 2013) and places are specially equipped depending on limited life activity, the nature of the work, etc. for a specific disabled person, and also offers increased basic leave and additional days of rest.
General concepts
In the generally accepted classification, a disabled person is a person whose health condition does not allow him to provide for himself independently.
Therefore, a number of benefits are provided for people with disabilities, which are provided from the federal and municipal budgets. In the medical aspect, 3 groups of disabilities are considered:
- 1st non-working group - significant disorders of the body's vital functions. Typically, such people have difficulty moving independently and require constant supervision and specialized care.
- 2nd non-working group - includes serious health problems that negatively affect ability to work. These include visual and hearing disorders, problems with the central nervous system and other pathologies.
- Working group 3 - severe but not critical health problems, such as asthma or arthritis. This group is temporary and is reviewed at certain intervals.
Important! Despite the fact that group 2 disability is officially considered non-working, it does not interfere with employment. Work for disabled people of group II is possible in a gentle manner and only on the condition that employment does not contribute to a deterioration in well-being.
Length of vacations according to the Labor Code of the Russian Federation
According to current labor legislation, the minimum duration of vacation for all employed citizens is 28 days. It is noteworthy that the legislator does not set a maximum level, so in theory, enterprise personnel can rest for an unlimited amount of time.
Considering that employed disabled people are in a special position, the length of annual rest for them is set at 30 calendar days (Article 23 of Law No. 181-FZ of November 24, 1995 “On the social protection of disabled people in the Russian Federation”).
Legal side of the issue
When considering the procedure for granting leave for disabled workers, you can rely on the following articles of Federal legislation:
- “On social protection of disabled people” - No. 181-FZ;
- “On acts of civil status” - No. 143-FZ;
- “On state social assistance” - No. 178-FZ;
- “On Citizenship of the Russian Federation” - No. 62-FZ.
In addition, you need to be guided by the provisions regulated by the Labor Code of the Russian Federation. In this case, the provision for extended leave for a disabled employee must be included in the employment contract. If an employee provides documents about disability during work or, after re-examination, the disability group is removed, then appropriate changes must also be made to the employment contract.
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Federal Law of November 24, 1995 N 181-FZ On social protection of disabled people
Federal Law of November 15, 1997 N 143-FZ On acts of civil status
Federal Law of July 17, 1999 N 178-FZ On State Social Assistance
Federal Law of May 31, 2002 N 62-FZ On Citizenship of the Russian Federation
Labor Code of the Russian Federation dated December 30, 2001 No. 197-FZ
Vacation at your own expense
Unlike other employees, a disabled employee has the right not to ask, but to demand leave without pay; it is impossible to refuse to provide it. Moreover, based on a written application, a disabled employee can apply for unpaid leave of up to 60 calendar days a year (Article 128 of the Labor Code of the Russian Federation).
Let us note that the issue of the specific time for granting a disabled person leave at his own expense is still decided by agreement of the parties. After all, the Labor Code does not establish the employer’s obligation to provide such an employee with unpaid leave at the exact time he insists.
How to apply for leave for an employed disabled person
The basic provisions for arranging leave for people with disabilities do not differ from the procedure for taking leave established for other company employees.
Disabled workers are included in the general leave sheet and write a statement in the established form. The manager, in turn, is obliged to notify the employee 2 weeks before going on vacation and accrue vacation pay in full. However, there are a number of features that require detailed consideration.
Under what conditions is a vacation possible?
The justification for going on leave is an employee’s application signed by the employer or the person replacing him. If a specific day is indicated in the approved vacation schedule, it is not necessary to write a statement. In this case, management notifies the employee 2 weeks before the specified date and draws up an order for the enterprise, with which the employee must be familiarized with signature.
What documents will be required
Considering that the 3rd disability group is assigned temporarily, the employee has to record his status annually. To do this, the following documents are submitted along with the application:
- a certificate issued by a medical and social examination - certifies the group of incapacity for work and notes the limitations;
- personal rehabilitation program - determines a set of measures necessary to restore health.
These papers are usually required to apply for additional leave: annual leave for a disabled person is provided on a general basis, but has a longer duration.
Features of recreation for people with 3rd disability group
The procedure for providing compulsory and additional rest is the same for all people with disabilities, regardless of the assigned disability group.
If you need leave to care for a disabled child
Here we are talking about additional leave, which can be used by any of the parents who are raising a disabled child.
Such leave is provided on the basis of a written application. In addition, such parents are entitled to 4 allocated days for rest every month (Part 1 of Article 262 of the Labor Code of the Russian Federation, clauses 2, 3, 7 of the Rules for the provision of additional paid days off for caring for disabled children, approved by Decree of the Government of the Russian Federation No. 1048 dated October 13, 2014). Please note that, in contrast to the additional leave granted to disabled people, the period of caring for a disabled child is paid in full, based on the average daily earnings. This also applies to additional days off.
How to get 30 extra days
30 days leave is guaranteed to all disabled employees without exception.
The basis for increasing the duration of rest from 28 to 30 days is the conclusion of a medical and social examination. It should not be forgotten that disabled people are entitled to at least 60 days of free leave, which are provided annually.
Important! Additional leave for disabled persons should not be less than 60 days, however, at the request of the employee and with the consent of the employer, this period can be extended.
Reduced operating time
For disabled people of groups I and II, a reduced working time is established - no more than 35 hours a week while maintaining full wages (Article 92 of the Labor Code of the Russian Federation, Article 23 of Law No. 181-FZ). The duration of daily work (shift) for disabled people must correspond to the issued medical report, for example, IPR (Article 94 of the Labor Code of the Russian Federation).
To indicate shortened working hours in the time sheet in form No. T-12 or T-13 and use: - or the letter code “LC”; – or digital code “21”.
Consent to overtime work
Involvement of disabled people in overtime work, work on weekends and at night is permitted only with their consent and provided that such work is not prohibited for them due to health reasons.
A disabled person cannot be involved in overtime work, work on weekends and non-working holidays, as well as night work, if this is directly contraindicated for him for health reasons according to the IPR submitted by him. In it, the ITU institution specifies the working conditions of a disabled person.
Let’s say a disabled employee did not want to use the IRP at the place of work and brought the employer only a certificate of disability, where restrictions on overtime work and other restrictions are not recorded. Then such an employee, with his consent, can be involved in overtime work, work on weekends and non-working holidays, and night work.
Features of providing rest days for disabled people
There are a number of features for disabled employees receiving additional paid and additional unpaid leave:
- If an employee has not used all of his vacation, all unused days are retained and transferred to the next working year with a note in the appropriate schedule.
- Disabled people have the right to replace part of their vacation with financial compensation.
- Sixty additional days of vacation are provided for employed disabled pensioners. For ordinary pensioners, this period is two calendar weeks.
- If an employee with a disability goes on sick leave during a vacation period, he can increase the current vacation by the number of days indicated on the certificate of incapacity, transfer these days to another period, or replace them with compensation.
- Monetary compensation can be used to replace days of rest exceeding twenty-eight calendar days. The main thing to remember is that only additional paid leave can be replaced.
Disabled people are entitled to increased leave, the period of which is determined depending on the employee’s status (retired or not).
Additional paid leave is provided for a period of thirty days.
Pensioners are given another sixty unpaid days of rest.
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