Subtleties of providing additional annual and basic paid leave for all groups of disabled people

Disabled people belong to unprotected categories of citizens due to restrictions on certain factors of life, but today legislation at the level of the federation and regions helps regulate the implementation of their labor. A disabled person, like any citizen of the Russian Federation, can realize his labor potential in accordance with the Labor Code of the Russian Federation. At the same time, employers, in addition to hiring people with disabilities, must provide leave that takes into account benefits for people with disabilities. Let's consider taking leave for a disabled person.

Regulatory regulation of leave for disabled people

Federal Law No. 181-FZ dated November 24, 1995 states that at least 30 days of leave for disabled people are provided not only at the main place of work, but also for internal and external part-time work

The Labor Code of the Russian Federation reflects the provision of leave by all employees, as well as disabled people - up to 60 days per year

The ILO Convention “On Paid Holidays” has been in force in the Russian Federation since 2011 and is applied through regulations at various levels. But the Convention does not apply if it worsens certain conditions of national legislation.

Also, local regulations in the organization may provide additional leave for disabled people

An employee recognized as disabled is entitled to leave of at least 30 calendar days per working year, regardless of the time of recognition as disabled - before the start of the corresponding working year or during this year.

Deputy Director of the Department of Medical Education and Personnel Policy in Healthcare of the Russian Ministry of Health Nina Kovyazina

Reason for extended holidays

For extended leave, it is mandatory to indicate the circumstances of its provision in the employee’s employment contract.

Reflection in TD

When hiring, the duration of the vacation is reflected in the paragraph “Working hours and rest time” with the approximate wording:

“For the established period specified in the ITU disability certificate dated ____ (date) N____, the employee is granted annual paid leave of 30 calendar days.”

It happens that a person has been working for a long time, but recently received disability and brought documents about it. Then an agreement is drawn up to his employment contract on changing the conditions of rest and work. The same rule applies if the disability is removed.

In addition to the basic vacation of 30 days, there is a category of workers who have additional vacation days. Employees can count on additional leave in the cases described in Article 116 of the Labor Code of the Russian Federation:

• Employees with irregular working hours.
• Workers in the Far North.
• Workers in hazardous production.

This is reflected in a local document (for example, in the Vacation Regulations or the Collective Agreement).

Sequence

Every year in December, before the 16th, a vacation schedule is developed and approved. This is where the order is determined. The employer has the right to set the employee's vacation time without regard to his wishes.

Some employees have the right to choose a convenient time for rest when drawing up a vacation schedule. They are mentioned in Article 123 of the Labor Code of the Russian Federation. This benefit does not apply to all disabled people, but only to:

• disabled war veterans;
• workers who became disabled as a result of the consequences of the Chernobyl disaster;
• as well as employees in the armed forces of the Russian Federation, internal affairs bodies, firefighters and employees of the penal system who became disabled from injuries received in the performance of their work duties.

Grounds for granting disabled people 30 days of leave

In order for a citizen to receive 30 days leave as a disabled person, the fact of disability must be confirmed by an ITU certificate. The activities of ITU are regulated by Order No. 310n dated October 11, 2012. Medical personnel are sent for examination of the person. institution, Pension Fund, social. protection. The referral to ITU takes the form in accordance with Order No. 77 of January 31, 2007, Form N 088/u-06. If disability is confirmed, a certificate certifying disability is issued in the form approved by Order No. 1031n dated November 24, 2010. Depending on the level of limitation, there are 3 groups of disability and the category “disabled child”; disability is established for a certain period. The bureau’s specialists, based on the results of the examination, are developing an IPRA approved by Order No. 486n dated June 13, 2017. the IPRA reflects the working conditions necessary for the employment of a disabled person and for employers to create places for disabled people .

Thus, having received ITU documents, an employee can apply for a longer vacation, which does not depend on the disability group, and this is reflected in the employment contract (or additional agreement).

Classification of disability groups

According to the classification adopted at the legislative level, disabled people are citizens whose health condition does not allow them to fully support and provide for themselves.

Therefore, the state has developed a number of benefits for such people, which are financed from the municipal or state budget.

Also on the topic: What is included in an employee’s social package?

Disability groups are classified as follows:

• Group 1 - the presence of significant disorders of the functioning of the human body. It is often difficult for such citizens to move independently; they need constant care and supervision.
• Group 2 - the presence of serious health problems that negatively affect the citizen’s ability to work. These include hearing or vision problems, nervous system disorders and other pathologies;
• Group 3 - severe health problems (for example, arthritis, asthma). Such a group is assigned temporarily and is checked by commission after some time.

The second group is officially recognized as non-working; its presence does not prevent a citizen from finding a job. Such citizens can work in a more gentle way. The main thing is that employment does not have a negative impact on health.

Procedure for granting paid leave

Leave for an employee is granted to employees on the basis of an employment contract, the Constitution of the Russian Federation, the Labor Code of the Russian Federation, and if this employee is disabled, then according to the Federal Law of November 24, 1995 N 181-FZ, it amounts to:

The employer is not entitled to a fewer number of vacation days than provided by law. This is an administrative offense and a fine may be imposed.

The procedure for granting leave to employees is carried out according to the leave schedule, which determines the priority. Organizations, regardless of their form of ownership, are required to draw up such a schedule 2 weeks before the start of the year.

Every employee has the right to leave, and if in previous years the employee did not use this right, he is obliged to use it or receive compensation upon dismissal.

When hired for a new job, the employee has the right to leave after working for 6 months by agreement of the parties. During further work, the employee will be guided by the vacation schedule.

Important! Vacation can also be granted on weekends and non-holidays.

Work experience as a basis for granting leave

The provision of leave is based on the period worked in the company . The length of service required to grant leave does not include the following time:

• absence from work without good reason
• maternity leave, if the employee does not work at least part-time during this leave
• administrative leave more than 14 days (60 for disabled people)

Certain categories must be granted leave regardless of their length of service in the company upon application with supporting documents, if they are:

• minors
• before and after maternity and child care leave
• for the adoptive parent of a child up to 3 months old
• parent (adoptive, guardian, trustee) of a disabled child under 18 years of age
• Chernobyl survivor
• to the wife of a serviceman
• part-time worker

Duration of leave for disabled people

According to the law, every year a disabled person must be given 30 days leave. If a disabled person is one of the persons entitled to a longer leave, then it is granted in favor of the employee. For example, minor employees are entitled to 31 days, and if they are disabled, then 31 days are provided.

The working year begins from the first day of work in the company and does not coincide with the calendar year (if employed from 01/21/2021, the working year will be until 01/30/2021).

A disabled employee can apply for all 30 days or divide it in parts. In this case, 1 part must be 14 days or more. For example, 30 days can be divided as follows: 15, 10 and 5 days. You can also get vacation in advance - before the start of the working year, but not all employers agree to this, because the employee may quit and it is difficult to obtain a refund of paid vacation pay.

Vacation without pay

The Labor Code of Russia has provided for additional days off for employees, which are not included in the main dismissal period and are provided to employees without pay. Days are regulated, and exceeding this limit can only be granted at the discretion of the administration.

Disabled people have the opportunity to issue a leave of absence at their own expense for 60 calendar days. These days are focused on one year worked at the enterprise. The employer is not prohibited from releasing such an employee without pay for a longer period, but this is a voluntary act and not the responsibility of the manager.

According to the Labor Code, a disabled person is entitled to several types of days off without pay.

To register such days, the employee must have reasons; these precedents could be the birth of a child or the death of a loved one. In this case, free leave days are provided in addition to the assigned 60 days.

Dismissal of a disabled person of group 3

Days off without pay must be recorded on a personal card with a note explaining that the duration is due to the employee having a Certificate of Incapacity for Work.

The need for this entry is dictated by the fact that when calculating the total length of service, only 14 days will be removed from the amount of time worked, and not all 60, which will have a positive effect on pension calculations carried out for the applicant before retiring by age.

If you do not exercise your right to free days off, the transfer of the remaining hours not taken off to the next year will not be carried over.

Diseases that a disabled person develops during the period of using free time are issued with sick leave, which does not extend this unpaid period. For days of illness that fall during the period of free rest, according to Federal Law No. 255 of the Russian Federation, VPT benefits are not paid. But if by the time a person returns from leave, he is still ill, then for the period from the day he returned to work until the last day of his illness, benefits are accrued to the employee,

Documentation of leave for a disabled person

Vacation must be documented, regardless of whether the employee goes on vacation as scheduled or not. At the same time, if an employee follows the vacation schedule, then an application from him is not necessary, but by agreement with the manager outside the schedule, an application is required.

Documents that must be provided to the manager

The main document that gives privileges in receiving time to rest is a certificate from a medical institution. It confirms the presence of a disability and all the employee’s rights associated with it. A copy should be kept in the HR department. When to write a vacation application:

• if the schedule shows only the month of the beginning of the rest period;
• for additional unscheduled leave (paid and unpaid).

Procedure for rescheduling vacation

The legislation provides for the transfer of leave, which can be initiated by both the employee and the employer.

When transferring at the initiative of the employee, you must provide an application addressed to the manager, which indicates from what date and to what date you are requesting the transfer and the reason.

When transferring on the basis of sick leave, a copy of it must be attached to the application.

When a transfer is initiated by the employer: a notification is sent to the employee reflecting his consent. Vacation cannot be transferred: to minor workers and if the employee is engaged in harmful and dangerous work.

The procedure for calculating vacation payments

There is a unified procedure for calculating vacation pay:

Holidays do not include or pay holidays; they are extended for these days.

Financial liability for delayed vacation pay

This responsibility is provided for by the Labor Code of the Russian Federation and determines the monetary payment for the day of delay.

Compensation is calculated using the formula:

Compensation for delayed vacation pay =

= Payment amount (which is delayed because part of the vacation pay may be transferred) * Key interest rate (7.75%) *

* Number of days of delay / Share of the key rate (150)

This compensation is not subject to personal income tax within the limits of the Labor Code of the Russian Federation (1/150 of the key rate).

What is the situation with disabled people of group 3?

According to the law, additional leave for a disabled person of group 3 according to the Labor Code of the Russian Federation is issued according to general rules. As noted, instead of the required 28 days, an employee with a disability (regardless of the group) has the right to count on 30 days. Such individuals may request 60 days of additional unpaid leave (optional).

Note that persons with the third disability group include people with problems with speech, hearing, endocrine or cardiovascular systems, as well as diseases of internal organs and problems with thought processes.

To receive two more days under the Labor Code of the Russian Federation, a disabled person with the third group must confirm this fact and take a certificate with information about the relevance of 3 gr. In the future, the document must be handed over to the manager. In addition, a disabled employee is required to undergo a rehabilitation program to restore his health.

After submitting the necessary papers, a person with group 3 is given annual leave for disabled people according to the Labor Code of the Russian Federation and the Federal Law in the amount of 30 days.

Vacation payments are calculated according to the following algorithm:

1. Determining the number of days to calculate the average salary.
2. Calculation of the amount of charges and average daily income.
3. Determination of the total amount of vacation pay.
4. Accounting and transfer of personal income tax.

If a person with disabilities does not take advantage of the right to the next vacation, you can count on compensation.

Punishment of the employer in the field of providing leave

The employer has the right, according to local regulations of the organization, to provide employees with additional leave at its discretion, but the employer does not have the right to have fewer days of leave. Fines may be imposed on the organization and its leader under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation in the following amounts:

Error when granting vacation time to a disabled person

The employee provides a certificate of disability of group III (from January 21, 2021) in 2021. Due to operational needs, he did not use the main leave for 2018. In 2021, he demands, due to recognition as disabled, to be given 30 days of leave for 2018.

In this case, the requirement to provide him with 30 days of vacation for the previous year is unlawful.

Based on Art. 114 of the Labor Code of the Russian Federation provides a vacation of 28 days. According to Part 5 of Art. 23 Federal Law dated November 24, 1995 N 181-FZ, disabled people are granted 30 days leave. The circumstance, in 2021, the employee belongs to the category of disabled people of group III, does not affect the period of the main leave for 2021, i.e. for the previous working year, the employee is granted 28 days of vacation.

Case studies

In practice, people with disabilities face a number of difficulties, which are often associated with ignorance of their own rights or incorrect provision of documents. For example, an employee who fails to submit a copy of their disability certificate on time cannot receive their benefits.

How does the duration change?

The duration of the vacation depends on the convenience of the employee. The minimum allowed by law is 30 days, but it may be less. In the latter case, the employee writes an application for monetary compensation, which will be paid to him with the next salary, or receives the right to transfer the days off to the next year. The maximum duration is 120 days, which includes basic rest time, additional paid and additional unpaid. But it can also be extended due to days off from last year, holidays or the birth of a child.

Calculation of vacation time when changing status

There are several options for changing the status of a disabled person:

• a healthy person becomes disabled, but can continue to work in his specialty - he receives the right to vacation benefits;
• the employee loses the ability to work under the same conditions, regardless of previous status - working conditions become easier, benefits may increase, but not always;
• complete loss of ability to work - you need to quit your job.

The exact calculation depends on the specific situation. If an employee has a second disability group, it is possible to send him on long leave, but this is often unprofitable for either the employer or the employee.

Answers to common questions

Question No. 1 : Is it possible to provide a disabled person with administrative leave during the probationary period?

Answer : The employer has the right to establish a test for a disabled person. Regardless of the probationary period, the employer may grant a disabled person administrative leave based on an application, the duration of which is determined by agreement of the parties. A disabled person can be granted such leave for up to 60 days per year. But vacation days are not counted towards the probationary period, i.e. the trial period is extended by this number of days. Also, if the test is unsatisfactory, the employer can dismiss the disabled person by notifying him in writing 3 days in advance that he did not pass the test, confirming this with documents (reports, memos, etc.).

Question No. 2 : Is it possible to apply for administrative leave for a disabled person for several hours?

Answer : An employee has the right to submit an application for administrative leave for several hours (for disabled people within 60 days per year), but since this will entail certain difficulties in registration; employers rarely provide it (especially for calculating length of service). The consent of the parties is required.

How many days of additional rest are entitled to persons with disabilities?

How many days of additional leave do disabled working people have the right to count on? Can disabled people of groups 2 and 3 apply for it? Article 128 of the Labor Code of the Russian Federation states that a working disabled person of any group has a guaranteed right to extended unpaid leave of up to 60 days, which the employer cannot refuse. The employer, of course, can give more days of vacation at his own expense. But this is no longer an obligation, but a right.

In order to take advantage of additional leave, you need to write an application and attach to it:

• Individual rehabilitation program.
• ITU disability certificate.

Such leave can be divided into any number of days and times, and even taken when needed, without regard to production needs.

Rules for filling out an application

1. In the upper right corner is written the full name of the manager, as well as his position.
2. In the same corner, but below, it is indicated from whom the application is being written, the position and department of the applicant.
3. The name of the document is in the middle of the sheet (Application).
4. Under the name of the document, a request for leave without pay is written on a new red line, and the dates of leaving and returning to work are indicated. Indicate the article of the Labor Code of the Russian Federation, which confirms the right to this leave.
5. Under the petition on the right, the date of the application and the signature with a transcript are indicated.
6. Documents confirming your right to benefit are attached.

• applications of a disabled person for leave without pay
• applications of a disabled person for leave without pay