Disabled child: features of provision and payment of additional days off

Article 262 of the Labor Code of the Russian Federation: essence with comments

In Art. 262 of the Labor Code of the Russian Federation provides that parents (or persons equivalent to them, for example legal guardians) of disabled children can receive monthly additional paid days off in order to fulfill their parental responsibilities in relation to such children.

The procedure for implementing this norm has changed periodically. Today it is fixed in the Decree of the Government of the Russian Federation dated October 13, 2014 No. 1048. The main document for assigning a benefit will be a written application from the employee in the form from the order of the Ministry of Labor of Russia dated December 19, 2014 No. 1055n.

IMPORTANT! The main feature of paying for such days off is that these expenses of the employer are compensated by the Social Insurance Fund (after receiving the necessary documents).

The provisions of Part 2 of Art. 262 of the Labor Code of the Russian Federation on providing additional days off for women working in rural areas. However, analyzing Ch. 41 of the Labor Code of the Russian Federation, which regulates the work of women and family members, in general it can be assumed that this norm was also introduced to provide women with the opportunity to devote additional time to their family.

Calculation of average earnings to pay for days of care for disabled children.

According to Art. 139 of the Labor Code of the Russian Federation, payment for each additional day of care for disabled children is made in the amount of average earnings, determined in accordance with the Regulations on the specifics of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922 (hereinafter referred to as the Regulations).

The average salary is calculated based on the salary actually accrued to the employee and the time actually worked by him for the 12 calendar months preceding the period in which the employee is given an additional day off to care for a disabled child. In this case, the calendar month is considered to be the period from the 1st to the 30th (31st) day of the corresponding month inclusive (in February - to the 28th (29th) day inclusive) (Part 3 of Article 139 of the Labor Code of the Russian Federation, p. 4 Regulations). Thus, the calculation period for calculating average earnings for paying for days of care for disabled children provided in February 2019 is the period from 02/01/2018 to 01/31/2019.

When determining average earnings, all types of payments provided for by the remuneration system and applied in the relevant institution are taken into account, regardless of the sources of these payments, including wages accrued to the employee (clause “a”, clause 2 of the Regulations). In this case, time, as well as amounts accrued during this time, are excluded from the billing period if (clause 5 of the Regulations):

– the employee was on regular paid leave, a business trip, he was paid the average salary on other grounds provided for by the Labor Code of the Russian Federation (clause “a”); – the employee received temporary disability benefits (paragraph “b”); – the employee was provided with additional paid days off to care for disabled children (paragraph “e”).

In addition, when calculating average earnings, social payments and other payments not related to wages (material assistance, payment for the cost of food, travel, training, utilities, recreation, etc.) are not taken into account (clause 3 of the Regulations).

In practice, when checking the correctness of expenses for the payment of insurance coverage for compulsory social insurance, disputes often arise between FSS inspectors and employers about the legality of including certain payments in the calculation of average earnings. For example, SZO arbitrators believe that if financial assistance is provided for in the wage system, then it should be included in the calculation.

To avoid disputes, the institution's accountant must weigh the pros and cons of adopting this approach.

What are the rules for providing additional paid days?

Days prescribed under Part 1 of Art. 262 of the Labor Code of the Russian Federation are not provided to a specific person during periods of his being on vacation:

• basically;
• additional;
• for child care up to 3 years old.

If the day off coincided with the period of temporary incapacity for work of the person to whom it was due, the day off can be rescheduled within the same month. To do this, the following conditions must be met:

• the disability must end before the end of the calendar month;
• The sick leave must also be presented to the employer before the end of the month.

Additional days off unused in the billing month are not transferred to other periods.

The right to additional days off begins in the month in which the child is diagnosed with a disability.

The right terminates from the month following the month when the disability was lifted or the child turned 18 years old.

How to apply for additional paid days off to care for a disabled child? The answer to the question is in ConsultantPlus. Get trial access to the system and upgrade to the Ready Solution for free.

Additional leave without pay

An employee with a disabled child under the age of 18 may be granted additional annual leave without pay, if this is provided for in the collective agreement (Article 263 of the Labor Code of the Russian Federation).
If this leave is not provided for by the collective agreement, then such leave can only be granted by decision of the employer. When an employee is granted unpaid leave, there are several ways in which the employee can use the additional unpaid leave days received:

1. Adding additional days of rest to annual paid leave.
2. Dividing the vacation into parts.
3. Use all additional 14 days of rest at once.

According to the law, the days of such additional leave are not transferred to the next year, but simply expire.

When applying for unpaid leave, there are several rules to consider:

1. The maximum duration of rest time is limited to 2 weeks.
2. The leave is completely unpaid.
3. The parent has the right to take such leave at his own discretion.

When and how is it confirmed that days off are not being used by the other parent?

If you receive additional days off under Part 1 of Art. 262 of the Labor Code of the Russian Federation, several family members with a disabled child can, the one who approaches the employer with such a request should confirm that the other parent (or an equivalent person) has not yet used the norm of days. To do this, a certificate is issued from the place of work of the other parent or a person equivalent to him.

This benefit is monthly, so you need to write a separate application for days off each time. A certificate of non-use is also presented monthly.

An exception is made for single (according to documents) parents, as well as if the second parent:

• limited in rights, declared missing or dead;
• is in prison;
• is on a long-term trip (for example, on a business trip for more than 1 month).

Of course, these facts will need to be confirmed by documents attached to the application for benefits under Art. 262 Labor Code of the Russian Federation.

NOTE! If the other parent is employed in private practice or is unemployed, documents confirming this must be attached to each application.

Payment calculation procedure

You can independently calculate the payment for additional days. To make the process convenient, it is recommended to request a 2NDFL certificate from the Federal Tax Service. It is also “ordered” from the company’s accountant.

The statement shows the amount of accruals for the 12 months preceding the request. Total payments are divided by the number of full working days, which is also indicated in the document. The resulting number is the average daily earnings throughout the year. The value is multiplied by 4 - this amount must be paid by the employer, regardless of any circumstances. In other words, payment for additional days off takes into account average earnings.

Example. Citizen Ivanova Z.R. I took advantage of all 4 days of allotted rest in a month. Her earnings for the year in accordance with the 2NDFL certificate are 255,600 rubles. The number of working days is 250. From here the calculation occurs:

255,600/250 = 1,022.4 rubles 1,022.4*4 = 4,089.6 rubles

What other documents are needed to take advantage of the benefit?

In addition to a certificate of non-use of days off by another person (or documents allowing it not to be issued), the employee submits to the employer:

• ITU certificate about the child’s disability;
• document confirming the registration of the child at the place of residence;
• documents confirming parental rights (birth certificate, adoption certificate, guardianship certificate, etc.).

These documents are submitted once during their validity period. For example, if a certificate from the Bureau of Medical and Social Expertise is issued for 1 year, it is enough to present it once this year.

The employer's representative, after reviewing the original documents, must return them to the employee, making the necessary copies for himself.

Find out how the latest judicial practice develops in the event of an employer’s refusal to provide additional days off to the parent of a disabled child, from an analytical selection from ConsultantPlus. If you don't already have access to the system, get a free trial online.

Possibility of early retirement

The state also provides for the opportunity for educators of disabled children to retire from working life early. Moreover, the time that a person spent caring for a disabled person is counted towards the insurance period based on the application. The rule is: 1.8 pension units per year.

It is important to remember that the citizen himself is obliged to think about this possibility and whether he needs such inclusion in the insurance record. He must submit the corresponding application independently - during a personal visit to the Pension Fund or by means of a general power of attorney. If care for a disabled child is terminated due to some factors, a statement about this must be submitted immediately, otherwise the Pension Fund of Russia will still reveal this during an audit and oblige the citizen to return the funds allocated to him.

So, it turns out that citizens with disabled children actually have exactly the same opportunities as ordinary employees. Privileges include extraordinary receipt of twenty-eight days of leave, unpaid vacations and paid additional non-working days. The legislation of the Russian Federation does not provide for a special second paid vacation.

How are additional days off paid under Art. 262 of the Labor Code of the Russian Federation?

Only weekends provided in accordance with Part 1 of Art. 262 of the Labor Code of the Russian Federation, that is, for disabled children.

Payment is made based on the standard calculation of average daily earnings for the previous 12 months.

For more details, see the article “How to calculate the average monthly salary (formula)?”

IMPORTANT! If a business maintains aggregated time records, the calculation time is the sum of the hours worked per day multiplied by 4 (or the actual number of days used).

Whether additional days off are subject to insurance premiums was clarified by L.A. Kotova, an active state adviser of the Russian Federation, 3rd class. Get acquainted with the official's point of view by getting free trial access to the ConsultantPlus system.

Insurance premiums.

The issue of charging insurance premiums for payments to parents for providing additional days off to care for a disabled child is also controversial.

The official position is that insurance premiums must be calculated from these amounts (Part 17, Article 37 of Federal Law No. 213-FZ dated July 24, 2009, Letter of the Ministry of Finance of the Russian Federation dated March 30, 2017 No. 03-15-05/18599). In particular, in accordance with paragraph 17 of Art. 37 of Federal Law No. 213-FZ financial support for the costs of paying for additional days off provided for caring for disabled children in accordance with Art. 262 of the Labor Code of the Russian Federation, including accrued insurance contributions to state extra-budgetary funds, is carried out at the expense of interbudgetary transfers from the federal budget provided to the Social Insurance Fund budget.

That is, they must be accrued and paid (clause 1, clause 1, article 420 of the Tax Code of the Russian Federation, clause 1, article 20.1 of the Federal Law of July 24, 1998 No. 125-FZ “On compulsory social insurance against industrial accidents and occupational diseases” ):

– insurance contributions for compulsory pension insurance; – insurance premiums for health insurance and compulsory social insurance in case of temporary disability and in connection with maternity; – insurance contributions for compulsory social insurance against accidents at work and occupational diseases.

There is an alternative position supported by judges in all districts. According to the arbitrators, since payment for additional days off provided to care for disabled children does not fall into the category of remuneration for labor, but is a means of ensuring social protection for the relevant categories of citizens, it is not subject to insurance contributions:

– Ruling of the Supreme Court of the Russian Federation dated April 19, 2018 No. 306-KG18-3498 in case No. A12-8078/2017; – Ruling of the Supreme Court of the Russian Federation dated April 19, 2018 No. 306-KG18-3492 in case No. A12-8081/2017; – Resolution of the Supreme Court of the Russian Federation of October 3, 2018 No. F01-4399/2018 in case No. A29-16002/2017; – Resolution of the Supreme Court of the Supreme Soviet of July 2, 2018 No. F02-2352/2018 in case No. A74-12264/2017; – Resolution of the Supreme Court of the Russian Federation of November 8, 2017 No. F03-3640/2017 in case No. A73-1890/2017; – Resolution of the AS ZSO dated May 30, 2018 No. F04-1817/2018 in case No. A70-9326/2017; – Resolution of the AS MO dated June 28, 2018 No. F05-8607/2018 in case No. A40-136588/2017; – Resolution of the AS PO dated August 15, 2018 No. F06-35197/2018 in case No. A06-8864/2017; – Resolution of the AS SZO dated September 19, 2018 No. F07-10646/2018 in case No. A13-19088/2017; – Resolution of the AS SKO dated 06/08/2017 No. F08-3553/2017 in case No. A32-23265/2016; – Resolution of the AS UO dated November 9, 2018 No. F09-6672/18 in case No. A76-24776/2017; – Resolution of the AS CO dated March 22, 2018 No. F10-520/2018 in case No. A48-3193/2017.

In fairness, we note that all court decisions adopted to date are based on the provisions of the Federal Law of July 24, 2009 No. 212-FZ “On Insurance Contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund,” which has become invalid from 01/01/2017, and not according to the norms of the Tax Code of the Russian Federation. However, since the wording of these two documents is almost identical, we believe that the arbitrators will not change their opinion in the future.

What advice should you give to policyholders? If they are not afraid of being in a courtroom, payments for additional days off provided to employees with disabled children may not be subject to insurance premiums. For those who are more careful - in order to avoid controversial situations - it is better to charge insurance premiums.

Who is provided with additional unpaid days under Art. 262 of the Labor Code of the Russian Federation?

Women workers working in rural areas. Rural area criteria for the purposes of applying Art. 262 are not established in the Labor Code of the Russian Federation. Employers considering applications from female employees for additional leave under the Labor Code of the Russian Federation should take into account socio-geographical criteria and gradations established for their area (rural settlement, urban settlement, etc.).

Employees of the corresponding category can receive 1 additional day off per month without pay.

Right to extra days off

In addition to standard days off, employees with disabled children are entitled to four additional days off. And they must also be paid. They are given every month upon a corresponding application from the father or mother of a child with disabilities, after which the head of the company issues an order.

The application is written in the form specified in Order of the Ministry of Labor No. 1055-n.

Order dated December 19, 2014 N 1055n