People with disabilities can continue to work if the diagnosis allows them to work without harm to their health. The quality of the tasks performed should not suffer either. However, sometimes an employee is not able to continue working at the proper level, and the question of dismissal arises.
The labor legislation of the Russian Federation provides for a separate procedure for payments to persons with disabilities upon dismissal. The exact calculation depends on several factors, and additional benefits can be established individually in each organization. Therefore, the issue of payments upon dismissal due to disability requires more detailed consideration.
The procedure for dismissing employees after receiving disability
Loss of health and inability to continue working are considered grounds for dismissal for reasons beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation). But this norm applies exclusively to citizens who have received group I disability and are no longer able to work. If health allows a person to work (regardless of the group received), he should be transferred to easier work. To do this, the employee is notified in writing about the availability of other jobs suitable for medical reasons. If there are no suitable vacancies, they are notified in the same way.
Having received a job offer, an employee has the right to accept or refuse. If the transfer to another job does not work out, all that remains is to part with it.
Otherwise, the procedure for dismissing an employee with a disability is no different: the employer issues an order to terminate the employment contract, prepares documents related to the employee’s work, and makes a full settlement with the former subordinate. In some cases, you will have to pay severance pay to a disabled person upon dismissal - if the employer infringes on the rights of the employee.
Please note the entry in the work book:
- if total incapacity for work occurs, dismissal is initiated under clause 5 of Art. 83 of the Labor Code of the Russian Federation and the same norm is entered into the work book;
- if an employee with a disability refuses to be transferred to another place, the contract is terminated on the basis of clause 8 of Art. 77 Labor Code of the Russian Federation.
Is it possible not to pay benefits?
Dismissal due to disability essentially occurs at the initiative of the employer.
The employee submits documents confirming his disability and inability to perform previous job functions. The employer is obliged to remove such an employee from the duties performed under the employment contract and resolve the issue of transfer to another job or dismissal if such a transfer is impossible.
But there are cases when a disabled employee himself decides to resign and writes a statement of his own free will. is not entitled to any severance pay . Although no one prohibits the employer from making payments under the local act.
In order for severance pay to be accurately paid, the dismissal documents must indicate the appropriate reason - medical indications, and the wording must include a link to the relevant article of the Labor Code of the Russian Federation.
Conditions under which severance pay is due
In order for the right to severance pay to arise, the reason for terminating the employment contract is important. If a person leaves on his own initiative, he is not entitled to any compensation. But if the employer did not find a suitable place for an employee with a disability (it is even more harmful to health) or he refused the transfer voluntarily, the company is obliged to pay severance pay.
IMPORTANT!
Some employers seek to terminate the contract with employees who become disabled by agreement of the parties. In this case, you should carefully read what amounts and in what amount the management of the organization offers. Because the money will be paid under a separate agreement, and not as compensation guaranteed by law.
Design nuances
- At his request, a disabled person can be given 4 months of recovery, after which he will return to work. In this case, his position is retained; no one can occupy it on a permanent basis, unless temporarily. During this recovery period, no wages are accrued.
- After 4 months, the employee must again undergo a medical examination and check his health. If it improves, then you can return to duty.
- If a disabled person is offered a new duty station, he must check the box next to the positions - “agree” or “disagree.”
- If a person no longer wants to continue working in the organization, he must write a letter of resignation and indicate that the reason is “health conditions.” But for disabled people who resign of their own free will, severance pay is not provided.
Amounts of severance pay and rules for calculating it
An employee who leaves for health reasons is required to pay severance pay for 2 weeks, based on average earnings. It will turn out to be slightly less than half the salary that the person received.
But if an employee is fired due to staff reduction or liquidation, he is entitled to payment within 2 months. By decision of the employment service, it is sometimes extended for another third month.
In both cases, the basis for calculations is average earnings, which are determined using formulas from government decree No. 922 dated December 24, 2007. The following is used as initial data:
- all payments for the past 12 months (except for sick leave, financial assistance, travel allowance, and some other amounts);
- number of days worked during the previous year.
The average daily income is equal to: amount of payments/number of days worked.
To calculate a two-week disability benefit, the result is multiplied by 14 days.
Let us show with an example how the amount is calculated. Let’s say citizen Ivanov earned 200,000 rubles in the previous 12 months and worked for 200 days. Severance pay upon dismissal due to disability will be:
200,000 / 200 x 14 = 14,000 (rub.)
To accurately determine your average salary, use our free online calculator.
Where to look for protection in case of refusal to pay benefits
Often employers neglect the law and refuse the payments in question. In this case, the disabled person can go to court. First, you should receive a completed Work Book from management and study the reason for dismissal. If fraud has occurred, it is recommended to go to court to restore justice.
Disability severance pay should be calculated according to the sequence presented above. The slightest violations entail administrative liability with a fine to the head of the enterprise.
Taxes on payments
If the employee does not have any debts, he is entitled to the entire amount that was obtained in the calculations, since personal income tax is not taken from it. If the employer has a writ of execution and payments are made according to it, another part of the debt will be withheld from the severance pay.
IMPORTANT!
Neither income tax nor insurance contributions are transferred if the amount of severance pay does not exceed three times the average monthly earnings (paragraph 7, paragraph 1 and paragraph 3, Article 217, paragraph 2, paragraph 1, Article 422 of the Tax Code of the Russian Federation, paragraphs 2 clause 1 article 20.2 of Law No. 125-FZ “On compulsory social insurance against accidents at work and occupational diseases”). If the benefit is higher due to an agreement between the parties or a collective agreement, mandatory payments are withheld and transferred to the budget.
Subtleties of taxation and other deductions
In accordance with the Tax Code of the Russian Federation, the presented payments are not subject to taxation. But the legislation lists the following exceptions:
- If the amount exceeds the average monthly salary by 3 times, it is subject to personal income tax in the standard regime. The contribution has a certain threshold, which is taken into account when paying out. If the tax amount is greater, only the approved maximum is paid to the state.
- In the Far North, tax is paid provided that the amount exceeds the average monthly payment by 6 times.
- The insurance premium for severance pay for disability is not paid at all. But a disabled person can pay the presented amount on a voluntary basis. To do this, the Social Insurance Fund writes an application for the transfer of funds.
- Severance pay can serve as repayment of alimony arrears. This happens due to the start of the work of bailiffs.
It is recommended to clarify the specifics of paying taxes and insurance premiums on disability severance pay in your region.
What to do if the employer does not pay
Like other payments upon dismissal, severance pay is transferred to a bank card or issued in person on the last working day. The dismissed person has the right to complain to the Labor Inspectorate or the prosecutor's office about violation of deadlines or the employer's refusal to pay. It is possible to go straight to court.
Legal documents
- Art. 83 Labor Code of the Russian Federation
- Art. 77 Labor Code of the Russian Federation
- Government Decree No. 922 dated December 24, 2007
- Art. 217
- Art. 422 Tax Code of the Russian Federation
- Law No. 125-FZ “On compulsory social insurance against accidents at work and occupational diseases”
Illegal dismissal of a disabled person and liability measures
If a contract with a person with limited ability to work is terminated, the company is subject to additional regulations, the violation of which entails administrative and civil liability. You can appeal the actions of management through the court or the state labor inspectorate.
The law provides for penalties for employers - individuals - with a fine of up to 5,000 rubles, legal entities - up to 50,000 rubles. Also, as a preventive measure, it is possible to suspend business activities for 3 months.
The period for resolving disputes with the employer is 1 month from the date of loss of employment. It concerns the time to go to court. You can file a complaint with the labor inspectorate at any time, even several years after your dismissal. This government agency will still accept the application and organize an appropriate inspection.
Based on the results of the investigation, the State Labor Inspectorate has the right to issue an order canceling the unlawful order to remove a disabled person from office. The manager will have to fulfill it and restore the person. In the case when an employee has already been hired, he is dismissed under Article 83 of the Labor Code of the Russian Federation, or is transferred to another place. In addition, the company can be punished by imposing a fine on a legal entity or its individual employee who made a mistake in the procedure for dismissing a disabled person.
What documents to provide
For dismissal with subsequent payment of severance pay, the employee must submit the following documents:
- a certificate of the sample established by the Resolution of the Ministry of Health No. 41 on assigning a disability group to a citizen;
- a document defining the degree of health restrictions depending on working conditions (issued by a medical institution).
Termination of labor relations is formalized by order of the head of the organization, the text of which includes an order on the need to pay the employee severance pay.
Preferences for disabled employees
Disabled people are people with limited capabilities. Moreover, a person’s ability to care for himself and work depends on the disability group. The possibility of employment is also determined by the individual testimony of a particular person. As a rule, disabled people of groups 2 and 3 can be able to work, but the state does not impose an obligation to work on them. Moreover, a number of preferences are provided for such citizens:
- pension (if not working);
- receiving free medications;
- vouchers to a sanatorium every year;
- EDV;
- other payments, as well as regional benefits.
People with disability group 1 are almost always unable to work. But the presence of group 3, on the contrary, does not give a person any special preferences in terms of fulfilling his work duties (with the exception of vacation increased to 30 days and restrictions on performing work functions overtime and on the night shift).
But a person with disability group 2, in addition to social benefits from the state, is also entitled to special preferences from the employer. These include:
- reducing the length of the working week – up to 35 hours;
- increased period of annual paid leave - instead of 28 days you can rest for 30;
- restrictions on hiring people to work at night or beyond the established time - the employer must obtain the consent of the employee himself and only on the condition that the rehabilitation program of the disabled person does not have contraindications for this;
- the right to additional leave - a disabled person of group 2 can go on unpaid leave for another 2 months; if he wishes, he may not use this right.
These are perhaps the most important rights of disabled people from the point of view of labor law that non-disabled employees do not have.
