The procedure for dismissing a disabled person of group 3 at his own request

General provisions

Dear readers! The article talks about typical ways to resolve legal issues, but each case is individual. If you want to find out how to solve your particular problem , contact a consultant:

8 (800) 700 95 53

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and FREE !

Disability is understood as the development of an illness or several illnesses in an employee, due to which he cannot normally perform his duties to the employer.

Taking into account the severity of a person’s physical or mental limitation, three disability groups have been identified. A complete list of criteria for distinguishing between these groups is contained in Order No. 1024 of the Russian Ministry of Labor dated December 17, 2015.

Based on this document, an employee with a third disability group can, himself or with the help of other people (specialized devices), perform the following actions:

• take care of yourself;
• move;
• understand the environment and navigate it;
• analyze your own behavior and correct it;
• learn new skills, get an education;
• work in conditions that the employer has created specifically for him.

Based on these criteria, it can be summarized that the third disability group is considered working and people belonging to it can work without harm to their health.

The state tries to take care of people with disabilities, therefore it obliges all managers whose organization employs more than 35 employees to provide one workplace to a citizen with restrictions according to the quota prescribed by the government (Article 21 No. 181 of the Federal Law of November 24, 1995).

If a violation of human rights with restrictions is recorded, the employer may receive an administrative penalty (Article 5.42 of the Code of Administrative Offenses of the Russian Federation).

To prove his disability when registering with a new organization, a citizen only needs to present a medical certificate to the potential manager. It must correspond to the form approved in the order of the Ministry of Health and Social Development of the Russian Federation No. 1031n dated November 24, 2010.

This extract can be obtained from a state medical and social examination institution.

Is it possible for a disabled person to resign?

The procedure for terminating a contract between an employer and an employee is established by the articles of the Labor Code of the Russian Federation. The employee’s obligation to notify management of his intention to resign on his own initiative is determined by Article 80 of the Labor Code of the Russian Federation. This should be done no later than two weeks before the end of the employment relationship.

The following must be notified to management three days before dismissal:

• persons undergoing a probationary period (Article 71 of the Labor Code of the Russian Federation);
• seasonal workers (Article 296 of the Labor Code of the Russian Federation);
• citizens working under an employment contract for a period of no more than 2 months (Article 292 of the Labor Code of the Russian Federation).

Important
There are no exceptions to these articles for disabled employees, regardless of the disability group.

But each of them should know the circumstances under which contracts are terminated without work. This is possible upon dismissal:

• for a disciplinary violation;
• by agreement of the parties;
• if it is impossible to continue working.

In the latter case, the reason for refusing to work may be:

• retirement, including disability pension;
• admission to an educational institution as a full-time student;
• the need to care for a sick family member.

In all these situations, the administration of the enterprise is obliged to dismiss the disabled person within the period stated by him.

Norms of the Labor Code of the Russian Federation

Article 183 of the Labor Code of the Russian Federation states that every citizen during illness is obliged to receive full payment from his director for the entire period of incapacity strictly until full recovery or until he receives the appropriate category of disability (Part 1, Article 6 of Federal Law No. 255).

If an employee is classified as disabled, the director may no longer pay for the period of incapacity. Now this obligation is shifted to the state budget.

It is from this that the disabled person will receive special financial assistance for subsequent therapy.

According to Article 73 of the Labor Code of the Russian Federation, the manager is obliged to monitor the health status of all his subordinates.

If one of the employees is unable to perform his duties for medical reasons, the manager has the right to remove him from his position or transfer him to another place of work where the employee can work without harming his health.

For example, if a subordinate is absent from the workplace for less than four months due to deteriorating health, he can be transferred to another place, but only with his consent.

If an employee refuses to change position or the manager cannot offer him a suitable workplace, the citizen is relieved of all work responsibilities strictly until his full recovery or until a change in circumstances.

If the doctors’ conclusion confirms that the employee needs treatment for more than four months, and there is no appropriate workplace for him, he will be fired on the basis of Part 8 of Article 77 of the Labor Code of the Russian Federation.

Procedure for submitting documents for dismissal

An employee who has a disability can resign himself by expressing his will. A disabled person can also be fired at the initiative of the employer.

Since disabled people of the third and second groups can perform their job duties, they can be dismissed on the general basis prescribed by Article 81 of the Labor Code of the Russian Federation.

Information

The administration of an organization whose staff includes workers with disabilities must take care in advance that during a tax or mandatory audit (if the enterprise is a budgetary enterprise), the inspectors do not have questions regarding the correctness and legality of the dismissal of a disabled person. Otherwise, fines for violating legal norms and legislation cannot be avoided.

The process of dismissing a subordinate with disabilities at his own request occurs according to the following points:

1. Writing a resignation letter.
2. Validation of the document by the HR department.
3. Signature of the application by the boss.
4. Drawing up an order.
5. Appointment of the day of dismissal - the date when the final payment is made. On the same day, the former employee is entitled to receive a work book and supporting certificates.

In the precedent with employees who have the first or second degree of disability, the employer, at their will, can terminate their employment in one day.

Features of dismissal of a disabled person of group 3 at his own request

Let's consider the main features of dismissing an employee with restrictions on his own initiative.

Without working off

The time from the date of filing a letter of resignation until the end of work is perceived as working off. The boss can reduce this period on his own initiative.

An employee with a disability also has the right to ask for a reduction in the period of service or its complete cancellation directly on the day of writing a letter of resignation.

The Labor Code of the Russian Federation obliges the employer to take into account such requests from the employee, especially if he had a good reason for this. For an employee with a disability, this is considered a deterioration in health.

The director has the right to demand that the employee confirm his words with official documents. Poor health is a good reason for an employee to spend two weeks on sick leave or take unpaid leave.

For health

An employee with a disability must provide management with significant evidence confirming the seriousness of the deterioration in his health. These are the decisions of the certification commission and the IPR.

Important! If a disabled person is declared unable to perform his direct duties, and the employer is unable to find him another vacancy, the employee has the right to resign.

These actions are regulated by Article 83 of the Labor Code of the Russian Federation. An employee with a disability has the right not to work for two weeks.

Payments

Article 140 of the Labor Code of the Russian Federation provides for full monetary settlement with the employee on the day the working relationship ends. An exception is possible for payment of sick leave, which can be made within 2 weeks after presentation of supporting documentation.

The list of payments includes:

• Salary for working hours;
• Severance pay;
• Compensation for vacation, bonuses, allowances, if they are provided for by local regulations of the enterprise.

Whether a disabled person is entitled to a benefit and its amount is determined based on the basis for the termination of the working relationship:

• If a company is liquidated or the rate is reduced, the amount is calculated in the amount of one average monthly salary. When registering with the employment service, 2 more full income payments are due. If a disabled person managed to register within 14 days after dismissal, a third salary payment is possible;
• Upon termination of a business relationship due to total disability or the employee’s refusal to switch to simplified working conditions, severance pay in the amount of 2 weeks’ salary is accrued.

If the working relationship is terminated at the citizen's own request or by agreement of the parties, and not by medical order, the employee is not provided with severance pay.

If an enterprise violates the rights of a disabled person, a citizen has the right to go to court.

Example of calculating severance pay

To determine the amount of compensation, it is important to know the average daily income:

SDZ=ZP/OD

• ZP - salary for the last year;
• OD - days per year that a person worked.

Severance pay upon dismissal due to incapacity for work or refusal to move to another position is calculated:

VP=SDZ*14 days

For example, on February 13, 2019, a citizen was assigned a second non-working disability group. His total income for the period from 02/13/2018 to 02/12/2019 amounted to 270 thousand rubles. During the specified time, the number of days worked was 200.

SDZ=270000/200=1350 rubles.

VP=1350*14=18900 rubles.

If the benefit amount is not higher than three times the average monthly income, taxes are not levied on it.

In case of liquidation of a company or a reduction in the rate, the benefit is calculated in a similar way, but the average daily income is multiplied by the number of working days in the month.

Regular changes to the legislation of the Russian Federation on disability make it possible for a person to engage in work that is optimal for him. The state quota program, introduced almost everywhere, allows citizens with serious health problems to get a job, a stable and protected income.

Video on the topic:

Should I work out?

To ensure that an employer does not violate the rights of an employee with a disability, he must comply with the following rules:

• register a statement received from an employee with a request to dismiss him on his own initiative. If this condition is ignored, the disabled person can formally complain to the labor inspectorate;
• do not oblige a disabled person to work 14 days if this is problematic for him due to poor health.

When resigning, a disabled person must remember the following:

• no one can persuade a resigning employee to work for more than two weeks if he does not hold a management position or his disability documents are just being processed;
• wages, compensation for vacation days, bonuses and other additional payments must be paid to the employee on the last working day. If this condition is violated, the manager may be punished;
• In parallel with cash payments, the employee must receive a work book with all relevant entries and a salary certificate.

Read how to pay the state fee for a divorce when dividing property. How to legalize the redevelopment of an apartment, and what is its cost? More details here.

Step-by-step description of the procedure

If the disability was acquired during the period when the employee was on the employer’s staff, then it is necessary to go through the procedure of obtaining the status of a disabled person of a certain group.

Step-by-step instructions for dismissing an employee due to disability:

1. We are undergoing a medical and social examination (MSE). To do this, you need to get a referral to the ITU, and also provide the commission with:
   • a certified copy of the work book;

   certificate of income from the place of work;

2. outpatient records and hospital extracts and copies thereof;
3. You will also need a reference from your place of work;
4. application for examination;
5. as well as an act of industrial injury or occupational disease (if any).

The medical commission either recommends that the employer transfer the employee to another position or dismiss him.

6. We get a disability group. Disability is determined in special federal institutions - the Bureau of Medical and Social Expertise.
   Based on the results of the MSA, a corresponding act is drawn up recognizing a person as a disabled person of a certain group. Within 3 days it is sent to the Federal Bureau of Medical and Social Expertise and the Pension Fund. The employer needs to show a certificate of disability and an individual rehabilitation program (IRP).
7. We provide the employer with documents confirming the disability. The company can claim them independently.
   You must notify your employer of becoming disabled, even if the cause of disability is not a work-related injury. An employer can independently refer an employee to medical examination if he sees, for example, that his health condition has sharply deteriorated.
8. We receive a dismissal order. If we are talking about disability group 1-2 and the employee will no longer be able to perform his functions, then a dismissal order is signed under Article 83 of the Labor Code of the Russian Federation.
   If the employee is able to work, then the employer studies his rehabilitation program and offers (in writing) easier working conditions. In case of refusal, dismissal follows on the basis of clause 8 of Article 77 of the Labor Code of the Russian Federation.
9. We receive payment on the day of dismissal. The period of service and, accordingly, settlement with the employee depends on the reason for dismissal. If an employee leaves of his own free will, then this is 2 weeks; for staff reduction, 2 months, and if the parties agree, the terms are negotiated in accordance with the agreement reached.

Read more about the procedure for dismissal for medical reasons in our material.

When transferring to another vacancy, the employer is obliged to maintain the disabled person’s average earnings based on the previous salary for at least one month.

It is possible to dismiss an employee with a disability due to his disability only if ITU has determined that he is not an able-bodied person. In all other cases, it is necessary to offer an alternative, if possible.

We recommend that you read our other articles about the dismissal procedure:

• accountant or chief accountant;
• contract military personnel;
• director or general manager;
• pensioners;
• employees with children;
• employees of the Ministry of Internal Affairs;
• with mass reduction;
• employee on sick leave.

Drawing up an application

When dismissing a disabled person of his own free will, you must write a statement two weeks before the expected date of departure. The same requirement applies here as for other employees. You can write a letter of resignation while on vacation or after using it. An application is also required when leaving by agreement of the parties. In all other cases, the decision is made by the employer himself, who notifies the employee about it.

The application is written in any form addressed to the head of the company. You must indicate the reason for dismissal and the timing of your resignation. A personal signature must be placed below.

If an employee with a disability refuses to be transferred to another vacancy (with easier working conditions), then he also writes a statement of refusal. It is also drawn up in any form addressed to the director of the company.

Notice initiated by the employer

If the termination of the employment relationship occurs at the request of the employer, then in some cases he is obliged to notify the disabled person in advance. Such cases include: staff reduction (must be notified 2 months in advance), liquidation of the enterprise (same period), in other cases established by Article 81 of the Labor Code of the Russian Federation.

When a disabled person is dismissed due to the inability to perform his duties for medical reasons (Part 5 of Article 83 of the Labor Code of the Russian Federation), notification is also required. But in this case it looks different. In particular, it includes a list of available vacancies (if the disabled person is able to work) or contains information about the absence of such.

The notification is given personally or sent by mail to the address of residence of the disabled person. The text indicates the reason why the transfer is proposed, and if vacancies are listed, then the salary amount must be specified. A note must be made that in case of refusal of the vacancy, dismissal will follow.

Notice periods are not provided for by the Labor Code of the Russian Federation, but usually they do not exceed one to two months. The employer must offer vacancies to the employee until the last day of work.

Drawing up an order

The dismissal order is drawn up according to the standard T-8 form. It states:

1. reason for termination of labor relations, article of the Labor Code of the Russian Federation;
2. date of departure;
3. also the ITU opinion number;
4. the order must contain your full name;
5. employee's position;
6. as well as basic company details.

Filling out a work book and personal card

The work book is filled out in accordance with the instructions. In the entry in the work book you will need to indicate the article of the Labor Code of the Russian Federation under which the dismissal occurs and the date of departure. The signature of the HR specialist and the company seal are required.

A personal card is filled out for employees of all categories hired on the basis of an employment contract. This document contains information about certification, transfers from position to position, awards, and vacations. At the very end, information about dismissal is also filled in (article of the Labor Code of the Russian Federation, order number).

The photo shows a sample of filling out a work book when dismissing a disabled person:

Decor

Despite the fact that Articles 73 and 77 (Part 8) of the Labor Code of the Russian Federation provide fairly clear grounds for dismissing a disabled person, this is not very easy to do.

A doctor's report and a disability certificate confirming a person's physical condition do not contain instructions for dismissing a given employee, therefore, in most cases, the employer is guided in its actions by the rehabilitation plan of the disabled person.

It indicates the percentage of labor losses and labor restrictions.

For example, is it necessary to fire a disabled person of the second group, whose limbs were amputated due to complicated diabetes mellitus, but his position in the organization requires sedentary office work?

Or if the employee previously worked day and night shifts, but after receiving disability he cannot work at night?

That is why the dismissal of a disabled person should be based not only on the medical documents provided, but also on additional statements and certificates confirming the citizen’s inability to fulfill his duties to the employer.

Personnel registration

Being assigned a disability is not always a reason for dismissal. First of all, the company must obtain a special medical report. It can be provided by a medical institution or personally by an employee.

In the latter case, the citizen must additionally submit an application confirming his desire to switch to light labor.

The enterprise is required to compile and send a special notice to the disabled employee with a list of possible vacancies and their characteristics. A citizen has the right to accept or refuse an employer’s offer.

His decision is necessarily reflected in a special statement.

If the company does not have suitable vacancies for a disabled person, he must still receive a special notice.

Having successfully completed the paperwork described above, the employer has the right to draw up a dismissal order.

The order must come complete with:

• medical report;
• individual employee rehabilitation plan;
• workplace certification;
• job description;
• labor agreement;
• a map of the location of the workplace (if necessary).

The employer is obliged not only to follow the procedure for dismissing an employee with a disability, but to collect and document in advance all the reasons for dismissal, so as not to have to prove his case in court.

How to legally quit without working?

A disabled person has several opportunities to resign on the day the application is submitted.

First of all, it is necessary to discuss this situation with the administration of the company. Since working off for 2 weeks is an opportunity for the administration, but not an obligation, the director can release work with a disability immediately, without working out a set period of time.

In addition, you can conclude a dismissal agreement with the administration, and formalize the termination of the employment contract by agreement of the parties. It may, among other things, indicate the condition of no work at all, or a smaller number of days (for example, only 3 days).

Medical indications can also serve as grounds for dismissal without service. However, in this case, it is necessary to present a conclusion from the attending physician stating that the employee can no longer perform his duties.

These include:

• Transfer of a spouse to work in another locality, city, or country;
• Enrollment of an employee for full-time training at an educational institution;
• Dismissal due to reaching retirement age. This opportunity can only be used once. In the case where the employee has already terminated the employment agreement for this reason and is employed again, but will have to resign on a general basis;
• If the company's management does not comply with labor laws.

Attention! However, in order to take advantage of one of these reasons, the employee must provide supporting documents.

Taxes

The calculation in case of dismissal of a disabled person also has certain nuances. Part 3 of Article 217 of the Tax Code of the Russian Federation states that monetary compensation paid to an employee under Article 178 of the Labor Code of the Russian Federation is not taxable.

When calculating estimated payments, the employer must remember that a disabled person of group 3 who received a “new status” after certain circumstances experienced, for example, the liquidation of the Chernobyl Nuclear Power Plant, is entitled to a tax deduction in the amount of three thousand rubles.

This condition is regulated by Art. 218 Tax Code of the Russian Federation.

Does an employee need to work 2 weeks upon dismissal in 2021?

If a person is not included in the preferential categories or does not have valid reasons, then he will have to work out a full term. The only way out is to have additional documentation that requires immediate dismissal. You can also fill out your work with sick leave or vacation days if they have not yet been used.

The simplest way is to include a clause in the original agreement or contract that will cross out the additional term. If necessary, you can negotiate with your immediate superiors, but this is not always possible. Especially if the organization loses a valuable employee who is difficult to replace.

Work upon dismissal of a pensioner or disabled person

In addition, the employer is obliged to terminate the employment contract within the period specified in the employee’s application, on the grounds provided for in part three of Art. 80 Labor Code of the Russian Federation. This obligation occurs in cases where the employee’s application for dismissal on his initiative (at his own request) is due to the impossibility of continuing his work (enrollment in an educational institution, retirement and other cases), as well as in cases of established violation by the employer of labor legislation and other regulations legal acts containing labor law norms, local regulations, terms of a collective agreement, agreement or employment contract.

Each offer of a job must be made in writing. The employee must also give every answer - positive or negative - in writing. If an employee constantly refuses vacancies offered to him or they simply are not available, then the employment contract can be terminated.

Is it necessary to work 2 weeks upon dismissal - what does the law say?

It’s another matter if the employee works after his pension has been accrued. After all, the law does not prohibit pensioners from working. If a reason such as “retirement” is mentioned primarily, then it is possible to resign at a time specified by the pensioner himself. And the employer must meet halfway. It is unacceptable to use the wording a second time, otherwise it will be an abuse. Dismissal here is implemented according to the general rule.

Yes, this is possible. This is called leave followed by dismissal. This is beneficial for the employer because he will not have to pay for vacation not used on time. The dismissal document is drawn up before the start of the vacation or after. The rule applies not only to annual main and additional leave, but also to the leave of a maternity leave, as well as a woman raising a child under one and a half years old.