Disabled employee: everything an accountant and HR officer needs to know about guarantees and compensation

The following two tabs change content below.

• Author
• Author's articles

Anastasia Klimenkova (Lawyer)

7 years of experience.

Author: Anastasia Klimenkova (Lawyer) (All articles by the author)

• What to do if a tree falls on your car: step-by-step instructions - 09.27.2021
• What will the pension be if there is no minimum work experience in 2021 - 09/02/2021
• What is the length of service required to retire in 2021? — 08/23/2021

Annual paid leave is given to all employees of the enterprise, regardless of the nature of their employment (at their main job, part-time). This rule also applies to disabled employees, but they are considered more privileged employees due to their special needs. Let's consider how leave is provided and how long it lasts for disabled people of groups 1, 2, 3.

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.

Download for viewing and printing:

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

What is the duration?

The annual basic leave for disabled people lasts 30 days.

In addition to this, they may have the right to additional leave of one duration or another in accordance with articles of Labor Code 116-119, but they may not have it.

Also, the regulations in force in a particular company may establish additional leave for disabled employees - most often it lasts 7 days, but this is also not necessary.

But it is mandatory to provide them with unpaid leave of up to 60 days at their request.

Mandatory holidays for employed disabled people

For this category of citizens, the minimum length of vacation is determined to be 30 calendar days.
In addition, employees with special needs can apply for additional leave without maintaining pay for up to 60 days (paragraph 5, part 2, article 128 of the Labor Code of the Russian Federation, Letter of Rostrud dated April 16, 2014 No. PG/3387-6-1). In total, a disabled employee rests for at least 90 days a year. This procedure covers all employed disabled people without exception; the assigned disability group does not affect the duration of leave.

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).

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.

Arbitrage practice

The plaintiff filed a lawsuit against the Far Eastern State Medical University with a demand to recognize the calculated duration of leave as illegal, to conclude a new employment contract and to compensate for the moral damage caused. As indicated in the statement, since 1993 she worked in the establishment against which the lawsuit was filed, in 1995 she received group II disability. As a result, until 2002, her main vacation was supposed to last 31 days, and starting this year - 38 days along with an additional one. The employer had at its disposal all the documents indicating the plaintiff’s disability, but began to provide leave of the required duration only in 2014, in addition, the employment contract was never concluded in writing. At first, the plaintiff asked to oblige the defendant to compensate for moral damage and to enter into a written employment contract, but then she refused the latter condition, so this issue was not considered by the court.

The case was considered in the absence of both parties, an explanation was provided from the defendant’s side: in it, the claims were rejected due to the expiration of the statute of limitations, since the plaintiff learned about her right already in 2001.

Decision of December 9, 2014 in case No. 2-7453/2014

• Look

After studying the materials and on the basis of the provisions of the law, given in full here, the court found that the information provided by the plaintiff about work and the duration of vacations was correct, but due to the expiration of the statute of limitations, it refused to satisfy her demands to declare the calculation of the duration of the main vacation illegal. At the same time, there are no such restrictions in the Labor Code for compensation for moral damage, and therefore the court decided to collect this compensation, but in the amount of only 2,000 rubles instead of 20,000 that the plaintiff demanded. The court also decided to recover from the defendant the costs of drawing up a power of attorney in the amount of 1,300 rubles. This case shows that your rights need to be protected as soon as their violation occurred, because if it is proven that you knew about it, but did nothing for a long time, then this will then become the basis for referring to the expiration of the statute of limitations.

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.

Download for viewing and printing:

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.

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.

What documents confirm disability?

A disabled person is a citizen who has a health disorder with a persistent disorder of body functions.
It can be a consequence of a disease, injury or defect that leads to limitation of life activities. All this raises the need for social protection of such people. The employer can provide the employee with the provided additional social guarantees only after receiving documents confirming the disability.

These are documents that contain data on labor restrictions in relation to an employee, according to established forms:

• certificate of medical and social examination (approved by order of the Ministry of Health and Social Development of Russia dated November 24, 2010 No. 1031n);
• individual rehabilitation or habilitation program for a disabled person (approved by order of the Ministry of Labor of Russia dated June 13, 2021 No. 486n).