What should an employer do if an employee becomes disabled? Regional Public Organization of the Disabled “Perspective Ability to work third.

An important condition for the normal life of a person in society is working capacity. This is an opportunity to perform professional duties without any restrictions. To identify deviations in the body that impede labor activity, a medical and social examination is carried out, classifying persistent violations in the body into several main categories, corresponding to the level of their severity. In this way, disability groups and the degree of restriction to labor activity are determined.

What is disability to work

The ability to work, according to the Order of the Ministry of Labor and Social Protection of the Russian Federation dated December 17, 2015 No. 1024n “On the classifications and criteria used in the implementation of medical and social examination of citizens by Federal state institutions of medical and social examination”, is determined by the employee’s ability to meet the criteria in terms of volume and content of the work.

People who cannot fully fulfill their labor duties to the full, after passing the relevant studies, are entitled to create special working conditions. The degree of disability is the level of deviation of a person's physical capabilities from existing norms determined by age.

The imperfections of a citizen as a full-fledged worker include:

Mental. Violations of perception of the world, memory and attention, control of emotions, etc.
Speech. Loss of the ability to verbal and non-verbal communication, including the inability to fully use oral and written speech (dysgraphia, stuttering, etc.).
Physical. Imperfections in the structure of the body, including external and internal deformities (deformity of the face or limbs, disproportions of body parts, etc.).
Functional. Disturbed work of systems and organs of the body (circulatory, immune, etc.).
Touch. Deviations of the organs of vision, hearing or smell (including exacerbation and dulling of sensitivity under the influence of external factors)

Note! In the presence of a disease included in the list, each person can apply to a medical institution to obtain the status of a disabled person. However, if the medical commission has doubts about the authenticity of the diagnosis, the patient may be required to undergo additional examinations and re-examination.

The law identifies three degrees of restriction to labor activity, each involves specific deviations from the norms of a healthy person:

Persistent disorders of the body caused by chronic diseases, congenital or life-long defects that interfere with normal work activity. They entail the loss of the ability to work in accordance with qualifications, however, they leave the opportunity for general working conditions with a decrease in the volume of production and the severity of labor by at least 2 times. A more rational option, provided for by law, is the transfer to activities of lower qualification, which entails the primitivization of labor and the discrepancy between the level of professionalism and job duties.
Violations in the functioning of systems and organs caused by congenital or acquired ailments or injuries. Labor activity is possible only with the availability of specialized technical means or with the help of third parties.
Significant persistent disorders of various etiologies, as a result of which working capacity is completely lost, including work with the use of auxiliary means and the involvement of third parties.

The assignment of a degree of restriction of labor activity also implies the appointment of one of the three groups of disability, however, an inverse relationship is not provided - disability is not necessarily accompanied by restrictions on work.

Restrictions on work activity for the 3rd disability group

Disabled people of the third group are more adapted to normal life, including work. Despite the fact that such citizens receive a pension, this does not mean that the employer has the right to refuse employment in positions that correspond to the health status of the applicant. In this part, the state provides support to the disabled, obliging organizations with a staff of 100 or more employees to employ at least 2% of citizens with limited working capacity.

Important! By law, it is possible to refuse a citizen who has a particular disability group if the level of his professional competence does not meet the general requirements or if there is no suitable vacancy at all.

If a conclusion on the third group of disability is received, it must specify the working conditions that the employer must comply with in relation to an employee with disabilities:

Reduction of the working week (with special recommendations).
During the week, working time is not more than 40 hours, and overtime work - only with the written consent of the disabled person.
The exclusion of those types of work that are contraindicated for an employee with disabilities.
Extension of vacation by 2 days in comparison with colleagues (instead of 28 - 30 days).
No probationary period for employment.
Unpaid leave up to 60 days per year.
The right to conduct rehabilitation procedures during working hours (if any are described in the conclusion).

Note! The establishment of a 3rd disability group and a 3rd degree of restriction of labor activity in most cases entails complete disability and the assignment of a non-working disability group, but this does not deprive a citizen of the right to work if his condition is stable.

Disability of group 1 is established for a period of two years, 2 and 3 - for one year. In the event that the patient has a disease included in the list of irreversible ones, the status of a disabled person is established without a re-examination period.

Restrictions on work activity for group 2 disability

The second group of disability may be accompanied by all possible degrees of limitation, depending on the severity of the disease. At the same time, citizens with a 3rd degree can be recruited depending on their own wishes and under personal responsibility, since the creation of a fully equipped workplace is almost impossible.

Reduction of the working week to 35 hours while maintaining the full amount of wages for the position held.
The ban on overtime, including daily labor activity, despite the consent of the disabled person.
Extension of paid vacation from 28 to 30 days.
Provision of 60 calendar days of vacation at the expense of the employee with the preservation of his workplace.
Passage of procedures for strengthening and maintaining health during working hours.
The right to transfer the workplace to the home (if possible) or its technical equipment in accordance with the needs of the disabled person.

Note! The employer has the right to refuse to accept a disabled person of the third group in the state if the organization does not have a quota for the employment of citizens of this category or the possibility of fully equipping the workplace for an employee with disabilities.

Restrictions on work activity for disability group 1

Until recently, disability group 1 was completely non-working, but in 2020, citizens of this group have the right to employment. At the same time, the scope of activity is severely limited only by mental labor.

Note! Citizens who have been assigned 1 group of disability and 3 degree of restriction to labor activity have a note in the individual rehabilitation program about their inability to work. However, if the employer is interested in such an employee, and the disabled person has a desire to work, employment is not prohibited by law.

Options for work activities for disabled people of group 1 are considered from two positions: in the first case, the employer undertakes to arrange working conditions for an employee with a disability, in the second case, an employee with disabilities fills out an application for taking responsibility for his rehabilitation.

Working conditions for disabled people of the 1st group:

Reduction of the working week to 35 hours with full payment of wages, the ability to work and less time with the calculation of remuneration based on hours worked.
The right to refuse business trips, extra shifts and overtime work.
Three calendar months of vacation, one of which is fully paid.
Organization of the workplace in accordance with the restrictions imposed by the disease (voice control of devices, the presence of a ramp for a wheelchair user, the provision of an assistant, etc.)
A strict ban on working with chemicals, biologically hazardous substances, with an increased level of vibration and noise or mental stress.

Summing up

If, during the passage of a medical examination, a patient is assigned one or another disability group with or without a degree of disability, this does not mean a complete loss of working capacity. At the same time, the individual rehabilitation plan (IPR) clearly defines the requirements for the workplace and the position held, which the employer must comply with.

Details Published: 30.11.-0001 02:30 Views: 9875

Many employers who are ready to hire a disabled person who has a 3rd degree disability for work (CDTD) face a dilemma: a disabled person has an education, a specialty, professional skills, and according to the certificate, he is considered completely disabled. Can he be hired? How to issue it?

In fact, the 3rd degree of restriction of the ability to work establishes a complete ban on work, which is contrary to Art. 19 of the Constitution of the Russian Federation guaranteeing equality of rights and freedoms to everyone and prohibiting any restrictions (discrimination), in particular, on social grounds, as well as Art. 37 of the Constitution of the Russian Federation, which explicitly states that everyone has the right to freely dispose of their abilities to work, to choose the type of activity and profession.

In addition, the Law on Social Protection of the Disabled, the Labor Code directly provides for benefits for disabled people of group I (for example, Article 92 of the Labor Code of the Russian Federation), which indicates that they are recognized by the legislator as potential employees.

Misunderstandings arise due to the fact that with the introduction of the COTD, they began to be assigned automatically: for disabled people of group I - the 3rd degree of COTD, etc. In such a situation, many working disabled people of group I automatically found themselves "overboard".

There are options for this situation:

Change the degree of limitation of the ability to work from "non-working" to "working", from 3rd to 2nd. The change is made at the ITU bureau on the basis of the application of the disabled person. In this case, he loses part of the monthly cash payments, the amount of which directly depends on the COTS. This option is more convenient for the employer than for the disabled person, since the employer will be "clean" before the inspection authorities.
Issue an individual rehabilitation program (IPR), where in the section "Vocational rehabilitation program" the ITU bureau writes: "recommended work in specially created conditions or at home." Taking into account the fact that the IPR is mandatory for all public authorities (Article 11 of the Law on Social Protection of the Disabled in the Russian Federation), the employer will have a legal basis for hiring a disabled person. The problem is that not every ITU bureau can go along and fill out the IPR accordingly.
The employer concludes a civil law contract with a disabled person (a contract for work, provision of services, etc.). In this case, the legal relationship between the employer and the disabled person is not labor, but is regulated by the Civil Code of the Russian Federation. There are no restrictions on the conclusion of contracts in the Civil Code of the Russian Federation.

A disabled person is a person who has persistent functional disorders of the body. Health disorders in one way or another limit the life of their owner, so that he is recognized as in need of social protection from the state.

As one of the manifestations of protection, experts allocate quotas for the employer, which means that the employer is obliged to create or allocate an existing workplace for a person with a 3rd disability group.

Legislative basis of the issue

Job quotas are regulated by Federal Law No. 181, and their minimum number for persons with disabilities is fixed by the Supreme Court in Determination No. 92-G11-1. At the same time, in order to confirm the category of disability, according to the Order of the Ministry of Health, a disabled person must provide a certificate of the approved form.

You should also focus on the IPR (), the development of which is based on Order No. 379n of the Ministry of Social Development of the Russian Federation. This standard contains information on the criteria for restricting work in group 3.

Since the very concept of disability, as well as the division into groups (in this case, we are talking about the third one) does not give a specific idea of the capabilities of a disabled person, it is precisely the degree of limitations that will play a key role, that is, their severity and impact on performance, performance of functional duties.

Only after getting acquainted with the IPR of the applicant, the employer will be able to make a decision regarding cooperation with a disabled person.

Indicators of functional limitations of a disabled person

Limitations on the ability of a disabled person with group 3 to work can be divided into types. The reason for this is the different input characteristics. Depending on the assigned category, the level of complexity of the activities performed by a disabled employee will differ.

Existing regulation within a given topic is classified as follows:

1 degree. A disabled person of the 3rd group is able to carry out the assigned tasks with normal indicators against the background of reduced tension, severity and qualification requirements, or a reduction in the volume of tasks. Also included here is the urate of the opportunity to work in the main professional area, while retaining the usual employment and skills to perform a lower qualification process.

2 degree. In this case, it means activities in specially created conditions, where a person with disabilities is able to perform tasks, etc. Assistance from third parties or the use of technical means is not excluded.

3 degree. Here we are talking about the inability of a disabled person to work, or about the contraindication of carrying out activities in any direction. In other cases, with the specified degree, it is possible to perform certain types of work with the help of other people.

Which of the disabled people of group 3 can be hired?

The description of the degrees presented above makes it clear that this or that activity is within the power of disabled people with group 3 of 1 or 2 degrees. Again, the employer needs to take into account the IPR, where measures for the vocational rehabilitation of a disabled person are prescribed. The production site must comply with the specified recommendations.

As for the restrictions of the most difficult 3rd degree, despite the fact that the applicant has a serious condition, the employer has the right to take him to a suitable position. Employment for such persons with disabilities is excluded only in case of total impossibility to work.

This fact must be indicated in paragraph 6 of the IPR, that is, complete disability is reflected in words, since simply indicating the degree is not enough. If such a phrase is absent, plus, the disabled person has written a partial or full refusal of the rehabilitation program and activities, the 3rd degree is not an obstacle to getting a job.

Is not responsible for the implementation of individual recommendations of an employee with disabilities;

Deprives a disabled person of the right to receive compensation in the amount of the cost of rehabilitation measures provided free of charge.

But in the case of a high risk of complications in a person with group 3, despite the refusal of IPR, special conditions can be created for him and measures to limit labor can be taken.

Labor benefits for disabled workers of the 3rd group

The medical report received upon the appointment of a group to the ITU indicates data regarding individual functionality. This information must be taken into account in the organization where the disabled person works.

More specifically, experts identified the following benefits:

Maintaining the same payment as with full production, although in fact its period is less;

Reducing the working day or week, if indicated in the medical report;

The ability not to work overtime or on weekends, if a disabled person of group 3 has not given written consent and there is no clear prohibition in this regard in the conclusion;

Employment without a probationary period;

The presence of types of work that are prohibited under group 3 (that is, the employer cannot involve a person with disabilities in activities not specified in the list developed by the Labor Code);

30-day vacation (compared to ordinary people, this is a couple of days more) and the opportunity to take 60-day vacation at their own expense during the year, and disabled liquidators of the Chernobyl NPP annually have the right to rest another 14 additional days with vacation pay;

If necessary, you can engage in the restoration of health within the production shift, if this is prescribed in the IPR.

Working conditions of disabled people of the 3rd group

Quotas and conditions in which a person with disabilities will work directly depend on the degree of restrictions.

1 degree means that the employment of a disabled person is feasible in standard production indicators. That is, the employer allows a subordinate to ordinary production and a place where healthy employees work. But the level of qualification may decrease, or the requested volumes of productivity may decrease (for example, a disabled person performs the same task a little more slowly than an ordinary worker). In other words, activities are often facilitated.

2 degree implies the implementation of the work process in specially created conditions, when hiring a disabled person is possible with some reservations:

Hard or hazardous types of work (hazard class 1 or 2) in the mode of reduced working hours are not contraindicated for a candidate with disabilities;

Partially preserved professionally significant functions, or there is a chance to compensate for them through the involvement of assistants, adaptation of the technological process, the use of technical equipment and ergonomic mechanisms.

If necessary, the employer in this case:

Reduces the number of working hours;

Fixes preferential norms of production;

Specially equips the production site;

Allows you to take more breaks in the process of work;

Approves the full or partial performance of duties at home;

Creates acceptable and optimal production criteria for a disabled person.

Of course, it is not always necessary to implement the listed measures at the 2nd degree. The employer must take into account individual characteristics, violations and the severity of the problem.

Be that as it may, recommendations on the admissibility of working conditions are indicated in the section “Professional rehabilitation measures”. The information from the section “Recommendations on contraindicated and available conditions and types of labor” in Article 224 of the Labor Code of the Russian Federation will be useful.

3 degree talks about the work of a disabled person with the prevailing help of other people, especially if limited opportunities do not prevent him from doing something useful and employment is not contraindicated. The employer can cooperate with such a person, based on the conditions prescribed in the contract concluded between them.

Note that in the case of assigning a disability status to a disabled person with the localization of feasible opportunities of a certain category, the documents indicate the root cause of the loss of health, For example:

work injury;

Disability since childhood;

General or occupational disease;

Illness that developed during military service;

Illness, which is a consequence of the disaster at the Chernobyl nuclear power plant;

Influence of other reasons provided by law.

One more thing should be taken into account: group 3 can be given without specifying the indicators of the regulations in the labor characteristics. Subsequently, within the framework of the ITU, activity levels are assigned - 0 or I.

Many experts see the perspective of the labor market in people with disabilities, especially since their number is growing every year. And this indicates the need to create and maintain standards designed to attract citizens with disabilities to work.

The employee brought a certificate of incapacity for work, closed on December 17. On December 18, he was assigned the II group of disability. We asked him to bring also an individual rehabilitation program (IPR) in order to understand whether this group is working. But the employee claims that now all the groups are working and that they will not give him an IPR. Should an employee be given a reduced 35-hour work week and two extra days of vacation? What other documents, besides a certificate of disability, can we require from him? What code to designate December 18 (the day the disability was assigned) in the time sheet?

REDUCED WORK WEEK AND EXTENDED HOLIDAYS

Annual leave of at least 30 calendar days is established for disabled people of all groups, and reduced working hours (no more than 35 hours per week) with full pay- employees who are disabled people of group I or II (Article 92 of the Labor Code of the Russian Federation, Article 23 of the Federal Law of November 24, 1995 No. 181-FZ “On the Social Protection of Disabled Persons in the Russian Federation”, as amended on December 30, 2012). Since your employee is a group II disabled person, he is entitled to these benefits.

WHAT DOCUMENTS DO YOU REQUIRE

The employer may require the employee to provide an individual rehabilitation program for a disabled person (IPR), which he may not submit, since he is not obliged to do so. However, already on the basis of a certificate confirming the fact of the establishment of disability, the employer can draw the appropriate conclusions and take the right steps.

The establishment of one of the three disability groups is associated with the presence of a citizen with persistent violations of body functions and restrictions on the main categories of life of certain degrees of severity (complete or partial loss of the ability or ability to carry out self-service, move independently, navigate, communicate, control one's behavior, study or engage in labor activity ) and indicates the need for social protection measures, including rehabilitation.

According to paragraph 9 of the Classifications and criteria used in the implementation of the medical and social examination of citizens by federal state institutions of medical and social examination (approved by Order of the Ministry of Health and Social Development of Russia dated December 23, 2009 No. 1013n, as amended on January 26, 2012; hereinafter referred to as the Criteria), the criterion for group II of disability is a violation of human health with a persistent, pronounced disorder of body functions, caused by diseases, the consequences of injuries or defects, leading to the restriction of one of the following categories of life activity or their combination and causing the need for his social protection:

ability to self-service of the second degree;
the ability to move the second degree;
ability to orientation of the second degree;
communication skills of the second degree;
the ability to control one's behavior of the second degree;
second degree learning ability;
ability to work of the second degree.

Ability to work- the ability to carry out labor activities in accordance with the requirements for the content, volume, quality and conditions of work (subclause "g" clause 6 of the Criteria):

1 degree - the ability to perform labor activities in normal working conditions with a decrease in qualifications, severity, tension and (or) a decrease in the volume of work, the inability to continue working in the main profession while maintaining the ability to perform labor activities of a lower qualification under normal working conditions;
2 degree - ability to perform labor activity in specially created conditions using auxiliary technical means;
Grade 3 - the ability to perform labor activity with significant assistance from other persons or the impossibility (contraindication) of its implementation due to existing limitations of life.

Thus, even without studying the IPR, it can be understood that a disabled person needs to create a special workplace due to restrictions for medical reasons. However, what exactly should be the features can only be learned from this document.

In this case, the employee is right: there is no categorical ban on the employment of disabled people in the legislation. A disabled person can perform a labor function, but only under certain conditions.

DAY OF ASSIGNMENT OF DISABILITY IN THE WORKING TIME SHEETS

In the time sheet, the day the disability was assigned (December 18) is counted as a working day (if it was a work day for the employee).

If you do not have time to complete the change of working hours by the end of the day and make this day shorter by one hour (7 hours × 5 days = 35 hours), then the next working day must be 2 hours shorter. This will not be a violation of the law, since it establishes a requirement for a shortened week, and not a working day. You can also set one full additional non-working day for a disabled person per week, if all other days he will work a full shift, or another work schedule convenient for both parties.

Often, after a long illness or as a result of an accident, a person gets a persistent health disorder. In such cases, he is assigned, and the state pays social benefits to the mind.

Depending on how much a person has lost his ability to work, he can be assigned three groups of disability, each of which has several degrees. In this article we will consider the second group of disability.

2 disability group - working

The legislation does not clearly prescribe, in the presence of which diseases or health disorders, the second group is established. When making a decision on the assignment of a disability group, the following data will be used:

whether a person can serve himself or needs the help of third parties;
to what extent a person applying for a group is mentally adequate, whether he poses a certain danger to society or himself;
the degree of disability, taking into account the work that the person previously performed and his ability to perform this work at the present time;
the degree of physical injury, if the group is established in connection with the loss of any limb.

Currently, all these criteria are given in the order of the Ministry of Labor 1024n dated 12/17/2015. According to him, a person can be assigned if he has moderate violations on all of the above grounds.

The second group of disability is established, as a rule, for a year, and in order to extend it, it is necessary to undergo a re-examination every year, which determines whether the health and disability for which it was assigned have been preserved. Based on the results of the commission's evaluation, the group can be saved or canceled.

About the procedure for establishing a disability group - in the video:

Degrees of disability in the second degree of disability

In addition to assigning the most specific disability group, the degree of disability is additionally established. As well as groups of disability, there are three of them:

The first degree of disability is the easiest. The person to whom it is assigned has practically no restrictions in the choice of labor, with the exception of difficult, harmful and dangerous conditions.
The second degree already imposes greater restrictions. Such a person needs either a specially organized workplace or special working conditions. The choice of works and their time are also limited.
The third degree of disability is the most severe and implies that a person cannot work. That is, the employer does not have the right to hire such an employee, even with his consent.

Sometimes in the certificate of disability, in the column for the degree of disability, a note may be affixed: “no”, this means that such a person has practically no disability, but it still needs to be established that do not contradict the individual rehabilitation card of the patient. Also, such a disabled person retains all the benefits provided by labor legislation.

Rehabilitation card for a disabled person

Disability group 2 - people with disabilities

When a disability is assigned, in addition to a certificate confirming this, the person who has received a disability is given a rehabilitation card called: an individual rehabilitation program.

When applying for a job, a person with a disability is obliged to provide an extract from the card or a copy of it to the employer, so that the latter can create optimal conditions for the work of the disabled person and does not violate labor laws.

Work and benefits for a disabled person of the second group

Based on the foregoing, we can conclude that the presence of the second group of disability is not a contraindication to work with minor restrictions. An employee with a disability can only be hired for a position, work for which does not contradict the indications in the individual rehabilitation card.

Restrictions, as a rule, are imposed on the duration of working hours, the intensity and complexity of the work performed, the time and place of the work performed. Regardless of what restrictions are provided or not provided for in the rehabilitation card, the disabled are entitled to, which are established by Federal Law No. 181. Benefits stipulated by law:

the working week of a disabled person cannot be more than 35 hours per week with full earnings;
disabled people cannot be involved in overtime work, even with their written consent;
employees with disabilities are extended by two calendar days;
also, at their request, the employer is obliged to provide disabled people with leave at their own expense with the preservation of the workplace for up to 60 calendar days. The time of this leave must be agreed independently between the employee and the employer.

Thus, the legislation protects citizens with disabilities, but creates additional difficulties for employers. And the latter are trying in every possible way to evade hiring such workers.

Job quotas for the disabled

They have no right to refuse a person in employment because of his disability!

In order to provide people with disabilities with jobs, a law on job quotas was adopted.

According to which, organizations with the number specified in the legislation must establish the number of jobs for people with disabilities. This number is set as a percentage of the average number of all employees.

Currently, this law is controlled by the employment authorities. In order to find out how many places for the disabled should be allocated, you need to go there. But it is worth carefully studying the law itself.

In particular, it states that from the average number of employees, from which the number of jobs is considered, it is possible to exclude those who, as a result of a special labor assessment, were found to have difficult, harmful and dangerous working conditions.

Responsibility for concealing the presence of a disability

Since employers are reluctant to enter into employment contracts with persons with disabilities, and also due to the rather limited list of types of work to which persons with disabilities are allowed, very often a person does not provide information to a potential employer about the presence of a disability.

Who is responsible for this?

Disabled people should feel the support of the state!

According to the Labor Code of the Russian Federation, a certificate of disability is not included in the list of mandatory ones provided when applying for a job. Therefore, if an employee does not outwardly show signs that he is disabled, he can successfully hide this information from the employer, but at the same time, he accordingly loses everything.

If the employer is not properly informed, then he also does not bear for such an employee. But there may be nuances here.

If the position provides for the passage of a medical examination, then it is imperative to send the employee to pass it, otherwise, if an accident occurs and in the absence of a medical certificate it turns out that the employee had a disability in addition, this can turn into serious consequences for the employer.