People with disabilities are provided with all conditions for life and health so that they do not feel infringement or restriction of their rights. That is why the state is creating an extensive social security mechanism for this category of the population. Labor legislation is not an exception here, therefore, various kinds of payments for dismissal due to disability are regulated. Consider the cases of dismissal, the order and size of payments and other nuances.
Disability and degrees
Disability is understood as a person’s state of health in which he is considered to be disabled. In medicine, disability is divided into three degrees, depending on the severity and danger of the consequences. Let's consider each of them separately:
- Disability of the first degree is the most difficult, with it a person cannot move, perform any actions, in general, he is not able to perform work of any nature. This is the onset of complete disability, in which a person needs help in taking care of himself, therefore there can be no talk of work.
- The second degree is characterized by the ability to independently move from place to place. In this case, special means that support the person are necessarily used, sometimes you need to resort to the help of other people. In the work plan, certain activities are allowed.
- The third degree is considered easy, with it a person can move around without using the help of others, but at the same time special means are used. To this extent, work is possible under special conditions.
Depending on the severity of the disease, a person may remain at work, or may apply for disability.
Disability Confirmation
Of course, a person does not independently determine the fact of disability and its degree. We define the instances that a person must go through in order to confirm disability.
- The medical and social commission of experts, which examines a person, makes a diagnosis, describes the evidence based on individual characteristics. The degree of disability, the level of disability is also determined. At this stage, a decision is made on whether the person is suitable for a particular occupation, if not, then which one is suitable. The commission issues a rehabilitation card with detailed data on the state of health of the employee.
- A clinical commission that analyzes the current state of a person. It is this authority that makes the decision whether it is possible to transfer the employee to another job and whether it is necessary. Based on the conclusion, the employer has an obligation to transfer the employee to another position.
Benefits in working conditions
Due to the fact that a person due to disability often cannot work fully, the legislator establishes a number of benefits that facilitate working conditions. There is a Federal Law "On the Social Protection of Persons with Disabilities", in article 23 of which benefits are specified in the working conditions of persons with disabilities. These include:
- Reducing the working week to 35 hours - is no longer allowed. Thus, if the working week lasts 5 days, then you can’t work more than 7 hours daily.
- Attraction to overtime work, work on weekends, holidays is possible only with the consent of the employee. You also need to check whether this is consistent with the testimony of a doctor, whether it is possible to work for a person in such conditions.
- Vacation every year should not be less than 30 days (calendar).
- It is impossible to establish the size of wages, the mode of work or the duration of vacations that worsen the situation of persons with disabilities in comparison with healthy workers.
Grounds for dismissal
In the event that a person decides to leave the place of work, he is entitled to benefits. The appearance at the workplace or in the company of an employee with any degree of disability is not the most favorable position for the employer. Therefore, the latter, bypassing the law, may look for reasons to remove a person from his post. Define the grounds for termination of disability regardless of group, they are listed in article 81 of the Labor Code:
- The desire of the employee.
- Contraindications for medical reasons.
- Natural reduction of staff and staff structure.
- Gross violation of internal regulations by an employee.
- Liquidation of an enterprise, the termination of entrepreneurship.
Such conditions are regulated by the Labor Code as general, regardless of whether a person's capabilities are limited or he is healthy. There is a circumstance that is specifically related to disability, we will analyze it further.
Dismissal of a disabled person of group 1
There are several options for dismissal in this case, which also apply to dismissal from a disability pension:
- At the request of the employee - working out in this case is not needed, the employee can immediately refuse to work after leaving the hospital.
- By agreement of the parties - the employee and the employer may agree among themselves on the procedure and conditions for termination of relations. An agreement is drawn up in which everything is prescribed in detail, it is signed by the parties and enters into force.
- At the initiative of the employer - if the employee cannot work, then the employer can terminate the contract for medical reasons. Testimony should be in the form of a medical report.
These conditions are relevant only for those who have become incapable of work in the process. If the employer has hired a disabled person, then you cannot fire him in accordance with the above options. Also, if a person received a disability after dismissal, then the retroactive effect of the law does not apply. That is, benefits and special conditions do not affect a person.
Disability dismissal of groups 2 and 3
After a sick leave, a person with a disability is usually given a conclusion in which the employer has an obligation to transfer the sick person to another job. If a proposal was rejected by the employer, then the person is temporarily suspended from work for 4 months. As a general rule, no wages are charged during this period. This is indicated in article 73 of the Labor Code. If an employee needs a permanent transfer and he refuses it, the employer has the right to terminate the terms of the employment contract, that is, to execute a dismissal due to disability. This is already indicated in article 77, namely in part 1 of paragraph 8. This is the first ground. This situation illustrates labor relations in connection with disability, all other conditions of dismissal are established in the general manner, as mentioned above.
Transfer to another job
We analyzed the dismissal in connection with a disability group, which is expressed in the refusal to transfer to another job, we will consider this procedure in more detail. Article 73 of the Labor Code states that there are times when an employee needs to be transferred to another job. The need for translation is based on a medical report issued to the employee for health reasons. Then the employer, with the consent of the employee, is obliged to transfer him to another job, which will correspond to his state of health. If the employer does not have a job or the employee has refused it, the former must save the workplace by temporarily removing the employee without the right to a salary. If the transfer is necessary for a period of more than 4 months or on an ongoing basis, then in case of refusal or absence of a vacancy, the employer terminates the contract.
Dismissal Procedure
We note the main steps for dismissal of an employee for disability, which apply to a healthy person:
- Writing a letter of resignation.
- Registration of a written document in the personnel department - assignment of number and details.
- It is necessary to include the application to the employer, after familiarization, he puts his signature, which gives the document legal force. At this stage, the employee can make a copy of the application at will.
- The publication of the dismissal order, which will be described in more detail below.
- On the basis of the order, the date of dismissal and the date of payment are assigned.
- By the indicated date all calculations are prepared and certificates and documents are issued.
- Issuance of a work book with a note that the employee has been dismissed, as well as with reference to the law. Receiving payments puts an end to the employment relationship.
Order structure
The process of dismissal by disability group does not differ from the standard order. First of all, an order is issued in which there is a provision “Base”, which will be slightly different from the usual form. Then, when the employee resigns by his own decision, in this column you must specify the data and details of the letter of resignation, which was written by the employee. The order makes reference to paragraph 3 of part 1 of Art. 77 of the Labor Code, which notes the dismissal at the initiative of the employee.
If the dismissal occurs on the grounds and evidence of a doctor, you must indicate the details of the certificate or conclusion of the doctor (commission), in which the diagnosis is made, the evidence is indicated and the degree of disability is indicated. This applies to the first degree of disability.
In the event that the dismissal occurs due to a refusal to transfer, when the employee is assigned 2 and 3 disability groups, then reference is made to paragraph 8 of part 1 of article 77.
Dismissal Payments
Consider the benefits of dismissal disabilities, which are relied on by labor law:
- First of all, article 178 of the Labor Code regulates severance pay, the amount of which is equal to the average two-week earnings. Also, other options, amounts and types of benefits that are paid to the employee upon dismissal may be prescribed in the employment contract.
- For the time worked, a salary is due, as in the case when a healthy person leaves.
- For unused vacation compensation is due.
- The hospital where the employee was located.
- Local acts that apply in each organization, such as charters, may imply additional payments upon dismissal of a disabled person.