Many companies hire people with disabilities who have a specific disability group. Such a solution not only allows people to work independently, but also serves as the basis for companies to receive various benefits and concessions from the state. But at the same time, it is often necessary to dismiss a disabled person. Employers should be well versed in how the process is carried out correctly, for what reasons it is possible to fire an employee, and also what difficulties may be encountered.
What is the status of workers?
Employees who are disabled are represented by standard employees of any company who make an employment contract with the employer. All provisions of the Labor Code apply to them, so they can count on protecting their rights.
The dismissal of a disabled person usually takes place on a general basis, but the exception is when the disability was obtained as a result of the performance of labor duties. This leads to the fact that, for medical reasons, the employee can no longer cope with the previous load, so he needs to provide lighter working conditions.
Legislative regulation
Art. 183 of the Labor Code contains information that if an employee is diagnosed with a disease, the employer must guarantee him sick leave payment until such time as he recovers or draws up a disability.
The Federal Law No. 255 states that after receiving any disability group, it is the state that further pays for the treatment of the citizen, therefore money is allocated from the state budget, and not by the employer. For this, a disabled person is granted a pension.
Art. 73 of the Labor Code contains information that enterprise managers must ensure that the health status of their employees is satisfactory. If a specialist cannot cope with a certain job on the basis of medical indications, then the company management must remove the citizen from his post or provide other work that can be performed without difficulty.
If it is required to issue a sick leave to a citizen for a period of four months, then, with the consent of a specialist, he can be transferred to another position. If this consent is absent or other vacant positions are absent, the employee shall be relieved from work until recovery or other circumstances.
Doctors often argue that a longer treatment is required for the employee, which takes more than four months, and the company does not have suitable positions for the transfer, then on the basis of Art. 77 TC such a specialist can be fired.
What rights and guarantees does the employee have?
The dismissal of a disabled employee can only be carried out taking into account all the rights and guarantees that he has. These include:
- according to Art. 92 TC can count on a disabled person of the first or second group for a shortened working week, which is only 35 hours;
- according to Art. 96 TC is prohibited from involving such workers in the performance of their labor duties at night;
- according to Art. 99 TC, work in excess of the established norm can be realized only with the written consent to this process on the part of the employee;
- according to Art. 179 of the Labor Code, employees with disabilities have a pre-emptive right to remain in the company if management decides on the need to reduce staff;
- according to Art. 128 TK can such employees count on administrative leave lasting for 60 days.
An employee with a disability can be released from work duties only if there are good reasons listed in Art. 73 TK. This includes conducting a medical and social examination or obtaining a medical opinion, on the basis of which a citizen loses all or part of his working capacity.
Disability rules
There is no legislation to dismiss an employee during an illness. But after a specific disability group is correctly framed and the relevant documents are transferred to the head of the company, a decision is made regarding the possibility of further employee work in the company.
Often after such news, the employee has to be fired, as the company simply does not have free places for him.
Dismissal by the employer
The dismissal of a disabled person on the initiative of the employer is considered a rather complicated process. Usually it is implemented in a situation where an employee needs to spend more than four months to recover. According to Art. 73 TC such dismissal is allowed subject to the conditions:
- a disabled person does not want to be transferred to another position on his own, in which he will be able to cope with work responsibilities in accordance with his state of health;
- the company has no vacant vacancies that may be offered to the employee.
For example, an employee has heart failure, so he simply will not be able to cope with his labor duties in the previous mode. Under such conditions, he may be offered another job, where he does not need to put a lot of effort, worry or face high loads. If a disabled person refuses to switch to such work, the employer will be forced to dismiss him.
If a disability is registered by a person holding a managerial position in the company, then under Art. 73 shopping malls he is offered unique benefits. They are represented by the possibility of suspension from work for a period determined by agreement of the parties. In this case, the termination of the employment agreement does not occur.
Dismissal for absenteeism
Although people with disabilities can count on various exemptions and privileges, they must strictly follow the rules and requirements of labor discipline on an equal basis with other employees of the enterprise. Therefore, if they do not comply with the work schedule, then the dismissal of a disabled person of 1 group or other groups may be carried out.
Under such conditions, the employer must record the fact of the violation by the employee, on the basis of which a disciplinary sanction is imposed. If absenteeism continues, then on the basis of Art. 81 TC issued an order to dismiss a disabled person.
Certification dismissal
Each employee of the enterprise must have certain skills and abilities to cope with work responsibilities. Based on the requirements of the law, all employees, including people with disabilities, must periodically undergo certification. It allows you to determine what qualifications, skills and characteristics they possess. Based on its results, it is determined whether the specialist can properly cope with their work responsibilities.
If a disabled person for various reasons cannot pass the certification or its results are unsatisfactory, then the disability of the disabled person of group 3 or the first two groups is allowed. For this, the provisions of Art. 81 shopping mall.
Dismissal due to layoffs
If it is required to reduce the staff of the company, then it is rather difficult to include a disabled person in the list. This is due to the following features:
- based on Art. 179 of the Labor Code, persons with disabilities have a pre-emptive right to remain with the company during reduction if they are injured in the process of fulfilling work duties;
- if the company has a large number of people with disabilities, it is nevertheless necessary to reduce them, but at the same time their abilities, experience and importance for the company are evaluated.
The procedure must certainly be carried out with prior notification of all redundant workers for two months. Additionally, notifications should be sent to the employment center and the union, if available at the company.
Of my own free will
Often, people with disabilities themselves make, for various reasons, the decision to terminate their employment with a particular employer. For this, the disabled person is fired at will. The employer cannot in any way create obstacles to the implementation of this process.
If a disabled person wants to quit, he draws up a letter of resignation two weeks before the appointed date. Disabled persons may be dismissed without working out if the appropriate decision is made by the company's management. No work is required if a disabled person who is a pensioner quits.
Health Termination
Often, a person with a disability worsens so badly that he simply cannot physically continue working. He may even be seriously injured at work or at home. In this case, further cooperation is impossible.
Dismissal of a disabled person of the 2nd, 3rd or 1st group occurs on the basis of Art. 83 of the Labor Code, therefore, circumstances that are independent of the employee or employer are indicated.
By agreement of the parties
Often, certain circumstances arise in the company, due to which it is necessary to dismiss the head of some employees. In this case, the dismissal of a disabled person of group 3 can be carried out on the basis of an agreement of the parties. There are no restrictions on the dismissal of persons with disabilities in the law if both parties to the relationship come to a mutual agreement.
Under such conditions, reference should be made to the provisions of Art. 78 shopping mall.
The order of dismissal
Although there are several ways to terminate a contract with a disabled person, this process has some difficulties. This is due to the fact that the medical certificate contains only information about the difficult physical condition of the employee, but it cannot serve as the basis for terminating the employment contract with him.
For example, the dismissal of a disabled person of group 2, with one leg amputated, will be complicated if he is engaged exclusively in mental work, so his limited ability does not in any way affect the results of the work. Even in the absence of one leg, the specialist easily copes with his duties.
Another situation will be when a person works as a watchman for a full day. After registration of disability it is impossible to attract him to work at night, so he simply can not cope with his basic responsibilities. In this case, the dismissal of a disabled person of group 3 will be legal and justified.
Therefore, the employer must take into account not only the content of medical documents, but also the provisions of internal documentation, on the basis of which it is established whether the employee can continue to cope with his work.
How is the process formed?
The procedure is performed in successive steps:
- if the employee can no longer cope with his duties, the employer identifies other positions to which he can be transferred;
- a list of vacancies is offered to the employee;
- if he refuses to work in another position, then his refusal is made out in writing;
- Further, the disabled person draws up a letter of resignation;
- if the employee does not want to draw up an application himself, then the notice of dismissal is handed to him two weeks before the termination of the contract;
- an order is formed by the employer, to which the employee’s medical certificate, rehabilitation plan, job description and employment contract are attached.
At the appointed time, the employee receives a work book and calculation. If necessary, he may request a statement of income.
What are the benefits?
When a disabled person is dismissed, the same payments are assigned to other employees of the company. This includes salary for days worked and compensation for vacation if it has not been fully used.
If the dismissal is carried out at the request of the employer, then on the basis of Art. 178 TC relies severance pay for a disabled person upon dismissal, equal to a two-week average earnings. Such compensation is not taxable. If the contract is terminated at the request of the employee or with the drawing up of an agreement, then no allowance is assigned.
Social guarantees
After the dismissal, a citizen with disabilities can count on some social guarantees. These include:
- the right to get a job taking into account the state of his health, and the employer cannot refuse to be employed because of the specific state of health of the applicant;
- various enterprises provide quotas for people with disabilities;
- at the expense of state funds, a citizen can get an additional profession;
- when paying for housing and housing services, benefits are offered;
- during the rehabilitation period, medical benefits are issued.
Therefore, citizens with serious illnesses can rely on employment and numerous concessions from the state.
Conclusion
Dismissal of a disabled person can be carried out on the initiative of the employee, the employer or in the preparation of an agreement between the two parties. There must be good reason for this. If the company's management violates the rights of the employee, then he can file a complaint with the labor inspectorate or court.
It is important to correctly calculate the specialist, paying him benefits, if the dismissal is carried out on the initiative of the employer. Even after the dismissal, the specialist has certain social guarantees that allow him to quickly find a suitable job.