For workers employed in hazardous working conditions , the legislation provides for special guarantees. In particular, they may receive additional rest or monetary compensation.
Normative base
In 2013, 421- was introduced, which amended certain legal acts in connection with the adoption of the law governing the special assessment of labor (Federal Law No. 426). Corrections also touched the TC.
Provisions 421- fix changes in article 117 defining the conditions in which labor activity gives employees the right to receive additional leave, its minimum duration. Consider the current rules in more detail.
Harmful conditions
They are mentioned in 1 part of Art. 117 Labor Code of the Russian Federation . According to the norm, additional leave can be granted to persons whose working conditions are classified as harmful 2-4 degrees or dangerous.
We are talking about mining, underground and open, including work related to the negative health effects of harmful biological, physical, chemical and other factors. Professions and positions with harmful working conditions are fixed in a special List approved by the USSR State Committee for Labor of 1974, additional leave is granted to workers directly performing activities specified in the relevant sections of the List.
Guarantees
As establishes part 2 of Art. 117 of the Labor Code of the Russian Federation , the minimum length of the period of additional rest, as well as the rules for provision, are determined in the manner approved by the Government, taking into account the opinion of the tripartite commission for the settlement of social and labor relations.
Government Decree No. 870 of 2008 provides guarantees for persons performing professional duties in harmful conditions:
- Reduced working hours. Workers, according to Art. 92 TC, can be employed in hazardous industries no more than 36 hours a week.
- The provision of additional leave for harmful working conditions . Its duration should be at least 7 days.
- Increased pay. Workers must receive a bonus of at least 4% of the salary (rate) determined for different types of labor activity under normal conditions.
Special categories
For some workers, additional leave for harmful working conditions is not provided on the List, but in accordance with other regulations.
In particular, we are talking about the provisions of the Decree of the Council of Ministers of the USSR of 1990. According to them, the industrial and production personnel of the shale, coal, mining industry and a number of other basic industries, in addition to additional leave for harmful working conditions, can receive rest days for work in underground conditions in quarries, cuts. Its duration can be 4-24 days.
Workers receive both of these holidays on the basis of a List specially approved as an Appendix to the Resolution of 1990. This List contains the types of work, production, job titles, professions, for each of which the duration of the period of rest for work in underground conditions is indicated, and also the maximum duration of leave for harmful working conditions . The number of days of rest in the latter case is determined depending on the presence of harmful factors of production. Each of them is compensated by an additional rest of a specific duration.
If there is an impact by several production factors, the duration of the holidays is summed up. Moreover, in general, it cannot exceed the maximum duration specified in the List.
Federal Law No. 1244-1
According to the provisions of this normative act, additional days of rest shall be granted to citizens engaged in labor activities in territories contaminated with radioactive substances as a result of the Chernobyl accident. In fact, they are established for adverse working conditions, although they are provided to personnel as an addition to holidays for harmful working conditions .
The duration of these days of rest varies depending on which zone this or that territory belongs to, and the length of stay / work.
Medical field
Employees of health facilities that diagnose and treat persons with HIV, employees of organizations whose activities are related to biomaterials containing this virus, additional days of rest are included in annual leave. Its duration has been increased to 36 days.
The list of employees entitled to such leave, as well as the rules for provision are determined in the Decree of the Ministry of Labor No. 50 of 1996.
Veterinary, medical and other workers who directly provide anti-tuberculosis care, as well as employees of organizations engaged in the production and storage of livestock products that service farm animals infected with tuberculosis, also have the right to leave for harmful working conditions . It is enshrined in article 15 of the Law, which regulates the procedure for preventing the spread of tuberculosis.
Nuances
The duration of rest provided in the List for a specific job or position should be considered as the minimum guarantee for an employee of any organization involved in the relevant activity.
According to article 117 of article T of the ore code, leave for harmful working conditions can be longer than defined in regulatory enactments. The relevant provisions should be enshrined in the collective agreement or local document of the organization.
Calculation of leave for harmful working conditions
In accordance with the established procedure, to determine the duration of rest, it is necessary to establish the number of days worked in harmful conditions, translate them into whole months and multiply by vacation days, which are supposed to be over 1 year.
If the year has not ended, it is necessary to calculate the number of days from the beginning of the year or from the moment of employment. In this case, the employee must work in appropriate conditions for more than half a shift per day. If a citizen constantly works in hazardous production, all days worked out by him in full are included in the calculation.
To determine the number of months, the number of days in which the subject worked under the relevant conditions is divided into the average monthly number of days. The resulting value is rounded to 1.
Formulas
An employee may receive annual additional leave for harmful working conditions if he works for at least 11 months. If the working time is less than the specified period, rest can be provided, however its duration will be reduced in proportion to the time worked.
To calculate the required vacation using the formula:
DO = DOD / 12 x Chpm , in which:
- DO - the duration of the leave set for the employee;
- DOD - the duration of rest under the contract;
- Chpm - the number of months worked out completely.
If in the current period the employee has already rested several days from additional leave, they are deducted from the values obtained by the above formula.
As article 117 of the Labor Code establishes, the duration of rest should be at least 7 days. If the employer has set a longer duration, the law allows the payment of monetary compensation for days, the amount of which exceeds the minimum established by law.
After determining the number of days worked in harmful conditions and for the year as a whole, the number of months is established by the formula:
MV = Dvr / (Dgod / 12) , in which:
- MB - the desired number of months;
- Dvr - the number of days in hazardous production;
- Dgod - the number of days worked for the year as a whole.
If it turns out 11 months, then the employer must provide the employee with leave for harmful working conditions as for a full year.
After that, the duration of the rest period is determined by the following formula:
O = MV x Dnorm / 12 - ID , in which:
- About - the duration of the vacation;
- Dnorm - the duration of rest for work on harmful conditions established in a collective agreement or employment contract;
- ID - used vacation days for harmful conditions.
Exceptions
When calculating the experience, giving the right to additional rest, the time is not taken into account:
- The absence of an employee in the enterprise without good reason.
- Suspension from work due to the fault of the employee.
- Childcare leave.
Additional information for healthcare providers
Some employees of health facilities may rely on excess leave based on the provisions of Article 350 of the Labor Code. Categories of health workers and the duration of additional leave for them are presented in the table.
Categories | Duration of rest (in days) |
All employees working in hazardous conditions | 7 |
Staff in contact with HIV-infected patients | 14 |
Healthcare providers treating mentally ill citizens | 14, 21, 28 or 35 |
TB workers | 14 or 21 |
Personnel working with biomaterial containing HIV | 14 |
Partitioning Rules
If a citizen carries out part-time work in hazardous production, he can also count on additional leave.
For the calculation, the total number of hours on the days when the employee worked for more than half the shift is first determined. The resulting indicator is divided by the average working day (8 hours).
Can I get cash compensation for an extra vacation?
In accordance with Article 126 of the Labor Code, additional rest for harmful conditions cannot be replaced by a payment. Compensation to employees can be provided only for unused vacation upon termination of the employment contract with them. However, this rule does not apply to cases when an employee is transferred to another position, since in such situations the employment relationship does not end.
Article 117, however, provides for the possibility of substitution with compensation for days, the number of which exceeds the minimum established by law. That is, if in the collective agreement or in the local document of the enterprise, the employer sets instead of seven 15 days of rest, the employee takes a vacation of 7 days, and for the rest he can get money.
The conditions, procedure, amount of compensation are determined in a collective agreement or a local document. In this case, the establishment of a longer vacation, as well as the possibility of replacing part of it with a cash payment, should be reflected in the supplementary agreement to the employment contract.
Payment for rest
Additional leave for labor on harmful conditions is paid. For calculation, the average earnings indicator is used. It is determined in the manner enshrined in paragraphs 3, 4 139 of the article of the Labor Code and paragraph 10 of the Regulation, approved by government decree No. 922 of 2007.
The total duration of the annual vacation is formed from the number of days of the main and additional periods of rest. The estimated period is 12 months preceding the month the employee went on vacation.
Taxation
Mandatory budget payments are deducted from the payment of additional rest time in the same way as from payments for the main vacation. The legislation establishes the obligation of the employer to accrue, withhold and deduct personal income tax and contributions to the FSS.
Expenses for payment of rest for labor activity under harmful conditions are referred to as expenses for payment of labor. The average earnings are retained by the employee during the entire vacation period.
If the company provides for more days of maternity leave than prescribed by law, the costs may be included in the costs that reduce the tax base.
Conclusion
As follows from the above information, additional rest is due to employees by law or by decision of the employer. Mandatory additional days are provided to employees involved in labor activities in hazardous production. In this case, the law establishes a minimum of their number, which can be increased at the discretion of the employer.
The calculation of the duration of leave for work in harmful conditions is based on the time actually worked by the employee. The minimum duration of a rest period cannot be less than 7 days. For certain categories of workers, normative acts establish a larger minimum. In particular, special rules apply to some medical staff.
The employer is not entitled to replace the minimum duration of additional leave with monetary compensation. Otherwise, it will be a violation of the constitutional right of citizens to a legal rest. During the entire additional vacation, the employee retains his position and salary. For violation of the requirements enshrined in federal law and the provisions of other normative acts, measures of civil liability may be applied to the head.