A lot is said and written about the notorious Federal Law No. 122. Basically, these are materials of extremely critical content, because the law has given so many reasons for dissatisfaction that a separate manual can be devoted to this. Therefore, we will focus only on those issues that directly relate to the employment of people with disabilities.
The first, which we will not consider in detail, is changing the provisions on the job quota system for people with disabilities. They consist of increasing the average number of employees of the organization from 30 to 100 people so that it falls under the standards for quotas of jobs for people with disabilities, and in canceling the provision on mandatory payments by the employer to a special fund for non-compliance with these standards. This, of course, transferred the system of quotas for jobs for people with disabilities more to a declarative state than to the state of a really working system capable of solving the problems of employment of people with disabilities. But, in general, it had not worked effectively in almost any region of the Russian Federation (Moscow can be considered an exception to some extent) and did not directly affect the majority of disabled people. We can say this at least by the example of the fact that the introduction of a job quota system for people with disabilities has nowhere been able to solve the problems of employment of people with disabilities. This helped through administrative penalties from employers who did not want or did not have the ability to employ people with disabilities against a quota, support specialized enterprises, or create special jobs for people with disabilities (as in the city of Moscow). But this affected only a portion of disabled people, while the majority of people with disabilities did not notice it. But another change, namely the transfer of state social benefits depending not on the disability group, as was previously the case, but on the degree of limitation of the ability to work, became a serious blow to almost all disabled people in our state.
But here, first of all, it is necessary to maintain historical justice and destroy one of the very common myths - the degree of limitation of the ability to work, as one of the criteria for determining disability factors, was developed and approved for action long before Federal Law No. 122 came into force. Concept “the degree of limitation of the ability to work” was introduced by Decree of the Ministry of Labor and Social Development of the Russian Federation of January 29, 1997 No. 1 “On approval of classifications and temporary criteria used in the implementation of medical and social examination.” The ability to work is defined in it as the ability to carry out activities in accordance with the requirements for the content, volume and conditions of work. This criterion is included in a number of other limitations in the ability to live of a disabled person, along with the criteria:
self-care ability;
ability to move independently;
ability to learn;
ability to communicate;
the ability to control one's behavior.
Each limitation has a classification according to its severity, indicated by the corresponding degree. In particular, the limitation of the ability to work is classified in the Decree of the Ministry of Labor and Social Development of the Russian Federation of January 29, 1997 No. 1 “On approval of classifications and temporary criteria used in the implementation of medical and social examination”, as follows:
1st degree - the ability to perform work activities subject to a decrease in qualifications or a decrease in the volume of production activities, the impossibility of performing work in one’s profession;
2nd degree - the ability to perform labor activities in specially created conditions with the use of auxiliary equipment, and (or) a specially equipped workplace, with the help of other persons;
3rd degree - inability to work.
These classifications were considered in this Resolution only as criteria for further establishing the disability group. The criteria for determining the disability group in it are social insufficiency requiring social protection or assistance, due to a health disorder with a persistent, significantly pronounced disorder of body functions, caused by diseases, consequences of injuries or defects, leading to a pronounced limitation of one of the categories of life activity or a combination of them.
It is interesting that in the criteria for establishing the first disability group, the degree of limitation of the ability to work, unlike the five other degrees of disability, does not appear. To establish the second disability group, the ability to work must correspond to the second or third degree, and for the third disability group - to the first degree. In accordance with the Decree of the Ministry of Labor and Social Development of the Russian Federation of January 29, 1997 No. 1 “On approval of classifications and temporary criteria used in the implementation of medical and social examination”, the degree of disability affects the assignment of a disability group, but not vice versa. But it is also necessary to take into account the psychological factors of correspondence between the degree of limitation of the ability to work and the disability group, as well as the fact that the vast majority of disabled people by the time of the next examination at the medical and social examination service already had an established disability group. And many disabled people, if they want to draw up an individual rehabilitation program for themselves, undergo an examination with a disability group established indefinitely.
That is, in many cases, ITU bureau specialists have to deal with the reverse process - a person has a disability group, and he needs to be assigned degrees of disability. In this case, the degree of disability is established in accordance with the disability group, otherwise there will be a violation of the provisions of the Resolution we are examining. Let us recall that the degree of limitation of the ability to work is not clearly linked to the disability group (unlike other criteria for disability, where there is a clearly defined connection), and this leaves the task of assigning the degree of limitation of the ability to work depending on the opinion of medical staff. social expertise.
Now let's take a closer look at the classification according to the severity of limitations in the ability to work. First of all, we note that the formulation for defining a person with a third degree disability “inability to work” simply does not stand up to criticism. If you approach this criterion strictly, then not a single person will fit it. A lawyer I know from the city of Samara told a story about how in France a girl who is completely immobilized and does not speak successfully works as a model in art schools. And her disability, on the contrary, helps in this difficult profession, since it is easier for her than for others not to move for a long time. This example shows that, subject to certain conditions, everyone can work. And neither disabled people who move in wheelchairs (even if they have damaged cervical vertebrae and weakened hand activity), nor the completely blind, nor people with Down syndrome (this list can be continued for a long time) cannot be classified as the third degree of limitation of the ability to work. They can all definitely work. Some - when creating the necessary conditions for them in the workplace, some - only in a limited number of specialties, others - only at home, but all of them can work. And if we strictly adhere to the wording “inability to work,” then none of them should be assigned a third degree of restriction of ability to work.
And you can approach the consideration of the above situations from the other side. A person who uses a wheelchair cannot leave his home due to architectural inaccessibility; due to the inadequacy of public transport, he cannot get to his intended place of work; and he cannot work at home due to the lack of a telephone and cramped living conditions. That is, this disabled person is able to work due to his health, but cannot work due to social factors in his life. And this can also be recognized as “inability to work.” The same arguments can be made for people with other types of disabilities. These arguments are more than enough, but the whole question is who will evaluate them and how. Moreover, the Decree of the Ministry of Labor and Social Development of the Russian Federation dated January 29, 1997 No. 1 “On approval of classifications and temporary criteria used in the implementation of medical and social examination” states that the criteria for establishing a disability group are precisely the social problems of the individual due to his limitations in health capabilities. And the consideration of social factors is such a subjective process that it is not possible to bring it under a single classification, which was clearly demonstrated by the designated Resolution.
What is also noteworthy is how unclear the wording used in the Resolution is and allows a person with one type of disability to be assigned to different degrees depending on his profession. Let's give an example: a man worked as a miner, but as a result of an injury he lost his sight. Of course, he is supposed to be assigned a second or even third degree of restriction of his ability to work, since to work he now needs a change of profession and the creation of special working conditions in a new workplace, and if all this is not available to him, then he will be “incapable of labor activity". And if the same person worked as a massage therapist before receiving disability, and even received some of his clients at home, then to continue his professional career he only needs to reduce the amount of work he performs, or even this is not required. All this only amounts to the first degree of limitation of the ability to work or even its absence, a kind of “zero” degree, when a disabled person does not require any additional conditions or rehabilitation measures to continue working in his specialty. At first glance, everything seems logical and correct, but at the same time two insoluble questions arise.
The first question is who and how will assess the level of professional suitability of a person after receiving a disability (the MSE service employs mainly medical specialists). When examining for disability, entries in the work book are not taken into account; accordingly, there is no way to determine whether a person will be able to continue working in his previous specialty. And even if the work record is considered, how much information will it give about a person’s professional capabilities? Hardly. There are no mechanisms or procedures to obtain information about a person’s professional capabilities. Therefore, the basis for making a decision on the suitability of a disabled person for one or another degree of ability to work remains the subjective opinion of medical and social experts, which can only be based on the level of their knowledge, impressions of the capabilities of a particular person and information provided by the disabled person himself. Indeed, it would be strange to imagine how an ITU employee calls the colleagues of a person undergoing a disability examination to testify, or himself travels to the organizations where he worked. But what about a disabled person who has no work experience? Assess the level of his professional education, and on its basis make a verdict on the degree of limitation of his ability to work? This will be an even more subjective opinion.
The second insoluble question is the problem of a possible change in the position of a person with a disability in the labor market. That is, let’s assume that a disabled person, who, due to his professional status, has been given a reduced degree of limitation in his ability to work, will lose his job, which is quite common in today’s socio-economic conditions. And it is likely that it will be difficult for him to get a job in a new organization (if this were not so, then in our country there would not be a problem in employing people with disabilities). But in this case, will the disabled person automatically increase the degree of limitation of their ability to work? No, this will be possible only during the next disability examination, which, in accordance with current legal regulations, is carried out no more than once a year. So a situation arises where people with the same limitations due to disability can have completely different degrees of limitation in their ability to work, and all this is very dependent on subjective factors.
On August 22, 2005, a new Decree of the Ministry of Health and Social Development of the Russian Federation No. 535 “On approval of classifications and criteria used in the implementation of medical and social examination of citizens by federal state institutions of medical and social examination” was adopted. But it did not make noticeable changes to the existing system of classification of degrees of disability to work. The only innovation concerned the definition of the third degree of limitation of the ability to work, which, in addition to the inability to work, was now supplemented by the impossibility (contraindication) of work.
This has further increased the dependence of a person with a disability on a subjective assessment of his capabilities by ITU specialists, because what is “contraindicated for work” is not stated anywhere. And it turns out that under the plausible pretext of protecting the health of a disabled person, medical and social examination staff can literally impose a ban on his desire to work. This looks more like discrimination, when some people decide for other people (in this case, ITU specialists for people with disabilities) what they can and cannot do.
Some clarity in the process of determining each degree of limitation of the ability to work was brought by the criteria for their establishment, which we present below:
IV. Criteria for establishing the degree of limitation of ability to work
8. Ability to work includes:
a person’s ability to reproduce special professional knowledge, skills and abilities in the form of productive and effective work;
a person’s ability to carry out labor activities in a workplace that does not require changes in sanitary and hygienic working conditions, additional measures for organizing work, special equipment and equipment, shifts, pace, volume and severity of work;
a person’s ability to interact with other people in social and labor relations;
ability to motivate work;
ability to adhere to work schedule;
ability to organize the working day (organization of the labor process in a time sequence).
9. Assessment of indicators of ability to work is carried out taking into account existing professional knowledge, skills and abilities.
10. The criterion for establishing the 1st degree of limitation of the ability to work is a health disorder with a persistent moderately severe disorder of body functions, caused by diseases, consequences of injuries or defects, leading to a decrease in qualifications, volume, severity and intensity of the work performed, the inability to continue working in the main profession with the possibility of performing other types of lower-skilled work under normal working conditions in the following cases:
when performing work under normal working conditions in the main profession with a decrease in the volume of production activity by at least 2 times, a decrease in the severity of work by at least two classes.
when transferred to another job of lower qualifications under normal working conditions due to the inability to continue working in the main profession.
11. The criterion for establishing the 2nd degree of limitation of the ability to work is a health disorder with a persistent pronounced disorder of body functions caused by diseases, consequences of injuries or defects, in which it is possible to carry out work activities in specially created working conditions, with the use of auxiliary technical means and (or ) with the help of other persons.
12. The criterion for establishing the 3rd degree of limitation of the ability to work is a health disorder with a persistent, significant disorder of body functions, caused by diseases, consequences of injuries or defects, leading to complete inability to work, including in specially created conditions, or contraindication to work .
Despite the fact that the criteria for establishing each degree of limitation of the ability to work necessarily contain the words “impaired health with a persistent significant disorder of body functions, caused by diseases, consequences of injuries or defects,” they are still based on social factors. This is clearly demonstrated by all the provisions from paragraph 8 on what the concept of “ability to work” includes. How else can one evaluate, for example, a person’s ability to reproduce special professional knowledge, skills and abilities in the form of productive and effective work, a person’s ability to interact with other people in social and labor relations, or the ability to comply with a work schedule, except through the prism of his professional capabilities and the specialty in which he works/can, wants to work.
But, literally directly, the Resolution speaks about the social factors of the criteria for establishing the degrees of limitation of the ability to work in paragraph 9, which states that “the assessment of indicators of the ability to work is carried out taking into account existing professional knowledge, skills and abilities.” That is, it is officially recognized that for disabled people with the same limitations in health, but at different educational levels and/or in different professions, different degrees of limitation of ability to work can (and even should) be established.
The previously described problems remain and even become even more relevant and, in today’s situation, have no solution. It is difficult to imagine how ITU staff can assess the professional knowledge, skills and abilities of a person with a disability. It is only likely that, by analogy with medical and social examination, a professional examination will be carried out, based on the demonstration by disabled people of their skills in their specialty. For example, a shoemaker will show how quickly and skillfully he repairs shoes, and on the basis of this, ITU specialists will draw some conclusions and determine the degree of limitation of his ability to work. Agree - an absurd situation. Perhaps it is precisely for this purpose that the new Decree of the Government of the Russian Federation “On the procedure for recognizing citizens as disabled” provided for the possibility of attracting employees from other departments. In accordance with the new rules, representatives of state extra-budgetary funds, the Federal Service for Labor and Employment, as well as specialists of the relevant profile can participate in conducting a medical and social examination of a citizen at the invitation of the head of the bureau. But what comes out of this, and what will happen in practice, is a big question.
It turns out that there is a contradiction and inconsistency between the fact that the determination of the ability to work and the assessment of indicators of the ability to work are made on the basis of social factors, and the criteria for establishing the degrees of limitation of the ability to work rely more on medical components. That is, the grounds for establishing the degree of limitation of the ability to work are limitations in the capabilities of a person with a disability due to health problems, which necessarily lead to the need for his social protection.
Let us return to the already cited example of a miner who lost his sight. Do you think he will be given a third degree of disability to work, since his professional knowledge and work skills do not allow him to continue working in his previous specialty, or a second degree, since based on medical indicators he certainly cannot be recognized as “incapacitated”? The second option is more likely, because the criteria for establishing the third degree now include “impaired health... leading to complete inability to work,” but even a blind miner will no longer be able to work in the socio-economic conditions of his region. A logical question arises: why do the criteria for establishing the degree of limitation of ability to work do not take into account the possibilities of the local labor market and the conditions for employment of people with disabilities in the region? For example, in rural areas, a person with a disability has much fewer opportunities for work than city residents and, probably, the degree of limitation in the ability to work should be higher. Although, again, who will determine these “regional coefficients”?
The issues of criteria for establishing ability to work remained not entirely clear even after the publication of the new Resolution, which in the conditions of our state leaves a wide field for different interpretations and a variety of practical situations. But we will talk about this further.
All of the above would not be of fundamental importance if we were not talking about the amount of cash payments from the state. Before January 1, 2004, few disabled people knew or thought about the degree of limitation in their ability to work that the ITU bureau had established for them. In disability certificates, the degree of limitation of the ability to work was not reflected and it (the degree) did not in any way affect the future life of the disabled person. But the “time bomb” had already been laid and was waiting in the wings.
And here it is necessary to destroy another myth. The amount of the basic labor disability pension was tied to the degree of limitation of the ability to work, not in accordance with Federal Law No. 122, but thanks to the legal norms of Federal Law No. 173 “On Labor Pensions in the Russian Federation,” adopted on December 17, 2001. The entry into force of these provisions was postponed until January 1, 2004, and for disabled people who were assigned a labor disability pension before this date, well-known disability groups were used as criteria. Article 31, paragraph 4 of Federal Law No. 173 “On Labor Pensions in the Russian Federation” provided that when labor pensions are established before January 1, 2004, entitled to persons with disabilities of the 3rd, 2nd and 1st degrees, the following applies respectively: 1 , 2nd and 3rd disability groups. Now disability groups no longer have any practical significance, and the degree of limitation of the ability to work comes to the fore. Naturally, the highest amounts of basic labor pension payments are provided for the third degree of limitation of ability to work, smaller amounts for the second degree and even smaller amounts for the first.
The difference in the amount of the basic labor pension for disabled people with different degrees of limitation in the ability to receive a labor pension is quite significant. It increased even more when, on January 1, 2005, provisions came into force to replace lost benefits for people with disabilities with cash payments. It is interesting that all benefits were provided to disabled people precisely in accordance with the disability group established for them, and compensation payments are provided based on the degree of limitation of the ability to work. This is a very serious matter and may be subject to litigation. Let us remind you that at the moment the amount of compensation payments for disabled people for benefits is:
1. for III degree - 1400 rubles
2. for II degree - 1000 rubles
3. for I degree - 800 rubles
4. if the degree is not established - 500 rubles
The transfer of the amount of government cash payments depending on the degree of limitation of the ability to work has brought many social problems for people with disabilities. First of all, many disabled people are faced with the problem of choice. This choice is somewhat conditional, because it is, of course, specialists in medical and social expertise who determine what degree of limitation in the ability to work is assigned to a particular person with a disability. But, we have already considered the entire subjectivity of this process, and a lot depends on what goal the disabled person sets for himself. Of course, any person wants to receive a large state pension, but the ability to work is an important component of the economic independence of any citizen. And the following situation arises: if a disabled person is assigned a third degree of disability, then he receives the maximum amount of the basic disability pension and compensation payments for benefits, but is officially recognized as a disabled person. And if he wants to work and seeks to establish a lower degree of limitation on his ability to work, then the amount of state social payments due to him is immediately reduced. That is, disabled people in our state have been deprived of their motivation to work.
Theoretically, if a person with a disability has been assigned any but the third degree of restriction of ability to work, and he does not have a job, he can register with the state employment service as an unemployed citizen and receive unemployment benefits. But we must take into account the complexity of this procedure for people with disabilities, because there are almost no architecturally accessible local employment centers, there is no system for providing services for the blind and people with hearing impairments, and every time you have to re-register monthly you have to stand in a long queue. In addition, the vast majority of disabled people do not have work experience, which means they can only count on a minimum unemployment benefit in the amount of the minimum wage (currently 720 rubles), which cannot fully compensate for the losses in the basic labor pension for disability and benefits payments.
It is also necessary to take into account the influence of relatives on the choice of a person with a disability and the fact that government employment programs are ineffective and do not guarantee a disabled person that he will be able to get a job and compensate for his financial losses in the amount of a pension. And it is not difficult to imagine that as a result, a person with a disability will prefer a reliable state pension in the maximum amount to the complex, and not guaranteeing success, process of finding a job.
Below we provide an excerpt from a description of the situation with the employment of people with disabilities in one of the regions of the Russian Federation, which is evidence of the difficult prospects for their employment, including through government agencies.
Since last year, the number of applications from people with disabilities to the employment service has increased significantly. In 2004, the number of people wishing to find a job was 40% higher than the previous year and amounted to 1 thousand 850 people - this has not happened in the entire history of the Ivanovo employment service. This year the trend continues. However, the number of jobs and potential workers applying for them are completely incomparable quantities. The Electro enterprise is also unable to improve the situation in any way. More than 70 disabled people working there have already received notice of dismissal. Mandatory quotas were considered the only solution to the problem of employment of disabled people.
In the process of finding employment for people with disabilities, we have repeatedly had to deal with situations where medical and social experts themselves sought to assign a person with a disability a third degree of limitation in their ability to work. When Svetlana S. from Moscow (at her request we do not indicate her last name), who uses a wheelchair, underwent another re-examination for disability in 2004, her “kind” employee of the ITU bureau even persuaded her to agree to the third degree. This was justified simply: Svetlana was assigned the first group of disability indefinitely, and if she was given a second degree of limitation in her ability to work, then her pension would immediately decrease by almost a thousand rubles and it would no longer be possible to return it back to the maximum amount. Svetlana agreed with these arguments and lost the opportunity to work in the future.
We have repeatedly heard from lawyers, representatives of the public and government agencies the opinion that the third degree of disability does not at all prevent a person with a disability from working. At the interregional conference “Employment of Disabled People: An Integrated Approach,” which our organization organized and held at the Izmailovo hotel complex in November 2004, one very senior official of the Ministry of Labor and Social Development of the Russian Federation tried to convince us of the same thing. He stated that the introduction of the degree of limitation of the ability to work as a new criterion for the payment of a basic disability pension will not affect the ability of disabled people to work. However, Federal Law No. 181 “On Social Protection of Disabled Persons in the Russian Federation”, Article 23 “Working Conditions of a Disabled Person” states that disabled people employed in organizations, regardless of organizational and legal forms and forms of ownership, are provided with the necessary working conditions in accordance with the Individual Program rehabilitation of a disabled person. And if the IPR, in accordance with the provisions of Article 11 of the Federal Law “On Social Protection of Disabled Persons in the Russian Federation,” is advisory in nature for the disabled person himself, then for all organizations, regardless of their organizational and legal forms and forms of ownership, the IPR of a disabled person is mandatory. Consequently, if in the Individual Rehabilitation Program a person with a disability has a third degree limitation in their ability to work, then any organization hiring him will violate current legislation. And it’s hard to blame her for this. Would anyone really want to have problems with the labor inspectorate, especially since the legislation is clearly not on their side?
A striking example of the fact that this problem is of an objective nature and is not a consequence of the stereotypical attitude of employers towards the possibility of hiring people with disabilities can be seen in the example of the Federal State Employment Service. No disabled person can be registered as an unemployed citizen unless he has an Individual Rehabilitation Program and, accordingly, the degree of limitation in his ability to work is indicated. If a person with a disability has been assigned a third degree of limited ability to work, then he also cannot be recognized as an unemployed citizen and cannot apply for participation in government programs for the employment of people with disabilities (vocational training courses, job-seeking clubs, temporary employment for socially vulnerable groups population, etc.) And if you make claims, including in court, then you need to start with government organizations that clearly demonstrate an example of discriminatory attitude towards the labor opportunities of people with disabilities.
It so happened that in our country the number of disabled people with disabilities has increased sharply. Indeed, starting from the adoption in 1995 of the Federal Law “On Social Protection of Disabled Persons in the Russian Federation” and until the introduction of the degree of limitation of the ability to work, all people with disabilities in our country were considered able-bodied. In accordance with Article 1 of the mentioned law, the direct connection between the concepts of “disability” and “working ability”, which existed during the Soviet Union, was abolished (when group 1 disability meant a person’s inability to work, group II was divided into working and non-working, and group III gave the disabled person the opportunity work). This, on the one hand, complied with the norms of the UN Standard Rules for Equal Opportunities, and on the other, was a great achievement of the social movement of Russian disabled people. But the Government of the Russian Federation has come up with a new way to return to the classification of disabled people according to their working capabilities.
We have heard different versions of why such a reform began to be implemented in our state. Let's look at two of them. The first is the progressive spirit of the Ministry of Labor and Social Development of that time, and the desire, in accordance with global trends, to transfer the definition of disability from medical components to social factors. Here we can quote one of the former Chairmen of our Government: “We wanted the best, but it turned out as always.”
Priority will be given to program activities aimed at creating real conditions for disabled people to carry out rehabilitation and restore full-fledged social, professional, labor and family and household relations. The priority of these activities is ensured by the allocation for their implementation of the main volume of financial resources planned for the implementation of the Federal Target Program from the federal budget. It is predicted that the implementation of the program will create conditions for reducing the number of disabled people and will ensure an annual return to independent professional, social and everyday activities of up to 150-160 thousand disabled people, which over five years will amount to about 800 thousand disabled people (of which about 30 thousand are disabled due to combat operations and war trauma ). The economic effect that the state will receive as a result of the implementation of the proposed program amounts to, on average, 2.6-3.5 billion rubles annually. At the same time, savings from the federal budget, as well as state extra-budgetary funds, are taken into account due to the cessation of payments to rehabilitated citizens from whom disability and restrictions on the ability to work have been removed (disability pensions, monthly cash payments, compensation, purchase of technical means of rehabilitation and other expenses ).
(July 27, 2005 Moscow N1306.
The second looks much less optimistic and is based on the fact that everything that is happening is simply part of a plan to reduce our state’s spending on social needs, and, in particular, on payments to people with disabilities.
Disabled people must return to work after rehabilitation. This was stated at the last government meeting by the Minister of Health and Social Development Mikhail Zurabov.
In his opinion, the number of disabled people should be reduced by about three times.
According to Rosstat, the total number of disabled people in the country is about 12 million people. This, the authorities believe, is too much. Mr. Zurabov is convinced that “if we exclude social disabilities, then in Russia there would now be 3.5-4 million disabled people.” Therefore, the minister believes, it is necessary to refuse assistance to them through social security authorities, and in return introduce various benefits for employers and thereby encourage them to hire people with disabilities.
The meaning of the official’s reasoning is that the government is preparing to reduce social guarantees to those who need them first. There is an attempt to shift the costs of the state, which has crippled millions of its citizens in ongoing wars and conflicts, onto some abstract employers...
(Valery Virkunen.
We have an unreasonably large number of disabled people,” this was the conclusion reached by the ministers who discussed the program of social support for disabled people for 2006-2010. Today their number has exceeded 12 million, and in 2005, 700 thousand people had already become disabled. Head of the Ministry of Health and Social Development Mikhail Zurabov said : people seek disability for the sake of money. The amount of additional compensation varies from 500 to 2000 rubles.
(Newspaper Moskovsky Komsomolets dated July 29, 2005).
This is confirmed by the further steps of the Government of the Russian Federation, which reorganized the medical and social examination service and, from January 1, 2005, transferred it from regional subordination to a single federal structure. From this moment on, new trends began to clearly emerge, when people with disabilities began to underestimate the degree of limitation of their ability to work everywhere. This was largely due to the Government’s dissatisfaction with the policy of regional social protection services (whose jurisdiction then included medical and social examination) in determining the degree of limitation of the ability to work. Until January 1, 2005, payments to people with disabilities were provided by the federal center, and institutions subordinate to regional authorities determined how much to pay them (that is, they established the degree of limitation in their ability to work). But this did not last long.
President of the All-Russian Society of the Blind A.Ya. Neumyvakin in an interview with the newspaper "Russian Invalid", December 2005:
“A negative consequence of the introduction of Federal Law No. 122 was the widespread practice of underestimating the degree of limitation of the ability to work during the initial or routine examination of disabled people and a corresponding reduction in their pension amount. Moreover, in a number of regions, pensions were completely withdrawn from working disabled people, giving them the so-called “ "zero" degree of limitation of the ability to work. If these disabled people lose their jobs, the degree will not automatically increase, and they will practically be left without a livelihood. Hundreds of offended visually impaired people contact us on this issue."
Alexander Lomakin-Rumyantsev, Chairman of the All-Russian Society of Disabled People:
“In 2004, instead of 3 disability groups, 4 degrees of limited ability to work appeared. They began to determine the size of the pension, benefits, and the amount of compensation in return for benefits. Why this was done, I can only guess. Officials are trying to assign minimum degrees , allowing you not to pay a pension at all and save as much as possible on compensation. For example, this is the conclusion given to a visually impaired, completely blind person: “Unable to work in normal production conditions, needs constant assistance, that is, it seems like specially created ones.” conditions, he can work, so he was assigned a second degree of disability (and not a third). Thus, the person was deprived of 1,300 rubles a month. Or here is the conclusion for a group III disabled person: “Heavy physical work and hypothermia are contraindicated.” "can do the work of a mechanic or a security guard." Accordingly, the degree of restriction is assigned to zero: this means that the person is deprived of his pension, and instead of benefits he is paid a minimum compensation - this year 50 rubles per month."
If we count how many disabled people of group 1 previously received the maximum amount of the basic labor disability pension, and now they are given a second degree of limitation in their ability to work (or even lower) with a corresponding decrease in the amount of state social benefits, then on a state scale the economic effect will be great. To this it is necessary to add the benefit from savings on group II disabled people, who are given 1 or “zero” degree of limitation in their ability to work, and it seems that the Government’s goal has been achieved.
But they did not take into account one factor, namely the transfer of “in-kind” benefits into cash payments, which immediately intensified and increased the flow of citizens’ requests for disability certification.
Federal Law No. 122 on the replacement of benefits with monetary compensation guaranteed social support to disabled people, therefore, with its introduction in 2005, the number of people wishing to register for disability increased sharply. According to the deputy head of the Main Bureau of the State Service for Medical and Social Expertise in the Novosibirsk Region, Alexander Zakharyan, if earlier 18-19 thousand people were diagnosed with disabilities per year, then last year more than 31 thousand people were diagnosed with disabilities for the first time. The queue at the ITU bureau has increased, which has caused dissatisfaction among the townspeople.
The number of people “wanting to become disabled has increased sharply,” says a senior government official. Everyone likes to get cheap transport tickets and social benefits. Medical and social examination bodies do not have time to examine everyone who would like to receive a disability. The queue for examination in the country is more than 300 thousand people, and in some regions they have to wait for 4 months. This year, the federal register of beneficiaries has grown by 11%, exceeding 16 million people.
Konstantin Frumkin.
At a meeting of the Public Reception of the Baltic Media Group (BMG), the chief expert on medical and social examination of St. Petersburg, Alexander Abrosimov, said:
“Often, doctors at medical institutions, without hesitation, refer their patients for examination. As long as a person has at least a small hope of increasing his pension, he will come to us,” says A. Abrosimov.
As a result, having wasted time in endless queues, the disabled person never receives the desired third degree of disability, which exempts him from work and guarantees an increase in pension.
“It is unrealistic to increase the staffing of medical and social examination workers fourfold in order to eliminate queues. The only way out in this situation is to conduct a more careful selection of patients in clinics and hospitals at the place of residence. Often it is easier for a doctor to prescribe a person to contact us than to explain it himself the patient’s situation,” says the chief expert.
Zurabov said that the number of federal beneficiaries this year increased from 14.5 million people to more than 16 million, and therefore it was necessary to allocate an additional 17.7 billion rubles from the budget for them. What's happened?
Firstly, as the minister admitted, the authorities, when starting monetization, did not have accurate data on how many people they actually wanted to make happy. And secondly, pensioners - labor veterans - also began to register as disabled. They can be understood: they, regional beneficiaries, received less payments than federal ones...
(Marina Ozerova newspaper Moskovsky Komsomolets dated November 10, 2005).
The social “price” of disability, given since the new year by the state under the law on the monetization of benefits, forced ordinary pensioners, who sometimes had no privileges other than free travel, to rush en masse to obtain this very disability. Unlike other preferential categories at the federal level (war veteran, blockade survivor, etc.), disability can be obtained even now. However, too many people wanted to “outsmart” the state. Now registration for the commission of medical and social examination (MSE) of the Vologda region in one of its branches is already underway for 2007. The option that you will officially become disabled in a year or two (which means that is when you will begin to receive a relatively decent pension, monetary compensation, social package) does not suit anyone; and people make trouble, not understanding why they have to wait so long...
(Olga Zakharova.
Are there any violations in all the presented situations with the establishment of degrees of limitation of the ability to work? The infringement of the rights of people with disabilities to social protection by the state is obvious, but is there a violation of the current legislation of the Russian Federation? These are very complex issues and they require detailed serious consideration, which we cannot provide within the framework of this manual, so we will focus only on two main points.
The first is how fair it is to establish the amount of state social payments to people with disabilities depending on only one of the criteria for their life activity? After all, people with disabilities need social protection measures not only because their labor opportunities are limited, but also for many other reasons. Disabled people may have various problems: with movement, in self-care, when communicating with others, etc. And the reasons for their occurrence are both medical limitations due to health conditions and social factors, which in practice are interconnected.
For example, a person in a wheelchair cannot move freely around the city due to the fact that he does not walk on his feet like others, but at the same time, if the conditions for creating accessible architecture for the disabled were met, this would level out his physical limitations and allowed to solve problems with movement. Another example is that due to objective health problems, a person with limited hearing cannot fully communicate with others. But the reasons for this is that the sign language of the hearing impaired is not recognized as a means of interpersonal communication for all citizens. Solving the issues of employment of disabled people is impossible without solving all these accompanying social problems of disability. And until the state creates conditions to ensure equal access for people with disabilities to all aspects of public life, the opportunity to work cannot be snatched away from the entire spectrum of the socio-economic status of people with disabilities.
Such a general indicator of the need of a person with a disability for social protection measures was the disability group, which is determined on the basis of all criteria for disability. But now its practical significance has been reduced to zero, and everywhere the fundamental factor for the amount of state support for a disabled person is only the degree of limitation of the ability to work. Even the opportunity to obtain a second voucher for an accompanying person for sanatorium-resort treatment depends on the degree of limitation of the ability to work (the second voucher is given only to disabled people with a third degree), and not on the degree of limitation of the ability to self-care or the degree of limitation of the ability to move freely, which would be much more logical. It is probably much easier for social insurance authorities to work and determine all benefits and services for people with disabilities based on only one criterion. But how much this reflects the real picture of the needs of people with disabilities in social protection measures is a big question.
It also raises doubts about fairness when government payments are assigned in accordance with recommendations for work, and not in accordance with the actual socio-economic status of the disabled person. That is, few would be indignant if the revision of the pension amount took place after a person with a disability gets a job, but doing this before his actual employment is simply strange. Moreover, government agencies and the programs they implement do not allow a disabled person to be guaranteed to find a job and make up for losses from reductions in pensions and compensation payments for benefits.
All of the above is a consequence of state policy towards people with disabilities, and in the created system of social support for people with disabilities it is difficult to find a violation of the current legislation of the Russian Federation. Perhaps the only thing that can be claimed against the Government is the deterioration of the socio-economic situation of people with disabilities in our country, for which there is numerous evidence.
The second point is the following: do government organizations, represented by individual employees of the federal medical and social examination service, have the right to impose restrictions on the ability to work for citizens with disabilities. Perhaps their conclusions are important for the health of a disabled person, help representatives of the employment service determine what conditions need to be created for his successful professional activity, impose certain obligations on employers, etc. But how fair and, even more so, legal is it that does this become a determining factor for the entire future life of a person with a disability and can act as a ban on his ability to work? If we talk about justice, then would anyone allow doctors to decide for him whether he can work or not? But for some reason this is considered the norm for people with disabilities. If we talk about legality, this is a direct violation of Article 37 of the Constitution of the Russian Federation, which states that “everyone has the right to dispose of their ability to work.” Consequently, if a person with a disability is diagnosed with a third degree of restriction of ability to work, then he has no right to be denied employment opportunities. And this should apply, first of all, to the institutions of the federal state employment service, which now deny people with disabilities with a third degree of limited ability to work vocational rehabilitation services and employment. But the actual ban on the ability to independently search for work looks completely discriminatory for these people.
We have presented enough materials demonstrating how complicated the situation of people with disabilities became after the introduction of degrees of limitation of ability to work as a criterion for establishing the amount of state financial support for people with disabilities. Are any steps being taken to combat the current situation? Yes and no. Yes, because public associations of disabled people, both at the federal and regional levels, make claims to government agencies on this issue, and the regional authorities themselves, seeing the developing negative situation, signal this to the federal center. No, because this struggle is of a scattered, uncoordinated nature, and the Government of the Russian Federation has so far suppressed attempts to resist these innovations without much difficulty (the word “reform” is hardly appropriate here).
Members of the Sverdlovsk regional organization of the All-Russian Society of the Blind are asking the federal authorities to reconsider the procedure for determining disability groups and calculating pensions. As stated in their appeal sent to the Minister of Health and Social Development of the Russian Federation Mikhail Zurabov, now for disabled people, in addition to the group, the degree of disability is established. Based on it, the amount of disability pensions is calculated. “Now a visually impaired person of group I (even a completely blind person) can be assigned both III and II degrees of loss of ability to work, depending on the presence of concomitant diseases and the disabled person’s ability to work,” the appeal says. “The size of the pension of a disabled person of group I with II degree is approximately 660 rubles lower than for a disabled person with III degree. Their compensation payments are also lower. In addition, only disabled people with III degree of loss of ability are entitled to a second voucher for sanatorium treatment for an accompanying person and vouchers for free travel for. In life, it turns out that completely blind disabled people of group I can be given a II or III degree, depending on whether this disabled person has other diseases besides blindness and whether, according to doctors, he is capable of work. We believe that the state wants to pay off. from their responsibilities for social protection and support of people with disabilities."
(Sverdlovsk regional organization of the All-Russian Society of Disabled People, Social Information Agency).
Members of the Committee on Health and Social Protection of the Legislative Assembly (LA) of the Irkutsk Region decided to draw up an appeal to the Chairman of the Government of the Russian Federation Mikhail Fradkov at a meeting on June 9. The reason for this was the numerous letters from visually impaired people received by the regional parliament.
As Elvira Bondareva, head of the department of civil and social legislation of the Legal Department of the Legislative Assembly, said, the problem is that from January 1, 2004, the calculation of disability pensions began to be made based on the degree of limitation of the ability to work, and not on the disability group, as it was before. Following the norms of federal law, the medical and social examination service of the Irkutsk region establishes a second degree of restriction for the visually impaired. This means that they are only able to work in specially equipped workplaces.
However, in reality, employers cannot equip workplaces for the visually impaired. Therefore, disabled people in this category do not work, but receive a second-degree pension - 792 rubles per month,” explained Elvira Bondareva. - In their appeals to deputies, they ask for help in changing the degree of restriction to the third “not capable of working.” In this case, their pension will almost double - up to 1 thousand 574 rubles.
Committee Chairman Dmitry Baimashev described this problem as “very relevant and important” and noted that it should be solved at the federal level. He recalled that earlier the administration of the Irkutsk region had already raised the issue of the status of visually impaired people and addressed the Minister of Health and Social Development Mikhail Zurabov. The deputies decided to appeal to the head of government, hoping that this would be more effective. Deputy Natalya Protopopova was entrusted with writing the text of the appeal.
(Baikal News Service, news feed June 10, 2005).
The first attempts are being made to challenge the current situation in court. We are closely following the trial of one blind disabled person against a specialist. VOS enterprises. He was given a third degree of restriction of his ability to work, and in the recommendation for work it was written “possible work at a special enterprise of the All-Russian Society of the Blind,” where he was successfully working by that time (it is clear that the established degree and the recommendation for work contradict each other). It should be noted that the third degree of limitation of the ability to work was established for the disabled person at his request, since he needed an accompanying person for his trip to the sanatorium. But, the management is special. The enterprise, on the basis of his third degree of disability, decided to dismiss the disabled person, which caused him to go to court.
A court decision has not yet been made, and the judicial authorities themselves are in some confusion about the current situation. In any case, this precedent will be able to show what further steps need to be taken to protect the rights of people with disabilities to be able to work.
A number of public organizations are preparing claims to the Constitutional Court, where they will try to challenge the legality of introducing the degree of limitation of the ability to work as a criterion for determining the amount of state social benefits.
“We are carefully preparing to file a complaint with the Constitutional Court. Special attention should be paid to this - if we lose the case, we will not return to consider it. And the chances are still approximately equal. That is why it is important for us that the term “degree” be removed at such a high level limitations in the ability to work" (SOSTD). At one time, we managed to convince the Government to postpone the introduction of this term into the legislative framework for two years. But the ministry was never able to prepare clear criteria for determining the SOSTD. And this is impossible. How to determine any degree for a disabled child who has just graduated from school and has neither qualifications nor work experience, what can the ITU assign to him in absentia? Naturally, his degree is reduced, that is, an essentially helpless person is deprived of financial support. I have a specific certificate in my hands for this. 2005, disabled since childhood, group II. Without taking into account SOSTD, he would have received 1250 rubles, but he was given the first degree, and on this he immediately lost 650 rubles. This is followed by a conclusion prescribing the conditions and nature of work: activities associated with the risk of injury, as well as those requiring communication with the team, are contraindicated. Can work as a joiner or carpenter. Do you need comments here?" (Chairman of the All-Russian Society of Disabled People A.V. Lomakin-Rumyantsev in an interview with the Nadezhda newspaper, January 2006).
“I support the opinion of the Chairman of the VOI A.V. Lomakin-Rumyantsev that the most important task on which we must work together is the abolition of SOSTD and a return to the previous definition of disability.”
(Chairman of the organization of disabled war veterans in Afghanistan A.G. Chepurnoy in an interview with the Nadezhda newspaper, January 2006).
Hopes are pinned on the new Convention on Persons with Disabilities being developed by the United Nations. If the norms of state policy on this issue are clearly spelled out there and the Russian Federation signs it (unlike other international legal acts, the Convention is binding on all acceding countries), public organizations and people with disabilities will have another argument for changing the course of the current Government .
A three-week session of the UN Committee to develop a new convention on the rights of persons with disabilities ended in New York on Friday.
Committee Secretary Sergei Chernyavsky believes that the results of the session met expectations: “The most important result is that it was possible to reach agreement on very many provisions that were contradictory. There were only a few provisions left that will be finalized at the next session and the chairman’s task is not to concentrate on the entire text convention, but specifically on these pain points."
This is the seventh session of the Committee. It was expected that it would be possible, if not to complete the work on the text, then to agree on the main provisions.
The committee's next meeting is scheduled for August. If all remaining points can be agreed upon, the new convention will be submitted to the General Assembly for approval in the fall and open for signature.
The future convention is intended to become the first binding international legal act aimed at protecting people with disabilities. Its draft contains 34 articles providing for the protection and promotion of the rights of this category of the population, the elimination of discrimination against them, ensuring their right to work, health care, education and full participation in society.
“Discrimination against any person on the basis of disability is a violation of the inherent dignity of the human person,” states the preamble to the draft convention.
(United Nations News Centre).
In any case, until the personal composition of the current Government of the Russian Federation changes, and many associate the ongoing reforms in the social sphere with the name of the head of the Ministry of Health and Social Development, Mikhail Zurabov, it is difficult to count on significant changes in the current government policy towards people with disabilities. After all, this will mean that the federal policy regarding people with disabilities that has been implemented for years was erroneous, and this immediately raises the question of the professional suitability of current Government employees. This, of course, will not happen yet, unless a suitable political situation arises when it will be necessary to find those to blame for the mass dissatisfaction of the population with the deterioration in the quality of their lives. But, of course, it is not worth just waiting for this suitable situation, and it is necessary to take the necessary steps now. They should consist of:
1. In uniting and coordinating the efforts of all interested structures and organizations to change the current state policy regarding people with disabilities.
2. It is necessary to determine specific requirements for the Government, the adoption of which will solve existing problems.
3. Ensure awareness and support of demands for the Government from the general public and the media.
4. Identification of cases of violation of the law during medical and social examination and employment of disabled people, creation of judicial precedents on their basis.
5. Using judicial practice and violations of current legislation and the provisions of the Constitution of the Russian Federation, draw up an appeal to the Constitutional Court.
We invite to cooperation all interested parties who share our concern about the current situation and are ready to participate in the search and implementation of practical steps to resolve it. There is a lot to be done, but without solving the issues identified in the material, it is impossible to solve the problems of employment of people with disabilities. Therefore, our organizations are engaged in this, and will continue to do so in the future.

If an employee has a disability group of 1, and the IPR indicates the ability to work - 3, the ability to self-care - 3 and the ability to move - 3, can he continue to work? If not, then on what grounds can he be fired? If we do not want to fire an employee, what should we do in this case? Should I offer to write a refusal to provide IPR? If he writes a refusal, what risks do we have if we pass the checks?

Answer

Termination of an employment contract under clause 5, part 1, art. 83 of the Labor Code of the Russian Federation with an employee who has been assigned disability group I, the degree of limitation of the ability to work is the third, it will be legal if the IPR (IPRA) states that the employee is not capable of work (work is contraindicated).

The IPR (IPRA) must make an appropriate note about the degree of limitation in the column “Ability to work,” and the section “Measures for professional rehabilitation and habilitation” must contain a conclusion about the types and severity of persistent impairments in the functions of the human body.

Rationale: Recognition of an employee as completely incapable of working is the basis for termination of an employment contract with him under clause 5, part 1, art. 83 of the Labor Code of the Russian Federation, provided that the employee has completely lost the ability to work and this fact is established by a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation.

The classifications and criteria used in the implementation of medical and social examination of citizens by federal state institutions of medical and social examination are approved by Order of the Ministry of Labor of Russia dated December 17, 2015 N 1024n (hereinafter referred to as Classifications and Criteria).

The criterion for establishing disability for a person aged 18 years and older is a health disorder with a second or more severe degree of persistent impairment of the functions of the human body (ranging from 40 to 100 percent), caused by diseases, consequences of injuries or defects, leading to a limitation of the second or third the degree of severity of one of the main categories of human life activity or the first degree of severity of limitations of two or more categories of human life activity in their various combinations that determine the need for his social protection (clause 8 of the Classifications and Criteria).

In accordance with clause 10 of the Classifications and Criteria, the criterion for establishing disability group I is a human health disorder with the fourth degree of severity of persistent impairment of the functions of the human body (ranging from 90 to 100 percent), caused by diseases, consequences of injuries or defects.

The ability to work is the ability to carry out work in accordance with the requirements for the content, volume, quality and conditions of work.

The third degree of limitation of the ability to work is the ability to perform basic work activities with significant help from other persons or the impossibility (contraindication) of its implementation due to existing significantly expressed impairments of body functions (clause “g”, clause 6 of the Classifications and Criteria).

From these provisions it follows that the third degree of limitation of the ability to work does not mean that the employee is definitely unable to work. The fact of complete loss of professional ability to work must be confirmed in the IRP (individual rehabilitation program), the new form of which was approved by Order of the Ministry of Labor of Russia dated June 13, 2017 N 486n “On approval of the Procedure for the development and implementation of an individual rehabilitation or habilitation program for a disabled person, an individual rehabilitation or habilitation program for a child - disabled person, issued by federal state institutions of medical and social examination, and their forms" (hereinafter referred to as Order No. 486n). In this form, an appropriate note must be made on the degree of limitation in the column “Ability to work” (clause 21 of Appendix No. 2 to Order No. 486n), and also in the section “Measures for professional rehabilitation or habilitation” there must be a conclusion on the types and extent the severity of persistent dysfunctions of the human body, in accordance with which recommendations are indicated for equipping a special workplace for employing a disabled person.

An individual rehabilitation program for a disabled person is developed for a period corresponding to the period of the established disability group (clause 8 of the Procedure for the development and implementation of an individual rehabilitation or habilitation program for a disabled person and an individual rehabilitation or habilitation program for a disabled child, issued by federal state institutions of medical and social expertise (Appendix No. 1 to Order No. 486n)), or an entry is made: “Indefinitely” (clause 18.4 of Appendix No. 2 to Order No. 486n). Thus, indicating in the IPR (IPRA) only the third degree of limitation of the ability to work, in our opinion, is not enough to consider the employee completely incapable of work, since this degree still presupposes the ability of a disabled person to perform basic work activities with significant the help of others. The IPR (IPRA) should have indicated that the employee is completely incapable of working.

Consequently, an employment contract with an employee who has been diagnosed with group I disability with a third degree of limited ability to work is terminated under clause 5, part 1, art. 83 of the Labor Code of the Russian Federation, if the IPR (IPRA) states that the employee is not capable of working (work is contraindicated).

The employee has been assigned disability group I, the degree of limitation of ability to work is the third. At the same time, the individual rehabilitation program for a disabled person does not indicate that he cannot work. Is it legal to terminate an employment contract under clause 5, part 1, art. 83 Labor Code of the Russian Federation? How is the complete restriction of work activity recorded in the IPR (IPRA)?

Every organization may face a situation where its employee becomes disabled for some reason. What should the employer do in this case? Can such an employee continue to work or is he subject to dismissal? What conditions should the employer provide to such an employee? We will try to answer all these questions in this article.

First, let us recall that a disabled person is a person who has a health disorder with a persistent disorder of body functions, caused by diseases, consequences of injuries or defects, leading to limitation of life activity and causing the need for social protection (Article 1 of Law No. 181-FZ). Recognition of a person as disabled is carried out by the federal institution of medical and social examination. The procedure and conditions for recognizing a person as disabled are established by the Government of the Russian Federation; they are currently approved by Resolution No. 95 of February 20, 2006 (hereinafter referred to as Procedure No. 95). According to clause 7 of this procedure, depending on the degree of disability caused by a persistent disorder of body functions resulting from diseases, consequences of injuries or defects, a citizen recognized as disabled is assigned disability group I, II or III. Disability is determined by a medical and social examination (hereinafter referred to as MSE), which is carried out on the basis of a comprehensive assessment of the state of the body based on the analysis of clinical, functional, social, professional, labor, and psychological data of the person being examined using classifications and criteria developed and approved in accordance with the procedure , determined by the federal executive body authorized by the Government of the Russian Federation (Article 7 of Law No. 181-FZ).

Pay attention! The decision to establish a medical and social examination is mandatory for execution by the relevant government bodies, local government bodies, as well as organizations, regardless of organizational and legal forms and forms of ownership (Article 8 of Law No. 181-FZ).

In accordance with paragraph 36 of Order No. 95, a citizen recognized as disabled is issued a certificate confirming the fact of disability, indicating the disability group, as well as an individual rehabilitation program. The procedure for drawing up and the form of a certificate and an individual rehabilitation program (hereinafter referred to as the IRP) are approved by Order of the Ministry of Health and Social Development of the Russian Federation N 1031n.

From the above legislative norms it follows that to confirm disability, the employee must provide the following documents:

- certificate of medical and social examination. Having received a medical and social examination certificate from an employee, the employer must check the correctness of its execution, in particular the presence of all the necessary data. Pay special attention to the date the disability was established, its group, the period for which the disability was established, and the date of the next examination (if the disability was not established for an indefinite period);

Pay attention! According to paragraph 9 of Order No. 95, disability of group I is established for two years, groups II and III - for one year. At the next examination, an employee recognized as disabled receives a new certificate. However, he may not be recognized as disabled or his disability group may be changed.

— individual rehabilitation program for a disabled person. According to Art. 11 of Law N 181-FZ IPR of a disabled person - developed on the basis of a decision of the authorized body that manages federal institutions of medical and social expertise, a set of optimal rehabilitation measures for a disabled person, including certain types, forms, volumes, terms and procedures for the implementation of medical, professional and other rehabilitation measures aimed at restoring, compensating for impaired or lost body functions, restoring, compensating for the abilities of a disabled person to perform certain types of activities.

It should be noted that, according to the provisions of Art. 11 of Law N 181-FZ IPR is mandatory for execution by relevant government bodies, local government bodies, as well as organizations (including employers) regardless of organizational and legal forms and forms of ownership. At the same time, the disabled employee himself can refuse the IPR as a whole or the implementation of its individual parts. In this case, the employer is not responsible for its implementation (paragraph 7, article 11 of Law No. 181-FZ).

These documents contain mandatory data for the employer on the restrictions on work required for the employee.

Next, we will consider in detail the actions of the employer depending on the disability group assigned to the employee. According to paragraphs. “g” clause 6 of the Classifications and criteria used in the implementation of 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 the Russian Federation dated December 23, 2009 N 1013n (hereinafter referred to as Order N 1013n), ability to work - ability carry out labor activities in accordance with the requirements for the content, volume, quality and conditions of work - depends on establishing the degree:

- 1st degree - the ability to perform labor activities in normal working conditions with a decrease in qualifications, severity, intensity and (or) a decrease in the volume of work, inability to continue working in the main profession while maintaining the ability to perform labor activities of a lower qualification under normal working conditions;

— 2nd — the ability to perform labor activities in specially created conditions using auxiliary technical means;

— 3rd — the ability to perform labor activity with significant assistance from other persons or the impossibility (contraindication) of its implementation due to existing limitations in life activity.

Pay attention! On March 27, 2012, the changes introduced by Order No. 60n to Order No. 1013n came into effect. According to these changes, the 3rd degree of restriction may indicate both the complete impossibility (contraindication) of performing work, and the ability to perform certain types of work with the help of other people. Previously, this degree meant that the employee could not work. Thus, if an employee is assigned a 3rd degree of restriction, the employer’s further actions will depend on the information specified in the IPR.

The employee was assigned disability group I (with the ability to work at the 3rd degree). This means that he is no longer able to work. Then the employer can terminate the employment contract on the grounds provided for in paragraph 5 of Part 1 of Art. 83 of the Labor Code of the Russian Federation - recognition of an employee as completely incapable of working in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation. In this case, the employee is paid severance pay in the amount of two weeks' earnings (Article 178 of the Labor Code of the Russian Federation).

The employee should be dismissed on the day the employer submits a certificate of disability, according to which the employee is recognized as incapable of work. The employer must draw up an order in the T-8 or T-8a form or a free one and present it to the employee against signature. Here is a fragment of the dismissal order.

Order to terminate an employment contract

with an employee in connection with his recognition as incapacitated

Due to the recognition of the employee as completely incapable of work

Activities in accordance with a medical report (clause 5, part 1, article 83

──────────────────────────────

(grounds for termination)

employment contract (dismissal))

Basis (document, number, date): certificate of disability

────────────────────────────────────

series ITU-2013 N 00133 dated November 19, 2013

────────────────────────────────────

(employee statement, memo,

medical report, etc.)

Supervisor

Organizations: Chief physician Zaletneva E. G. Zaletneva

──────────── ──────────────── ─────────────────────

(position) (personal signature) (signature transcript)

The employee was familiarized with the order (instruction) on November 20, 2013. Zolotova

──────────────

(personal signature)

If a disabled employee can work, but only with the help of other persons, the employer should act in accordance with the recommendations in the IPR (for example, ensure the transition to home work).

The employee was assigned disability group II or III. If he does not want to work, he must submit a resignation letter of his own free will (Article 80 of the Labor Code of the Russian Federation), since he has a so-called working disability group. In this situation, dismissal can also be formalized by agreement of the parties (Article 78 of the Labor Code of the Russian Federation). No severance pay is provided to such an employee.

If a disabled employee wishes to continue working, the employer should familiarize himself with the working conditions that are recommended for such an employee in the individual rehabilitation program. What the employer should do next depends on what exactly is specified in the IPR. There are options here.

The conditions in which the employee worked before the onset of disability fully comply with the expert recommendations set out in the IPR. In this case, there is no need to change anything; the employee will do the same work.

If the conditions in which the employee worked do not comply with the recommendations of the IPR, then according to Art. 224 of the Labor Code of the Russian Federation, the employer is obliged to create working conditions for a disabled person in accordance with an individual rehabilitation program.

Pay attention! According to Art. 23 of Law N 181-FZ, disabled people employed in organizations, regardless of organizational and legal forms and forms of ownership, are provided with the necessary working conditions in accordance with the individual rehabilitation program for the disabled person. At the same time, it is not allowed to establish in collective or individual labor contracts the working conditions of disabled people (wages, working hours and rest periods, the duration of annual and additional paid leave, etc.), which worsen the situation of disabled people in comparison with other employees.

If, according to the recommendations of the IPR, a disabled employee needs to change working conditions without changing any terms of the employment contract, then the employer needs to reconsider the conditions in which he works, the methods of performing work, or reduce labor standards - production, service, if they are established.

FYI. Currently, there are Hygienic requirements for working conditions for people with disabilities (Sanitary rules SP 2.2.9.2510-09), approved by Resolution of the Chief State Sanitary Doctor of the Russian Federation dated May 18, 2009 N 30. These are mandatory requirements for working conditions, production processes, equipment, and main workplaces , production environment, raw materials, medical care and sanitary provision for working disabled people in order to protect their health.

If, according to the recommendations of the IPR, a disabled employee needs to change the terms of the employment contract (it may be necessary to transfer him to another job), then the employer must record all these changes in the employment contract.

According to Art. 73 of the Labor Code of the Russian Federation, an employee who needs to be transferred to another job in accordance with a medical report, the employer is obliged to transfer to another available job that is not contraindicated for the employee for health reasons, but only with his written consent.

The transfer proposal, as well as the employee’s consent or disagreement, should be formalized freely. Typically, the employee registers agreement or disagreement (refusal) on the proposal itself. Here is an example of a translation proposal.

Proposal No. 7

about transfer to another job

Dear Tatyana Nikolaevna!

In accordance with Part 1 of Art. 73 of the Labor Code of the Russian Federation, on the basis of a medical report of series ITU-2013 N 123456 dated November 20, 2013 and the recommendations set out in the individual rehabilitation program for a disabled person dated November 20, 2013, you are subject to transfer to another job that is not contraindicated for you due to health reasons. We notify you that you have the right to:

- agree to the transfer to another job. Today there are the following vacancies: registrar - salary 4,500 rubles, laboratory assistant - salary 5,500 rubles. If you agree, you will be able to continue working in the organization on the terms determined by the agreement to change the terms of the employment contract previously concluded with you No. 23/k dated 05/12/2006;

- refuse to be transferred to another job. In case of refusal, you are subject to dismissal in the manner provided for in clause 8, part 1, art. 77 Labor Code of the Russian Federation.

We draw your attention to the fact that when transferring an employee who, in accordance with a medical certificate, needs to be provided with another job, to another lower-paid job with a given employer, he retains the average earnings for his previous job for one month from the date of transfer, and when transferring due to with a work injury, occupational disease or other work-related health damage - until a permanent loss of professional ability to work is established or until the employee recovers.

If an employee who, in accordance with a medical report, needs a temporary transfer to another job for a period of up to four months, refuses the transfer or the employer does not have the corresponding job, the employer is obliged to suspend the employee from work for the entire period specified in the medical report while maintaining his place of work (position). ). During the period of suspension from work, the employee's salary is not accrued (except for cases provided for by the Labor Code, other federal laws, collective agreements, agreements, and employment contracts).

If, in accordance with a medical report, an employee needs a temporary transfer to another job for a period of more than four months or a permanent transfer, then if he refuses the transfer or the employer does not have a suitable job, the employment contract is terminated under clause 8 of Part 1 of Art. 77 Labor Code of the Russian Federation. Upon dismissal on this basis, it is necessary to pay the employee severance pay in the amount of two weeks' average earnings (Article 178 of the Labor Code of the Russian Federation).

Let us note that the employment contract with the heads of organizations (branches, representative offices or other separate structural divisions), their deputies and chief accountants who, in accordance with a medical report, need a temporary or permanent transfer to another job, if the transfer is refused or the employer does not have the appropriate work is also terminated according to clause 8, part 1, art. 77 Labor Code of the Russian Federation. In this case, the employer has the right, with the written consent of these employees, not to terminate their employment contract, but to remove them from work for a period determined by agreement of the parties. During the period of suspension from work, wages to these employees are not accrued, except in cases provided for by the Labor Code, other federal laws, collective agreements, agreements, and employment contracts.

What benefits are available to an employee who has become disabled?

Labor legislation establishes benefits and guarantees for disabled employees:

- reduced working hours. According to Art. 94 of the Labor Code of the Russian Federation, the duration of daily work (shift) for disabled people is established in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation. However, it should be remembered that, regardless of the medical report, for workers who are disabled people of group I or II, a reduced working time is established - no more than 35 hours per week (Article 92 of the Labor Code of the Russian Federation). Remember that the reduced working hours established by law for disabled workers is the full standard of work for them and therefore does not entail a reduction in wages. For employees who are required by law to have reduced working hours while maintaining full wages, various incentive bonuses must also be paid in full. Such clarifications are presented in letters of the Federal Tax Service of the Russian Federation dated August 31, 2010 N ШС-37-3/10304@, the Ministry of Health and Social Development of the Russian Federation dated May 11, 2006 N 12918/МЗ-14;

— restriction of work at night. According to Art. 96 of the Labor Code of the Russian Federation, disabled people can be involved in night work only with their written consent and provided that such work is not prohibited for them due to health reasons in accordance with a medical report. At the same time, these employees must be informed in writing of their right to refuse to work at night;

— limitation of overtime work. By virtue of Art. 99 of the Labor Code of the Russian Federation, the involvement of disabled people in overtime work is allowed only with their written consent and provided that this is not prohibited for them due to health reasons in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation. In addition, disabled people must be informed, upon signature, of their right to refuse overtime work;

— restriction of work on weekends and non-working holidays. The involvement of disabled people on these days is carried out only with their written consent and provided that such work is not prohibited for them due to health reasons (Article 113 of the Labor Code of the Russian Federation);

- extended annual leave. In accordance with Art. 115 of the Labor Code of the Russian Federation, the total duration of the annual basic paid leave is 28 calendar days. This article states that annual basic paid leave of more than 28 calendar days (extended basic leave) is provided to employees in accordance with the Labor Code and other federal laws. According to Art. 23 of Law N 181-FZ, disabled people are granted annual leave of at least 30 calendar days;

- additional leave without pay. Article 128 of the Labor Code of the Russian Federation provides that for family reasons and other valid reasons, an employee, upon his written application, may be granted leave without pay, the duration of which is determined by agreement between the employee and the employer. However, this article establishes that the employer is obliged to provide disabled workers, on the basis of their written application, leave without pay for up to 60 calendar days per year.

An important condition for the normal functioning of a person in society is working capacity. This is an opportunity to perform professional duties without any restrictions. To identify abnormalities in the body that interfere with work activity, a medical and social examination is carried out, classifying persistent disorders in the body into several main categories, corresponding to the level of their severity. In this way, disability groups and degrees of restrictions on work are determined.

What are limitations in ability to work?

The ability to work, according to Order of the Ministry of Labor and Social Protection of the Russian Federation dated December 17, 2015 No. 1024n “On 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 the content of the work.

People who cannot fully perform their job responsibilities in full, after undergoing appropriate research, receive the right 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:

1. Mental. Disorders of perception of the world, memory and attention, control of emotions, etc.
2. Speech. Loss of the ability to verbally and nonverbally communicate, including the inability to fully use oral and written language (dysgraphia, stuttering, etc.).
3. Physical. Imperfections of the body structure, including external and internal deformities (deformation of the face or limbs, disproportions of body parts, etc.).
4. Functional. Disturbed functioning of the body's systems and organs (circulatory, immune, etc.).
5. Sensory. Deviations of the organs of vision, hearing or smell (including exacerbation and dulling of sensitivity under the influence of external factors)

Pay attention! If there is a disease included in the list, each person can apply to a medical institution to obtain disabled status. 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 on work activity, each involving specific deviations from the norms of a healthy person:

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

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

Restrictions on work activity for disability group 3

Disabled people of the third group are more adapted than others to normal life, including work life. 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 people with disabilities, obliging organizations with a staff of 100 or more employees to employ at least 2% of citizens with limited ability to work.

Important! According to the law, it is possible to refuse a citizen who has one or another disability group if the level of his professional competence does not meet the general requirements or 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 is obliged to observe in relation to an employee with disabilities:

• Shortening the work week (with special recommendations).
• During the week, working hours are no more than 40 hours, and overtime work is only possible with the written consent of the disabled person.
• 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 upon hiring.
• Unpaid leave up to 60 days per year.
• The right to carry out health improvement procedures during working hours (if such are described in the conclusion).

Pay attention! The establishment of a 3rd disability group and a 3rd degree of restriction of work 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. If the patient has a disease included in the list of irreversible diseases, the status of a disabled person is established without a period for re-examination.

Restrictions on work activity for disability group 2

The second group of disability can 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 hired depending on their own wishes and on personal responsibility, since creating a fully equipped workplace is almost impossible.

• Reducing the work week to 35 hours while maintaining the full salary for the position held.
• A ban on overtime, including daily work, despite the consent of the disabled person.
• Extension of paid leave from 28 to 30 days.
• Providing 60 calendar days of vacation at the expense of the employee while maintaining his job.
• Undergoing procedures to strengthen and maintain health during working hours.
• The right to move the workplace to home (if possible) or its technical equipment in accordance with the needs of the disabled person.

Pay attention! An employer has the right to refuse to hire a disabled person of the third group if the organization does not have a quota for the employment of citizens of this category or the ability to fully equip the workplace for an employee with disabilities.

Restrictions on work activity for 1st disability group

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

Pay attention! Citizens who have been assigned the 1st group of disability and the 3rd degree of restriction to work have a note in their 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 perspectives: in the first case, the employer undertakes to arrange working conditions for an employee with a disability, in the second, an employee with disabilities fills out an application to accept responsibility for his rehabilitation.

Working conditions for disabled people of group 1:

• Reduction of the working week to 35 hours with full payment of wages, the opportunity to work and less time with the calculation of remuneration based on hours worked.
• The right to refuse business trips, additional shifts and overtime.
• 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, availability of a ramp for a wheelchair user, provision of an assistant, etc.)
• Strict prohibition on working with chemicals, biologically hazardous substances, at elevated levels of vibration and noise or mental stress.

Let's sum it up

If, upon passing a medical commission, a patient is assigned one or another disability group with or without a degree of disability, this does not mean a complete loss of ability to work. At the same time, the individual rehabilitation plan (IRP) clearly states the requirements for the workplace and position held, which the employer must comply with.