In our country, the rights and opportunities of people with disabilities are protected by numerous laws, which helps to avoid discrimination in society. In particular, this concerns aspects of the working life of the adult population. Persons with disabilities of different groups can work at ordinary and specialized enterprises on a common basis, it is unacceptable to apply more stringent requirements to them, to find fault. A special issue in personnel matters is the correct procedure for dismissing a disabled person of group 2. If a healthy person has entered the company and then received a disability, many employers try to get rid of such an employee as soon as possible. Is it correct? Is it possible to fire a disabled person? Is it possible to fire someone who has become disabled while in the company?
Practice and theory
Working disabled people of 2 groups are not uncommon in our society. What should a company leader know in order to correctly resolve the issue?
In practice, many entrepreneurs are afraid to work with people with disabilities. It is known that for such people, by law, it is necessary to formalize special jobs, provide them with benefits, payments, additional days of vacation. But what happens in reality? Many people with disabilities are so in need of money (and living on state benefits is impossible) that they are ready to accept any job they can take without looking at the conditions and preferences laid down by law - if only there would be at least some salary. And such specialists often work better, better, more productive than ordinary staff, as they are interested in retaining their posts. And yet, sooner or later, almost any employer is faced with the need to calculate the severance pay when dismissing a disabled person of group 2, as a person leaves his place.
How does this happen?
There are several options. In some cases, a disabled person of group 2 is dismissed at the initiative of the employer, usually justified by the fact that the employee violates labor discipline, does not cope with the tasks assigned to him.
No less often, the personnel case solves another question. It is necessary to correctly document the dismissal of a disabled person of group 2 of their own free will. There are many reasons here - people move to a more profitable or better place of work or decide to completely abandon labor practice, as they gain enough experience to receive a pension. Finally, it is possible to dismiss a disabled person of group 2 for health reasons, when the medical report contains requirements that cannot be fulfilled at the current place of work.
Papers - this is important!
In any of these cases, it is categorically important to arrange the dismissal of a disabled person of group 2 correctly. If a labor inspection arrives, it is guaranteed to be interested in this sensitive issue and will double-check all the employer's actions regarding a disabled employee. To protect yourself from fines and problems, it is necessary to establish a document flow in the personnel department.
I must say that the employment of people with disabilities from the very beginning is not an easy task, therefore many entrepreneurs try not to get involved with such workers at all. And in vain, because by doing so they deprive themselves of the opportunity to receive preferences, benefits from the state. The benefit will be greater the more disabled people are employed in the company.In general, the benefits to staff with disabilities are much less than the benefits that power gives the employer, providing these people with jobs.
Dismissal and disability
If, for some reason, it was decided to terminate the employment relationship with the employee (while remembering quotas for jobs for people with disabilities), it should be borne in mind that dismissal is approximately the same for all groups (1, 2, 3). The main thing is to follow the necessary procedure.
The easiest way to dismiss a disabled person of group 2 is an action based on a medical opinion. That is, doctors indicate in which positions, with what operations a person cannot work. If the current position falls under this list, the employment contract must be terminated. This is stated in the 83rd article of the TC. In addition to the requirements of the Labor Code, it is important to take into account the 181st federal law on the rights of persons with disabilities in the Russian Federation. Among other issues, it also reveals the employment of people with disabilities, its features.
To dismiss or not to dismiss?
Doctors may decide that a disabled person needs to either create special working conditions or dismiss him from his current position. If the medical report contains the first conclusion, just so dismissing a disabled person of group 2 is an illegal action. By law, the employer must provide the employee with suitable working conditions.
Many are convinced that this is too expensive, so they are willing to pay fines to dismiss a disabled person. But in fact, for several years now, state social assistance programs have been operating that provide subsidies for registration of places for workers in accordance with an individual rehabilitation program. The correct approach to this issue allows us to solve the problems with quotas for jobs for the disabled - the enterprise will always comply with the norm established by law.
Worker became disabled: no reason to panic
Quite often, the question of dismissing a disabled person of group 2 is raised in relation to a person employed on a general basis, but who received a disability already at a time when he was employed at the enterprise. In this situation, do not rush to the decision to get rid of the employee. According to the law, it is first necessary to consider the possibility of creating such a workplace that would allow a person with disabilities to work on an equal basis with others.
If the employer believes that providing working conditions for disabled people of group 2 at his enterprise is too difficult and expensive, he can consider the options for the posts to which the employee who has become disabled will be transferred. The new position should correspond to the features of human health. However, the employee has the right to disagree with the transfer. A situation is also possible when there is simply no suitable vacancy at the enterprise. If these conditions are met, the employer has the right to initiate the termination of employment with a person with disabilities.
Reducing staff: conditions for everyone
There are frequent cases when an entrepreneur is ready to give work to disabled people of the 2nd group, but due to a difficult economic situation or other reasons, he is forced to reduce staff at the enterprise. Such a reduction includes full-time employees, regardless of their state of health. That is, people with disabilities can be fired according to the same rules that apply to other workers.
It is important!
It is important to remember that the reduction is unacceptable if the worker is a pregnant woman or raising a child under three years of age, as well as a single mother with a child under 14 years of age. Special conditions apply to those mothers who bring up minor children with disabilities.In addition, the selection scheme for workers remaining in the enterprise during the staff reduction program is rather complicated, forcing workers to be evaluated according to a number of significant criteria. The main indicators here are qualifications, performance, productivity, but not health.
For disabled people, preferences during reduction are possible only in one case - when it was these employees who turned out to be the most highly qualified and productive. Then, among the best, the selection is made, first of all, paying attention to people with disabilities, as well as those who have children who have acquired occupational diseases. There are several other categories that have increased chances to stay at work while reducing. A complete current list can be found in the federal laws of the Russian Federation and the Customs Code.
Worker became disabled: what to do?
This situation has already been briefly discussed above. Acquiring the status of a disabled person for an employee can be both a way to receive preferences and an occasion to lose a job if the employer considers that he has no way to provide working conditions or a suitable position. In general, the situation is not as complicated as it seems to many, and the Federal Law and the Labor Code give detailed recommendations on what to do in this case, avoiding violations of laws.
As for the recommendations of specialists, the first thing that HR professionals advise to do is to call the employee for dialogue. The employer must ensure that the employee is interested in continuing to work. You need to understand that getting a disability is a difficult life situation, and many people who find themselves in it behave unstably, indecisively, not yet fully realizing what they are facing. Therefore, you need to be prepared for the fact that the decisions they make will change over time. But if the employee during the interview showed a firm intention to continue to work, you can proceed with the further procedure.
What to do and how?
If it was revealed that the employee wants to continue to work and is interested in working well, not inferior to his previous indicators, the employer must carefully study the individual rehabilitation program drawn up by the doctors when conducting a conclusion that established the fact of disability.
Please note that for different disability groups, the patterns of action are different. So, if a person was assigned the first group, then it is likely that the employee will no longer be able to work in principle, even if he really wants to. A conclusion is drawn up about the loss of the opportunity to work, which is signed by ITU employees. In the IPR of such a person with disabilities there are no labor recommendations. Dismissing such a disabled person is simple - the company simply terminates the employment contract, which is possible by law if the employee is recognized as unable to work. True, saying goodbye to a person will have to pay him a small amount - a severance pay for two weeks, calculated on the basis of average earnings.
I do not want to work!
A situation is possible when the doctors issued a conclusion on the disability of the second or third group, but the person himself, faced with such a life situation, did not find the strength to continue working. To part with such an employee, it is necessary to convince him to write a letter of resignation, that is, the procedure is done at the staff’s own will and is similar to the classic one applied to non-disabled people. An alternative is to draw up an agreement between the parties, from which the dismissal of a newly-made disabled person follows.
I want to work!
The most frequent situation in practice is the recognition by a disabled person of a person who wants to continue working. You can save a job for him only if the employer can provide suitable working conditions, clearly stated in the medical report.An individual rehabilitation program provides guidance on what the employer needs to do.
The simplest option is such an IPR, the conditions in which coincide with those in which the person worked. This means that the employee can continue to work, no investments are needed in the design of the workplace.
A slightly more complicated situation is when IPR recommends changing working conditions. At the same time, the changes are quite insignificant, therefore, adjustments to the employment contract are not required. So, doctors can recommend reducing the burden on a person. The employer will have to change the standards applicable to the person, if any.
Finally, the third option is such an IPR, from which it follows that it will be necessary to adjust the labor agreement concluded between the employee who received a disability and the enterprise. In some cases, special conditions are additionally created, in others, the employee is transferred to another position, more in line with his condition. All these changes are strictly officially recorded in the agreement between the company and the individual.