Is a psychiatrist/narcologist entitled to additional leave? Judicial practice: the union challenged the results of psychiatrists in court Benefits and the leave of clinical psychologists.

Will benefits continue for mental health workers?

2 April 2015, 13:20
Ivan Martynikhin

Mental Health Workers' Compensationguaranteed by the Law on Psychiatric Care:

Article 22. Guarantees for medical and other workers involved in the provision of mental health care

(1) Medical and other workers involved in the provision of mental health care have the right to reduced working hours and annual additional paid leave for work under harmful and (or) dangerous working conditions in accordance with the legislation of the Russian Federation.
The duration of working hours and annual additional paid leave for medical workers involved in the provision of mental health care is determined by the Government of the Russian Federation.
The amount of increase in remuneration for work with harmful and (or) dangerous working conditions for medical workers of medical organizations subordinate to federal executive authorities participating in the provision of psychiatric care.... are established in the manner determined by the Government of the Russian Federation, and for medical workers of medical organizations subordinate to the executive authorities of the constituent entities of the Russian Federation - in the manner determined by the executive authorities of the constituent entities of the Russian Federation.

Government resolutions that determined the duration of working hours and vacations:

Decree of the Government of the Russian Federation of February 14, 2003 N 101 (as amended on December 24, 2014)
Decree of the Government of the Russian Federation dated June 6, 2013 N 482 (as amended on June 23, 2014)
etc. (for example,)

However, on January 1, 2014, it came into forceFederal Law No. 426 “On special assessment of working conditions”, which significantly revised the approaches to defining working conditions as harmful and (or) dangerous.

According to this Law, a special assessment of working conditions must be carried out for each workplace at least once every 5 years, and the specific amount of benefits and compensation is established based on the result of a special assessment of working conditions(SOUT), and not in accordance with the lists of positions, as was the case before. The Methodology for Assessing Working Conditions included a number of factors: chemical, biological, physical (including noise, vibration, electromagnetic fields, ionizing and ultraviolet radiation, microclimate, light environment, severity of the labor process and intensity of the labor process).

Factors of psycho-emotional stress, work in conditions suggesting the possibility of aggression on the part of patients, and other factors were not included in the assessment using this method and are not taken into account. Therefore, according to the information that comes from the regions, in most cases, as a result of the special assessment, the working conditions of psychiatrists and other medical workers are recognized acceptable (class 2), those. not harmful (class 3) or dangerous (class 4).

In addition to the Law, in April 2014 it was released, which defined a general list of workplaces in respect of which SOUT is carried out in a special manner. It included the jobs of medical workers working in certain conditions, but mental health workers were not included in this list.

Thus, since the beginning of 2014, the assessment of working conditions in workplaces has been carried out in accordance with the new Law and the approved Methodology. Over the coming years (i.e., 5 years after the previous assessment of working conditions in a particular institution was carried out), all jobs of mental health workers will be assessed in accordance with the provisions of this Law, and their working conditions will soon be in total will be classified as not harmful.

However, the situation with compensation for mental health workers in different regions of the Russian Federation is currently developing differently. In some regions, they are completely removed, guided by the fact that all government decrees regulate compensation exclusively for harmful and dangerous working conditions, and once the working conditions at a particular workplace are considered acceptable, then these compensations cannot be assigned. In other regions, compensation for mental health workers is maintained, even in cases where working conditions are not considered harmful, apparently on the basis that these compensations are guaranteed by law. In addition, in December 2014 the Ministry of Labor published a telegram , which recommends not reducing the actual level of salaries of health workers whose working conditions were considered acceptable according to the results of the assessment assessment, but directing the freeing up funds to maintain the level of salaries.

Currently, the Russian Society of Psychiatrists is developing its proposals for improving legislation in order to maintain benefits and compensation for mental health workers. Proposals are planned to be sent to the National Medical Chamber.

Application. List of medical workers involved in the provision of mental health care, directly involved in the provision of anti-tuberculosis care, diagnosing and treating HIV-infected people, as well as persons whose work involves materials containing the human immunodeficiency virus, who are provided with annual additional paid leave for working with harmful and (or) hazardous working conditions

Decree of the Government of the Russian Federation of June 6, 2013 N 482
"On the duration of annual additional paid leave for work with harmful and (or) dangerous working conditions, provided to certain categories of workers"

With changes and additions from:

2. The Ministry of Labor and Social Protection of the Russian Federation, in agreement with the Ministry of Agriculture of the Russian Federation, approve the duration of reduced working hours and annual additional paid leave for work under harmful and (or) dangerous working conditions for veterinary and other workers directly involved in the provision of anti-tuberculosis care, as well as employees of organizations for the production and storage of livestock products serving farm animals with tuberculosis.

Some health workers are provided with additional annual paid leave for work under harmful and (or) dangerous working conditions. We are talking about persons who provide psychiatric care, are directly involved in the provision of anti-tuberculosis care, diagnose and treat HIV-infected people, and work with materials containing HIV.

The duration of the specified leave is established by positions (specialties, categories) of employees. It ranges from 14 to 35 days.

The Russian Ministry of Labor has been instructed, in agreement with the Russian Ministry of Agriculture, to establish the duration of reduced working hours and annual additional paid leave for work with harmful and (or) dangerous working conditions for 2 categories of persons. The first is veterinary and other workers directly involved in the provision of anti-tuberculosis care. The second is employees of organizations for the production and storage of livestock products, serving farm animals with tuberculosis.

And in jobs hazardous to health, periods of additional leave were retained. The amounts of such paid vacation periods are established by government decree number 482, issued in July 2013.

These changes are relevant for all organizations in the healthcare sector without exception., and they concern those included in a special list of professions characterized by special working conditions for workers.

According to Article 116 of the Labor Code, additional vacation periods are provided only to some specialists and their total list is quite small. So, :

workers forced by the nature of their service to be in harmful conditions;
people employed in special, specific jobs;
persons forced to engage in irregular work activities;
workers of regions characterized by harsh local climate conditions;
employees who are granted such leaves by decision of the management of a particular enterprise.

As can be seen from the list, some preferential categories are established according to territorial characteristics or work regime.

In the case of medical workers, the preferential accrual of additional vacation days is caused by the nature of the work or the content of the work directly related to professional activities.

For such employees, the amount of well-deserved annual leave is regulated on the basis of Article 118 of the Labor Code. However, this law does not provide an exact list of specialists. But at the same time, he indicates the minimum values for the additional vacation period. They last three days and are relevant for nurses and family doctors (therapists) with at least three years of experience.

As for persons involved in specific jobs characterized by harmfulness of the second, third and fourth categories (according to Article 117 of the Labor Code), they are awarded at least seven days of additional leave.

And for some employees, additional leave is established in accordance with regulations in force in a particular industry. For example, this applies to the field of psychiatry and the provision of medical care in this area (according to the Federal Law under number 3185-1). Moreover, according to government decree number 482, the length of the vacation period is directly related to the position held. For example, for doctors the additional period is thirty-five days, and for nurses twenty-eight.

It is characteristic that employees of the veterinary industry engaged in the fight against tuberculosis infection also have a special status (according to Federal Law No. 77).

Also, similar benefits apply to employees of enterprises who, due to their work activities, are related to the processing or storage of livestock products, including those infected with tuberculosis bacillus. For them, the vacation period is increased by two to three weeks (14-21 days).

Federal Law No. 38, adopted in March 1995, includes specialists involved in handling HIV virus samples (diagnosticians, attending physicians and laboratory staff) in a separate category. They are additionally given two weeks of vacation.

It should be noted that if a special trade union inspection has not been carried out at a particular medical enterprise to assess the working conditions of the working staff, the provision of increased leave is still one of the main responsibilities of management.

As you know, additional vacation days are established according to the list specified in government decree number 482, and in agreement with the trade union organization, if there is one at the enterprise. And if an assessment of working conditions was not carried out, the management faces administrative penalties in accordance with the current articles of the Code of Administrative Offenses.

Who can't count on extra vacation days?

Employees who do not have a minimum length of service of three years cannot count on additional vacation days.

However, this rule does not apply to workers who are forced to put their lives in danger every day:

related to the HIV virus;
working with people who have been diagnosed with tuberculosis;
working with animals and animal products contaminated with tuberculosis bacillus;
employees of psychiatric institutions related to direct care for patients (managers, doctors, nurses, orderlies).

The duration of the additional vacation period is directly related to the position held. The minimum values are established for general practitioners or so-called family doctors - this is an additional 3 days of vacation. The maximum number of days is provided to psychiatrists and psychologists - for them 35 days are added to the vacation period.

How is it processed?

At each enterprise, the manager approves a specific one for all working personnel. Such a document is drawn up taking into account the interests of the enterprise and all the features of work activity. The document is prepared by the personnel department, after which it is presented to the manager for signing.

All employees must familiarize themselves with the signed and approved schedule, since vacation periods are established by agreement and agreement between the employee and the employer. If an employee is not satisfied with the schedule established for him, he can draw up a separate application with a request to postpone the planned vacation, for example, to another time of the year.

Vacations are provided according to the established schedule from the second year of an employee’s employment at a particular enterprise.

Registration of additional vacation days is not much different from registration of the main vacation period. To receive additional rest, you must submit a corresponding application to the employer, which will be the basis for issuing an order. In practice, medical workers taking annual leave tend to combine their main rest time with additional time. In this case, the application contains a request to provide additional days in addition to the main vacation.

If an employee wishes to arrange a vacation period according to the schedule, the algorithm of actions for him is as follows:

Before the schedule is formed at the beginning of the current year, it is necessary to draw up an application and submit it to management so that the employer can correctly plan vacation periods for all personnel, taking into account the personal wishes of the employees.
The personnel department draws up a vacation schedule using form T-7, which, after its approval by management, is introduced to all employees.
The employee is notified in writing by the manager two weeks in advance of the approaching annual leave.
Within two weeks after sending the notification, a corresponding order is issued, drawn up in form T-6. Column A of this document indicates the name of the vacation period and its duration in digital values. If the employee asked in the application to provide additional days at the same time, they are indicated in column B.
After which, based on the order, it is drawn up in a special form and accrued. At the same time, the mark “OD” is placed next to the employee’s last name on the timesheet.
Information about the additional days provided is entered into the employee’s personal card (section 8) and his personal account (T-54), if any.

02.03.2017 10:32:00

After conducting a special assessment of working conditions, workers in the hospital's psychiatric office were surprised to learn that their work was no longer considered harmful and dangerous, and they were deprived of additional leave. Medical workers turned to the trade union for help and defended their right to benefits and compensation in court.

A psychiatrist and a nurse in the psychiatric office of the Kstovo Central District Hospital, according to the employment contract, had a 36-hour work week and an annual additional paid leave of 30 working days - due to harmful working conditions. Harmful working conditions were documented - workplace certification cards. The workplaces of a psychiatrist and a psychiatric nurse are certified with class 2 working conditions in terms of degree and danger.

The situation changed in February 2015, after conducting a special assessment: the results of the special assessment stated that the workers did not have harmful working conditions, that is, they did not need additional paid leave. In April, employees of the hospital's psychiatric office were given notices from the employer, which indicated that changes would be made to their employment contracts on the basis of the Special Labor Agreement from June - the abolition of additional annual leave for harmful or dangerous working conditions.

With the help of the regional trade union committee, the workers went to court.

- Despite the fact that in our industry all workplaces are standard, and special assessments of working conditions are carried out by private companies, the results in similar places are very different: in one case the result is a hazard class of 2, and in others - 3.2, or even 3.3. Using the same method in the same places. This only speaks of great subjectivity in the application of the technique. Therefore, we had to go to court to challenge the results of the SUT,” she said Lyudmila LUKICHEVA, Chairman of the Nizhny Novgorod regional organization of the trade union of healthcare workers of the Russian Federation.

The court of first instance rejected the claim, deciding that since the plaintiffs had a standard working day, and according to the conducted assessment of hazardous working conditions, no harmful working conditions were established, then additional leave was not allowed. The court did not see a violation of the SOUT order and decided that the employer had legal grounds to change the employment contracts. The plaintiffs clarified their demands and asked the court to declare the results of the special assessment and the order, according to which they were deprived of benefits, illegal, and also filed an appeal against the decision of the court of first instance.

“The chairman of the trade union committee of the Central District Hospital approached us, but the court of first instance ignored all our arguments,” explained the chairman of the regional trade union committee. - Before filing an appeal, we turned to the Ministry of Health of the Russian Federation for clarification and received an opinion on the decision of the Kstovo court. We attached this conclusion to the case materials during the consideration of the claim in the regional instance.

The union insisted that, in accordance with Art. 22 of the Labor Code of the Russian Federation, “medical and other workers involved in the provision of mental health care have the right to reduced working hours, annual additional paid leave for work with harmful and (or) dangerous working conditions.” At the same time, according to Art. 350 of the Labor Code of the Russian Federation, “certain categories of medical workers may be granted additional annual paid leave,” the duration of which is established by decree of the Government of the Russian Federation.

Decree of the Government of the Russian Federation dated June 6, 2013 No. 482 establishes an additional leave of 35 calendar days for medical personnel involved in the provision of psychiatric care. In addition, the trade union referred to Articles 8, 9, 57, 72, Part 1 of Art. 74 of the Labor Code of the Russian Federation, which do not allow worsening working conditions, especially without the written consent of the employee.

As a result, in January 2016, the judicial panel for civil cases of the Nizhny Novgorod Regional Court overturned the decision of the trial court. The plaintiffs' demands were satisfied: the SOUT was declared illegal, the order of the head physician was canceled, and the plaintiffs were paid compensation for moral damage.

Now everything is fine with the workers, everything is done as it should be,” concluded Lyudmila LUKICHEVA. - At workplaces, a hazard class of 3.2 has been established, medical workers have been given additional leave, there are no more questions.

Publication source:

Question: According to a special assessment of working conditions by specialists: a psychiatrist-narcologist, a paramedic in the office of a psychiatrist-narcologist, a psychotherapist - class 2 (acceptable working conditions), i.e. them additional no vacation allowed. But they are special categories of workers, according to the Resolution of the State Committee for Labor of the USSR and the Presidium of the All-Union Central Council of Trade Unions dated October 25, 1974 No. 298/P-22, they are entitled to additional leave. Will we do the right thing if we give them these additional holidays to the above-mentioned specialists and I would like to clarify how much it will be in calendar days, since everything in the Resolution is in working days? Or is there some other regulatory act according to which they are entitled to additional vacations? Thank you.

Answer

Answer to the question:

According to Article 117 of the Labor Code of the Russian Federation, annual additional leave is granted to employees engaged in work with harmful and (or) dangerous working conditions. Whether the working conditions at each specific workplace are harmful is determined by the results (certification) of a special assessment of working conditions.

The lists of industries and professions with hazardous working conditions were previously determined by the list of industries, workshops, professions and positions with hazardous working conditions, work in which gives the right to additional leave and a shortened working day, approved by Resolution of the State Committee for Labor of the USSR and the Presidium of the All-Union Central Council of Trade Unions dated October 25, 1974 No. 298/P-22. Currently, this document is applied only to the extent that does not contradict the Labor Code of the Russian Federation. Before the adoption of the relevant regulatory document, the employer is obliged to establish these compensations independently based on the results of certification of workplaces for working conditions (special assessment of working conditions).

Thus, before the adoption of Resolution No. 482 of 06/06/2013, the issue of providing leave for harmful working conditions to employees was decided at the discretion of the employer, taking into account the results of the certification and is recorded in the local act of the organization (for example, the Regulations on Leave). At the same time, when drawing up internal documents, the organization could be guided by the List of industries with hazardous working conditions, work in which gives the right to additional leave, approved by Resolution of the State Labor Committee of the USSR and the Presidium of the All-Union Central Council of Trade Unions dated October 25, 1974 No. 298/P-22. That is, despite the fact that this List was not applied as such, the organization had the right to use its provisions when drawing up internal documents.

For employees working in treatment and preventive medical organizations providing psychiatric (narcological) care to the population, additional leave is established in accordance with Decree of the Government of the Russian Federation dated 06.06.2013 N 482 “On the duration of the annual additional paid leave for work with harmful and (or) dangerous working conditions provided to certain categories of workers" ( an extract from the resolution is given below). In this Resolution, the number of vacation days is given in calendar days.

If your organization does not provide psychiatric care to the population, and the specialists involved only provide consultations, then this resolution cannot be applied to them.

The duration of additional leave for medical workers involved in the provision of mental health care is established in accordance with this Resolution.

In accordance with Part 1 of Art. 22 of the Law of the Russian Federation of 07/02/1992 N 3185-1 “On psychiatric care and guarantees of the rights of citizens during its provision” (hereinafter referred to as Law N 3185-1), medical and other workers involved in the provision of psychiatric care have the right to reduced working hours , annual additional paid leave for work with harmful and (or) dangerous working conditions in accordance with the legislation of the Russian Federation.

Based on Part 1 of Art. 1 of Law N 3185-1, psychiatric care includes examination of the mental health of citizens on the grounds and in the manner established by Law N 3185-1 and other laws of the Russian Federation, diagnosis of mental disorders, treatment, care and medical and social rehabilitation of persons suffering from mental disorders.

Psychiatric care is provided on the grounds and in the manner established by the Law and other laws of the Russian Federation, and includes psychiatric examination and psychiatric examination, prevention and diagnosis of mental disorders, treatment and medical rehabilitation of persons suffering from mental disorders.

Those. for example, ambulance driver, nurse, receptionist, etc. does not participate in the provision of mental health care. Nurses depending on their job responsibilities.

Thus, if the job responsibilities of a doctor, paramedic, etc. does not include the provision of psychiatric care, then he is not entitled to additional annual paid leave for work with harmful and (or) dangerous working conditions, established by Decree of the Government of the Russian Federation of 06.06.2013 N 482.

If doctors carry out treatment and medical rehabilitation of persons ( namely treatment, not outpatient examination) suffering from mental disorders and this is stated in their job descriptions, then in this situation they are entitled to additional leave.

Details in the materials of the Personnel System:

1. Legal basis:

FEDERAL SERVICE FOR LABOR AND EMPLOYMENT

LETTER

About benefits in hazardous industries

The Legal Department of the Federal Service for Labor and Employment reviewed the appeal. We report the following.

The Supreme Court of the Russian Federation in (hereinafter referred to as the Definition) established that “On approval of the List of industries, workshops, professions and positions with hazardous working conditions, work in which gives the right to additional leave and a shortened working day” (hereinafter referred to as the List) does not apply, because it contradicts and is ineffective.

Also, the Supreme Court of the Russian Federation indicated that, depending on the class of working conditions and taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations, the Ministry of Health and Social Development of the Russian Federation was instructed to establish workers engaged in heavy work, work with hazardous and (or ) hazardous and other special working conditions, reduced working hours, the minimum duration of annual additional paid leave, the minimum amount of increase in wages, as well as the conditions for the provision of these compensations.

The absence of the above-mentioned regulatory legal act of the federal executive body is not an obstacle to the establishment of annual additional paid leave, as well as reduced working hours for employees engaged in heavy work, work with harmful and (or) dangerous and other special working conditions in accordance with labor legislation Russian Federation.

Before the adoption of a new procedure for providing compensation, it may be applied if its provisions are included in a collective agreement or local regulations adopted by the employer on the basis of the Code.

Head of Legal Department
A.V. Anokhin

With respect and wishes for comfortable work, Ekaterina Zaitseva,

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