The employer must provide the employee who is a parent (guardian, trustee (hereinafter referred to as the parent)) additional days off for caring for a disabled child (Article 262 of the Labor Code of the Russian Federation). To do this, the accountant must request a number of papers from the employee with such a child. Some of them are required - you will need them anyway. Others may or may not be required, depending on the specific situation.
The accountant must draw up some documents himself, and some (in particular, a statement required from the employee himself) will help the employee draw up correctly. We will talk about paperwork.
Mandatory package of documents to be obtained from the employee
You need to obtain at least three documents from the employee:
- written statement in any form on the provision of additional days off, indicating dates;
- document confirming the relationship of the employee with the child, - a child's birth certificate (for a parent) or a document confirming guardianship or guardianship, - a decision of the guardianship and trusteeship authority on the appointment of a guardian (for a guardian of a child under the age of 14) or a guardian (for a guardian of a child aged 14 to 18 years ). You may already have it if you, for example, provide your employee with a standard personal income tax deduction for a child;
- a certificate from the social security authority at the child's place of residence confirming the child's disability, indicating that he is not held in a specialized children's institution with full state support. The employee must bring this certificate annually. This one year period is calculated from the moment when he brought you the previous certificate.
An additional package of documents to be obtained from the employee
In addition to the above three documents, the employee may be required to provide additional documents related to the child's second parent. The set of these documents depends on whether the child has one, whether he works under an employment contract, and other circumstances.
If the other parent is an employee
If the second parent also works under an employment contract, then he also has the right to receive additional days off at the place of work. But so that it does not turn out that the weekend is fully provided to both parents (which will entail budget overruns), you need to request a certificate from the work of the second parent from the employee. It should indicate that at the time of your employee's request for a weekend to care for a disabled child, the second parent did not use such a weekend in the same month at his place of work (or used it partially).
Your employee must provide a certificate from the place of work of the second parent every time you apply for additional days off. Otherwise, this certificate will simply not fulfill its intended purpose - to confirm that at the time of the first parent's request for the weekend, the second parent did not use this benefit at his place of work. But if the second parent is on a long business trip for more than a month, then such a certificate is not required. However, in confirmation of the fact that the second parent of the child is on a long business trip, stock up on a copy of the order from his place of work on sending him on a business trip with an indication of its terms.
If both parents work in the same organization, then it is absurd to require any certificates from the other parent. When checking the FSS, it will be quite enough to provide the inspectors with a document confirming the fact of the second parent's work in your company (employment order, work book), as well as a time sheet, from which it is clear that this employee did not use additional days off in the corresponding month ...
If the second parent is self-employed
If the second parent of the child, for example, is an entrepreneur, then he does not have the right to a paid weekend. This means that your employee can apply for all 4 days off. In this case, the second parent will need a document confirming that he is self-sufficient in work and does not apply to persons working under an employment contract. Such documents include, in particular:
(or) an extract from the USRIP or a certificate of state registration of an individual entrepreneur, if the second parent is an individual entrepreneur;
(or) an extract from the lawyer register, if the second parent is a lawyer;
(or) an extract from the register of notaries, if the second parent is a notary.
At the same time, the officials of the Fund require that such a document be submitted with each application of the employee with an application for the provision of additional paid days off. And this is logical, because at any time the second parent can stop his activities as an entrepreneur, lawyer, etc. This means that the document previously submitted by him will no longer correspond to reality.
If the second parent doesn't work anywhere
In this case, request a document confirming that the second parent is not in an employment relationship with anyone. If he previously worked somewhere, then in this case ask for his work book. The absence of an up-to-date employment record in it confirms the fact that he does not work anywhere.
If the second parent is registered with the employment agency as unemployed, then a certificate from the employment agency can also serve as a supporting document.
The frequency of submission of a document confirming the lack of work for the second parent - with each application.
If the second parent is not caring for the child (actually absent)
In such cases, depending on the specific situation, ask the employee who has contacted you with a request for a day off:
(if) the second parent is deprived of parental rights - a document on the deprivation of his parental rights;
(if) the second parent is serving a sentence in places of deprivation of liberty - a copy of the sentence;
(if) your employee is divorced from the second parent - a divorce certificate.
By the way, does a parent who is divorced from another parent of a child need to confirm that it is he who is raising this child? And does the FSS require any document confirming this? We turned to the FSS for an explanation.
Ilyukhina Tatyana Mitrofanovna, Head of the Department for Legal Support of Insurance in Case of Temporary Disability and in Connection with Maternity of the Department of Legal Support of the Social Insurance Fund of the Russian Federation
"The current legislation does not provide for the employer's obligation to demand from an employee who has a disabled child and is divorced from the child's second parent, a document confirming that it is his employee who is raising this child.
Therefore, the FSS does not carry out checks in this part and does not require any additional documents. "
The frequency of submission of a document confirming the actual absence of the second parent has not been established. Obviously, one must proceed from a specific situation. So, for example, if the second parent is deprived of parental rights, then, obviously, it is enough for the first parent to present at the place of work a document on the deprivation of the second parent of parental rights once.
In practice, the question also arises whether it is possible to provide 4 days off for his employee, who independently brings up a disabled child, although he is not officially divorced and cannot provide a certificate from the other parent's place of work about his non-use of days off due to the unknown whereabouts. According to the law, it is impossible. Therefore, the only thing such an employee can do in order to get days off without the mentioned certificate is to divorce.
If there is no second parent
The following situations are also possible:
(or) the second parent is dead, declared deceased or missing.
In this case, request from the employee a document confirming this fact: a death certificate, a court decision on recognition as deceased or missing;
(or) the paternity of the child is not legally established, that is, the mother of the child - your employee is a single mother.
In this case, the child's birth certificate will not contain an entry about the father (there will be a dash in the column "father") or this entry will be made at the direction of the mother.
If there is a dash in the "father" column in the child's birth certificate, then it will be immediately clear that your employee is a single mother and you do not need to ask her for any additional documents to confirm this fact.
But if there is a record about the father, but, according to the employee, it was made according to her words, then ask her to provide a copy of the certificate from the registry office about birth, containing information on the grounds for making the record about the child's father, in form N 25.
Your employee must bring a document confirming the absence of the second parent only once.
Advice
From the original documents that the employee presents to you, but does not leave, you need to make copies and keep them in the employee's personal file.
We take a statement from the employee or give him a certificate of the weekend
You can take from the employee:
(or) one general application for all employee days off in the relevant month;
(or) an independent application for each weekend.
Please note that if an employee submits one application for several days off, then it will be enough for him to attach a certificate from the work of the other parent stating that he did not use that weekend at his place of work or used it partially, only once a month. But if later the employee changes his mind and asks for other days, then you will have to redo the order.
If he will take one day at a time (that is, write a separate application for each day), then he will have to attach the mentioned certificate from the place of work of the second parent to each application (except, of course, when such a certificate is not required).
An employee can take days off on the same days of the month as the other parent if they share the weekend between themselves.
Explain to the employee
If your employee did not use the weekend in some month (for example, due to vacation or illness), then they will not be transferred to the next month. That is, to put it simply, the weekend in such a situation will be wasted. Therefore, we can advise him that the second parent take all the weekend this month at his place of work..
An application for the provision of additional days off can be executed, for example, like this.
General Director of LLC "Brigantina"
V.B. Orlov
from the economist of the finance department
Baytinoy M.L.
Statement
I ask you to give me 4 extra days off to take care of a disabled child on September 20 - 23, 2010.
I attach a certificate from the place of work of the second parent stating that he did not use such days off at his place of work in September 2010.
Baytina M.L. ---------
To simplify the workflow, draw up a sample of such a statement so that the employee can simply enter the necessary specifics into it.
How many days before the onset of the weekend an application must be submitted for their provision, nowhere is it said. Therefore, the employee can submit it the day before.
If you have the opposite situation, that is, your employee asked for a certificate that he did not use an additional weekend, then this certificate can be drawn up as follows (preferably on a letterhead).
reference
from 09/16/2010 For presentation to LLC "Karavella"
This certificate is issued in confirmation that the economist of the financial department of LLC "Brigantina" Marina Leonidovna Baytina as of September 16, 2010 did not use additional days off for caring for a disabled child in September 2010.
LLC "Brigantina" --------- LLC S.D. Korableva
We issue an order on the provision of days off
Like the employee's statement, the order can be issued:
(or) to provide all the days off for the month at once (according to the general application - for all weekends);
(or) for each separate day off (both by a general application and by an application for each separate day).
The order is issued in any form, for example.
Limited Liability Company "Brigantina"
Order N 56-k
17.09.2010
Moscow city
On the provision of additional days off for caring for a disabled child
On the basis of a written statement of the economist of the financial department of LLC "Brigantina" Marina Baytina and guided by Art. 262 of the Labor Code of the Russian Federation
I order:
1. Provide Marina Leonidovna Baytina, economist of the financial department, with 4 additional days off on September 20 - 23, 2010 for caring for a disabled child, Irina Mikhailovna Baytina.
2. Pay for the indicated days off in the amount of the average earnings of Baytina Marina Leonidovna in accordance with the current legislation.
Base:
the statement of M.L. Baytina;
birth certificate of the child - Irina Mikhailovna Baytina;
certificate from the body of social protection;
certificate from the place of work of the other parent about his non-use of additional days off for caring for a disabled child dated September 14, 2010
General Director Korableva Print
It may happen that an employee who has issued an additional weekend gets sick after the application has been submitted and an order has been issued to provide him with days off. In this case, there are two possible scenarios for the development of events:
(or) the employee will still have the opportunity to take the weekend in the corresponding month after the end of the illness. Then he will have to submit a new application indicating other days and again submit a certificate from the place of work of the second parent stating that he has not used the weekend as of the date of the new application;
(or) the weekend will simply be lost - if the employee's illness lasts until the end of the month (and the other parent does not take this weekend at his job).
If an employee is applying for extra days off or other benefits for the first time as a parent of a disabled child, do not forget to mark that he is the parent of such a child on his personal card in Form N T-2 in section. 9 "Social benefits to which the employee is entitled in accordance with the law." As a document on the basis of which the benefit is granted, you need to indicate a certificate from the social security authority.
And do not forget to reflect the provision of additional days off to the employee in the timesheet according to the unified form N T-12 or N T-13<18>... During these days, the letter code "ОВ" or the digital code "27" must be entered in the report card.
After that, you can pay the employee for such days with a clear conscience.
New edition of Art. 262 of the Labor Code of the Russian Federation
One of the parents (guardian, trustee) for caring for disabled children, upon his written application, is provided with four additional paid days off per month, which can be used by one of the specified persons or shared by them among themselves at their discretion. Payment for each additional day off is made in the amount of average earnings and the procedure established by federal laws. The procedure for providing these additional paid days off is established by the Government of the Russian Federation.
Women working in rural areas may, upon written request, be granted one additional day off per month without pay.
Commentary on Article 262 of the Labor Code of the Russian Federation
Article 262 of the Labor Code is intended to provide guarantees in the form of additional paid days off to persons caring for children with disabilities and persons with disabilities from childhood to the age of 18.
The decision on recognition as a "disabled child" is made by a state institution of medical and social expertise based on the results of a comprehensive assessment of the child's health and the degree of disability for a period of one, two years, or until he reaches the age of 18. On the basis of this decision, a certificate is issued confirming the fact of the establishment of disability, indicating the terms for which the disability was established.
Additional days off are provided to parents, guardians and trustees of a disabled child, as well as adoptive parents of disabled children, if the child is not kept in a specialized child care institution with full state support.
The procedure for providing additional days off to one of the working parents (guardian, trustee) to care for disabled children is regulated by the Resolution of the Ministry of Labor of Russia and the Social Insurance Fund of the Russian Federation of April 4, 2000 N 26/34.
One of the working parents (adoptive parents, guardians, trustees) of a disabled child is entitled to four additional paid days off per calendar month. They are provided starting from the month in which the child is diagnosed with a disability, and until the month in which the disability expires, or until the month the child reaches 18 years of age.
The provision of each additional day off is formalized by an order on the basis of an employee's application, to which are attached: a certificate of the child's disability, indicating that the child is not being held in a specialized children's institution with full state support (provided annually); a certificate from the place of work of the second parent stating that in the current calendar month he did not use additional days off or used them partially (presented with each application for an additional day off). The first two additional days off per month can be provided without the last reference.
With documentary evidence of divorce between the parents of a disabled child, as well as death, deprivation of parental rights of one of the parents and in other cases of lack of parental care, a working parent raising a disabled child is provided without presenting a certificate from the place of work of the other parent 4 additional paid days off ... In the same manner, 4 additional paid weekends are provided for single mothers.
In cases where one of the child's parents is in an employment relationship with the employer, and the other is not in such a relationship (independently provides himself with work as an individual entrepreneur, private notary, private security guard, lawyer, head or member of peasant farms, clan, family communities indigenous small-numbered peoples of the North, engaged in traditional industries, etc.), additional paid days off are provided to a parent who is in an employment relationship with the employer, upon presentation of a document (copy) confirming that the other parent is not in an employment relationship with the employer, or is a self-employed person.
If one of the working parents uses the additional paid days off in a calendar month in part, the other working parent, in the same calendar month, may receive the remaining additional paid days off.
During the period of the next annual paid leave, unpaid leave, issued by personal application, four additional paid days off per month are not provided to the working parent, and the other working parent is entitled to four additional paid days off.
If the family has more than one disabled child, the number of additional paid days off per month remains unchanged.
Additional paid days off, not used in a calendar month by a working parent (guardian, trustee) due to his illness, can be provided in the same calendar month, upon termination of temporary incapacity for work in the specified calendar month and presentation of a certificate of incapacity for work.
Payment for additional days off provided for caring for a disabled child is stipulated in part 1 of Article 262 of the Labor Code and is established by federal laws. The procedure for paying for these days is provided for in clause 8 of the Regulations on the Social Insurance Fund of the Russian Federation (in terms of spending social insurance funds for these purposes) and clause 10 of the Procedure for providing and paying additional days off per month to one of the working parents (guardians, trustees) for caring for children - disabled people, approved by the Resolution of the Ministry of Labor of Russia and the Social Insurance Fund of the Russian Federation of April 4, 2000 N 26/34. In accordance with them, payment for each additional day off to a working parent (guardian, trustee) for caring for disabled children is made in the amount of the average daily earnings from social insurance funds.
Women working in rural areas, in addition, upon written application, may be given one day without pay
Persons who do not work in rural areas have the right to use additional days off without pay in accordance with the procedure established (by agreement with the employer).
Another comment on Article 262 of the Labor Code of the Russian Federation
1. The commented article provides that the right to such leave is granted only if it is established by the collective agreement. Consequently, if the collective agreement does not provide for the said leave, the employees listed in the commented article can be granted unpaid leave only on a general basis, i.e. in accordance with Part 1 of Art. 128 of the Labor Code of the Russian Federation by agreement between the employee and the employer.
2. The commented article defines the circle of workers for whom the collective agreement may establish additional leave without pay. These are workers (mothers, fathers, adoptive parents, guardians) with two or more children under the age of 14; employees (mothers, fathers, adoptive parents, guardians, trustees) with a disabled child under the age of 18; single mothers raising a child under the age of 14; fathers raising a child under the age of 14 without a mother. The establishment of such a list in this article does not mean that a collective agreement cannot provide for unpaid leave for other persons (for example, for employees with a school-age child; women raising children whose fathers are on long business trips). The content of the commented article should be considered as a kind of recommendation when concluding a collective agreement, according to which it is advisable to provide this guarantee to persons raising children.
3. When securing additional unpaid leave in the collective agreement, it should be borne in mind that the rules for the use of these leaves, even if it is not provided for in the collective agreement, have a number of peculiarities.
These leave are granted to both parents regardless of whether or not such additional leave is used by the second parent.
Since this leave can be used at any time convenient for the employee, the employee is only required to notify the employer in advance of his intention to use the vacation. It is advisable to notify the employer when drawing up a vacation schedule for the current year, which will make it possible to take this circumstance into account when determining the time for granting annual paid leaves to other employees.
The vacation can be added to the annual paid vacation or used separately, either in full or in parts. There is no minimum length for each part of the vacation, so it can be used one day at a time.
4. The right to additional leave without pay is granted from the year of birth of a child to the year of his or her 14 or 18 years of age inclusive.
The employee declares to the employer the cancellation of measures for recording working hours in relation to him on the basis of Art. 262 of the Labor Code of the Russian Federation. The employer, referring to Art. 262 TC, is ready to provide 4 paid days off, subject to the provision of documents provided for by the Rules, approved. Government Decree No. 1048. The employee asked to be given the opportunity to leave the workplace an hour earlier. A compromise has been reached, but will it be legal in this situation on the part of the Employer to conclude an add. agreement, which will spell out the opening hours and make a reference to Art. 262 of the Labor Code of the Russian Federation and the compromise reached? What formulations are recommended in this add. agreement to the employment contract? Is it legal to specify lunch break times? Indicate the refusal of the employee to provide additional days on his initiative, since the Employee is interested in leaving work an hour earlier, and not in providing additional days off? Are there decisions of government agencies and court decisions on this issue?
Answer
No, it's illegal.
Payment for the weekend for caring for a disabled child is made from average earnings and is reimbursed by the FSS of Russia. provision is made for the provision of additional days off for persons caring for children with disabilities.
The rationale for this position is given below in the materials of "Sistema Kadry" .
Situation: How to provide an employee with extra days off to care for a disabled child
"Guarantees for employees with a disabled child
What guarantees are required for an employee who has a disabled child
An employee with a disabled child under the age of 18 is entitled to four additional days off per calendar month. They are paid at the expense of the FSS of Russia. If the family has more than one disabled child, then the number of additional days off does not increase.
The procedure for granting additional days off is approved. *
Additional days off can be used by:
- one of the working parents;
- both working parents, dividing the allotted four days off a month between themselves; *
- guardian;
- trustee.
Parents who provide themselves with work are not entitled to apply for additional paid days off. This:
- individual entrepreneurs;
- private notaries;
- lawyers;
- members of registered indigenous minority communities;
- private security guards;
- heads or members of a peasant or farm holding;
- other persons who are engaged in private practice in the manner prescribed by law.
An employee can use weekends both at a time and in parts throughout the month. If an employee falls ill on an extra day off, there are special rules for postponing the day of rest. *
A question from practice: is it possible to provide days off for caring for a disabled child in parts during a month
Yes, you can.
One of the parents is given four additional days off per month to care for children with disabilities, upon his written application. approved, and it stipulates that the employee must indicate specific dates for such leave. At the same time, there is no restriction in the legislation that an employee must use all vacation days at a time. Therefore, an employee can take days off to care for a disabled child on different dates of the month, including one day at a time, excluding weekends.
Advice: Both working parents can take advantage of the extra days off by dividing the four days off a month between themselves.
A question from practice: is it possible to provide additional days for caring for a disabled child on weekends and pay for them
No.
Additional days for caring for a disabled child are not additional vacation days, which may also fall on weekends according to the schedule, but additional days off. This clearly follows from the provisions of the Labor Code of the Russian Federation. This means that such days are provided precisely in addition to those days off that are provided for by the employee's work schedule. Otherwise, it would be contrary to the very essence of the provision of additional days off.
The purpose of providing extra days off is not only to provide extra care for a disabled child, but also to reduce the workload for the parent, guardian or caregiver. This is necessary so that the caregiver does not experience undue stress associated with caring for a special child and the parallel performance of work activities. If you arrange the days for caring for a disabled child on weekends according to the schedule, this will deprive the employee of the opportunity to use both types of rest time guaranteed by the law:
- days off in accordance with the Labor Code of the Russian Federation;
- additional days off for caring for a disabled child according to the Labor Code of the Russian Federation.
Thus, it is not possible to provide additional days off for caring for a disabled child on weekends according to the schedule.
Documenting
What documents an employee must submit in order to receive additional days off for caring for a disabled child
In order to get additional days off, the employee presents to the employer:
- the original or a copy of the child's disability certificate issued by the bureau of medical and social expertise. The employee submits such a certificate to the employer in accordance with the terms for establishing disability: once, annually, once every two years or once every five years;
- documents confirming the place of residence, residence or place of actual residence of a disabled child. The employee must submit such documents in the original or a copy once upon hiring:
- birth or adoption certificate of a child, or a document confirming the establishment of custody or guardianship over a disabled child. The employee submits the relevant document to the employer once in original or copy. *
But with each appeal to the employer during the year with a request to provide additional days off, the employee submits:
- application for the provision of additional paid weekends by approved. In this case, the frequency of filing an application is agreed by the employee and the employer depending on the need to use additional days off: monthly, once a quarter, once a year, as they apply, etc .;
- a certificate from the place of work of the second parent stating that he did not apply for additional days off in the current calendar month, or a certificate that he did not use additional paid days off in the current month or used only partially.
If the second parent does not work or provides himself with work, you must submit the original or a copy of the document confirming that this parent is not in an employment relationship or is a person who independently provides himself with work. This can be a copy of a work book, a certificate of registration as an individual entrepreneur, etc. Such documents must also be presented with each application for additional days off.
A single mother or single father, as well as a parent who is divorced and is raising a disabled child alone, are given an additional four days off without presenting a certificate from the other parent's place of work, if the following documents are presented:
- death certificate of the second parent;
- a court decision on the restriction or deprivation of the parental rights of the second parent;
- a document confirming that the second parent is on a long business trip (more than a month);
- a document confirming that the second parent is serving a sentence in places of deprivation of liberty;
- documents confirming other circumstances in which there is no actual care of the child by the second parent.
Based on the documents received, the head of the organization issues an order on the provision of additional days off. There is no unified form for such an order, so it can be drawn up in any form.
In the time sheet, indicate additional days off for caring for a disabled child with the letter code "ОВ" or the digital code "27".
If the child is 14 years old or more, then the place of residence will be confirmed by the passport with the corresponding registration mark (Rules approved). And the place of his stay is a certificate of registration at the place of stay, like a child under 14 years old.
At the same time, payment at the expense of the FSS of Russia for additional days off both at the main place of work and at the place of work as an external part-time job is not provided for by law. Employees of the FSS of Russia in private explanations indicate that a part-time employee has the right to receive additional paid days off only at the place of his main job.
Attention: the procedure proposed by the employees of the FSS of Russia may cause objections from the labor inspectorate.
The parent (guardian, guardian) of a disabled child has the right to four additional days off per month, which the employer must provide him with a written application (). Therefore, upon receipt of such an application from an external part-time worker, the organization has no reason to refuse to grant him a day off. This issue can be resolved by providing additional days off without payment (they will be paid at the main place of work). At the same time, oblige the employee to indicate in the application for the provision of days off that he applied with a similar application at his main place of work. In addition, the organization may decide to pay the weekend according to the average earnings from its own funds ().
A question from practice: Can the FSS of Russia refuse to reimburse the costs of paying for days of caring for a disabled child, if it turns out that the employee worked in other organizations on these days, where he is a part-time employee
Yes maybe.
One of the parents is given four additional days off per month to care for children with disabilities, upon his written application. For this period, he retains the average monthly earnings. This follows from the Labor Code of the Russian Federation.
In the future, the FSS of Russia reimburses the employer for the costs of paying for additional days off (the Rules approved by).
However, if during the inspection, representatives of the department establish that during the period of additional days off the employee worked for other employers part-time, then it is highly likely that compensation will be denied. This is due to the fact that employees cannot work and care for children with disabilities at the same time. The provision of additional days off is targeted in nature, and the meaning is lost if the employee continues to work on such days. The legality of this approach is also confirmed by judicial practice (see, for example,).
To avoid such situations when hiring a part-time job or if you know that your employee got a part-time job, it is recommended to establish communication between employers and, if possible, find out about the dates for using additional days off to care for a disabled child. You can also demand from the employee a copy of the order on the provision of days off at other places of work.
If the fact of part-time work is not known or was revealed after the payment of an additional weekend, and the FSS of Russia refuses to reimburse, then it will be possible to withhold the unreimbursed amount from the employee's salary only by a court decision, if the employee does not agree to return it voluntarily ().
A question from practice: how to provide an employee with additional days off to care for a disabled child. The employee works according to the schedule with the summarized accounting of working hours. The duration of the shift exceeds 8 hours
To care for children with disabilities, one of the parents (guardian, trustee), the organization provides four additional days off every month at the written request of the employee ().
Each additional day off the employer pays in the amount of the average daily earnings at the expense of the FSS of Russia (s).
With the summarized accounting of working time, additional paid days off cannot in total exceed the number of working hours per day with the normal working time increased four times (the Rules approved). Normal working hours are generally 40 hours per week (). Consequently, the organization is entitled to provide such employees with only 32 hours (8 hours × 4 days) additional rest.
At the same time, the organization has the right in local regulations to provide for a different procedure for the provision of additional days off for caring for a disabled child to employees with a cumulative record of working hours. Provided that such a procedure will improve, and not worsen, the situation of employees. For example, to provide four working days for rest according to the shift schedule (more than 32 hours). This follows from Article 8, Article 57 of the Labor Code of the Russian Federation. The employer must pay for additional hours of rest in excess of 32 hours at his own expense.
An example of providing an employee with additional days off to take care of a disabled child. The employee works according to the schedule (summarized accounting of working hours). The duration of the shift exceeds 8 hours
The employee of the organization A.V. Dezhneva established the summarized accounting of working hours. On her written request in March 2011, she was given additional days off to care for a disabled child.
The duration of Dezhneva's shift is 11 hours.
Employee's work schedule for March 2011:
| Number | 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 |
| Work shifts | 11 | 11 | 11 | 11 | 11 | out. | out. | out. | 11 | 11 | 11 | out. | out. | 11 |
| Number | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27 | 28 |
| Work shifts | 11 | 11 | 11 | 11 | out. | out. | 11 | 11 | 11 | 11 | 11 | out. | out. | 11 |
| Number | 29 | 30 | 31 | |||||||||||
| Work shifts | 11 | 11 | 11 |
The weekend provided by Dezhneva (32 hours) was paid according to the average earnings at the expense of the FSS of Russia.
A question from practice: Is it possible to provide additional days off for caring for a disabled child to an employee if his spouse does not work and actually takes care of the child
Yes, you can.
If one of the parents of a disabled child does not work, then the other parent can arrange additional days off at his place of work. To do this, in addition to the general package of documents, the employee presents to the employer the original or a copy of the document confirming that the other parent is not in an employment relationship, and therefore does not use additional days off. This procedure is provided for in the Rules approved.
Thus, the fact that one of the parents of a disabled child does not work does not deprive the other, working parent of the right to receive additional days off at the place of work. Who is actually caring for the child does not matter.
A question from practice: Whether the number of extra days off for caring for a disabled child depends on the number of disabled children. For example, can an employee who has two children with disabilities use eight extra days off per month
No, it doesn't.
One of the parents is given four additional days off per month to care for children with disabilities, upon his written application. At the same time, the number of disabled children in the employee's family does not matter. The employer is obliged to provide only four days off per month to one of the parents of disabled children, regardless of their number. This follows from Article 262 of the Labor Code of the Russian Federation.
Weekend distribution
Can parents share the extra days off caring for a disabled child among themselves?
At the same time, two parents cannot use four additional days off during one calendar month. But they can be distributed. For example, the mother of the child takes the first two days of the month, and the father takes the second. This is possible in the case when both parents are employed, that is, they are in an employment relationship with the employer. Or one parent uses all four days. At the same time, he can take four days in a row, or use them separately, for example, one day a week.
Additional days off for caring for a disabled child are not provided when an employee is:
- on annual leave;
- on vacation without pay;
- on parental leave up to three years old.
In this case, during this period, the second working parent can use all four days.
Postponing the weekend
What to do if an employee gets sick during extra days off caring for a disabled child
In a situation where the additional days off provided to the employee fell on the period of his illness (if there is a sick leave), proceed in the following order. If the employee recovered in the same month, reschedule the vacation days within this month at his request and issue a new order. If the employee recovers in another month, then the additional days off from the last month will not be carried over. At the same time, monetary compensation for unused additional days off is not provided for by current legislation. This follows from Article 262 of the Labor Code of the Russian Federation and paragraphs of the Rules approved.
An example of registration of the transfer of an additional paid day off
On July 8, 2014 the cashier of the organization A.V. Dezhneva was given an extra day off to care for a disabled child under the age of 18. However, from 5 to 8 July 2014 inclusive, Dezhneva was ill.
The employee wrote an application for the transfer of an additional day off.
The head of the organization signed an order to postpone an additional paid day off.
Weekend payment
How to pay for extra days off caring for a disabled child
Additional days off for caring for a disabled child are paid at the expense of the FSS of Russia (). Calculate the amount to be paid for each additional day off based on the average daily (hourly) earnings. At the same time, the average monthly number of calendar days (29.4 or 29.3 - respectively, before and after April 2, 2014) is not applied in the calculations. This conclusion follows from the Rules approved and the Regulations approved.
A question from practice: what benefits the father of a disabled child can claim if he is divorced from the child's mother, but at the same time pays alimony
The employee who is the father of a disabled child who is divorced and pays child support retains parental rights and continues to be the father of the child. Parental rights remain with him regardless of whether he pays alimony voluntarily or in court. This conclusion follows from the articles of the Family Code of the Russian Federation.
In this regard, an employee who is the father of a disabled child and is divorced, at least until the deprivation of his parental rights, retains the benefits provided to parents of disabled children, in particular:
- additional leave without pay for up to 14 calendar days, if the obligation to provide such leave is enshrined in the collective agreement ();
- additional paid days off (up to four) for caring for the child, if the mother of the child did not use this right in full (Article 262 of the Labor Code of the Russian Federation, 3 Article 259, Labor Code of the Russian Federation);
- the establishment of part-time work, if the mother of the child did not use this right ();
- other benefits provided to parents of children with disabilities by the legislation of the constituent entities of the Russian Federation, acts of local governments, intersectoral (sectoral) agreements, local acts of the employer, labor contract. "
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Who is eligible for extra days off
An employee with a disabled child under the age of 18 is entitled to four additional days off per calendar month, paid by the FSS of Russia. If the family has more than one disabled child, the number of extra days off does not increase.
The procedure for granting additional days off was approved by Decree of the Government of the Russian Federation of October 13, 2014 No. 1048.
Additional days off can be used by:
One of the working parents;
Both working parents, sharing the allotted four days off a month between themselves;
Guardian;
Trustee.
Those parents who provide themselves with work are not entitled to apply for additional paid days off. For example, individual entrepreneurs, private notaries, lawyers, private security guards, heads (members) of a peasant farm, etc.
This is stated in Article 262 of the Labor Code of the Russian Federation and paragraphs 2, 4 and 6 of the Rules approved by the Decree of the Government of the Russian Federation of October 13, 2014 No. 1048.
Situation: whether it is necessary to provide and pay on average earnings additional days off for caring for a disabled child to an employee who is an external part-time worker?
Yes, he needs days off. But you can pay for them at the expense of the FSS of Russia only at one place of work.
An employee caring for a disabled child under the age of 18 is entitled to four additional paid days off per calendar month (part 1 of article 262 of the Labor Code of the Russian Federation). The employer will pay them according to the average earnings at the expense of the FSS of Russia (clause 12 of the Rules approved by the decree of the Government of the Russian Federation of October 13, 2014 No. 1048, part 17 of article 37 of the Law of July 24, 2009 No. 213-FZ).
Part-time workers have the same rights as employees who work in an organization at their main place of work (Article 287 of the Labor Code of the Russian Federation). This means that you, as an employer, must provide an external part-time worker with four additional days off on the same dates as at the main place of work.
At the same time, Article 262 of the Labor Code of the Russian Federation provides for payment of only four additional days a month for caring for a disabled child. And these days are paid only for one place of work of his choice. Otherwise, the number of paid days will exceed the standard. This opinion is shared by representatives of the FSS of Russia in private explanations.
Separately, let's talk about how to draw up documents. The employer must provide additional days off on the basis of a written application. Since it is impossible to refuse an external part-time job, provide additional days off without payment (they will be paid at the main place of work). At the same time, oblige the employee to indicate in the application for the provision of days off that he applied with a similar application at his main place of work. In addition, the organization may decide to pay the weekend according to the average earnings at its own expense (paragraph 5 of part 1 of article 2 of the Labor Code of the Russian Federation).
Situation: Does the mother of a disabled child have the right to additional leave if the child is constantly looked after by her husband? The spouse is neither a father, nor an adoptive parent, nor a guardian. The ex-husband of the employee does not use vacation.
Yes, it has.
As a general rule, one of the parents (guardian, curator) of a disabled child has the right to additional days off. The fact that the child is constantly being cared for by another relative (family member) does not matter. The right to leave does not depend on this. At the same time, the employee does not have the right to share the vacation days with her husband. After all, her husband is neither a parent, nor a guardian, nor a guardian of a disabled child. This follows from part 1 of article 262 of the Labor Code of the Russian Federation.
To obtain additional days off, it is necessary to provide the employer with a certificate from the place of work of the child's father stating that the father does not use these days. An exception is the cases listed in clause 5 of the Rules approved by the RF Government Decree No. 1048 dated October 13, 2014. For example, when the second parent is deprived of parental rights or is limited in these rights. Then a certificate from work is not needed, you only need a document confirming the restriction or deprivation of parental rights. But in the event of a divorce, a certificate from the place of work is needed. This follows from subparagraph "d" of paragraph 3 and paragraph 5 of the Rules approved by the RF Government Decree of October 13, 2014 No. 1048.
Employee documents
To get additional days off, the employee submits a certificate to the employer confirming the fact that the disability has been established. The document is issued by the bureau (main bureau, federal bureau) of medical and social expertise. Such a certificate must be submitted in accordance with the terms for establishing disability (once, once a year, once every two years, once every five years).
You also need documents confirming the place of residence (stay or actual residence) of a disabled child. You cannot do without a birth certificate (adoption) of a child or a document confirming the establishment of guardianship, custody of a disabled child. An employee submits such documents once.
But with each appeal to the employer during the year with a request to provide additional days off, the employee submits:
- a statement in the form approved by order of the Ministry of Labor of Russia dated December 19, 2014 No. 1055n;
- a certificate from the place of work of the second parent stating that he did not use additional paid days off in the current calendar month or used partially.
If the second parent does not work or provides himself with work, a document (a copy of it) must be submitted confirming that the other parent is not in an employment relationship or is a person who independently provides himself with work. This can be a copy of a work book, a certificate of registration as an individual entrepreneur, etc.
A single mother or single father raising a disabled child is given an additional four days off without presenting a certificate from the other parent's place of work. Also, such a certificate will not be required if the following documents are submitted:
- death certificate of the second parent;
- a court decision on the restriction or deprivation of the parental rights of the second parent;
- a document confirming that the second parent is on a long business trip (more than a month);
- a document confirming that the second parent is serving a sentence in places of deprivation of liberty;
- documents confirming other circumstances in which there is no actual care of the child by the second parent.
Based on the documents received, the head of the organization issues an order on the provision of additional days off. Make it up in any form.
In the time sheet, indicate additional days off for caring for a disabled child with the letter code "ОВ" or the digital code "27".
This is stated in clauses 3-5 of the Rules approved by the Decree of the Government of the Russian Federation of October 13, 2014 No. 1048.
Situation: how to provide an employee with additional days off to care for a disabled child? The employee works according to the schedule (summarized accounting of working hours). The duration of the shift exceeds 8 hours.
To care for disabled children, one of the parents (guardian, trustee), the organization provides four additional days off every month (at the written request of the employee) (Article 262 of the Labor Code of the Russian Federation).
Each additional day off is paid in the amount of the average daily earnings at the expense of the FSS of Russia (Article 262 of the Labor Code of the Russian Federation and clause 17 of Article 37 of the Law of July 24, 2009 No. 213-FZ).
With the summarized accounting, additional paid days off cannot exceed the total number of working hours per day with the normal working time increased four times (clause 11 of the Rules approved by the Government of the Russian Federation of October 13, 2014 No. 1048). As a general rule, 40 hours per week (part 2 of article 91 of the Labor Code of the Russian Federation). That is, the organization has the right to provide such employees with only 32 hours of additional rest, paid for by the FSS of Russia.
At the same time, the organization has the right in local regulations to provide for a different procedure for the provision of additional days off for caring for a disabled child to employees with a cumulative record of working hours. Provided that such a procedure will improve, and not worsen, the situation of employees. For example, to provide four working days for rest according to the shift schedule (more than 32 hours). This follows from part 4 of article 8, part 4 of article 57 of the Labor Code of the Russian Federation. The employer must pay for additional hours of rest in excess of 32 hours at his own expense.
An example of providing an employee with additional days off to take care of a disabled child. The employee works according to the schedule (summarized accounting of working hours). The duration of the shift exceeds 8 hours
The employee of the organization A.V. Dezhneva established the summarized accounting of working hours. According to her written application in March 2016, she was given additional days off to care for a disabled child.
The duration of Dezhneva's shift is 11 hours.
Employee's work schedule for March 2016:
| Number | 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 |
| Work shifts | ||||||||||||||
| Number | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27 | 28 |
| Work shifts | ||||||||||||||
| Number | 29 | 30 | 31 | |||||||||||
| Work shifts |
The weekend provided by Dezhneva (32 hours) was paid according to the average earnings at the expense of the FSS of Russia.
Allocation and transfer of additional holidays
Consider the following when giving an employee an extra weekend break.
At the same time, two parents cannot use four additional days off during one calendar month. But they can be distributed. For example, the mother of the child takes the first two days of the month, and the father takes the second. This is possible if both parents are employed (have an employment relationship with the employer). Or one parent uses all four days. At the same time, he can take four days in a row, or use them separately (for example, one day a week).
Additional days off to care for a disabled child are not provided when the employee is:
- on annual leave;
- on vacation without pay;
- on parental leave up to three years old.
In this case, during this period, the second working parent can use all four days (clause 7 of the Rules, approved by the Decree of the Government of the Russian Federation of October 13, 2014 No. 1048).
Suppose that the additional days off provided to the employee fell on the period of his illness (if there is a sick leave), proceed as follows. If the employee recovered in the same month, reschedule the vacation days at his request and issue a new order. If the employee recovers in another month, then the additional days off from the last month will not be carried over. At the same time, monetary compensation for unused additional days off is not provided for by current legislation.
This follows from part 1 of article 262 of the Labor Code of the Russian Federation and paragraphs 6, 7 and 9 of the Rules approved by the Decree of the Government of the Russian Federation of October 13, 2014 No. 1048.
An example of registration of the transfer of an additional paid day off
On July 8, 2016 the cashier of the organization A.V. Dezhneva was given an extra day off to care for a disabled child under the age of 18. However, from July 7 to July 11, 2016 inclusive, Dezhneva was ill.
The employee wrote an application for the transfer of an additional day off.
The head of the organization signed an order to postpone an additional paid day off.
Payment for additional leave
Additional days off are paid at the expense of the FSS of Russia (clause 17 of article 37 of the Law of July 24, 2009 No. 213-FZ). Calculate the amount to be paid for each additional day off based on average earnings ... At the same time, the average monthly number of calendar days (29.3) is not used in the calculations. This conclusion follows from clause 12 of the Rules approved by the Decree of the Government of the Russian Federation of October 13, 2014 No. 1048 and the letter of the FSS of Russia dated May 5, 2010 No. 02-02-01 / 08-2082.
If the employee has a disabled child under the age of 18, then he must be provided with four additional days off per month (Article 262 of the Labor Code of the Russian Federation). Additional days off are paid from compulsory social insurance funds based on the employee's average earnings.
Procedure for providing
Decree of the Government of Russia dated October 13, 2014 No. 1048 established the procedure for providing additional paid days off to one of the parents (guardian, trustee) to care for disabled children.
note
The presence of more than one disabled child in a family does not entail an increase in the number of additional paid days off provided. Also, the transfer of unused additional paid days off for a month is not provided for another month. With the summarized accounting of working hours, additional paid days off are provided at the rate of the total number of working hours per day, increased four times.
Personal income tax and insurance premiums
The Ministry of Finance (letters dated July 1, 2011 No. 03-04-08 / 8-101, dated December 12, 2007 No. 03-04-05-01 / 407) and the Federal Tax Service of Russia (letter dated July 31, 2006 No. 04 -1-02 / [email protected]) have repeatedly expressed that payments made in the form of additional paid four days off per month to one of the working parents (guardian, trustee) for caring for disabled children should be taxed with personal income tax. However, the Federal Tax Service of Russia in a letter dated August 9, 2011 No. AS-4-3 / [email protected] indicated that the payment of additional days off provided for caring for disabled children is exempt from personal income tax as a payment transferred in accordance with the law (clause 1 of article 217 of the Tax Code of the Russian Federation). It should be noted that almost a year before this, a similar opinion was expressed by the Presidium of the Supreme Arbitration Court of the Russian Federation in its resolution of June 8, 2010 No. 1798/10.
Thus, the payment of additional days off for caring for disabled children does not need to be taxed with personal income tax.
As for insurance premiums, since 2015, financial support for the costs of paying additional days off provided for caring for children with disabilities in accordance with Article 262 of the Labor Code, including assessed insurance contributions to state extra-budgetary funds, is carried out at the expense of interbudgetary transfers from the federal budget. provided to the budget of the Social Insurance Fund (Federal Law of December 29, 2014 No. 468-FZ). That is, the FSS of the Russian Federation finances the costs not only for the payment of additional days off, but also for the payment of insurance premiums.
Proceeding from this, employers-insurers should calculate insurance contributions to state extra-budgetary funds, including for compulsory social insurance against industrial accidents and occupational diseases, for the amount of expenses associated with the payment of additional days off provided to employees for caring for children with disabilities. ...
Reflection in the report
Since the expenses are directly reimbursed by the FSS of the Russian Federation (clause 17 of article 37 of the Federal Law of July 24, No. 213-FZ), they must be reflected in Form 4 - FSS:
- on line 15 of Table 1 "Calculations for compulsory social insurance in case of temporary disability and in connection with motherhood" - in aggregate form;
- in lines 12 "Payment of additional days off for caring for disabled children" and 13 "Insurance contributions to state extra-budgetary funds accrued for the payment of additional days off for caring for disabled children" of Table 2 "Expenses for compulsory social insurance in case of temporary disability and in connection with motherhood "- separately.
The amount of payment for additional days off for caring for disabled children calculated on an accrual basis from the beginning of the reporting (settlement) period and the amount of insurance premiums calculated from it for this period in the Pension Fund of the Russian Federation, FFOMS and FSS RF are also reflected in lines 7 and 8 of Table 5 "Explanation of payments , produced at the expense of funds financed from the federal budget "calculation 4 - FSS.
Accrual in accounting
The accrual of insurance premiums from the amount of the retained average earnings paid to the employee for the four days of additional leave to care for a disabled child is reflected in the accounting records:
DEBIT 69, subaccount "Settlements with the FSS in case of temporary disability" CREDIT 69, subaccount "Settlements with the FIU" ("Settlements with the FFOMS", "Settlements with the FSS in the event of temporary disability", "Settlements with the FSS for contributions for injuries")
- insurance premiums have been charged to the Pension Fund (FFOMS, FSS in case of temporary disability, FSS for injuries) from the payment of additional days off for caring for a disabled child.
An employee of LLC "Passive" Makarova has a disabled child. In April 2015, Makarova applied for four additional days off.
There are 22 working days in April. Makarova's salary - 13,000 rubles. The Passive has a 5-day working week. The previous 12 months have been fully worked out.
The calculation of the average earnings of an employee is based on the actually accrued salary and the actual time worked by him for the 12 months preceding the moment of payment.
The amount of payments made by Makarova for 12 months (from April last year to March of the reporting year.) Will be:
RUB 13,000 × 12 months = 156,000 rubles.
The total number of working days in the billing period (from April last year to March of the reporting year) is 250 days.
Makarova's average daily earnings for the billing period will be:
RUB 156,000 : 250 workdays = 624 rubles / day
For 4 additional days off Makarova must be paid:
624 rub / day × 4 out. days = RUB 2496
Makarova's salary for April will be:
RUB 13,000 : 22 work. days × (22 working days - 4 days off) = 10 636 rubles.
The organization pays contributions for insurance against industrial accidents and occupational diseases at a rate of 3.1%, and contributions to the Pension Fund, FSS, FFOMS - at a rate of 30%.
Makarova uses the standard deduction for the maintenance of a disabled child - 3000 rubles.
In April, the accountant of "Passive" must make the following entries:
DEBIT 20 CREDIT 70
- 10 636 rubles. - the salary of Makarova for April was accrued;
DEBIT 69 SUB-ACCOUNT "Settlements with the Social Insurance Fund in case of temporary incapacity for work" CREDIT 70
- 2496 rubles. - accrued payment for additional weekends in April;
Thus, in April Makarova accrued 13,132 rubles.
DEBIT 70 CREDIT 68 subaccount "Calculations for personal income tax"
- 993 rubles. ((RUB 10,636 - RUB 3,000) × 13%) - personal income tax was withheld from the wages of workers in the main production;
DEBIT 70 CREDIT 50-1
- 12 139 rubles. ((10 636 - 993) + 2496) - wages and payment of additional days off issued by Makarova from the cash desk.
In the amount of 13 132 rubles. you need to calculate insurance premiums:
- 407, 10 rubles. (RUB 13,132 × 3.1%) - contributions for insurance against industrial accidents and occupational diseases were assessed;
- RUB 380.83 (RUB 13,132 × 2.9%) - assessed contributions to be paid to the Social Insurance Fund;
- 2889.04 rubles. (RUB 13,132 × 22%) - contributions have been accrued to be paid to the Pension Fund;
- 669.73 rubles. (RUB 13,132 × 5.1%) - assessed contributions to be paid to the Federal Compulsory Health Insurance Fund /
From each accrued amount of insurance premiums, you need to allocate a part attributable to the payment of additional days off. These will be:
- in the FSS for injuries - 77.38 rubles. (407.1 rubles: 13 132 rubles × 2496 rubles);
- in the FSS in case of temporary disability - 72.38 rubles. (RUB 380.83: RUB 13,132 × RUB 2,496);
- in the Pension Fund - 549.12 rubles. (2889.04 rubles: 13 132 rubles × 2496 rubles);
- in FFOMS - 127.30 rubles. (669.73 rubles: 13 132 rubles × 2496 rubles).
DEBIT 69 subaccount "Settlements with the Social Insurance Fund in the event of temporary disability" CREDIT 69 subaccount "Settlements with the Pension Fund of the Russian Federation" ("Settlements with the FFOMS", "Settlements with the Social Insurance Fund in the event of temporary disability", "Settlements with the Social Insurance Fund for contributions for injuries")
- 549.12 rubles. (127.30 rubles, 72.38 rubles, 77.38 rubles) - insurance premiums were accrued to the Pension Fund of the Russian Federation (FFOMS, FSS in case of temporary disability, FSS for contributions for injuries) with payment of additional days off for childcare - disabled.
The aggregate of these amounts is 826.18 rubles. (549.12 + 127.30 + 72.38 + 77.38), as well as the amount of payment for additional days off for caring for a disabled child 2496 rubles, the employer has the right to reduce the amount of insurance contributions to the FSS of the Russian Federation in case of temporary disability, calculated for April for the organization as a whole.
The accrued insurance premiums from wages must be reflected by entries:
DEBIT 20 CREDIT 69-1
- 329.72 rubles. (407.1 - 77.38) - assessed contributions for insurance against industrial accidents and occupational diseases;
DEBIT 20 CREDIT 69-1
- 308.45 rubles. (380.83 - 72.38) - assessed contributions to be paid to the Social Insurance Fund;
DEBIT 20 CREDIT 69-2
- RUB 2339.92 (2889.04 - 549.12) - assessed contributions to be paid to the Pension Fund;
DEBIT 20 CREDIT 69-3
- 542.43 rubles. (669.73 - 127.30) - assessed contributions to be paid to the Federal Compulsory Medical Insurance Fund.
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