Milk for employees employed in hazardous areas. Who can apply to receive. What cannot be replaced

Question from a visitor

Good afternoon Tell! We are an electrical installation company. We carry out work at Rosatom facilities. From time to time, our people “snatch up” all kinds of infection (the dosimeters go off). We should properly provide special food. Question... tell me, what can I replace milk with? And can it be replaced with monetary compensation? Thank you in advance!

Reply to the visitor

Greetings!

Milk is provided free of charge to employees engaged in work with hazardous working conditions (Part 1 of Article 222 of the Labor Code of the Russian Federation). List of harmful production factors, under the influence of which it is recommended to consume milk or other equivalent products for preventive purposes food products, approved by order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 45n (hereinafter referred to as the List of harmful production factors).

Milk is issued according to the standards and in the manner prescribed by the Norms and Conditions free issuance employees engaged in work with hazardous working conditions, milk or other equivalent food products that can be given to employees instead of milk, approved by the same order No. 45n (hereinafter referred to as the Norms and Conditions for the Free Distribution of Milk).

Free milk is provided to employees on days of actual employment at jobs with hazardous working conditions.

The rate of free milk distribution is 0.5 liters per shift, regardless of its duration. Milk is issued when work is performed in hazardous working conditions for at least half of the work shift (clause 4 of the Norms and conditions for free milk distribution).

Milk should be provided on the day when work is performed in hazardous working conditions. Dispensing milk for one or several shifts in advance, as well as for past shifts, is not allowed (clause 7 of the Norms and Conditions for the free distribution of milk). The distribution and consumption of milk must be carried out in buffets, canteens or in premises specially equipped in accordance with sanitary and hygienic requirements (clause 3 of the Norms and conditions for the free distribution of milk).

Instead of milk, the employee may be given equivalent food products, the list and standards of which are given in Table 1 of the Norms and Conditions for the Free Distribution of Milk.

The issuance of other products is not provided for by the legislation of the Russian Federation.

At the written request of the employee, instead of issuing milk or other equivalent food products, he may be paid a compensation payment (Clause 10 of the Norms and Conditions for the Free Distribution of Milk, Part 1 of Article 222 of the Labor Code of the Russian Federation).

Free therapeutic and preventive nutrition is provided to employees engaged in work with particularly hazardous working conditions, regardless of the type economic activity and organizational and legal forms and forms of ownership of employers (Part 2 of Article 222 of the Labor Code of the Russian Federation). The procedure for obtaining it is regulated by the following documents:

• Rules for the free distribution of therapeutic and preventive nutrition, approved by Order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 46n (hereinafter referred to as the Rules);
• A list of industries, professions and positions in which work gives the right to free medical and preventive nutrition in connection with particularly harmful working conditions, approved by Order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 46n (hereinafter referred to as the List).

This food is given to the employees listed in clause 6 of the Rules.

Workers must be familiar with the rules for the free provision of therapeutic and preventive nutrition during induction training on labor protection (clause 15 of the Rules).

The issuance of therapeutic and preventive nutrition to employees is carried out on the days they actually perform the work provided for in the List. Moreover, they must be engaged in such work for at least half the working day. Also, such food is provided during the period of occupational illness of workers with temporary loss of ability to work without hospitalization (clause 5 of the Rules).

According to the rules of clause 8 of the Rules, this food is not provided to:

• on non-working days;
• on vacation days (except for maternity leave, parental leave for children under the age of one and a half years);
• in days business trips;
• on off-duty study days;
• on days of work in areas where free provision of therapeutic and preventive nutrition is not established;
• on days of performing work related to the execution of public and state orders;
• during periods of temporary incapacity due to illness general;
• during the days of treatment in a medical institution, including a sanatorium type.

Meals are provided before starting work in the form of hot breakfasts or specialized shift rations (for hard-to-reach regions in the absence of canteens). It is possible to receive such meals during the lunch break in agreement with the employer’s health service, and in its absence, with the territorial bodies of the Federal Service for Surveillance on Consumer Rights Protection and Human Welfare (clause 7 of the Rules).

• women during maternity leave and childcare leave under the age of one and a half years;
• pregnant women when performing work to which they are transferred in order to eliminate exposure to harmful production factors;
• employees during a period of temporary incapacity for work or disability due to an occupational disease.

Delivery of meals at home is carried out according to the relevant certificates from the employer’s medical and sanitary service, and in its absence - according to certificates from the territorial bodies of the Federal Service for Supervision of Consumer Rights Protection and Human Welfare.

Treatment and preventive nutrition not received in a timely manner is not subsequently issued, and no monetary compensation is paid (clause 11 of the Rules). The exception is failure to receive the specified food due to the actions of the employer.

Workers who are provided with therapeutic and preventive nutrition, are not entitled to milk or other equivalent food products (clause 16 of the Rules, clause 11 of the Norms and conditions for the free distribution of milk).

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Which employees are entitled to milk?

Labor legislation provides for a number of guarantees and compensations for employees associated with working in hazardous working conditions. One of these compensations is free milk (Article 222 of the Labor Code of the Russian Federation). It is considered a valuable food product, therefore it is used to reduce the impact of harmful production factors and prevent occupational diseases. How to organize the distribution of milk and whether it can be replaced with money will be discussed below.

Milk should be given to employees who are subject to increased

levels of harmful production factors. Their list is given in the order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 45n. Among such factors are, for example, epoxy resins, pesticides, pathogenic microorganisms, ionizing radiation from radioactive substances, etc.

The employer is obliged organize free milk distribution to employees if:

• the presence of harmful production factors was established during a special assessment of working conditions or certification of workplaces, provided that no more than five years have passed since their conduct;
• in fact, the maximum permissible values ​​of harmful production factors have been increased (regardless of whether a special assessment or certification of workplaces was carried out).

If the employer has not carried out a special assessment, this does not release him from the obligation to give milk to workers for working in hazardous working conditions. In practice, a situation is possible when some workers receive milk based on the results of a special assessment, some based on the results of workplace certification, and some simply based on availability harmful factors(for example, if the employer did not conduct a special assessment in a timely manner or previously avoided conducting workplace certification). That is, to provide free milk, there is no mandatory requirement for an examination of working conditions.

It is necessary to distinguish between harmful and especially harmful working conditions. The list of jobs with particularly harmful working conditions is given in the order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 46n. Employees who work in such conditions are not entitled to milk, but to medical and preventive nutrition.

What are the norms and procedures for dispensing milk?

The free milk supply rate is 0.5 liters per shift. The quality of milk must meet the requirements Federal Law dated June 12, 2008 No. 88-FZ “Technical Regulations for Milk and Dairy Products” and Technical Regulations of the Customs Union TR CU 033/2013 “On the Safety of Milk and Dairy Products”.

The employee must consume the resulting milk at work: in a buffet, canteen or other specially equipped room that complies with the sanitary and epidemiological rules SP 2.3.6.1079-01 “Organizations Catering. Sanitary and epidemiological requirements for public catering organizations, the production and circulation of food products and food raw materials in them” 5.

If an inspection by Rospotrebnadzor finds that the requirements for catering services have been violated (when issuing and storing milk), then the employer may be subject to punishment: an administrative fine for officials - from 2,000 to 3,000 rubles, for an organization - from 20,000 to 30,000 rubles or an administrative fine suspension of activities for up to 90 days (Article 6.6 of the Code of Administrative Offenses of the Russian Federation).

Milk is only provided on actual busy days employee at work with hazardous working conditions, regardless of the duration of the shift (clauses 2, 4 of Order No. 45n). Milk not issued:

• on days the employee is absent from work (regardless of the reason);
• on days when the employee performs work not related to the influence of harmful production factors;
• on days when the time spent working in hazardous working conditions is less than half of the work shift.

Table 1. Harmful factors and food products that are prescribed for working with them

Fermented milk products must be given out during the working day, and products enriched with pectin - before starting work.

How to arrange milk delivery?

Milk in the organization is issued on the basis collective agreement and/or employment contracts with employees. This follows from Article 222 of the Labor Code. In addition, information about compensation for working with harmful and (or) dangerous conditions labor, indicating the characteristics of these working conditions must be specified in the employment contract (Article 57 of the Labor Code of the Russian Federation).

Information on milk distribution is included in the collective agreement if it exists, because it is not a mandatory document for the employer. It is advisable to reflect in the collective agreement:

• a list of harmful production factors that exist in the organization;
• norms and conditions for milk distribution;
• possible types of equivalent food products, norms for their issuance and replacement procedure;
• the procedure for replacing milk and equivalent food products with monetary compensation;
• conditions and procedure for stopping the supply of milk and equivalent food products.

What can replace milk?

With the consent of the employee, the employer may replace milk with equivalent food products or monetary compensation. Let's take a closer look.

Replacing milk with equivalent food products

If necessary, milk can be replaced with certain foods.

Table 2. Products that can replace milk

You cannot replace milk with sour cream, butter, or other products (except those listed in Table 2). Products enriched with pectin (2 g) can be replaced with natural fruit and (or) vegetable juices with pulp in an amount of 300 ml.

To replace milk with an equivalent food product you must:

• obtain the employee’s written consent;
• take into account the opinion of the primary trade union organization or other representative body of workers (if any).

The decision to replace milk with an equivalent food product is formalized by order (instruction) of the employer.

The employer (with the consent of the trade union or other representative body of workers) may stop providing milk and equivalent food products if the workplace is provided with safe conditions labor. This fact must be confirmed by the results of a special assessment of working conditions or a previously conducted certification of workplaces. The cancellation of milk distribution must be formalized by order (instruction) of the employer. Changes should also be made to the collective agreement and employee employment contracts.

Replacing milk with money

Article 222 of the Labor Code makes it possible to replace milk with monetary compensation. To do this, the following conditions must be met:

• the employee must write a statement stating that he wants to receive money instead of milk;
• the possibility of replacing milk with monetary compensation should be provided for by the collective agreement and (or) employment contract with an employee.

The procedure for paying compensation can be found in Appendix No. 2 to Order No. 45n. Its size must be equivalent to the cost of milk with a fat content of at least 2.5 percent or equivalent food products in retail trade at the location of the employer. The retail price of products is determined according to Rosstat data, taking into account the opinion of the trade union organization. This procedure must be approached very carefully, because the employee has the right to challenge the amount of compensation in court. Especially if the procedure for determining it is not described in detail in the collective agreement.

Payment is made at least once a month (usually together with wages). Its specific size must be specified in the collective agreement or employment contracts. In practice, contracts do not indicate the amount of compensation (after all, the cost of milk is constantly changing), but the procedure for determining it.

Regulatory acts

Working in production with hazardous working conditions is hazardous to health. That is why employees in such organizations were prescribed at the legislative level.

The employment contract between the employer and the employee must indicate how harmful the production is and at what level compensation is provided.

general information

Money or “in kind”

Since the law does not prohibit compensation in monetary terms, a citizen has the right to write an application addressed to the employer to replace compensation in kind with material compensation. That is, exchange milk for money.

The basis for replacement is only an application, the head of the organization himself does not have the right to carry out this procedure or force him to do it.

As practice shows, the team makes a decision together, choosing one of two possible options by voting.

In most cases, the choice remains in favor of material payments rather than in-kind payments.

Payments of compensation funds are made once a month according to the established schedule. Most often this is either on the day the advance is received or on the day of payment wages. Milk is distributed according to a different scheme.

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How is the calculation made?

If with dairy products many workers understand how the calculation is made, then with material compensation this is not always the case.

According to approved standards, the amount is calculated based on the average cost in the region of milk with a fat content of 2.5%. Moreover, the final amount of compensation directly depends on the number of days worked.

If the cost of milk or products replacing it is indexed in the region, then the employment contract should have included a clause for changing compensation taking into account this indexation. If this clause is not provided, then the employee has the right to propose drawing up additional agreement taking into account indexing.

Where to learn about indexing

It is not necessary for an employee to independently monitor markets for changes in the cost of food and milk. It is enough to send a written request to the structural department of the executive authority at the place of duty.

The average response time is 10 business days.

An official response must be submitted to the employer in writing if indexation was not taken into account when calculating compensation.

The employer does not have the right to refuse a promotion if indexation has been carried out in the region. The right to receive a full financial payment by an employee is prescribed at the legislative level. Infringement of this right is illegal and punishable.

How is the calculation made in kind?

According to established standards, in 2019, all workers engaged in hazardous production can count on “payments” in kind.

In this case, the calculation is made exclusively for those days that the employee actually worked. If the work shift was incomplete or lasted only a few hours, then a person can count on a norm of 0.5 liters of milk or a product that replaces it.

The distribution of milk or products that replace it is carried out immediately after the work shift in a specially designated place that corresponds to established requirements and sanitary standards.

As a rule, this is a separate room (for example, a food unit), where sanitary treatments are carried out and food storage rules are observed.

Employer's actions

The employer enters into a contract for the supply of products at his own expense.

The manufacturer does not play any role, since it is not the company that is inspected, but the final product. It must comply with the standards prescribed in the technical regulations.

Only in this case is the extradition considered legal and legitimate. If a product does not comply with technical regulations or does not “meet” any parameters, then this is considered a violation of the rights of employees employed in hazardous work places.

Pectin as compensation

In addition to dairy products, some employees are entitled to payments in kind in the form of pectin.

This natural form is intended for those citizens who directly work in contact with non-ferrous metals and their compounds. The established norm is 2 grams of pectin immediately before the shift.

The employer has the right to replace the natural form with a material one at the request of the employee himself and in no other way.

Milk for hazardous working conditions is always given after the work shift to remove hazardous products, pectin - before the work shift, since it reduces the risk of getting harmful substances body.

Employees who work with non-ferrous metals or their compounds must receive both the standard of pectin and the standard of dairy products - at the beginning of the shift and after it. If the natural form is replaced by a material one, then payments occur once a month.

How payments in kind are made

The law establishes that payment in kind is made immediately after the shift.

Reimbursement for several days in advance or underpayment of subsequent payments is not permitted. In addition, it is prohibited to replace the product specified in the contract with any other product that is not included in the list of acceptable ones.

Receipt of compensation in kind by an employee is accompanied by the citizen’s personal signature in the journal.

Any violation of the order is a violation of the law.

Who can apply for

An entry in an employment contract about working conditions is not enough to receive compensation in kind.

In order for a person to receive the norm at the end of the shift, the employer is obliged to assess the workplace and assign it a hazard class.

This indicator determines at what rate the employee will receive compensation and in what volume.

If this was not initially stated in the employment contract, then changes are made by drawing up an additional agreement. As a rule, such a procedure is required only for new positions or jobs in production.

If a person comes to a previously formed place, then the contract includes a clause on the assessment of harmfulness based on the assessment carried out in the past.

If the employer intends to pay in kind not in milk, but in a product replacing it, then this must be stated in the employment contract along with the results of the assessment and the established norm. Otherwise, substitutions are unacceptable and are a violation of the employee's rights.

How to get products

Nothing is required on the employee’s part to receive the required products in kind.

The employer is obliged to independently assess the workplace and establish a standard, focusing on accepted standards and recommendations. If he did not do this, the employee has the right to insist on such a procedure in writing.

An application for in-kind compensation is not required.

Monetary compensation is declarative and voluntary, however, some organizations offer employees financial compensation on their own if they do not have specially equipped places for issuing dairy products.

This is not a violation, however, the employee’s right remains to demand compensation in kind.

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To quickly resolve your problem, we recommend contacting qualified lawyers of our site.

Last changes

The procedure for issuing products that slow down the intoxication of the body has not undergone significant changes.

Moreover, Scientific research showed that some substances are not only not excreted by milk or its substitutes, but, on the contrary, are absorbed faster. That is why some organizations abandoned the procedure for issuing in kind in favor of material additional payments.

All procedures are carried out only with the consent of employees, who generally prefer cash, not products. In this case, citizens choose their own preventive nutrition based on their personal preferences and health status.

Our experts monitor all changes in legislation to provide you with reliable information.

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February 16, 2017, 23:19 March 3, 2019 13:50

Order of the Ministry of Health and social development RF dated February 16, 2009 N 45n “On approval of the norms and conditions for the free issuance of milk or other equivalent food products to employees engaged in work with hazardous working conditions, the Procedure for making compensation payments in an amount equivalent to the cost of milk or other equivalent food products, and the List of harmful production factors, under the influence of which, for preventive purposes, it is recommended to consume milk or other equivalent food products" (with amendments and additions)

Appendix No. 1. Norms and conditions for free provision to employees engaged in work with hazardous working conditions, milk or other equivalent food products that can be issued to employees instead of milk Appendix No. 2. Procedure for making compensation payments in an amount equivalent to the cost of milk or other equivalent food products products Appendix No. 3. List of harmful production factors, under the influence of which it is recommended to consume milk or other equivalent food products for preventive purposes

Order of the Ministry of Health and Social Development of the Russian Federation
dated February 16, 2009 N 45n
"On approval of the norms and conditions for the free issuance of milk or other equivalent food products to employees engaged in work with hazardous working conditions, the Procedure for making compensation payments in an amount equivalent to the cost of milk or other equivalent food products, and the List of harmful production factors under the influence of which For preventive purposes, it is recommended to consume milk or other equivalent food products."

With changes and additions from:

2. The procedure for making compensation payments in an amount equivalent to the cost of milk or other equivalent food products, in accordance with Appendix No. 2;

3. List of harmful production factors, under the influence of which, for preventive purposes, it is recommended to consume milk or other equivalent food products, according to Appendix No. 3.

Registration No. 13795

New standards have been approved for the free distribution of milk or other equivalent food products to employees engaged in work with hazardous working conditions.

The rate of free milk is still 0.5 liters per shift, regardless of the length of the shift. The milk supplied must comply with the requirements of the Technical Regulations for milk and dairy products. Workers who come into contact with inorganic compounds of non-ferrous metals (formerly lead) will be given 2 g of pectin in food products (drinks, jellies, jams, etc.) in addition to milk. With constant contact with inorganic compounds of non-ferrous metals, instead of milk, fermented milk products or products for dietary (therapeutic and preventive) nutrition under hazardous working conditions are used.

The list of equivalent products that can be issued instead of milk has been reduced. It includes fermented milk products, cottage cheese, cheese, products for dietary (therapeutic and preventive) nutrition under hazardous working conditions. Previously, the list also included beef, low-fat fish, eggs, and condensed milk. It is not allowed to replace milk with sour cream, butter, or other products (except equivalent ones). To replace milk with such products, it is necessary to obtain the consent of the employee and take into account the opinion of the trade union.

Now, the provision of milk or other equivalent products can be replaced, at the request of employees, with a compensation payment in an amount equivalent to the cost of milk or other equivalent food products, if this is provided for in the collective and (or) labor agreement. Rules have been established for calculating the amount of this payment, its frequency (at least once a month) and the indexation procedure.

A list of harmful production factors is given, under the influence of which it is recommended to consume milk or other equivalent food products for preventive purposes. This list includes chemical, biological and physical factors.

Milk "for harmfulness"
(from the archive of BNO articles for 2013)

It is traditionally believed that harmful working conditions are characteristic only of industry. However, in commercial organizations working in industries other than office workers There are also many who are exposed to harmful factors at their workplaces. And practice shows that there are countless questions regarding milk. Moreover, both employees and employers. These questions are very different - from the typical ones:“Is the cleaning lady (driver, janitor) entitled to milk?” and funny : “Collective agreement, trade unions, etc. and so on. basically no. But the person who is entitled to milk for harmfulness has his own cow. Getting milk, besides the fact that there seems to be nowhere, is also somehow wrong...” to serious: “We are organizing a radiation diagnostics department, how can we prove our interchangeability so that all doctors, nurses and CT, MRI and X-ray laboratory assistants, being radiation diagnostics departments, receive milk after certification of workers?”

Unfortunately, all this suggests that there are organizations in which the issues of providing workers with milk are not regulated. After all, if an employee does not understand why, working in hazardous working conditions, he does not receive milk or why he was suddenly deprived of the specified compensation, and worst of all, if he is actually entitled to milk, but is not given it, then the employer is responsible for this.
So how can an employer competently fulfill his responsibility in terms of labor protection and be honest with the law, people and himself? We hope that our material will help with this.

Working in hazardous conditions

Although we repeatedly encounter the term “harmful working conditions” in the Labor Code of the Russian Federation, this term itself is not defined.
Article 209 of the Labor Code of the Russian Federation defines three initial concepts:

- working conditions - a set of factors in the working environment and the labor process that influence the performance and health of the employee;

- harmful production factor - production factor, the impact of which on an employee can lead to illness;

- safe working conditions - working conditions under which exposure to harmful and (or) hazardous production factors on workers is excluded or their exposure levels do not exceed established standards.
Thus, “harmful working conditions” is a derivative term, which should be understood as the implementation labor activity in the presence of harmful production factors , that is, factors whose level of exposure exceeds established standards, which can lead to illness.

Benefits and compensation for harmful working conditions

According to the Constitution of the Russian Federation and Labor Code RF (in particular, Article 212), the employer is obliged to create conditions under which there will be no harmful and (or) dangerous production factors at all or their level will not cause deterioration in the health or illness of employees. In other words, create safe working conditions. At the same time The employee has the right to safe work. At the same time, labor legislation admits that the implementation of this right is not always possible for objective reasons- due to the presence of harmful factors in the workplace.
The concept of “harmful working conditions” should not be considered in general, but in application to the rights of workers to receive special compensation if there are certain harmful production factors at their workplaces. After all, compensation established for the harmfulness (danger) of working conditions is designed to minimize the impact on the employee of these unfavorable conditions, to enable the body to recover, and to neutralize or reduce the harm caused to health as quickly as possible. Moreover, this can be not only cash payment, but also benefits of an intangible nature.
Different types harmful production factors can give an employee different rights:
- reduced working hours (Article 92 of the Labor Code of the Russian Federation);
- annual additional paid leave (Articles 116, 117 of the Labor Code of the Russian Federation);
- increased wages (Article 147 of the Labor Code of the Russian Federation);
- provision of personal protective equipment (Article 212, 221 of the Labor Code of the Russian Federation);
- receipt of milk or other equivalent food products or compensation in an amount equivalent to the cost of milk or other equivalent food products (subject to certain conditions), as well as therapeutic and preventive nutrition.

We study the procedure for issuing milk to employees

Employer's obligation to provide milk

Article 222 of the Labor Code of the Russian Federation determines duty dispense milk under certain types of hazardous working conditions. Article 212 of the Labor Code of the Russian Federation determines duty the employer informs employees about labor conditions and safety in the workplace, about the risk of damage to health and the compensation they are entitled to. In accordance with the provisions of Article 57 of the Labor Code of the Russian Federation, if there are harmful production factors at the workplace for which the employee is hired, the employment contract must be specified due to the employee compensation for work with hazardous working conditions, indicating the relevant characteristics of working conditions in the workplace.

Regulatory acts that regulate the supply of milk

Each of the listed benefits has its own regulatory regulations. We will turn to those that regulate the receipt of milk, other equivalent food products or their monetary equivalent.
The distribution of milk or other equivalent food products to employees engaged in work with hazardous working conditions is carried out in accordance with a list of harmful production factors, norms and conditions for the free distribution of milk (other equivalent food products).
In pursuance of this document, the Ministry of Health and Social Development of Russia issued on February 6, 2009 order No. 45n “On approval of the standards and conditions for the free issuance of milk or other equivalent food products to employees engaged in work with hazardous working conditions, the procedure for making compensation payments in an amount equivalent to the cost of milk or other equivalent food products, and a list of harmful production factors, when exposed to which, for preventive purposes, it is recommended to consume milk or other equivalent food products".

“Harmful” factors and special assessment of working conditions

Harmful production factors, under the influence of which the consumption of milk is recommended for preventive purposes, are named in Appendix 3 to Order No. 45n:
- chemical (inorganic and organic chemicals with pronounced effects on the body, pesticides and agrochemicals);
- biological (microorganisms: producers, pathogens, spores and living cells);
- physical (radiation of radioactive substances).
Maximum permissible values ​​of harmful factors are approved by various special regulatory documents: SanPiN, hygiene standards, etc.
The presence of harmful production factors gives the employee the right to receive milk. And their exceeding impact can be confirmed only through special measurements, which are carried out during a special assessment of workers’ working conditions (hereinafter referred to as SOUT), which is established by the Federal Law of December 28, 2013. No. 426-FZ “On special assessment of working conditions” which came into force in 2014.
However, in terms of providing workers with milk for harmfulness, the organization can use the results of workplace certification carried out before the entry into force of the Law on SOUT. Moreover, for five years from the date of completion of this automated work system, and not to carry out SOUT. This follows from paragraph 4 of Article 27 of the Law on SOUT (except for the cases specified in Article 17 of this document).
Example. In 2013, certification of workplaces was carried out in the Organization’s physical and chemical research laboratory:
- a physicist engineer constantly working under the influence of ionizing radiation;
- a chemical engineer who constantly works with toxic components;
- laboratory cleanersphysical and chemical research.
According to its results, in the Workplace Certification Cards for the working conditions of a chemical engineer and a physicist, line 40 “Guarantees and compensation for workers engaged in heavy work, work with harmful and (or) dangerous working conditions” read: “0.5 lmilk per shift.”

Regarding the workplace of the premises cleaner (E. E. Egorova had been working at this place for about 10 years and received milk “the old fashioned way”), in a similar cell they wrote: “not provided.”
The commission justified this decision as follows. Workplace cleaners are not stationary. During certification, the time she spent in the “harmful” room was determined based on a photograph of the working day and amounted to 1 hour, which is significantly less than half of the cleaner’s work shift.
When the institution raised the question of how to provide these specialists with milk in 2014, the head decided that in this part the Organization would use the results of the automated work carried out in 2013.

An organization, in its local act, can expand the circle of those receiving milk (replacement products). For example, if, based on the results of the workplace safety assessment system (AWS), the presence of harmful production factors listed in Order No. 45n is revealed, but their level will not exceed established standards. In this case, the organization (if it has financial capabilities) can provide milk to its employees, although their working conditions, based on the provisions of Article 209 of the Labor Code of the Russian Federation, should be considered safe. At the same time, the distribution of milk cannot be considered a “compensation payment” and must be taken into account for tax purposes.

Milk and other equivalent products

Not all dairy products are actually made from real milk. It is clear that such products cannot perform therapeutic and prophylactic functions. After all, now more and more “dairy” products are made using vegetable fats and (or) soy protein.

What is "milk"?

Key definitions are contained in Article 4 of Federal Law No. 88-FZ of June 12, 2008, which established the “Technical Regulations for Milk and Dairy Products”, namely: milk - a product of normal physiological secretion of the mammary glands of farm animals, obtained from one or more animals during lactation during one or more milkings, without any addition to this product or extraction of any substances from it.
From milk and (or) its components can be, in particular, produced:
-milk product - a food product made from milk and (or) its components no non-dairy fat or protein and which may contain components functionally necessary for milk processing;
-fermented milk product - a dairy product produced by using fermentation of milk, leading to a decrease in active acidity (pH) and protein coagulation, and (or) dairy products, and (or) their mixtures using starter microorganisms, with the addition not for the purpose of replacing milk ingredients non-dairy components (before or after ripening) or without the addition of such components and containing live starter microorganisms.
Other dairy products: dairy composite product, milk-containing product, by-product of milk processing - not intended for distribution for therapeutic and prophylactic purposes.

What products can replace milk?

In fact, studies examining the effect of drinking milk on the course of intoxication indicate that, being a good food product, milk not only does not protect the body from the effects of harmful substances, but also aggravates the toxic effects on the body of many of them. It is issued, so to speak, historically.
In the 1920s, the introduction of mandatory free food distribution in factories was justified by the tense social situation. The scientific basis was quickly prepared: good nutrition strengthened the body and improved protective properties, so milk was declared “product No. 1” to neutralize harmful factors.
Today workers eat better, but they are still given milk. Mechanism for neutralizing 963 harmful substances with milk professional factors, under the influence of which it is recommended to use it, does not exist! In addition, for a significant number of workers there are certain contraindications for its use.
For example, for persons with high cholesterol (the “healthy heart” program), a diet with a reduced fat content in milk (no more than 1%) is recommended, and only 2.5% milk is given out. It is unacceptable to take milk if you have lactose deficiency, the incidence of which increases with age, and the prevalence, depending on ethnicity, varies from 5.8 to 100%. Milk should not be used in case of poisoning with fat-soluble poisons (phosphorus, carbolic acid). Milk is contraindicated for colitis and gastritis with low acidity of gastric juice. The list goes on.
Therefore, the Ministry of Health and Social Development of Russia judged sensibly and allowed milk to be replaced with other products, namely:
- fermented milk products with a fat content of up to 3.5% (including fortified ones) - kefir, yogurt, acidophilus, fermented baked milk;

Yogurts with a fat content of up to 2.5% (including enriched);
- cottage cheese with no more than 9% fat content;
- cheese with no more than 24% fat content;
- products for dietary (therapeutic and preventive) nutrition under hazardous working conditions.
In fact, this list is not closed. After all, the last line may contain other dietary products. But on one condition - a positive conclusion federal body executive power, exercising control and supervision in the field of ensuring the sanitary and epidemiological well-being of the population, protecting consumer rights and the consumer market.
Belonging to dietary (therapeutic and preventive) food products is determined only by state registration. This means that the product:
- must be included in State Register products that have passed state registration(have the appropriate certificate);
- can be used to replace milk under hazardous working conditions. Such permission must be reflected in the certificate and on the label.
At the same time, the certificate must also define the rate of replacement of milk with the specified product.
A list of such products is published on the website of the registers of Rospotrebnadzor and the Sanitary and Epidemiological Service of Russia at http://fp.crc.ru/gosregfr/. You must enter “for milk replacement” in the search field.
But any confirming letters from officials of the Ministry of Health and Social Development of Russia and Rospotrebnadzor cannot be considered a positive conclusion from the federal executive body, giving grounds to classify the products as dietary (therapeutic and preventive) for hazardous working conditions.

What cannot be replaced

It is unacceptable to replace milk with meat, fish and chicken eggs. And the table below lists dairy products that cannot be given out instead of milk.

Standards for issuing milk or other equivalent food products

The norm for milk distribution is 0.5 liters for work in hazardous conditions for more than 50% of the duration of a “harmful” shift.
The rates for replacing milk with other products are shown in the table below.

The organization can increase the milk supply rate. But only this part of the cost of milk, which is issued in excess of the norms established by Order No. 45n, will not be subject to tax benefits.

Rules for free milk distribution

Milk is given out so that the employee can consume it during the work shift and thus neutralize the effects of harmful factors. From this follows a number of rules regarding the dispensing of milk.
Firstly, milk distribution is not tied to position and profession, but to specific harmful production factors.
Secondly, milk delivery is possible only if the harmful factors exceed the maximum permissible values, which can be established during the implementation of the Special Monitoring System (AWS).
Thirdly, milk is given out specifically on a “harmful shift” so that the employee drinks it during this shift and thus neutralizes the effects of harmful factors. It is unacceptable to issue milk for previous days or for subsequent ones: this is the same as giving a respirator today to an employee who yesterday breathed harmful substances.
Fourthly, milk is given out only if the employee is actually engaged in work with hazardous working conditions of at least half set duration"harmful shift" For example, if an employee whose shift duration in hazardous conditions is six hours actually works less than three hours of such a shift, then he is not entitled to milk that day.
Fifthly, different shift lengths do not affect the milk supply rate. For example, if one employee’s shift is set at 6 hours, and another only at 4 hours, then each will receive 0.5 liters, one after working more than 3 hours, and the other after working more than 2 hours, respectively.
Sixth, with constant contact with inorganic compounds of non-ferrous metals (except for compounds of aluminum, calcium and magnesium), fermented milk products are given instead of milk.
Seventh, workers involved in the production or processing of antibiotics, instead of fresh milk, are given fermented milk products enriched with probiotics (bifidobacteria, lactic acid bacteria), or colibacterin prepared from whole milk.
Eighth, milk is not provided if working conditions are particularly harmful. In this case, therapeutic and preventive nutrition is prescribed, and its menu should take into account protection from relevant harmful production factors.

Under what conditions can a worker be deprived of milk?

We pay monetary compensation

The payment itself is not a particular problem. But it can be done in different ways:
- through the cash register on the basis of cash receipts;
- through the cash register based on the statement;
- through a distributor on the basis of a statement (to employees in geographically remote departments);
- transfer to the employee’s bank account.
It all depends on what payment procedure will be established.
In any case, payment documents are prepared in the accounting department based on:
- a list of employees who submitted an application to replace milk (replacement products) with their cash equivalent;
- timesheets of working hours spent by these employees in hazardous working conditions for at least half of the work shift;
- cash equivalent amounts instead of milk and similar dairy products, calculated in accordance with the payment procedure established by the organization monetary compensation.
Continuation of the example. According to the time sheet and the cost of milk, on the day of salary payment, the physicist engineer, who, according to his application, was given monetary compensation, received 319.00 rubles. for 20 shifts worked (RUB 15.95 x 20 shifts).
In accounting, the accountant must reflect the issuance of compensation with the following accounting entries:
- monetary compensation accrued RUR 319.00
Account debit 20 “Main production” subaccount Credit account 73“Settlements with personnel for other operations”

- compensation paid from the cash register RUR 319.00
Debit account 73 “Settlements with personnel for other operations” Account credit 50"Cash register"

Taxation of milk and payments

Value added tax

The object of VAT taxation does not arise provided that the milk is received by employees to whom it is due by law, and the actual norms for issuance comply with the norms established by the legislation of the Russian Federation.
If the distribution is not provided for by law, but milk is given to employees, then such distribution is no longer considered compensation. Therefore, it is subject to VAT in accordance with subparagraph 1 of paragraph 1 of Article 146 of the Tax Code of the Russian Federation. In this case, the organization can accept the amount of input VAT presented by the supplier for deduction if there is an invoice from the supplier and other conditions provided for in paragraph 1 of Article 172 of the Tax Code of the Russian Federation are met.
Milk, fermented milk products, cheese are subject to VAT at a rate of 10%. Thus, it is more profitable for organizations that are VAT payers to provide employees with milk (replacement products) than to pay monetary compensation. Since compensation is paid based on market prices, and they usually include VAT. And when dispensing milk, it is possible to reimburse the amount of VAT paid.
Input VAT on purchased milk (replacement products) is accounted for according to general rules accounting for incoming VAT:
- based on received invoices registered in the Incoming Invoices Register;
- with reflection in the Purchase Book: the amounts of incoming VAT are reflected in columns 9a and 9b “at a rate of 10%”.
If milk and other things are purchased by organizations that are not VAT payers or organizations that have exercised the right to be exempt from VAT, then input VAT is taken into account in the cost of these goods in accordance with paragraph 2 of Article 170 of the Tax Code of the Russian Federation.

Income tax

For the purpose of calculating income tax, the cost of milk itself (replacement products) and the amount of cash compensation paid to employees are included in expenses that reduce tax base on income tax.
The Russian Ministry of Finance recommends that these expenses be classified under Article 255 of the Tax Code of the Russian Federation as labor costs (clause 4). However since these expenses ensure normal working conditions and safety measures provided for by the legislation of the Russian Federation, then they should be included in other expenses associated with production and (or) sales.
The Russian Ministry of Finance believes that costs associated with the provision of milk should be confirmed by the results of certification of workplaces. Since 2014, such confirmation appears to be the results of the SOUT. And if working conditions are not recognized as harmful and (or) dangerous, then these expenses cannot reduce the tax base for income tax. On it is the courts who object that in the Tax Code of the Russian Federation the free provision of milk and food products to employees is not made dependent on the certification of workplaces.
Note that when milk is given to employees without the results of SOUT (AWM), then the costs of free milk distribution recognized as compensation accruals and taken into account as part of labor costs, that is, in accordance with paragraph 4 of Article 255 of the Tax Code of the Russian Federation.
If milk is issued according to increased standards established by a collective agreement, then the excess supply of these products is also included in labor costs. But only already as other expenses incurred in favor of the employee, provided for in the employment contract and (or) collective agreement.
If taxable profit in an organization is calculated using the accrual method, then these expenses are reflected in tax accounting as milk (replacement products) is issued, as well as as monetary compensation is accrued.
If taxable profit in an organization is calculated using the cash method, then these expenses are reflected in tax accounting only after the milk (replacement products) is fully paid to the supplier and issued to employees. Expenses for the payment of monetary compensation can only be reflected when the corresponding amounts have been accrued and paid.
In paragraph 4 of Article 255 of the Tax Code of the Russian Federation we're talking about only about those cases when free products meals are provided to employees in accordance with the requirements of the legislation of the Russian Federation. Therefore, if the organization establishes higher norms for the issuance of milk (substitute products) than in Order No. 45n, the amounts of such excess cannot be attributed to expenses that reduce the tax base for income tax.

Personal income tax

The issuance of milk (replacement products), as well as monetary compensation, is not subject to personal income tax.. Of course, this only applies to the issuance of milk and payment of monetary compensation in the amounts established by Order No. 45n in case of documented presence of harmful production factors, the levels of which exceed established standards.
The situation is more complicated with the withholding of personal income tax when milk is given out at workplaces where no harmful production factors are detected or where they are detected, but do not exceed permissible values. This is possible in cases where the representative body of workers did not agree to the cancellation or the results of the SOUT (AWM) are not confirmed by the conclusion of the state examination body of working conditions. Therefore, until the conditions canceling the issuance of milk are met, personal income tax on the cost of milk (equivalent products) does not need to be withheld. Indeed, in such cases, the organization acts strictly within the framework of the rules established by Order No. 45n. If all the conditions for the abolition of milk are met, but it is still issued, in accordance with a local act or collective agreement, then the cost of milk (equivalent products), according to the Russian Ministry of Finance, should be taxed. But only within the limits established in accordance with the legislation of the Russian Federation. And the cost of milk and dairy products issued in excess of these standards is subject to insurance premiums.

Contributions for compulsory social insurance against accidents at work and occupational diseases

All types of compensation payments established by the legislation of the Russian Federation, legislative acts of the constituent entities of the Russian Federation, decisions of representative bodies of local self-government (within the limits established in accordance with the legislation of the Russian Federation), associated, in particular, with the free provision of products, are not subject to insurance premiums.
Moreover, in paragraph 11 List of payments for which insurance premiums are not charged to the Federal Social Insurance Fund of the Russian Federation, the cost of milk or other equivalent food products issued to employees in accordance with the legislation of the Russian Federation, as well as therapeutic and preventive nutrition provided free of charge according to established standards, or, in appropriate cases, monetary reimbursement of the costs of their acquisition, is mentioned.

The conditions for issuing therapeutic and preventive nutrition are given in the order of the Ministry of Health and Social Development of Russia dated February 16, 2009 No. 46n “On approval of the List of industries, professions and positions in which work gives the right to free receipt of therapeutic and preventive nutrition in connection with particularly harmful working conditions, rations therapeutic and preventive nutrition, standards for the free distribution of vitamin preparations and the Rules for the free distribution of therapeutic and preventive nutrition."

Subparagraph “i” of paragraph 1 of part 1 of article 9 of Federal Law No. 212-FZ “On insurance premiums in Pension Fund Russian Federation, Social Insurance Fund of the Russian Federation, Federal Compulsory Medical Insurance Fund"

Subparagraph 2 of paragraph 1 of Article 20.2 of the Federal Law of July 24, 1998 No. 125-FZ “On compulsory social insurance against industrial accidents and occupational diseases”

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