The development of technology, unfortunately, does not yet protect workers from working conditions that are called harmful. They have a serious impact on people's health.

The law obliges the employer to compensate employees for damages. For this purpose, special payments for hazardous working conditions are being introduced. IN last years There have been changes in the legislation regulating this process.

Let's figure out who is entitled to a salary supplement in 2019 and under what conditions.

Harmful working conditions

How is “harmfulness” determined?

IN manufacturing process, from a legal point of view, there are two parties involved: the employee and the employer. Determining the harmfulness of the situation at the enterprise affects the content of the employment contract between them. That is, if conditions are harmful to health, then this should be stated in the agreement when applying for a job.

The employer is obliged to monitor compliance with the law, which means it is his responsibility to ensure that the contract is drawn up correctly.

But he must refer to the document that established the class of the workplace. According to this law, the harmfulness of production or an individual workplace is determined by a special commission.

The employer's action algorithm is as follows:

1. The establishment by the employer of a commission for carrying out SOUT, its composition and procedure of activity are approved by the employer on the basis of an order. A civil law contract is concluded between the organization conducting the assessment and the employer.
2. Preparatory work of the commission (appointment of responsible persons, collection of initial data, approval of the schedule, etc.).
3. Conducting an assessment of the SOUT.
4. Creation of a report on the implementation of SOUT. It states:
   • Information about the organization conducting the inspection;
   • List of workplaces where the inspection was carried out;
   • SOUT maps;
   • Research and measurement protocols;
   • Protocol for assessing the effectiveness of personal protective equipment used;
   • Consolidated statement;
   • a list of measures to improve the working conditions and safety of workers;
   • expert opinions
5. Familiarization of employees with the report and implementation of recommendations into production practice.

Working conditions according to the degree of harmfulness and danger are divided into four classes - optimal, acceptable, harmful and dangerous working conditions.

Compensatory measures

It should be noted that the harmfulness of a place varies. It is divided into classes. But they all have the same characteristics associated with health effects.

Thus, additional payments must be made if in the process of work a person is exposed to:

• exposure to harmful and dangerous production factors exceeding the levels established by the standards, namely if the functional state of the employee’s body is restored, as a rule, longer than before the start of the next working day;
• or if harmful factors are capable of causing persistent functional changes in the employee’s body, leading to the emergence and development of initial forms of occupational diseases or occupational diseases of mild severity;
• or if harmful factors lead to persistent functional changes in the employee’s body, leading to the emergence and development of occupational diseases of mild to moderate severity.
• impact harmful factors during the working day can create a threat to the life of an employee, and the consequences of exposure to these factors cause a high risk of developing acute occupational disease

If all documents are drawn up correctly, then the employee is entitled the whole complex compensatory measures. These include:

• annual additional paid leave;
• reduction of work shift duration;
• increase in pay (at least 4% of salary);
• preferential retirement;
• provision of protective equipment at the expense of the employer.

Do you need information on this issue? and our lawyers will contact you shortly.

Additional payment nuances

The legislation allows it to be carried out both in monetary terms. So, if people are exposed to chemicals, biological substances, radiation, then they are entitled to enhanced nutrition and milk.

The employee has the right to refuse products in order to increase cash payments. The administration is obliged to provide him with compensation in a convenient way.

Compensation amounts are not subject to taxation.

If factors that negatively affect health are eliminated, and additional payments continue, they are no longer considered compensatory. Therefore, taxes are levied on these amounts.

If harmful conditions are eliminated, the employer may stop paying workers extra. This happens only after the next SOUT. The employee is required to change the terms of the contract.

Subtleties of production organization

The entire cycle in which people work is not always harmful. It happens that only a certain area affects health, but in general the workshop is safe. Then compensation is accrued only for the time during which specific actions are performed. That is, its size decreases.

In such cases, the administration has two options:

• calculate a percentage bonus for each worker, taking into account the time of his contact with harmful factors;
• everyone should be paid a certain amount, not less than what is required by law.

As a rule, the second option is preferred. Each person gets some amount added to their salary.

Additional compensation

The above salary supplement (at least 4%) is mandatory. That is, if there is an appropriate SOUT, the employer cannot but accrue it. But the incentive doesn't stop there.

The collective agreement may establish additional payment for special conditions labor. It is established in addition to that determined by law.

The surcharge is not compensation. This is an incentive payment. Taxes are taken from it without fail.

Let's sum it up

1. Workers in industries that have a negative impact on health receive additional payments and compensation.
2. Every place is exposed special assessment in order to establish its harmfulness.
3. Management is obliged to organize its implementation.
4. and additional payment are prescribed in the collective and labor agreement. Compliance with their conditions is mandatory for the employer who accrues and pays funds for labor.

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We describe typical ways to resolve legal issues, but each case is unique and requires individual legal assistance.

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

Any profession can have a negative impact on human health. However, there are certain industries labor activity, where employees directly risk life and health. The list of professions with hazardous working conditions is established at the legislative level; such lists were compiled back in Soviet times and approved by the Cabinet of Ministers. For citizens employed in such industries, a number of social benefits are provided, including early retirement.

Currently, employers are using a more productive system of incentives and compensation for physical damage. In addition, there are special government programs aimed at supporting this category of employed citizens.

Classification of working conditions

According to current legislation, all work activity is conditionally divided into 4 categories, each of which is based on the degree of risk factors for health and life:

• optimal - a healthy microclimate is preserved and maintained on the territory and in the interior, which has a positive effect on labor productivity;
• acceptable - normal conditions are maintained, the level of harmful factors does not exceed acceptable standards;
• harmful - exceeded acceptable standards that causes harm to human health;
• dangerous - working conditions can cause serious harm to health and sometimes pose a threat to life.

In turn, harmful and dangerous industries are divided into 4 degrees of severity:

1. Changes that begin in the human body are reversible and usually appear after completion of work. Such ailments are called “occupational diseases” in medical slang;
2. Pathological changes appear more pronounced and often lead to temporary loss of ability to work (a person regularly goes on sick leave). Here, chronic illnesses caused by professional activities most often develop;
3. Irreversible processes occur in the body that can lead to partial loss of ability to work;
4. Severe functional impairment occurs internal organs and systems, which in advanced cases leads to the assignment of a non-working disability group.

It is necessary to understand that the classification of hazardous working conditions is carried out at the legislative level, and the degree of harmfulness of a certain production is assessed by authorized organizations and supervisory authorities. Typically, inspections in this area are carried out by representatives labor inspection and Rostrud.

The activities of employees of these departments are based on the following legal framework:

1. Articles of the Labor Code of the Russian Federation.
2. Government Decree No. 188 of March 29, 2002 “On approval of lists of industries, professions and positions with hazardous working conditions, work in which entitles citizens working with chemical weapons to social support measures.”
3. Federal Law No. 426 “On special assessment of working conditions.”

These legal documents regulate labor Relations between employers and employees employed in hazardous industries.

Determination of the degree of harmfulness

The following factors are considered standard indicators that determine the degree of harm:

• increased concentration of dust on the territory and indoors, which leads to its settling in the lungs, complicating the functioning of the respiratory system;
• poor-quality lighting, which has a depressing effect on the psyche and negatively affects the organs of vision;
• loud noise;
• radioactive and other wave radiation that can cause harm to health;
• constant vibration vibrations;
• high humidity and high temperatures;
• interaction with pathogens, dangerous viruses, chemically active components and highly toxic substances;
• difficult working conditions, intense work activity that can lead to mental disorders.

Of course, these are rather vague formulations, and many citizens can certainly classify their profession as harmful and dangerous. To avoid labor disputes and misunderstandings, there is a list of professions established at the state level, which takes into account all potentially dangerous areas of work.

A complete list of professions that are recognized as harmful and dangerous

According to the technical and legal standards in force in Russia, the following industrial sectors are recognized as harmful and potentially life-threatening:

1. Mining;
2. Metallurgical, related to ferrous and non-ferrous metals;
3. Coke and chemical production of thermoanthracite substances;
4. Those engaged in the production of generator gas;
5. Dinas products;
6. Chemical enterprises;
7. Production lines for the production of ammunition and explosives;
8. Oil and gas processing, including production of gas condensate, coal, shale;
9. Metalworking;
10. Electrical engineering, including repair of electrical devices;
11. Production of radio equipment and complex electronics;
12. Enterprises engaged in the production of building materials;
13. Manufacturing products from glass or porcelain;
14. Pulp and paper mills;
15. Producing medications, medicines and biomaterials;
16. Healthcare enterprises;
17. Printing;
18. Transport and technical services;
19. Research laboratories related to the study of radioactive radiation, any professions whose representatives are exposed to ionizing radiation;
20. Nuclear industry and energy;
21. Diving work;
22. Employees directly involved with dangerous viruses and bacteria;
23. Electric and gas welders performing work inside closed compartments, metal containers and tanks;
24. Enterprises engaged in etching of metals in chemically hazardous solutions;
25. Shop employees and production lines those engaged in cleaning metal surfaces with sandblasting units using quartz sand;
26. Mercury substations;
27. Personnel employed at power plants and energy trains;
28. Food industry;
29. Organizations performing repair, restoration and construction work;
30. Enterprises engaged in the provision of communication services;
31. Film copying enterprises;
32. Agrochemical complexes;
33. Teaching staff involved in training personnel for the chemical industry.

There is also a list of harmful and dangerous labor factors that are subject to research when assessing working conditions in Article 13 of Federal Law No. 426-FZ of December 28, 2013 “On the special assessment of working conditions.”

Moreover, the Decree of the Government of the Russian Federation dated February 25, 2000 No. 162 approved a list of heavy work and work with harmful or dangerous working conditions under which the use of women’s labor is prohibited, and the Decree of the Government of the Russian Federation dated February 25, 2000 No. 163 approved a list of heavy and hazardous work, in which the use of persons under 18 years of age is prohibited.

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Professions that give the right to early retirement

The second list includes less harmful professions, but long-term employment in this area can negatively affect health. These include:

• positions related to mineral processing;
• metallurgy;
• gas-electric welders;
• railway transport workers;
• persons employed in food industry enterprises;
• healthcare workers;
• peat extraction;
• employees of agrochemical complexes;
• communications enterprises;
• electrical engineers and specialists involved in the repair of electrical equipment;
• construction specialties.

The following conditions for early registration of pension provision apply here (clause 2, clause 1, article 30 Federal Law dated December 28, 2013 No. 400-FZ “On insurance pensions”):

1. Men - at least 12 and a half years of experience, retirement at age 55;
2. Women - at least 10 years of experience, retirement at age 50.

List of benefits and compensations

For representatives of dangerous and harmful professions There are a number of benefits that must be strictly observed by the employer. This includes the following points:

• free and regular provision of work clothes, footwear and personal protective equipment in accordance with the regulations of the enterprise (Article 221 of the Labor Code of the Russian Federation);
• provision of additional days to the paid one annual leave(Article 117 of the Labor Code of the Russian Federation);
• additional payment for special working conditions: not less than 4% of official salary(Article 147 of the Labor Code of the Russian Federation);
• shortened working week: such citizens cannot be employed more than 36 hours a week (Article 92 of the Labor Code of the Russian Federation);
• issuance of medical nutrition: dairy and fermented milk products, financial compensation is allowed, paid monthly (Article 222 of the Labor Code of the Russian Federation, Article 219 of the Labor Code of the Russian Federation);
• annual medical examination at the expense of the enterprise; in some cases, additional medical examination is allowed before performing certain duties (Article 213 of the Labor Code of the Russian Federation).

These measures are mandatory for every employer whose employees are involved in industries that are hazardous to health and life. Enterprise managers do not have the right to refuse to provide employees with medical nutrition or financial compensation for failure to receive it. In addition, the employer cannot oblige such employees to purchase personal protective equipment and other equipment necessary for the safe performance of work at their own expense.

Organizations where workers work in hazardous conditions and where workplace certification results have expired were required to conduct a special assessment of working conditions in the workplace. Employees working in such conditions are provided with certain guarantees based on the results of certification or special assessment. In the article we will look at what guarantees are due and to whom, how they depend on whether a special assessment or certification of workplaces was carried out, what guarantee documents should be established and what has changed in this area for “harmful workers”.

Results of the special assessment

Federal Law No. 426-FZ dated December 28, 2013 “On special assessment of working conditions” (hereinafter referred to as Law No. 426-FZ) came into force on January 1, 2014. A special assessment consists of an independent specialized organization conducting an analysis of the state of working conditions at predetermined workplaces in order to identify harmful and (or) hazardous production factors there, assessing the level of their impact on the employee and determining the degree of deviation of the obtained values ​​from established standards, as well as assessing effectiveness the use of personal and collective protective equipment for workers (Part 1, Article 3 of Law No. 426-FZ).

For your information.

Harmful and dangerous working conditions are recognized as a set of production factors, the impact of which on an employee can lead to illness or injury (Article 209 of the Labor Code of the Russian Federation).

Based on the results of the special assessment, classes (subclasses) of working conditions in the workplace are established (Part 2 of Article 3 of Law No. 426-FZ). According to the degree of harmfulness and (or) danger, working conditions are divided into four classes: optimal, acceptable, harmful, dangerous (Part 1 of Article 14 of Law No. 426-FZ).

Let us present the classes and subclasses of working conditions and their characteristics in the table.

Subclasses

Description of working conditions

In particular, the class (subclass) of working conditions at the workplace determines what guarantees and compensations should be provided to the employee.

The results of the special assessment are presented in the form of a report. The employer must familiarize employees with these results against signature within 30 calendar days from the date of approval of the report. IN specified period periods of temporary incapacity for work of the employee, his being on vacation and business trips, and rest between shifts are not included.

In addition, summary data on the results of the special assessment are posted within the same period on the organization’s official website on the Internet (if such a website exists).

Note.

Information about working conditions in the workplace in accordance with Art. 57 of the Labor Code of the Russian Federation must also be included in employment contracts with employees. If the contract was concluded before the special assessment, the working conditions are specified in an additional agreement to the contract.

From the date of approval of the report, it is necessary to provide employees with guarantees and compensation in accordance with Art. 92, 117, 147 of the Labor Code of the Russian Federation, and they must also be reflected in the employment contract.

If the results of workplace certification are valid

According to Art. 8 of Law No. 426-FZ, special assessments are carried out at least once every 5 years. Such an assessment is carried out in stages until December 31, 2018 (Part 6, Article 27 of Law No. 426-FZ).

However, this long period does not apply to jobs:

• workers, professions, positions, specialties of which are included in the lists of relevant works, industries, professions, positions, specialties and institutions (organizations), taking into account which the early assignment of an old-age insurance pension is carried out;
• in connection with work where, in accordance with legislative and other regulatory legal acts guarantees and compensation are provided for work in harmful and (or) dangerous conditions;
• in which, based on the results of previously conducted certification of workplaces for working conditions or a special assessment of working conditions, harmful and (or) dangerous working conditions were established (Part 6 of Article 10 of Law No. 426-FZ).

In relation to these jobs, a special assessment should have been carried out as soon as possible after the adoption of Law No. 426-FZ.

But if in relation to workplaces before the entry into force of this law, a certification of workplaces took place, a special assessment in respect of these places can be carried out no later than 5 years from the date of the last certification, except in cases where an unscheduled special assessment is required in accordance with Part 1 of Art. 17 of Law No. 426-FZ.

Despite the new norms that came into force on January 1, 2014, the List of industries, workshops, professions and positions with hazardous working conditions, work in which gives the right to additional leave and a shortened working day, approved by the Resolution of the State Committee of Labor of the USSR, the Presidium of the All-Union Central Council of Trade Unions dated October 25, 1974 No. 298/P-22 (hereinafter referred to as the List).

The question arises: in what cases, when providing guarantees and compensation to employees, should we be guided by the List, and in what cases should we Labor Code?

But before we understand this, let us remind you what compensation and guarantees are provided by the Labor Code for workers in harmful and (or) dangerous working conditions established by the results of a special assessment.

Guarantees in accordance with classes and subclasses of working conditions

So, for workers in harmful and (or) dangerous conditions, the employer is obliged to provide:

• reduced working hours - no more than 36 hours per week (Article 92 of the Labor Code of the Russian Federation);
• annual additional paid leave of at least 7 calendar days (Article 117 of the Labor Code of the Russian Federation);
• an increase in wages in the amount of at least 4% of the salary (Article 147 of the Labor Code of the Russian Federation).

However, not all employees without exception are provided with guarantees. And first of all, workers whose jobs have 1st (optimal) and 2nd (acceptable) class working conditions do not receive them. But guarantees are not provided to everyone working in harmful and dangerous conditions. Let's present the options in the table.

Subclass

Guarantees (compensations)

Shortened working week

Additional leave

Increased wages

For your information.

Order of the Ministry of Health and Social Development of the Russian Federation dated February 16, 2009 No. 45n established the norms and conditions for the free distribution of milk or other equivalent products to persons engaged in work with hazardous working conditions. food products. These products are issued on days of actual employment in jobs with hazardous working conditions caused by the presence of harmful production factors in the workplace (provided by the list given in Appendix 3 to this order), the levels of which exceed the established standards.

So, guarantees and compensation for employees must be established by the employment contract. In this case, it is necessary to take into account the provisions of industry agreements and collective agreements.

Features of providing guarantees

The provision of each guarantee has its own characteristics.

Abbreviated work time. So, according to general rule for persons whose working conditions at their workplaces are classified as harmful 3rd or 4th degree or dangerous, the working time should not exceed 36 hours per week. But this does not mean that the reduced number of hours should be paid in proportion to the time worked. That is, the employee in any case is paid a full salary or full tariff rate.

It should be noted that Art. 92 of the Labor Code of the Russian Federation provides for the opportunity to increase the duration of shortened working hours to normal, that is, up to 40 hours a week, with the payment of separate monetary compensation to the employee. In this case, the duration of working hours, as well as the amount of compensation and the procedure for its payment must be established by industry (inter-industry) agreement and collective agreement. The written consent of the employee is also required, formalized by concluding a separate agreement to the employment contract.

Note.

Rostrud officials emphasized that an increase in weekly working hours is only based on the written consent of workers, formalized in the form additional agreement to an employment contract is not allowed, because labor legislation not provided.

Increased wages. In part 2 art. 147 of the Labor Code of the Russian Federation is indicated minimum size increase in payment for work with harmful and (or) dangerous conditions, which is 4% of the tariff rate (salary). A higher amount of compensation can be established by labor, collective agreements, local normative act organizations, industry agreements.

provision of milk or other equivalent food products to persons engaged in work with hazardous working conditions. These products are issued on days of actual employment in jobs with hazardous working conditions caused by the presence of harmful production factors in the workplace (provided by the list given in Appendix 3 to this order), the levels of which exceed the established standards.

Local act, which introduces an increased wage, the employer accepts, taking into account the opinion of the representative body of employees, in the manner prescribed by Art. 372 Labor Code of the Russian Federation.

For example, the Industry Agreement on the Coal Industry Russian Federation for the period from 04/01/2013 to 03/31/2016 from 04/01/2013, extended until 12/31/2018, an increase was established tariff rates from 10 to 20 %.

Additional vacation. As provided in Art. 117 of the Labor Code of the Russian Federation, the minimum duration of annual additional paid leave for employees whose working conditions are classified as harmful 2nd, 3rd or 4th degree or dangerous is 7 calendar days.

Note.

An employment contract on the basis of an industry (inter-industry) agreement and a collective agreement may establish a longer duration of additional leave.

If the duration of the relevant leave exceeds the minimum duration, then the part exceeding it may be replaced monetary compensation. This replacement, as well as the procedure and amount of compensation, must be established by industry (inter-industry) agreement and collective agreement. Replacing part of the vacation with compensation is permitted with the written consent of the employee, drawn up in the form of an agreement to the employment contract.

Let us pay special attention to the next point. For additional leave for work in harmful and (or) dangerous conditions in accordance with Part 3 of Art. 121 of the Labor Code of the Russian Federation, it is necessary to take into account the actual work experience in such conditions. The calculation of length of service is regulated in more detail in the Instructions on the procedure for applying the List of production workshops, professions and positions with hazardous working conditions, work in which gives the right to additional leave and a reduced working day, approved by the Resolution of the State Committee for Labor of the USSR, All-Union Central Council of Trade Unions dated November 21, 1975 No. 273/P- 20 (hereinafter referred to as the Instructions).

According to para. 1 clause 12 of the Instructions, in the count of time worked in production, workshops, professions and positions with hazardous working conditions provided for in the List, only those days were counted on which the employee was actually employed in these conditions for at least half of the working day established for this production, workshop, profession or position.

But one of the workers, whose work experience included a period when he worked in hazardous conditions at 0.25 times the rate, appealed to the Supreme Court in order to declare this provision of the Instruction invalid (see Decision of the Supreme Court of the Russian Federation dated January 26, 2017 No. AKPI16-1035 ).

And the court declared the said paragraph of paragraph 12 of the Instructions invalid, guided by Part 3 of Art. 121 of the Labor Code of the Russian Federation: according to this norm, when granting additional leave, the time actually worked in the appropriate conditions is taken into account, regardless of whether it is full-time or part-time the employee is employed, including if his employment is less than 0.5 times the rate.

Thus, now this norm of the Instruction is recognized as not complying with the provisions of the Labor Code of the Russian Federation, since it introduces restrictions on the duration of the period of work subject to accounting in hazardous working conditions in order to provide annual paid additional leave and, accordingly, to receive payment in the amount established by labor legislation. We can conclude that the work experience in hazardous conditions must include all the time actually worked in these conditions.

What guarantees and to whom should they be provided?

The period until 2018 can be called transitional for determining working conditions in the workplace, since in some organizations the results of certification are still in effect, and in others - special assessments. In addition, along with Art. 92, 117 and 147 of the Labor Code of the Russian Federation, to the extent that does not contradict the law, the provisions of the List and Instructions are still applied. In this regard, employers have many questions, which we will try to sort out.

bsp; receiving his payment in the amount established by labor legislation. We can conclude that the work experience in hazardous conditions must include all the time actually worked in these conditions.

Question:

Until January 1, 2014, employees were provided with guarantees and compensation in accordance with the List, including a shortened working week of 36 hours. After a special assessment of working conditions, he was assigned subclass 3.1, in which such a guarantee is not provided. What should employers do in such situations?

By virtue of Part 3 of Art. 15 of the Federal Law of December 28, 2013 No. 421-FZ (hereinafter referred to as Law No. 421-FZ), which amended Art. 92, 117 and 147 of the Labor Code of the Russian Federation, when implementing compensation measures in accordance with these articles in relation to persons employed in work with harmful and (or) dangerous working conditions, the procedure and conditions for the implementation of such measures cannot be worsened, and the amounts reduced compared with the procedure, conditions and amounts of compensation measures implemented before 01/01/2014, subject to the preservation of the previous working conditions in the workplace, which were the basis for the appointment of these measures.

That is, if employees, before the new editions of Art. 92, 117 and 147 of the Labor Code of the Russian Federation and Law No. 426-FZ provided guarantees and compensation in accordance with the List or based on the results of certification of workplaces, the employer cannot reduce the level of guarantees if the working conditions at these workplaces have not changed. And if, in accordance with the List, a shortened working week was established for the employee before 01/01/2014, and no change in working conditions occurred, the reduced duration working week must be saved.

Moreover, if, based on the results of a special assessment of working conditions at the workplace, it is established that they have improved, characterized by a decrease in the final class (subclass) of working conditions, further provision of guarantees (compensations) to the employee employed at this workplace for work in harmful (hazardous) conditions is carried out in in the manner established by Art. 92, 117, 147 and 219 of the Labor Code of the Russian Federation.

For your information.

Due to the fact that a decrease in the level of guarantees was noted, in particular, in medical institutions, The Ministry of Labor sent Government telegram dated December 19, 2014 No. 15-0/10/P-7498, in which it drew attention to the need for strict compliance with the requirements of Part 3 of Art. 15 of Law No. 421-FZ regarding the inadmissibility of worsening the conditions for providing and reducing the amount of compensation for work in harmful (dangerous) working conditions that were in force before the entry into force of this law, without confirmation of the improvement in working conditions by the results of a special assessment.

Note that the condition on the inadmissibility of reducing guarantees applies specifically to employees working before and after changes in legislation. Employees hired after a special assessment are provided with guarantees and compensation solely based on its results.

Question:

If an organization has carried out a certification or special assessment, and the employee’s position is included in the List, according to which he is entitled to additional leave, for example 10 days, should we apply the List when establishing the duration of additional leave?

The legislator does not provide clear explanations.

The answer to this question can be found in the Decision of the Supreme Court of the Russian Federation dated January 14, 2013 No. AKPI12-1570. If the profession or position of an employee who is entitled to compensation is included in the List and the duration of vacation indicated in it is more than 7 calendar days, then when determining the amount of compensation it is necessary to be guided by the List.

However, in this case, the organization carried out certification. If the organization carried out a special assessment, then based on Art. 219 of the Labor Code of the Russian Federation, the size, procedure and conditions for providing guarantees and compensation to persons employed in work with harmful and (or) dangerous working conditions are established in the manner prescribed by Art. 92, 117 and 147 of the Labor Code of the Russian Federation. The minimum duration of annual additional paid leave for such work is 7 calendar days (Part 2 of Article 117 of the Labor Code of the Russian Federation).

We believe that everything here depends on whether the employee received additional leave of 10 days before the special assessment. If yes, then even after the special assessment the employer should be guided by the List. If not, it is not necessary to apply the List - you must be guided by Art. 117 of the Labor Code of the Russian Federation and a card for special assessment of working conditions.

Question:

If the employer did not conduct job certification or special assessment, should he provide guarantees to the employee whose position is included in the List?

First of all, let us remind you that if the organization has employees included in the List, the employer should have rushed to conduct a special assessment.

In any case, as noted in the same Decision No. AKPI12-1570, if the employer has not yet conducted a special assessment of working conditions, this does not mean that there is no need to provide guarantees and compensation to those who work in positions with hazardous working conditions included to the List. Everything will be provided to these employees subject to the requirements specified in the List.

Accordingly, if the organization has not carried out workplace certification or a special assessment, and there are no positions and professions included in the List, then the employer has the right to conduct a special assessment until the end of 2018.

Note.

Failure by the employer to carry out a special assessment of working conditions at workplaces entails a warning or the imposition of an administrative fine on officials in the amount of 5,000 to 10,000 rubles, legal entities from 60,000 to 80,000 rubles. (Article 5.27.1 of the Code of Administrative Offenses of the Russian Federation).

Question:

If a special assessment has not yet been carried out, and more than 5 years have passed since the workplace certification, should the employer continue to provide guarantees to employees?

Yes, the employer is obliged to provide guarantees to employees. And he will be able to cancel them only after taking measures to improve working conditions and conducting a special assessment, according to the results of which the jobs will be recognized as optimal or acceptable.

If the organization has not carried out certification, the job title is not on the List, and the special assessment established harmful working conditions, then the employer should begin to provide guarantees in accordance with the Labor Code based on the results of the special assessment.

***

We examined the most common situations of the transition period in terms of special assessment. And in conclusion, we note that if the working conditions at the workplaces of your employees, based on the results of a special assessment, have changed (no matter in which direction), you must make changes to the employment contracts with employees. This can be done in accordance with Art. 74 of the Labor Code of the Russian Federation, since there is a change in the essential terms of the employment contract at the initiative of the employer: the scope of guarantees and compensation for work in harmful and (or) dangerous conditions, if the employee performs duties in appropriate conditions, indicating the characteristics of working conditions in the workplace. The employer is obliged to notify employees in writing about upcoming changes, as well as the reasons that caused them, no later than 2 months in advance. Moreover, during these months the employee retains the same guarantees and compensation.

Payment for hazardous working conditionsis compensation provided to an employee for possible harm associated with working in unfavorable working conditions. You will learn about all the significant points regarding such an additional payment from our material.

Legislation on compensation payments for hazardous working conditions

Labor legislation, among guarantees and compensation for specialists operating in industries with unfavorable working conditions, provides a guarantee of increased pay. This issue is regulated by a whole range of regulatory documents, including:

• Labor Code of the Russian Federation;
• Law “On Special Assessment...” dated December 28, 2013 No. 426-FZ;
• letter of the Ministry of Labor of Russia dated May 20, 2014 No. 15-1/OOG-486 on the issue of providing compensation for professional activity, conducted in unfavorable conditions;
• Resolution of the State Committee for Labor of the USSR and the Secretariat of the All-Union Central Council of Trade Unions dated October 3, 1986 No. 387/22-78 (in the part that does not diverge from the norms of current legislation);
• Resolution of the Central Committee of the CPSU, Council of Ministers of the USSR, All-Union Central Council of Trade Unions dated September 17, 1986 No. 1115 (in the part corresponding to the norms of current legislation).

It is necessary to keep in mind that the Government Decree “On establishing a shortened duration...” dated November 20, 2008 No. 870, which previously regulated additional issues. payment for unfavorable working conditions, has lost its force since 01/01/2014, so it cannot be relied upon from now on.

Working conditions and salary supplement

The provisions of the norm of Part 1 of Art. 147 of the Labor Code of the Russian Federation, workers in harmful and dangerous industries are entitled to an additional payment. Negative production conditions are recognized as such a working atmosphere in which the permissible standard for the impact of adverse factors accompanying the work process on the physical condition of a person is exceeded, which can result in temporary health problems, chronic diseases, and occupational diseases.

According to Art. 14 of Law No. 426-FZ, the existing labor conditions at places of work, depending on their inherent unfavorable factors and their impact on the health of employees, are divided into the following classes:

• 1st - optimal;
• 2nd - acceptable;
• 3rd - harmful (includes 4 subclasses);
• 4th - dangerous.

Thus, within the meaning of Art. 147 of the Labor Code of the Russian Federation, compensation for work in hazardous working conditions is due to employees whose assessment of their places of work classified them as belonging to the 3rd and 4th classes.

How is the degree of harmfulness of work activity determined?

Decision on hazard class working conditions experts are accepted at a specific workplace, based on the methodology proposed in the order of the Ministry of Labor of Russia “On approval of the methodology...” dated January 24, 2014 No. 33n. In this case, the order contains 4 annexes:

1. Methodology for special assessment of working conditions.
2. Classifier of unfavorable factors.
3. Form of a report on the special assessment.
4. Recommendations for filling out the report.

Unfavorable ones include:

• production factors, including negative physical, chemical or biological effects on the employee;
• factors of the labor process, which are measured by the severity and intensity of work activity.

The technique assumes:

• identification of potentially negative factors accompanying production;
• research and measurement of the actual values ​​of identified unfavorable factors at a specific place of work;
• assignment of working conditions in accordance with the degree of negativity to the classes listed above based on the results of the research.

Since Law No. 426-FZ came into force on January 1, 2014, the previously conducted certification of employees’ jobs according to the rules of the legislation in force before 2014 is recognized as valid for 5 years when resolving issues of providing labor guarantees to employees, including additional remuneration for unfavorable working conditions (Part 4, Article 27 of Law No. 426-FZ).

Note: a special assessment of working conditions is not carried out in relation to homeworkers, remote employees and working for citizens who are not individual entrepreneurs.

Increased payment for harmfulness - additional. tariff, 4 percent or something else?

The rate of additional payment for harmfulness is established only in the Labor Code of the Russian Federation. In Part 2 of Art. 147 of this normative act determines the minimum amount of compensation for negative working conditions, which is equal to 4% of the salary for the position held. Moreover, further, in Part 3 of the same article, it is clarified that the specific amount of the additional payment is established by the employer, taking into account the opinion of the trade union in accordance with the procedure defined by Art. 372 Labor Code of the Russian Federation.

When determining the exact amount of payment, it is possible to apply the provisions of the State Committee for Labor of the USSR and the Secretariat of the All-Union Central Council of Trade Unions dated October 3, 1986 No. 387/22-78, as well as the resolution of the CPSU Central Committee, the Council of Ministers of the USSR and the All-Union Central Council of Trade Unions dated September 17, 1986 No. 1115 (in the part that does not contradict the norms current legislation). The amount of additional payment according to the standards of these documents can reach up to 24% of the salary, depending on the points that assess the harmfulness of work at a particular place of work.

Thus, the amount of compensation for harm must be specified by the employer (at the same time, for various “unfavorable” vacancies, different variants payments) and secured:

• in the specialist’s employment contract;
• local act;
• agreement;
• collective agreement.

How to calculate the amount of additional payment for work in a hazardous environment in 2017-2018?

Due to the fact that modern legislation does not define methods for calculating the exact amounts of compensation for production activities in negative conditions, you can use the provisions of the resolution of the State Committee for Labor of the USSR and the Secretariat of the All-Union Central Council of Trade Unions dated 03.10.1986 No. 387/22-78, which proposes linking the amount of additional payment with the points assigned to each class of working conditions. This means that the procedure for calculating the amount of remuneration for activities in unfavorable production conditions assumes:

1. Determination of the class of working conditions. As mentioned above, this is done by special assessment specialists.
2. Converting the degree of adverse impact into points. The sum of points is calculated for each of the factors that exceed hygienic standards (clause 1.3 of the regulation, approved by resolution No. 387/22-78). According to Appendix No. 2 to this provision, class 3, 1st degree of harm corresponds to 1 point, 2nd degree - 2 points, etc.
3. Establishing the duration of the influence of a negative factor. To assess the interference of a specific unfavorable factor on working conditions, the duration of its impact on the worker during the shift is important.
4. Calculation of payment for work in unfavorable conditions. In this case, all unfavorable factors found during the special assessment are taken into account. To calculate the amount of compensation, you can also use the regulations approved. Resolution No. 387/22-78 (clause 1.6) and introduce a gradation of the amount of additional payment from 4 to 24% of the salary, where harm assessed up to 2 points will be compensated in the amount of 4% of the salary, from 2 to 4 points - 8%, etc. d.

When using this point system taking into account the harmfulness of working conditions and calculating compensation for them (or another way of determining the amount of additional payment for harmfulness), it is advisable to develop a separate internal document of the enterprise, which will describe in detail the entire system for calculating the amount of compensation for work activity in unfavorable production conditions.

Additional tariff for insurance contributions to the Pension Fund of the Russian Federation

In accordance with the provisions of paragraph 3 of Art. 27 of the Law “On Labor Pensions in the Russian Federation” dated December 17, 2001 No. 173-FZ, periods of work listed in paragraphs. 1-18 p. 1 art. 27, are included in the length of service that gives the right to receive a pension earlier than the generally established period. However, this is only possible if:

• such work took place after 01/01/2013;
• the working conditions for the specified work corresponded to the class of harmful or dangerous;
• the employer made insurance contributions according to the standards determined by the Tax Code of the Russian Federation.

Based on the norms of Art. 428 Tax Code of the Russian Federation, add. tariffs in 2017-2018 are as follows:

1. Without conducting a special assessment of the production environment: 7%.
2. Based on the results of a special assessment of the labor situation:

Features of taxation of compensation for harmful work

Many questions arise about the taxation procedure for wages increased by additional payment for production activities in unfavorable conditions. In particular, the need to deduct personal income tax from the amount of payments for harm is being discussed. At the same time, taking into account the explanations of the Tax Service and the Supreme arbitration court RF, it is required to distinguish between surcharges for negative production conditions in accordance with Art. 147 of the Labor Code of the Russian Federation and compensation for the same conditions within the framework of Art. 219 Labor Code of the Russian Federation.

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Guarantees for work in hazardous conditions: when, what and to whom?

Organizations where workers work in hazardous conditions and where the results have expired were required to conduct a special assessment of working conditions in the workplace. Employees working in such conditions are provided with certain guarantees based on the results of certification or special assessment. In the article we will look at what guarantees are due and to whom, how they depend on whether a special assessment or certification of workplaces was carried out, what guarantee documents should be established and what has changed in this area for “harmful workers”.

Results of the special assessment.

Federal Law No. 426-FZ dated December 28, 2013 “On special assessment of working conditions” (hereinafter referred to as Law No. 426-FZ) came into force on January 1, 2014. A special assessment involves an independent specialized organization conducting an analysis of the state of working conditions at predetermined workplaces in order to identify harmful and (or) hazardous production factors there, assessing the level of their impact on the employee and determining the degree of deviation of the obtained values ​​from the standards, as well as assessing the effectiveness of application personal and collective protective equipment for workers (Part 1, Article 3 of Law No. 426-FZ).

For your information.

Harmful and dangerous working conditions are recognized as a set of production factors, the impact of which on an employee can lead to illness or injury (Article 209 of the Labor Code of the Russian Federation).

Based on the results of the special assessment, classes (subclasses) of working conditions in the workplace are established (Part 2 of Article 3 of Law No. 426-FZ). According to the degree of harmfulness and (or) danger, working conditions are divided into four classes: optimal, acceptable, harmful, dangerous (Part 1 of Article 14 of Law No. 426-FZ).

Let us present the classes and subclasses of working conditions and their characteristics in the table.

In particular, the class (subclass) of working conditions at the workplace determines what guarantees and compensations should be provided to the employee.

The results of the special assessment are presented in the form of a report. The employer must familiarize employees with these results against signature within 30 calendar days from the date of approval of the report. The specified period does not include periods of temporary incapacity for work of the employee, his being on vacation and business trips, or rest between shifts.

In addition, summary data on the results of the special assessment are posted on the organization’s website at the same time (if such a website exists).

Note.

Information about working conditions in the workplace in accordance with Art. 57 of the Labor Code of the Russian Federation must also be included in employment contracts with employees. If the contract was concluded before the special assessment, the working conditions are specified in an additional agreement to the contract.

From the date of approval of the report, it is necessary to provide employees with guarantees and compensation in accordance with Art. 92, 117, 147 of the Labor Code of the Russian Federation, and they must also be reflected in the employment contract.

If the results of workplace certification are valid.

According to Art. 8 of Law No. 426-FZ, special assessments are carried out at least once every 5 years. Such an assessment is carried out in stages until December 31, 2018 (Part 6, Article 27 of Law No. 426-FZ).

However, this long period does not apply to jobs:

workers, professions, positions, specialties of which are included in the lists of relevant works, industries, professions, positions, specialties and institutions (organizations), taking into account which the early assignment of old-age pensions is carried out;

in connection with work where, in accordance with legislative and other regulatory legal acts, guarantees and compensation for work in harmful and (or) dangerous conditions are provided;

in which, based on the results of previously conducted certification of workplaces for working conditions or a special assessment of working conditions, harmful and (or) dangerous working conditions were established (Part 6 of Article 10 of Law No. 426-FZ).

In relation to these jobs, a special assessment should have been carried out as soon as possible after the adoption of Law No. 426-FZ.

But if in relation to workplaces before the entry into force of this law, a certification of workplaces took place, a special assessment in respect of these places can be carried out no later than 5 years from the date of the last certification, except in cases where an unscheduled special assessment is required in accordance with Part 1 of Art. 17 of Law No. 426-FZ.

Despite the new norms that came into force on January 1, 2014, the List of industries, workshops, professions and positions with hazardous working conditions, work in which gives the right to additional leave and short-time work, is still valid today (to the extent that does not contradict the law) day approved by the Resolution of the State Committee of Labor of the USSR, the Presidium of the All-Union Central Council of Trade Unions dated October 25, 1974 No. 298/P-22 (hereinafter referred to as the List).

Read also

• What to do if a special assessment reveals harmful working conditions?
• Additional leave for work in hazardous conditions
• Special assessment of working conditions: mistakes of employers

The question arises: in what cases, when providing guarantees and compensation to employees, should we be guided by the List, and in what cases by the Labor Code?

But before we understand this, let us remind you what compensation and guarantees are provided by the Labor Code for workers in harmful and (or) dangerous working conditions established by the results of a special assessment.

Guarantees in accordance with classes and subclasses of working conditions.

So, for workers in harmful and (or) dangerous conditions, the employer is obliged to provide:

reduced working hours - no more than 36 hours per week (Article 92 of the Labor Code of the Russian Federation);

annual additional paid leave of at least 7 calendar days (Article 117 of the Labor Code of the Russian Federation);

an increase in wages in the amount of at least 4% of the salary (Article 147 of the Labor Code of the Russian Federation).

However, not all employees without exception are provided with guarantees. And first of all, workers whose jobs have 1st (optimal) and 2nd (acceptable) class working conditions do not receive them. But guarantees are not provided to everyone working in harmful and dangerous conditions. Let's present the options in the table.

For your information.

Order of the Ministry of Health and Social Development of the Russian Federation dated February 16, 2009 No. 45n established the norms and conditions for the free distribution of milk or other equivalent food products to persons engaged in work with hazardous working conditions. These products are issued on days of actual employment in jobs with hazardous working conditions caused by the presence of harmful production factors in the workplace (provided by the list given in Appendix 3 to this order), the levels of which exceed the established standards.

So, guarantees and compensation for employees must be established by the employment contract. In this case, it is necessary to take into account the provisions of industry agreements and collective agreements.

Features of providing guarantees.

The provision of each guarantee has its own characteristics.

Reduced working hours.

So, as a general rule, for persons whose working conditions in their workplaces are classified as harmful 3rd or 4th degree or dangerous, the duration of working hours should not be more than 36 hours per week. But this does not mean that the reduced number of hours should be paid in proportion to the time worked. That is, the employee in any case is paid a full salary or full rate.

It should be noted that Art. 92 of the Labor Code of the Russian Federation provides for the opportunity to increase the duration of shortened working hours to normal, that is, up to 40 hours a week, with the payment of separate monetary compensation to the employee. In this case, the duration of working hours, as well as the amount of compensation and the procedure for its payment must be established by industry (inter-industry) agreement and collective agreement. The written consent of the employee is also required, formalized by concluding a separate agreement to the employment contract.

Note.

Rostrud officials emphasized that an increase in weekly working hours only on the basis of the written consent of employees, drawn up in the form of an additional agreement to the employment contract, is not allowed, since it is not provided for by labor legislation.

Increased wages.

In part 2 art. 147 of the Labor Code of the Russian Federation specifies the minimum amount of increase in pay for work with harmful and (or) dangerous conditions, which is 4% of the tariff rate (salary). A higher amount of compensation can be established by labor agreements, collective agreements, local regulations of the organization, and industry agreements.

provision of milk or other equivalent food products to persons engaged in work with hazardous working conditions. These products are issued on days of actual employment in jobs with hazardous working conditions caused by the presence of harmful production factors in the workplace (provided by the list given in Appendix 3 to this order), the levels of which exceed the established standards.

The employer adopts a local act introducing an increased wage, taking into account the opinion of the employees’ body in the manner prescribed by Art. 372 Labor Code of the Russian Federation.

For example, the Industry Agreement on the coal industry of the Russian Federation for the period from 04/01/2013 to 03/31/2016 from 04/01/2013, extended until 12/31/2018, established an increase in tariff rates from 10 to 20%.

Additional vacation.

As provided in Art. 117 of the Labor Code of the Russian Federation, the minimum duration of annual additional paid leave for employees whose working conditions are classified as harmful 2nd, 3rd or 4th degree or dangerous is 7 calendar days.

Note.

An employment contract on the basis of an industry (inter-industry) agreement and a collective agreement may establish a longer duration of additional leave.

If the duration of the relevant leave exceeds the minimum duration, then the part exceeding it may be replaced by monetary compensation. This replacement, as well as the procedure and amount of compensation, must be established by industry (inter-industry) agreement and collective agreement. Replacing part of the vacation with compensation is permitted with the written consent of the employee, drawn up in the form of an agreement to the employment contract.

Let us pay special attention to the next point. For additional leave for work in harmful and (or) dangerous conditions in accordance with Part 3 of Art. 121 of the Labor Code of the Russian Federation, it is necessary to take into account the actual work experience in such conditions. The calculation of length of service is regulated in more detail in the Instructions on the procedure for applying the List of production workshops, professions and positions with hazardous working conditions, work in which gives the right to additional leave and a shortened working day, approved by the Resolution of the State Committee of Labor of the USSR, All-Union Central Council of Trade Unions dated November 21, 1975 No. 273/P- 20 (hereinafter referred to as the Instructions).

According to para. 1 clause 12 of the Instructions, in the count of time worked in production, workshops, professions and positions with hazardous working conditions provided for in the List, only those days were counted on which the employee was actually employed in these conditions for at least half of the working day established for this production, workshop, profession or position.

But one of the workers, whose work experience included a period when he worked in hazardous conditions at 0.25 times the rate, appealed to the Supreme Court in order to declare this provision of the Instruction invalid (see Decision of the Supreme Court of the Russian Federation dated January 26, 2017 No. AKPI16-1035 ).

And the court declared the said paragraph of paragraph 12 of the Instructions invalid, guided by Part 3 of Art. 121 of the Labor Code of the Russian Federation: according to this norm, when granting additional leave, the time actually worked in the appropriate conditions is taken into account, regardless of whether the employee is employed full-time or part-time, including if his employment is less than 0.5 times the rate.

Thus, now this norm of the Instruction is recognized as not complying with the provisions of the Labor Code of the Russian Federation, since it introduces restrictions on the duration of the period of work subject to accounting in hazardous working conditions in order to provide annual paid additional leave and, accordingly, to receive payment in the amount established by labor legislation. We can conclude that the work experience in hazardous conditions must include all the time actually worked in these conditions.

What guarantees and to whom should they be provided?

The period until 2018 can be called transitional for determining working conditions in the workplace, since in some organizations the results of certification are still in effect, and in others - special assessments. In addition, along with Art. 92, 117 and 147 of the Labor Code of the Russian Federation, to the extent that does not contradict the law, the provisions of the List and Instructions are still applied. In this regard, employers have a lot of problems that we will try to sort out.

receiving his payment in the amount established by labor legislation. We can conclude that the work experience in hazardous conditions must include all the time actually worked in these conditions.

Question:

Until January 1, 2014, employees were provided with guarantees and compensation in accordance with the List, including a shortened working week of 36 hours. After a special assessment of working conditions, he was assigned subclass 3.1, in which such a guarantee is not provided. What should employers do in such situations?

By virtue of Part 3 of Art. 15 of Federal Law No. 421-FZ of December 28, 2013 (hereinafter referred to as Law No. 421-FZ), which amended Art. 92, 117 and 147 of the Labor Code of the Russian Federation, when implementing compensation measures in accordance with these articles in relation to persons employed in work with harmful and (or) dangerous working conditions, the procedure and conditions for the implementation of such measures cannot be worsened, and the amounts reduced compared with the procedure, conditions and amounts of compensation measures implemented before 01/01/2014, subject to the preservation of the previous working conditions in the workplace, which were the basis for the appointment of these measures.

That is, if employees, before the new editions of Art. 92, 117 and 147 of the Labor Code of the Russian Federation and Law No. 426-FZ provided guarantees and compensation in accordance with the List or based on the results of certification of workplaces, the employer cannot reduce the level of guarantees if the working conditions at these workplaces have not changed. And if, in accordance with the List, a shortened working week was established for the employee before 01/01/2014, and no change in working conditions occurred, the shortened working week must be maintained.

Moreover, if, based on the results of a special assessment of working conditions at the workplace, it is established that they have improved, characterized by a decrease in the final class (subclass) of working conditions, further provision of guarantees (compensations) to the employee employed at this workplace for work in harmful (hazardous) conditions is carried out in in the manner established by Art. 92, 117, 147 and 219 of the Labor Code of the Russian Federation.

For your information.

Due to the fact that a decrease in the level of guarantees was noted, in particular, in institutions, the Ministry of Labor sent a Government Telegram dated December 19, 2014 No. 15-0/10/P-7498, in which it drew attention to the need for strict compliance with the requirements of Part 3 of Art. . 15 of Law No. 421-FZ regarding the inadmissibility of worsening the conditions for providing and reducing the amount of compensation for work in harmful (dangerous) working conditions that were in force before the entry into force of this law, without confirmation of the improvement in working conditions by the results of a special assessment.

Note that the condition on the inadmissibility of reducing guarantees applies specifically to employees working before and after changes in legislation. Employees hired after a special assessment are provided with guarantees and compensation solely based on its results.

Question:

If an organization has carried out a certification or special assessment, and the employee’s position is included in the List, according to which he is entitled to additional leave, for example 10 days, should we apply the List when establishing the duration of additional leave?

The legislator does not provide clear explanations.

This question can be found in the Decision of the Supreme Court of the Russian Federation dated January 14, 2013 No. AKPI12-1570. If the profession or position of an employee who is entitled to compensation is included in the List and the duration of vacation indicated in it is more than 7 calendar days, then when determining the amount of compensation it is necessary to be guided by the List.

However, in this case, the organization carried out certification. If the organization carried out a special assessment, then based on Art. 219 of the Labor Code of the Russian Federation, the size, procedure and conditions for providing guarantees and compensation to persons employed in work with harmful and (or) dangerous working conditions are established in the manner prescribed by Art. 92, 117 and 147 of the Labor Code of the Russian Federation. The minimum duration of annual additional paid leave for such work is 7 calendar days (Part 2 of Article 117 of the Labor Code of the Russian Federation).

We believe that everything here depends on whether the employee received additional leave of 10 days before the special assessment. If yes, then even after the special assessment the employer should be guided by the List. If not, it is not necessary to apply the List - you must be guided by Art. 117 of the Labor Code of the Russian Federation and a card for special assessment of working conditions.

Question:

If the employer did not conduct job certification or special assessment, should he provide guarantees to the employee whose position is included in the List?

First of all, let us remind you that if the organization has employees included in the List, the employer should have rushed to conduct a special assessment.

In any case, as noted in the same Decision No. AKPI12-1570, if the employer has not yet conducted a special assessment of working conditions, this does not mean that there is no need to provide guarantees and compensation to those who work in positions with hazardous working conditions included to the List. Everything will be provided to these employees subject to the requirements specified in the List.

Accordingly, if the organization has not carried out workplace certification or a special assessment, and there are no positions and professions included in the List, then the employer has the right to conduct a special assessment until the end of 2018.

Note.

Failure by the employer to carry out a special assessment of working conditions at workplaces entails a warning or the imposition of an administrative fine on officials in the amount of 5,000 to 10,000 rubles, or from 60,000 to 80,000 rubles. (Article 5.27.1 of the Code of Administrative Offenses of the Russian Federation).

Question:

If a special assessment has not yet been carried out, and more than 5 years have passed since the workplace certification, should the employer continue to provide guarantees to employees?

Yes, the employer is obliged to provide guarantees to employees. And he will be able to cancel them only after taking measures to improve working conditions and conducting a special assessment, according to the results of which the jobs will be recognized as optimal or acceptable.

If the organization has not carried out certification, the job title is not on the List, and the special assessment established harmful working conditions, then the employer should begin to provide guarantees in accordance with the Labor Code based on the results of the special assessment.

We examined most situations of the transition period in terms of special assessment. And in conclusion, we note that if the working conditions at the workplaces of your employees, based on the results of a special assessment, have changed (no matter in which direction), you must make changes to the employment contracts with employees. This can be done in accordance with Art. 74 of the Labor Code of the Russian Federation, since there is a change in the essential terms of the employment contract at the initiative of the employer: the scope of guarantees and compensation for work in harmful and (or) dangerous conditions, if the employee performs duties in appropriate conditions, indicating the characteristics of working conditions in the workplace. The employer is obliged to notify employees in writing about upcoming changes, as well as the reasons that caused them, no later than 2 months in advance. Moreover, during these months the employee retains the same guarantees and compensation.

However, if the employee does not object, changes can be made to employment contract and in accordance with Art. 72 of the Labor Code of the Russian Federation by agreement of the parties, without waiting for the expiration of 2 months.

“On amendments to certain legislative acts Russian Federation in connection with the adoption of the Federal Law “On Special Assessment of Working Conditions”.

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