From January 1, 2014, employers are required to conduct a special assessment of working conditions (Federal Law of December 28, 2013 No. 426-FZ ""; hereinafter - Law No. 426-FZ). This procedure was introduced instead of workplace certification and largely repeats it.
On December 31, 2018, the period ended when employers could gradually conduct a special assessment of working conditions in relation to workplaces where potentially harmful and (or) hazardous production factors are identified. We are talking about the so-called safe, "unlisted" jobs, that is, not listed in. In fact, jobs belong to this category. In addition, only until this date could the results of the previously conducted certification of workplaces be valid (letter of the Ministry of Labor of Russia dated June 1, 2018 No. 15-4 / 10 / B-4010 "").
Thus, the period during which it was necessary to make the SOUT has already expired for employers. From January 1, those who have not fulfilled this obligation may be held liable for. It should be noted at the same time that liability for this part does not depend on the number of employees whose labor rights() have been violated.
Can a special assessment of working conditions at a vacant workplace be carried out? Find out the answer in "Encyclopedias of solutions. Labor relations, personnel" Internet version of the GARANT system. Get free access for 3 days!
Nevertheless, firstly, those who are late should carry out a special assessment as soon as possible - in particular, the Ministry of Labor of Russia should implement a mechanism for preventing violations in relation to small businesses and individual entrepreneurs, under which the employer will first be sent a warning about the inadmissibility of violating labor protection requirements, and only in case of non-compliance - will be fined.
In addition, a special assessment can be carried out for the first time by those who have just created new jobs. It takes a year from the moment of their formation. That is, if workplace created in December 2018, the deadline for completion of the SOUT is December 2019.
For both categories of employers, our instructions will be very useful. During the special assessment, they need to take into account a number of features in order to avoid administrative liability for violation established order conducting a special assessment on the same
Let's consider the procedure for this procedure in more detail.
Step 1. Issue an order to form a commission for a special assessment of working conditions
Having decided to conduct a special assessment of working conditions, the head of the organization must issue an appropriate order, defining in it the composition of the commission for conducting such a special assessment, including the head, as well as the procedure for its activities. At the same time, the number of members of the commission must be odd, and a labor protection specialist () must be included in its composition. The head of the committee is usually CEO ().
Step 2. Approve the list of jobs for a special assessment
The list of jobs for which a special assessment should be carried out, including similar ones, is determined by the commission created by the employer ().
Special valuation in the presence of similar jobs, it is carried out only in relation to 20% of their total number, but in any case there must be more than two (). The results of the special assessment are applied to all similar jobs.
OUR REFERENCE
Similar workplaces are workplaces that are located in one or more similar industrial premises equipped with the same or the same type of ventilation, air conditioning, heating and lighting systems, where employees work in the same profession, position, specialty, carry out the same labor functions in the same mode of working hours while maintaining the same type of technological process using the same production equipment, tools, fixtures, materials and raw materials and are provided with the same means personal protection ().
Step 3. Issue an order approving the schedule for a special assessment of working conditions
Simultaneously with determining the list of jobs for which a special assessment of working conditions should be carried out, the commission draws up a schedule for the special assessment. It must be approved by the relevant order of the head of the organization.
When drawing up this schedule, consider the following.
By general rule, a special assessment is carried out for each workplace, including office space, at least once every five years ().
If the employer did not previously conduct a special assessment of working conditions, it had to be carried out no later than December 31, 2018 (). At the same time, the law allowed this to be done in stages.
Exceptions are jobs:
- those employees whose profession, position or specialty gives them;
- work on which gives the right to guarantees and compensation for work;
- where, based on the results of previous certification of workplaces for working conditions or a special assessment of working conditions, harmful and / or dangerous working conditions were established ().
A special assessment of these jobs had to be carried out as a matter of priority, without division into stages (). For failure to fulfill this obligation, the employer faces administrative liability, including a fine of up to 10 thousand rubles - for officials and individual entrepreneurs, up to 80 thousand rubles. - for legal entities ().
If, before December 31, 2013, the employer carried out certification of workplaces in terms of working conditions, a special assessment in relation to these workplaces can not be carried out for five years from the date of completion of the certification ().
In addition, in addition to the planned special assessment of jobs, the employer is obliged to conduct an unscheduled one - for example, when commissioning newly organized jobs, changing the technological process, receiving an appropriate order from the GIT, etc. (). The period during which an unscheduled special assessment of working conditions must be carried out is from 6 to 12 months, depending on the basis for its conduct ().
Step 4. Conclude an agreement with a specialized organization for a special assessment of working conditions
In order to conduct a special assessment of working conditions, the employer must conclude an appropriate agreement with the selected specialized organization (,). The register of accredited organizations can be found on the website of the Russian Ministry of Labor (http://akot.rosmintrud.ru/).
Step 5. Transfer the necessary information, documents and information to the organization conducting a special assessment of working conditions
As soon as an agreement with a specialized organization is concluded, the employer is obliged to provide it with information, documents and information characterizing the working conditions at the workplace (for example, technological documentation, building construction projects, etc.).
Step 6. Approve the results of identification of potentially harmful and / or hazardous production factors
When conducting a special assessment of working conditions, a specialized organization identifies potentially harmful and / or dangerous production factors. The results of this identification, upon its completion, are approved by the commission created by the employer ().
The organization then proceeds to measure the actual values of harmful and/or dangerous factors, if any were found (). According to the results of the study, an expert of a specialized organization classifies working conditions in the workplace according to the degree of harmfulness and / or danger into optimal, permissible, harmful and dangerous ( , ).
Step 7. Approve the report on the special assessment of working conditions
Based on the results of the special assessment, the organization draws up a report, which must be signed by all members of the commission created by the employer and approved by its chairman (). A member of the commission who does not agree with the results of a special assessment of working conditions may state his reasoned opinion in writing and attach it to the report.
Step 8. Notify the specialized organization about the approval of the report on the special assessment of working conditions
Within three working days from the date of approval of the report on the special assessment of working conditions, the employer is obliged to notify the specialized organization about this, and also send a copy of the approved report (). It can be done by anyone accessible way providing an opportunity to confirm the fact of such notification.
Step 9. Submit a declaration of compliance of working conditions with state regulatory requirements for labor protection
If the presence of harmful and / or hazardous production factors was not identified based on the results of identification, or if, based on the results of measurements, the working conditions at the workplace are recognized as optimal or acceptable, the employer must notify labor inspection at the location of the organization (). To do this, it is necessary that working conditions comply with state regulatory requirements for labor protection (approved). The employer must submit this declaration within 30 working days from the date of approval of the report on the special assessment (approved by Order of the Ministry of Labor of Russia dated February 7, 2014 No. 80n).
It should be noted that before May 1, 2016, the employer indicated in the declaration only information about the absence of harmful and / or dangerous production factors. In this regard, if, according to the results of measurements carried out before May 1, 2016, the working conditions in relation to other jobs were found to be optimal or acceptable, the employer must submit an updated declaration to the labor inspectorate with the inclusion of these jobs ().
Step 10. Familiarize employees with the report on the special assessment of working conditions
No later than 30 calendar days from the date of approval of the report on the special assessment, the employer must, against signature, familiarize the employees with the results of the special assessment (). The specified period does not include periods of temporary disability of the employee, being on vacation or business trip, periods of rest between shifts.
Step 11. Place the results of the special assessment on the organization's website
Within 30 calendar days after the approval of the report on the special assessment of working conditions, the employer should post summary data on the results of the special assessment on its official website - if available ().
The information posted on the website must contain information about:
- on the establishment of classes (subclasses) of working conditions at workplaces;
- on the list of measures to improve the working conditions and labor protection of employees at whose workplaces a special assessment of working conditions was carried out.
To do this, you need to reflect the relevant data in (approved by order of the FSS of Russia dated September 26, 2016 No. 381).
Step 13. Apply the results of a special assessment of working conditions
The results of the conducted special assessment affect the establishment of guarantees and compensations to employees. Thus, employees whose working conditions at their workplaces are recognized as harmful, depending on the degree of harmfulness, are entitled to a reduced working week no more than 36 hours, additional leave of at least seven calendar days and / or compensation in the amount of 4% of the salary (,).
In addition, a clause on working conditions at the relevant workplace must be included in the employment contract with new employees (). And contracts with already working employees should be amended by concluding with them the appropriate supplementary agreement ().
The procedure for using the results of a special assessment of working conditions is regulated by the provisions of 426-FZ. The bulk of the responsibilities associated with the application of the results of the SOUT is assigned to the employer. However, some functions are performed expert organization who carried out the work under the contract. In some cases, state bodies may be involved in this issue.
Obligations of the employer based on the results of a special assessment of working conditions
The list of responsibilities of an organization acting as a customer of work on the SOUT is determined mainly by Art. 15 426-FZ. This and other articles in this normative act establish that upon completion of all necessary procedures, the employer must:
- read the report of the organization that performed the work on the SOUT, and approve it. This procedure applies not only to the main reporting documentation, but also to all annexes to it, including summary statements of the results of the SAUT;
- within three days after the approval of the results, send a corresponding notification to the contractor;
- within thirty days after the approval of the report, send a notification to the employee about the results of the special assessment at his place of work or otherwise notify him of them;
- within thirty days after the adoption of the report, post the results of the SOUT on the organization's website for open access to all stakeholders. For example, the results of the SAOT of doctors of the FMBA of the Russian Federation arouse the interest of the public and journalists;
- if on this place work according to the results of the SAUT, the harmfulness exceeds the normal indicators - to develop and implement a system of benefits and compensations for employees. The amount of additional payments for a special assessment of working conditions is regulated Labor Code and others normative documents. Surcharges are established for all employees with harmful or dangerous working conditions;
- ensure the storage of the results of the special assessment in accordance with the order of the Ministry of Culture No. 558. The validity of the requirement to store such documents is 45 years.
Actions of the employer in case of disagreement with the results of the SOUT
The above algorithm is applied if the employer agrees with the conclusions indicated in the special assessment report. If there is disagreement with the results of the SOUT, one should be guided by the order of the Ministry of Labor No. 501n. According to this document, the employer must send a written statement describing his position to the Ministry of Labor. If supporting documents are available, they should be attached to the application. It will be reviewed within 45 working days from the date of its receipt and registration.
Actions of the expert organization based on the results of the SATS
The main task of the contractor after compiling the report and receiving a notification of its approval is to inform the state authorities about the results of the SAUT. The expert organization should send them to the federal state system taking into account a special assessment of working conditions.
If for some reason the organization has not fulfilled its obligation, the employer can do this. The main difference in this case will be where the documents should be sent. If the expert organization sends them directly to the accounting system, then the employer should provide them to the labor inspectorate. Department specialists will then redirect them to the federal system. Please note that sending the results of a special assessment to government agency is a right, not an obligation, of the employer.
Who should conduct a special assessment of working conditions, within what time frame, what responsibility is provided for failure to conduct or for violating the procedure for conducting a special assessment. We will consider these and other questions in this article.
One of the main responsibilities of an employer is to provide its employees with safe conditions labor in the workplace (Article 212 of the Labor Code of the Russian Federation). Conducting a special assessment of working conditions in the workplace is one of the activities that the employer takes to fulfill this obligation.
On January 1, 2014, Federal Law No. 426-FZ of December 26, 2013 “On the Special Assessment of Working Conditions” (hereinafter referred to as the Law) came into force, which introduced a new procedure - a special assessment of working conditions (SOUT). She replaced the certification of jobs.
SOUT is aimed at identifying harmful and dangerous factors in the working environment, assessing the level of their impact on the employee (part 1 of article 3 of the Law).
Based on the results of a special assessment of labor, the employer:
- defines classes (subclasses) of working conditions;
- provides employees with personal and collective protection equipment;
- establishes for employees the guarantees and compensations provided for by law;
- organizes preliminary and periodic medical examinations;
- establishes an additional rate of contributions to the PFR;
- calculates the discount (surcharge) to the insurance rate of contributions for injuries;
- prepares statistical reports on working conditions.
SOUT is required, but not for everyone
Each employer must conduct a special assessment, regardless of the form of ownership.The following categories of employees are excluded:
- homeworkers;
- remote workers;
- employees who have joined labor Relations with employers - individuals who are not individual entrepreneurs.
In order to understand when it is necessary to conduct a planned special assessment, let's turn to the scheme:
Deadlines for the scheduled special assessment of jobs created before 01/01/2014
A special assessment is carried out at least once every 5 years. The term is calculated from the date of approval of the report on its implementation (part 4 of article 8 of the Law). However, if the conducted special assessment confirms the optimal or acceptable conditions at the workplace, and within 5 years from the date of approval of the report, no occupational diseases are detected in the organization and no accident occurs, the results of such a special assessment are automatically extended for the next 5 years. But in case of detection of harmful/dangerous working conditions, these workplaces are subject to a scheduled special assessment every 5 years.
Situation: Potentially harmful working conditions
For potentially harmful/dangerous working conditions, the Law does not clearly stipulate the period for conducting a scheduled special assessment. Nevertheless, for these categories of jobs, an assessment of working conditions should be carried out as soon as possible. (end of box)
Estimation out of plan
In some cases, the employer needs to conduct a special assessment unscheduled, that is, earlier than after 5 years (part 1 of article 17):- when introducing a new workplace;
- if there is an order from the GIT to conduct a special assessment;
- when changing the technological process at the workplace, when replacing production equipment, the composition of the materials used, raw materials, etc.;
- if an accident occurs at the workplace (not through the fault of third parties);
- if an occupational disease is detected;
- if there is a motivated proposal from the elected body of the primary trade union organization to conduct an unscheduled SOUT.
SOUT Commission
The conduct of the SAUT begins with the convening of a commission with an odd number of members. It is initiated by the order of the head of the organization. The commission includes a labor protection specialist or a specialist engaged by the employer under a civil law contract to perform the functions of a labor protection service (labor protection specialist), as well as a trade union representative, if any. In the same order, the head must indicate who will head the commission - he himself or a person appointed by him.Important: Similar jobs
The commission approves the list of jobs subject to special assessment and indicates which of them are similar (parts 5-7 of article 9 of the Law). It should be noted that the SATS is carried out only in relation to 20% of similar jobs (but not less than two jobs), and its results apply to all similar jobs (Part 1, Article 16 of the Law). According to Art. 9 of the Law, such are jobs that simultaneously meet the following conditions:
- located in one or more similar industrial premises (production zones);
- equipped with the same (same type) ventilation, air conditioning, heating and lighting systems;
- where employees work:
- the same profession (position, specialty) performing the same labor functions;
- in the same mode of working hours while maintaining the same type of technological process;
- using the same production equipment, tools, fixtures, materials and raw materials;
- provided with the same personal protective equipment.
Is it always necessary to involve a specialized organization?
At the same time, the company is obliged to select and conclude an agreement with a specialized organization for the implementation of the SATS.At the next stage, a specialized organization enters the business. Its task is to identify harmful or dangerous labor factors. Simply put, to decide whether a person's work can harm a person's health, and if it can, then with what exactly. Harmful factors are listed in the Classifier approved by the Order of the Ministry of Labor N 33n of 01/24/2014.
It should be noted that identification is not carried out in relation to (part 6 of article 10 of the Law):
- workplaces of employees whose professions, positions or specialties are included in the lists for the early appointment of an old-age labor pension;
- workplaces where employees, in accordance with the law, are provided with guarantees and compensations for work with harmful and (or) hazardous conditions labor;
- workplaces where harmful and (or) dangerous working conditions were established based on the results of previous attestation or special assessment.
So, an expert of a specialized organization conducts identification, and its results are approved by the employer's commission (part 2 of article 10 of the Law).
If harmful and (or) dangerous production factors at the workplace are not identified, then further research is not carried out (part 4 of article 10 of the Law).
For such jobs, as well as places where working conditions are recognized as optimal or acceptable, the employer submits to his labor inspectorate a declaration of compliance of working conditions with state requirements.
Situation: Harmful or dangerous production factors have been identified
If harmful / hazardous production factors are identified, then the commission decides to conduct research and measure these factors (part 5, article 10 of the Law). Having finished measuring the harmful factors, the expert organization and the commission of the audited company draw up a report on the results of the special assessment. It is signed by all members of the commission and approved by its chairman. The report form is in the Order of the Ministry of Labor N 33n dated January 24, 2014. Evaluation cards for each workplace that has passed the procedure are attached to it. As a result, working conditions are divided into classes and subclasses according to the degree of harmfulness, employees receive certain guarantees and compensations, and an additional rate of contributions to the Pension Fund is determined.
Characteristics of working conditions
Class | Subclass | Working conditions | Additional fare amount | Characteristics of a class (subclass) |
| Optimal | Harmful (dangerous) factors are absent or do not exceed the norms. | |||
Permissible | Harmful (dangerous) factors do not exceed the norms; the functional state of the employee is restored during the inter-shift rest. | |||
1st degree | After exposure to harmful (dangerous) factors, the state of the body of an employee is restored at a longer time than between shifts; increased risk of health damage. | |||
2 degrees | Harmful (dangerous) factors can cause the appearance and development of initial forms of occupational diseases or occupational diseases of mild severity (without disability) that occur after prolonged exposure (15 years or more). | |||
3 degrees | Harmful (dangerous) factors can cause the emergence and development of occupational diseases of mild and moderate severity (with loss of professional ability to work) in an employee during the period of employment. | |||
4 degrees | Harmful (dangerous) factors can lead to the emergence and development of severe forms of occupational diseases in an employee (with loss of general ability to work) during the period of employment. | |||
| Harmful (dangerous) factors affecting an employee during the entire working day (shift) or part of it can endanger his life, and their consequences cause a high risk of developing an acute occupational disease during work. |
The evaluation has been completed, what's next?
But the responsibility of the employer does not end there. He must familiarize employees against signature with the results of the assessment conducted at their workplaces within 30 calendar days from the date of approval of the above report (part 2, article 5 and part 5, article 15 of the Law).This period does not include periods of temporary disability of the employee, being on vacation or business trip, periods of rest between shifts.
Important: update the information on the site
And if the organization has an official website, then it must organize the placement of summary data on the results of the assessment on it:
- on established classes (subclasses) of working conditions;
- about the list of measures to improve these conditions.
Information on the results of a special assessment must also be reflected in table 10 of Form 4-FSS.
Employees also have an obligation to familiarize themselves with the results of the SOUT (part 2 of article 5 of the Law). Refusal to fulfill this obligation may be recognized by the employer as a violation of labor protection requirements. Such a refusal is the basis for bringing to disciplinary responsibility (paragraph 2 of part 1 of article 214, article 192 of the Labor Code of the Russian Federation).
A specialized organization is obliged to transfer the results of the assessment to the Federal State information system taking into account the results of a special assessment of working conditions (part 1 of article 18 of the Law).
For violation of the procedure for conducting or for not conducting the SOUT, administrative liability is provided, its amount is indicated in the table.
Responsibility for violations of the special assessment rules
Norm of the Code of Administrative Offenses of the Russian Federation | Offense | A responsibility |
||
officials | organizations |
|||
| Part 2 Art. 5.27.1 | Violation by the employer of the established procedure for conducting a special assessment of working conditions at workplaces or failure to conduct it | Warning or 5,000 - 10,000 rubles. | Warning or 60,000 - 80,000 rubles. | |
| Part 5 Art. 5.27.1 | The commission of an offense under Part 2 of Art. 5.27.1 of the Code of Administrative Offenses of the Russian Federation, by a person previously subjected to administrative punishment for a similar offense | 30,000 - 40,000 rubles or disqualification for 1 - 3 years | 30,000 - 40,000 rubles or suspension of activities for up to 90 days | 100,000 - 200,000 rubles or suspension of activities for up to 90 days |
| Part 1 Art. 14.54 | Violation by the organization that conducted a special assessment of working conditions of the procedure for its conduct | 20,000 - 30,000 rubles | Not | 70,000 - 100,000 rubles |
| Part 2 Art. 14.54 | The commission of an offense under Part 1 of Art. 14.54 of the Code of Administrative Offenses of the Russian Federation, by a person previously subjected to administrative punishment for a similar offense | 40,000 - 50,000 or disqualification for 1 - 3 years | 100,000 - 200,000 or suspension of activities for up to 90 days | |
The following actions / inaction of the employer may be recognized as a violation of the procedure for conducting the SATS:
- non-compliance with the deadline for the special assessment;
- failure to familiarize employees with the results of a special assessment at their workplaces;
- violation of the procedure for processing the results of a special assessment;
- special assessment:
- without involving a specialized organization;
- without forming a commission for its implementation;
- not in all jobs.
" № 10/2016
What are the deadlines for assessing working conditions in the workplace? In what cases should an employer conduct an unscheduled inspection? For whom can a phased special assessment be carried out? What liability is provided for violations of the assessment procedure?
We have already written more than once on the pages of our magazine about the procedure for conducting a special assessment of working conditions at workplaces. But since this procedure quite new, during its implementation mistakes are often made, which result either in fines, and not at all small ones, or in litigation with employees. After all, they have the right to challenge the results of the assessment. In addition, some employers who have not yet conducted a special assessment are held administratively liable for not conducting it. But based on judicial practice that starts to take shape, it's not always legal. In the article, using examples of court decisions, we will consider what violations employers can make in the field of special assessment.
The timing of the special assessment.
Perhaps one of the main questions of interest to many employers who have not yet conducted a special assessment of working conditions in the workplace is when should they do this?
Let us first turn to paragraph 4 of Art. eight federal law dated December 28, 2013 No. 426-FZ "On a special assessment of working conditions" (hereinafter - Law No. 426-FZ), according to which it is carried out at least once every five years, unless otherwise provided by this law.
Moreover, by virtue of paragraph 4 of Art. 27 of Law No. 426-FZ, if prior to the date of entry into force of this law, that is, before 01/01/2014, certification of working conditions was carried out in relation to workplaces, a special assessment of working conditions in relation to such workplaces may not be carried out for five years from the date of completion of certification. At the same time, the results of the latter are used in the same way as the results of the special assessment, for the purposes referred to in Art. 7 of Law No. 426-FZ.
However, there are exceptions to the rule.
1. The employer must conduct an unscheduled special assessment of working conditions in the cases established by Art. 17 of Law No. 426-FZ:
- commissioning of newly organized workplaces (clause 1 of part 1);
- receipt by the employer of the prescription state inspector labor on conducting an unscheduled special assessment in connection with those identified during the supervision of compliance labor law violations of the requirements of Law No. 426-FZ and other labor protection requirements (clause 2, part 1);
- change in the technological process, replacement of production equipment that can affect the level of exposure to harmful and (or) hazardous production factors on workers (clause 3, part 1);
- change in the composition of the materials and (or) raw materials used that can affect the level of exposure to harmful and (or) hazardous production factors on workers (clause 4, part 1);
- change in the means of individual and collective protection used, which can affect the level of exposure to harmful and (or) hazardous production factors on workers (clause 5, part 1);
- an industrial accident that occurred at the workplace (except for a case that occurred due to the fault of third parties) or an identified occupational disease, the causes of which were the exposure of the employee to harmful and (or) dangerous production factors (clause 6, part 1);
- availability of motivated proposals from elected bodies of primary trade union organizations or another representative body of workers to conduct an unscheduled special assessment of working conditions (clause 7, part 1).
Deadline unscheduled inspection is 12 months from the date of occurrence of the cases specified in paragraphs 1 and 3 of part 1 of Art. 17 of Law No. 426-FZ, and 6 months from the date of occurrence of the cases specified in clauses 2, 4 - 7, part 1 of Art. 17 of Law No. 426-FZ.
Note
Until 05/01/2016, the period for conducting an unscheduled inspection for all cases was six months.
2. In relation to the jobs specified in Part 7 of Art. 9 of Law No. 426-FZ, a special assessment of working conditions is carried out taking into account the features established by the Ministry of Labor in agreement with the federal executive body responsible for developing state policy and legal regulation in the relevant field of activity. Until such features are established, general order provided by Law No. 426-FZ.
note
The list of jobs in organizations that carry out certain types activities in respect of which a special assessment of working conditions is carried out taking into account the features established by the authorized federal executive body, approved by Decree of the Government of the Russian Federation of April 14, 2014 No. 290.
We also note that according to part 6 of Art. 27 of Law No. 426-FZ in relation to jobs not specified in Part 6 of Art. 10 of Law No. 426-FZ, a special assessment of working conditions can be carried out in stages and must be completed no later than 12/31/2018.
A staged special assessment procedure cannot be carried out in relation to jobs |
||
|---|---|---|
Employees, professions, positions whose specialties are included in the lists of jobs, industries, professions, positions, specialties, taking into account which an old-age pension is assigned ahead of schedule |
In connection with work in which, in accordance with legislative and other regulatory legal acts, guarantees and compensations are provided for work with harmful and (or) dangerous working conditions |
Where harmful and (or) dangerous working conditions were established based on the results of previous certification on working conditions or special assessments |
It can be concluded that the employer must conduct a special assessment of working conditions at the workplace of the organization:
1. After five years from the date of certification of workplaces,
carried out before 01.01.2014.
And finally, the violations committed during the assessment were established by the chief specialist of the labor protection department, who made a state examination of the quality of the special assessment of the working conditions of the workplace of a neurosurgeon based on the decision of the judicial board.
The results of the special assessment were invalidated (Appeal ruling of the Sverdlovsk regional court dated June 24, 2016 in case No. 33-6870/2016).
Incorrect application of the results of the special assessment. There may be situations when an employer, when providing compensation to an employee for work in hazardous conditions, is guided only by the results of a special assessment. But this is not enough in all cases. The requirements of other federal laws should also be taken into account.
The employee filed a lawsuit against FKUZ MSCh-10 of the Federal Penitentiary Service of Russia (hereinafter - FKUZ) to provide her with additional paid leave for 2015 in connection with the performance of the duties of an average medical personnel, work in harmful conditions and in accordance with the Law of the Russian Federation of 02.07.1992 No. 3185-1 "On psychiatric care and guarantees of the rights of citizens in its provision" (hereinafter - Law No. 3185-1).
The employer, justifying his refusal to grant leave, indicated that, according to the special assessment card, the plaintiff's workplace has the 2nd class of working conditions, which, by virtue of the law, are safe, therefore, she is not entitled to additional leave. In addition, the position of an employee is not included in the list of employees providing psychiatric care, who are additional holidays in accordance with Decree of the Government of the Russian Federation of June 6, 2013 No. 482 (hereinafter referred to as Decree No. 482).
However, by a court decision, the claim was satisfied and the FKUZ was given the obligation to provide this medical worker involved in the provision of psychiatric care with additional annual paid leave for 2015, and here's why.
The specified leave is granted to employees whose working conditions at their workplaces, according to the results of a special assessment, are classified as harmful of the 2nd, 3rd or 4th degree or dangerous (Article 117 of the Labor Code of the Russian Federation).
In accordance with par. 1 and 2 h. 1 tbsp. 22 of Law No. 3185-1, medical and other workers involved in the provision of psychiatric care have the right to:
- for reduced working hours;
- for annual additional paid leave for work with harmful and (or) dangerous working conditions in accordance with the legislation of the Russian Federation.
Law No. 3185-1 also provides that these guarantees for other employees involved in the provision of psychiatric care medical organizations subordinate to federal executive authorities, state academies of sciences, medical organizations subordinate to the executive authorities of the constituent entities of the Russian Federation, as well as other employees from among civilian personnel military units, institutions and subdivisions of federal executive bodies, in which the law provides for military and equivalent service, are provided based on the results of a special assessment of working conditions (paragraph 4, part 1, article 22 of the law).
Note
According to the list approved by Decree No. 482, medical workers involved in the provision of psychiatric care, middle and junior medical personnel (except for medical statistics), the duration of the annual additional paid leave is 35 calendar days.
Having established that L. N.A. is a medical worker directly involved in the provision of psychiatric care (medical ward nurse psycho-neurological department of FKUZ), and guided by Art. 22 of Law No. 3185-1, Resolution No. 482, the court confirmed that the provision of leave based on the results of a special assessment is provided for other employees involved in the provision of psychiatric care, to which the plaintiff does not apply. At the same time, the emergence of the right to additional annual paid leave for work in harmful and (or) dangerous conditions for medical workers involved in the provision of psychiatric care does not depend on the class of working conditions established by the special assessment, which is provided for other employees of medical organizations in accordance with paragraph . 4 hours 1 tbsp. 22 of Law No. 3185-1.
The panel of judges agreed with these conclusions of the court of first instance (Appeal ruling of the Supreme Court of the Republic of Karelia dated March 11, 2016 in case No. 33-719/2016).
Working conditions in the employment contract.
To prevent the occurrence of another error for which the employer may be held liable, let's say a few words about the employment contract, namely about one of its mandatory conditions– on guarantees and compensations for work with harmful and (or) dangerous conditions, if the employee is hired for such work, indicating the characteristics of working conditions at the workplace.
The Ministry of Labor in Letter No. 15-1 / OOG-2516 dated July 14, 2016 clarified how this item is entered after the special assessment and what to write in the employment contract before it is carried out.
So, if a special assessment has been carried out in your organization, it is necessary to supplement the employment contract with information about the class (subclass) of working conditions at the employee’s workplace, list the guarantees and compensation due to him.
The employer is obliged to notify the employee in writing about upcoming changes in the terms of the employment contract, as well as about the reasons that necessitated the changes, no later than two months in accordance with Art. 74 of the Labor Code of the Russian Federation.
Notifying an employee of a change in the employment contract will not be considered a written acquaintance with the results of the special assessment. The employee must be familiarized with the card of a special assessment of working conditions at his workplace against signature.
note
If an employee is hired to a newly organized workplace where an assessment of working conditions has not been previously carried out, then before it is carried out, the employment contract with a person hired to such a workplace may indicate his General characteristics(description of the workplace, equipment used and features of working with it).
At the same time, guarantees (compensations) for work in harmful and (or) dangerous conditions based on the results of a special assessment begin to be provided from the day the results come into force (from the moment the report on its implementation is approved).
Prior to the special assessment, employers should determine the possibility of compensating employees for harmful (dangerous) factors, if they are eventually identified.
In conclusion, we draw the attention of employers who have not yet conducted a special assessment to the following: do not forget that you have not only the obligation to ensure its conduction, but also the right to demand from the organization conducting it the rationale for the results of the assessment. Take this review seriously, because both your mistakes and the mistakes of the organization conducting the assessment can lead to litigation with employees.
"On Amendments to Certain Legislative Acts Russian Federation in connection with the adoption of the Federal Law "On the Special Assessment of Working Conditions".
"On the duration of the annual additional paid leave for work with harmful and (or) dangerous working conditions provided to certain categories of workers."
The procedure for conducting the SATS is enshrined in law and in some parts contains fairly liberal provisions. For example, according to paragraph 6 of article 27, for some jobs, a special assessment can be carried out in stages and must be completed by 12/31/2018. However, the courts are ambivalent about the interpretation this provision and make conflicting decisions (for example, Rulings No. 11-11968/2014 dated November 11, 2014 and No. 33-5865/15 dated February 26, 2015), and fines for not holding this event can be up to 200,000 rubles.
SOUT: timing
A special assessment of working conditions for the first time must be carried out within a period not exceeding 12 months from the date of creation of a new workplace. If the organization has been operating for more than 12 months, and the certification of workplaces (AWP) or a special assessment of working conditions has never been carried out, then a special assessment must be carried out immediately or yesterday.
- safe work of its employees;
- labor protection of its employees;
- informing workers about the conditions in which they work, etc.
- safe working conditions;
- obtaining information about the conditions of harmfulness at their workplace.
That is, the employee has the right to require the employer to provide information about the degree of risk to his health, which may be exposed to harmful or dangerous production factors (even sitting in front of the monitor screen). And if the employer does not provide him with such information, the employee has the right to receive this information apply to the state supervision body for compliance with the law.
In this case, the employer will face a fine of up to 80,000 rubles and a written order on the need to organize a special assessment. Otherwise, an administrative suspension of the company's activities for up to 90 days may threaten.
Frequency of holding
The period of validity of the special assessment of working conditions is 5 years. The passage of time begins from the day the assessment report for each individual workplace is approved. The results of this event can be reduced to two options, when:
- no harmful factors were identified during the course;
- harmful factors are identified and classified accordingly.
Harmful factors have not been identified
If during the course of the special assessment no harmful and dangerous production factors were identified, such a workplace is subject to declaration in territorial authority federal service on labor and employment for compliance of working conditions with the regulatory requirements of labor protection.
In this case, if within the next 5 years in relation to this workplace there are no reasons to conduct an unscheduled special assessment, then after this period it is not necessary to carry out a second SOUT, the validity of the declaration is automatically extended.
And in what terms it is necessary to do the SOUT in the future (if it needs to be done at all), the law does not say ..
Harmful factors identified and classified
In this case, the period of validity of the special assessment of working conditions is 5 years. Moreover, this does not mean that five years have passed and it is necessary to start organizing a new special assessment. By the expiration of the five-year period, the employer must have the results of the attestation ready, that is, no interruption is allowed.
Workplace certification
AWP is, in fact, the same as a special assessment, only with a different name. Therefore, if the employer carried out the AWS before 01/01/2014, then the current legislation allows him not to organize and not to carry out any additional activities for the entire period of validity of the SOUT until the date of completion of the results of this certification, of course, if there are no grounds for conducting an unscheduled SOUT.
Terms of unscheduled SOUT
In the event of circumstances for an unscheduled special assessment, the legislation provides for two time periods - 6 and 12 months, depending on the reason.
6 months
A special assessment of working conditions must be carried out within the specified time if:
- the employer received an order to conduct an unscheduled special assessment;
- in production they begin to use new materials or raw materials that can harm the health of the employee;
- new means of individual and collective protection are being introduced (the class of harmfulness can be reduced, respectively, payments for harmfulness can be reduced);
- an accident has occurred (with the exception of an accident at work due to the fault of third parties);
- medical commission the fact of an occupational disease has been established;
- a letter was received from the trade union about the need for an unscheduled special assessment.
12 months
SOUT must be carried out within the specified time if:
- new jobs are put into operation;
- are changing technological processes, production equipment that can influence the level of exposure to harmful or hazardous production factors.
Timing of activities based on the results of the SOUT
From the date of approval of the report on the results of the SUT, the employer is obliged to:
- within 3 working days, notify the organization that conducted the SATS about the approval;
- no later than 30 calendar days, against signature, to familiarize employees with the results of the special assessment;
- no later than 30 calendar days, if there is a website on the Internet, post information about the results of the SAUT and the list of measures to improve labor protection conditions.
Shelf life of materials for a special assessment of working conditions
Deadline for compiling a report on the SOUT
It is established by the order of the employer when organizing this event at the stage of forming the commission.
Shelf life of SOUT materials
It is 45 years, however, if as a result of the SOUT, harmful or dangerous production factors are identified and working conditions are appropriately classified according to harmfulness and danger, such materials must be stored for 75 years.
Validity of SOUT materials
The materials based on the results of the special assessment are valid for the entire period of establishing the appropriate hazard class or the validity period of the declaration of compliance of working conditions with state regulatory requirements for labor protection.