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Publication date: 26.04.2024
active and purposeful military lawyer with more than 4 years of experience
Persons with disabilities due to war: peculiarities of work after returning from military service
SITUATION
The employee of the enterprise, a military man who was released from work for the period of military service, received a disability as a result of an injury and was dismissed from military service. After his discharge from military service, he returned to work, but due to his health, he cannot perform his previous duties.
What guarantees does the employee have? What are the actions of the employer?
COMMENT
It is necessary to understand that if an employee is diagnosed with a disability according to the decision of the MSEK, then this does not give the employer the right to fire him, this contradicts the requirements of the legislation - the third part of Article 17 of the Law of Ukraine dated March 21, 1991 No. 875-XII "On the Basics of Social Security of the Disabled in Ukraine" . Establishing a disability is not a reason for dismissing an employee.
The employer takes into account the recommendations of MSEK
Since the disability has been established for an employee with whom an employment contract has already been concluded, the MSEK at the employee's place of work sends a notification regarding the group of disability and its cause in accordance with paragraph 24 of the Regulation on medical and social examination, approved by the Cabinet of Ministers of Ukraine Resolution No. 1317 of December 3, 2009. But the employee who received a disability also provides all the necessary documents to the employer.
Conclusions of the MSEK on the conditions and nature of work of persons with disabilities are binding for employers.Thus, the employer is obliged to create working conditions for employees taking into account the recommendations of the medical and social expert commission and individual rehabilitation programs in accordance with the requirements of Article 69 of the Law of Ukraine dated November 19, 1992 No. 2801-XII "Basics of Ukrainian legislation on health care" and Article 12 of the Law of Ukraine dated October 14, 1992 No. 2694-XII "On Labor Protection".
Employee transfer
Pursuant to Article 170 of the Labor Code of Ukraine (hereinafter referred to as the Labor Code), if an employee needs lighter work due to his health, the employer must transfer such an employee, with his consent, to such work in accordance with a medical opinion, temporarily or indefinitely.
In its explanation, the State Labor Service also notes "..if it is possible to establish the conditions of "easier work" within the limits of the position held by the employee, then he is offered to stay in it. If not, the employer looks for suitable vacant positions and offers them to an employee with a disability...".
But if within the scope of the employee's position, the employer cannot create conditions for the employee that would meet the conclusions of the MSEK, then a transfer to an easier job takes place. The legislation does not define the method and procedure of how exactly the employee gives consent to such a transfer. But we offer the following option:
• the employer offers the employee a transfer to a lighter job in writing;
• the employee gives written consent to such transfer or refusal;
• the employer issues an order on transfer to another job and familiarizes the employee with it.Read also: Equal opportunities for persons with disabilities
Importantly! If the employee refuses to be transferred to another job in accordance with the recommendations of the medical opinion, the employer may dismiss such an employee on the basis of paragraph 2 of part one of Article 40 of the Labor Code. But before dismissing on this basis, the employer must follow the procedure and complete all the steps described above.
Also, for employees with disabilities, the legislation provides for the possibility of setting a part-time working day or a part-time working week at their request and creating preferential working conditions.
