Article 186 of the Labor Code of the Russian Federation changes. Does anyone understand the labor code? Article 186 on donation. Explanations of the Plenum of the Supreme Court of the Russian Federation
On the day of donation of blood and its components, as well as on the day associated with this medical examination the employee is released from work.
If, by agreement with the employer, the employee went to work on the day of donating blood and its components (with the exception of work with harmful and (or) dangerous working conditions, when the employee’s going to work on this day is impossible), he is provided, at his request, with another day of rest.
In the case of donating blood and its components during the period of annual paid leave, on a day off or a non-working holiday, the employee is given another day of rest at his request.
After each day of donating blood and its components, the employee is given an additional day of rest. The specified day of rest, at the request of the employee, can be added to the annual paid leave or used at other times within a year after the day of donation of blood and its components.
When donating blood and its components, the employer retains for the employee his average earnings for the days of donation and the days of rest provided in connection with this.
Commentary to Art. 186 Labor Code of the Russian Federation
1. In the case of donating blood and its components, employees have the right not only to guarantees and compensation provided in accordance with this article, but also to other social support measures provided for in Art. Art. 10, 11 of the Law of the Russian Federation of June 9, 1993 N 5142-1 “On the donation of blood and its components” (Air Force of the Russian Federation. 1993. N 28. Art. 1064).2. The procedure for medical examination of a blood donor and its components was approved by Order of the Ministry of Health of Russia dated September 14, 2001 N 364 (BNA RF. 2001. N 46).1. A person who voluntarily donates blood and its components for medicinal purposes is a donor. Donation of blood and its components is a freely expressed voluntary act. It is divided into the following types: blood donation, plasma donation, incl. immune plasma donation and plasma donation for fractionation, blood cell donation. Taking blood and its components from a donor is permissible only if the donor’s health is not harmed. Government departments Russian Federation encourage and support the development of voluntary gratuitous (free) donation.
2. The legal status of donors, in addition to Article 186 of the Labor Code of the Russian Federation, is determined by the Law of the Russian Federation “On the donation of blood and its components.”
3. Every capable citizen over the age of 18 who has undergone a medical examination can be a donor of blood and its components. A medical examination of the donor before donating blood and the issuance of certificates about his state of health are free of charge. Depending on the frequency of donating blood and its components, donors are divided into the following categories: active (cadre) donors who have 3 or more blood (plasma, cyto) donations per year, and reserve donors who have less than 3 blood (plasma, cyto) donations per year. year. Medical examination of the donor is carried out in health care organizations that procure, process, store and ensure the safety of donor blood and its components.
The procedure for medical examination of a blood donor and its components was approved by Order of the Ministry of Health of Russia dated September 14, 2001 N 364 (BNA RF. 2001. N 46). Each time a donor is taken, the donor is subject to a mandatory medical examination to detect HIV infection (The rules for conducting a mandatory medical examination to detect the human immunodeficiency virus (HIV infection) are approved by Decree of the Government of the Russian Federation of October 13, 1995 N 1017 // SZ RF. 1995. N 43. Art. 4070).
On the day of donation of blood and its components, as well as on the day of the medical examination, the donor is exempt from working in the organization, regardless of its form of ownership.
The employee’s attendance at work on the day of blood donation is determined by an agreement between the employee and the employer, which must be drawn up in writing. In this case, the employee is given another day of rest at his request. If an agreement is not reached, the employee does not go to work on the day of blood donation. It is not allowed to enter into an agreement with an employee engaged in heavy work and work with harmful and (or) dangerous working conditions; it is impossible for him to go to work on this day.
If the day of blood donation coincides with a weekend, a non-working holiday, or falls during the period of annual leave, then the employee has the right to choose whether to take another day of rest or not (Part 3 of Article 186 of the Labor Code of the Russian Federation).
In addition, the employee is given an additional day of rest after each day of donating blood and its components. He has the right to add this day to the annual paid leave (main, additional) or use it at other times during the year after the day of blood donation.
4. The guarantee that an employee will retain his average earnings for the days he donates blood and its components and that days of rest will be provided in connection with this applies to all employees, regardless of whether they donated blood and its components free of charge or on a paid basis.
5. In accordance with the procedure established by the legislation of the Russian Federation, the donor is compensated for damage caused to him by damage to his health in connection with his performance of the donor function, including the costs of treatment, medical and social examination, social, labor and professional rehabilitation. The donor's disability that occurs in connection with his performance of donor functions is equal to the disability that occurs as a result of a work injury (Article 8 of the Law on Donation).
6. On the day of blood donation, the donor is provided with free food at the expense of the budget that provides financial support to the health care organization engaged in the procurement of donor blood (Article 9 of the Law on Donation).
A donor who donates blood and (or) its components in a total amount equal to two maximum permissible doses during the year is provided with the following additional measures of social support: during the year - temporary disability benefits for all types of diseases in the amount of full earnings, regardless of length of service ; during the year - priority allocation at the place of work of preferential vouchers for sanatorium and resort treatment (Article 10 of the Law on Donation).
When applying Article 186 of the Labor Code of the Russian Federation, it should be taken into account that citizens who donate free blood 40 or more times or plasma 60 or more times are awarded the “Honorary Donor of Russia” badge. federal body executive power, which develops state policy and normative legal regulation in the field of healthcare, in the manner established by the specified federal executive body, and have the right to: extraordinary treatment in state or municipal healthcare organizations within the framework of the State Guarantees Program for providing citizens of the Russian Federation with free medical care; priority purchase at the place of work or study of preferential vouchers for sanatorium and resort treatment; provision of annual paid leave at a time convenient for them; annual cash payment in the amount of 6 thousand rubles. in the manner established by the specified federal executive body. Funds for this payment in the form of a subvention to the budgets of the constituent entities of the Russian Federation, as well as the size and timing of its indexation are provided federal law on the federal budget for the corresponding year. Citizens of the Russian Federation awarded the "Honorary Donor of the USSR" badge enjoy all the social support measures defined for citizens awarded the "Honorary Donor of Russia" badge (Article 11 of the Donation Law).
Providing annual cash payment citizens awarded the “Honorary Donor of Russia” (“Honorary Donor of the USSR”) badge does not exclude the possibility of them receiving a monthly cash payment established for them on other grounds (disabled person, veteran, etc.).
7. Decree of the Government of the Russian Federation of August 26, 1995 N 842 approved the Regulations on the badge “Honorary Donor of Russia” (SZ RF. 1995. N 36. Art. 3549).
The rules for awarding citizens with the “Honorary Donor of Russia” badge and the Rules for providing an annual cash payment to citizens awarded the “Honorary Donor of Russia” badge were approved by Decree of the Government of the Russian Federation of November 19, 2004 N 663 (SZ RF. 2004. N 48. Art. 4793).
8. The Russian Federation transfers to the state authorities of the constituent entities of the Russian Federation the authority to provide social support measures to citizens awarded the “Honorary Donor of Russia” badge.
State authorities of the constituent entities of the Russian Federation, bodies local government has the right, within the limits of its competence and available funds, to make decisions on additional measures of social support for donors. State authorities of the constituent entities of the Russian Federation have the right to empower local self-government bodies by the laws of the constituent entities of the Russian Federation to provide social support measures to citizens awarded the sign “Honorary Donor of Russia” (Article 11 of the Law on Donation).
Subjects of the Russian Federation establish the following measures of social support for donors. Citizens awarded the sign “Honorary Donor of Russia” or “Honorary Donor of the USSR”, in accordance with the Moscow Law of November 3, 2004 N 70 “On measures of social support for certain categories of residents of the city of Moscow” (Vedomosti of the Moscow City Duma. 2004. N 12. Art. 299) is provided:
- 1) the right to free travel in the city of Moscow on all types of urban passenger transport (except taxis and minibuses);
- 2) free production and repair of dentures (except for the costs of paying for the cost of precious metals and metal-ceramics) for medical reasons;
- 3) 50% discount on payment utilities in accordance with the procedure established by the Moscow Government. They are also given a 50 percent discount when paying for medicines according to doctors’ prescriptions (Order of the Moscow Government dated August 10, 2005 N 1506-RP “On the implementation of social support measures for certain categories of residents of the city of Moscow for the provision of medicines and medical products sold by doctors' prescriptions free of charge or with a 50 percent discount" // Bulletin of the Mayor and Government of Moscow. 2005. N 56; Law of St. Petersburg of October 10, 2005 N 487-73 "On preferential provision of medicines and free dental prosthetics for certain categories residents of St. Petersburg" // Bulletin of the Legislative Assembly of St. Petersburg. 2005. N 12). The right to purchase a discount ticket for travel on public transport, the right to support in paying for housing and communal services in kind are also provided for in the Decree of the Government of the Kabardino-Balkarian Republic of July 29, 2005 N 269-PP “On social support for citizens awarded the badge “Honorary Donor of Russia” (Kabardino-Balkarian Pravda. 2005. N 205), etc.
Good afternoon.
This is not the first year I have been donating blood, and recently I have been faced with what I consider to be inadequate compliance with Article 186 of the Labor Code of the Russian Federation on the part of the employer.
The essence of the problem is that my working day is 11.5 hours (both day and night) and after receiving 2 donor certificates after donating blood, I expect 2 days off for 11.5 hours each. each. The immediate supervisor agrees to only one day and at the same time demands both certificates for him. Motivating his actions allegedly by the fact that the Ministry of Health of the Russian Federation includes in the concept of “rest day” an 8-hour working day, and not 11.5 hours. Therefore, one certificate is not enough.Labor Code of the Russian Federation
PART THREE
Section VII. GUARANTEES AND COMPENSATIONS
Chapter 28. OTHER GUARANTEES AND COMPENSATIONS
Article 186. Guarantees and compensation to employees in case they donate blood and its componentsOn the day of donation of blood and its components, as well as on the day of the associated medical examination, the employee is released from work.
If, by agreement with the employer, the employee went to work on the day of donating blood and its components (with the exception of heavy work and work with harmful and (or) dangerous working conditions, when the employee’s going to work on this day is impossible), he is provided with his desire is another day of rest.
In the case of donating blood and its components during the period of annual paid leave, on a day off or a non-working holiday, the employee is given another day of rest at his request.
After each day of donating blood and its components, the employee is given an additional day of rest. The specified day of rest, at the request of the employee, can be added to the annual paid leave or used at other times within a year after the day of donation of blood and its components.
(as amended by Federal Law No. 90-FZ of June 30, 2006)
When donating blood and its components, the employer retains for the employee his average earnings for the days of donation and the days of rest provided in connection with this.
(as amended by Federal Law dated August 22, 2004 N 122-FZ)
Commentary on Article 186 of the Labor Code
1. A person who voluntarily donates blood and its components for medicinal purposes is a donor. Donation is a freely expressed voluntary act. It is divided into the following types: blood donation, plasma donation, incl. immune, blood cell donation. Donation can be free or paid.
2. Legal status of donors in addition to Art. 186 of the Labor Code is determined by the Donation Law.
3. Every capable citizen aged 18 to 60 years who has undergone a medical examination can be a donor of blood and its components. A medical examination of the donor before donating blood and the issuance of certificates about his state of health are free of charge. The procedure for medical examination of a blood donor and its components was approved by Order of the Ministry of Health of Russia dated September 14, 2001 N 364 (RG. 2001. November 13. N 222).
On the day of donation of blood and its components, as well as on the day of the medical examination, the donor is exempt from working in the organization, regardless of its form of ownership.
The employee’s attendance at work on the day of blood donation is determined by an agreement between the employee and the employer, which must be drawn up in writing. In this case, the employee is given another day of rest at his request. If an agreement is not reached, the employee does not go to work on the day of blood donation. It is not allowed to enter into an agreement with an employee engaged in heavy work and work with harmful and (or) dangerous working conditions; it is impossible for him to go to work on this day.
If the day of blood donation coincides with a weekend, a non-working holiday, or falls during the period of annual leave, then the employee has the right to choose whether to take another day of rest or not.
In addition, the employee is given an additional day of rest after each day of donating blood and its components. He has the right to add this day to the annual paid leave (main, additional) or use it at other times during the calendar year after the day of blood donation.
4. Part 5 Art. 186 of the Labor Code establishes that the guarantee of maintaining an employee’s average earnings and providing rest days in connection with this applies to those employees who donated blood and its components free of charge.
In the case of donating blood and its components during the period of annual leave, on a day off or a non-working holiday, and in the absence of the donor’s desire to take another day of rest, the average salary for the day of donating blood and its components is maintained at least double.
5. A donor who donates blood and (or) its components free of charge during the year in a total amount equal to two maximum allowable doses is provided with additional benefits, namely: during the year - temporary disability benefits for all types of diseases in the amount of full earnings regardless from work experience; during the year - treatment in state or municipal health care institutions at the expense of the relevant budgets; during the year - priority allocation at the place of work of preferential vouchers for sanatorium and resort treatment. Subjects of the Russian Federation have the right to provide donors with other additional benefits (Article 10 of the Donation Law).
Citizens awarded the "Honorary Donor of Russia" badge have the right to: priority treatment in state or municipal healthcare institutions; free production and repair of dentures (except for dentures made of precious metals) in state or municipal health care institutions; preferential purchase of medicines (with a discount of 50% of their cost) according to government or government prescriptions municipal institutions healthcare; priority purchase at the place of work of preferential vouchers for sanatorium and resort treatment; provision of annual paid leave at a time convenient for them; free travel on all types of public transport (except taxis) in urban, suburban and rural areas, as well as on road transport public use (except for taxis) of intercity traffic in the manner and under the conditions determined by the Government of the Russian Federation; reduction of utility bills by up to 50%; obtaining preferential loans for individual housing construction. Citizens of the Russian Federation awarded the "Honorary Donor of the USSR" badge enjoy all the benefits provided to citizens awarded the "Honorary Donor of Russia" badge (Article 11 of the Donation Law).
The Decree of the Government of the Russian Federation of August 26, 1995 N 842 approved the Regulations on the badge “Honorary Donor of Russia” (SZ RF. 1995. N 36. Art. 3549). The procedure for nominating a citizen of the Russian Federation for the award of the “Honorary Donor of Russia” badge and its presentation is determined by Order of the Ministry of Health of Russia dated October 8, 2002 No. 299 (BNA. 2002. No. 49).
Additional benefits to the donor are provided on the basis of standard certificates issued by healthcare institutions. Certificates are documents strict reporting and are stored in human resources departments or with authorized persons in organizations at the donors’ main place of work.
Article 11 of the Donation Law does not indicate by what means such benefits are provided. A gap in the legislative regulation on the procedure for reimbursement of expenses associated with the provision of benefits to persons awarded the “Honorary Donor of Russia” badge is not a basis for refusing to satisfy them. According to the position of the Constitutional Court of the Russian Federation, until the legal relations arising in this case are properly settled by federal law, which provides for the distribution of expenses between budgets of all levels, the provision of benefits should be carried out at the expense of the federal budget.
This does not interfere with the constituent entities of the Russian Federation and municipalities and until the settlement this issue the federal legislator to provide in his laws (decisions) on budgets the necessary funds to finance the benefits provided to persons awarded the “Honorary Donor of Russia” badge, with subsequent submission of demands for partial reimbursement of the corresponding expenses from the federal budget (Decision of the Constitutional Court of the Russian Federation of April 9 2002 at the request of the Arbitration Court of the Republic of Karelia to verify the constitutionality of paragraph 5 of Article 83 of the Budget Code of the Russian Federation, Articles 4 and 11 of the Law of the Russian Federation “On the donation of blood and its components 2002. N 29. Art.
New edition of Art. 186 Labor Code of the Russian Federation
On the day of donation of blood and its components, as well as on the day of the associated medical examination, the employee is released from work.
If, by agreement with the employer, the employee went to work on the day of donating blood and its components (with the exception of work with harmful and (or) dangerous working conditions, when the employee’s going to work on this day is impossible), he is provided, at his request, with another day of rest.
In the case of donating blood and its components during the period of annual paid leave, on a day off or a non-working holiday, the employee is given another day of rest at his request.
After each day of donating blood and its components, the employee is given an additional day of rest. The specified day of rest, at the request of the employee, can be added to the annual paid leave or used at other times within a year after the day of donation of blood and its components.
When donating blood and its components, the employer retains for the employee his average earnings for the days of donation and the days of rest provided in connection with this.
Commentary on Article 186 of the Labor Code of the Russian Federation
The employee donating blood is given a leave of absence from work for the day (on which the blood donation took place). At the same time, the average earnings for this day (days) are preserved.
Another comment on Art. 186 Labor Code of the Russian Federation
1. Blood donors are persons who voluntarily donate blood and its components (plasma, including immune plasma, as well as blood cells). In accordance with Part 4 of Art. 1 of the Law of the Russian Federation of June 9, 1993 N 5142-1 (as amended on December 29, 2006) “On the donation of blood and its components,” any capable person over the age of 18 who has undergone a medical examination can be a donor.
2. Employees who donate blood and its components are provided with the following guarantees:
Exemption from work on the day of donating blood and its components, as well as on the day of the associated medical examination;
Providing another day of rest if the employee went to work on the day of donating blood and its components;
Providing another day of rest in case of donating blood and its components during the period of annual paid leave, on a day off or a non-working holiday;
Providing extra day rest after each day of donating blood and its components, or adding these days to annual paid leave, or using them at other times.
3. Providing donors with the specified guarantees is mandatory for employers (Article 6 of the Law of the Russian Federation “On the Donation of Blood and Its Components”).
4. On the day of the medical examination related to the donation of blood and its components, the employee must be released from work. The procedure for medical examination of donors was approved by Order of the Ministry of Health of Russia dated September 14, 2001 N 364 (BNA. 2002. N 1). It involves the appearance of the donor for examination in the department (office) of registration and staffing of donor staff of blood transfusion stations, the department (office) of blood transfusion of medical institutions and excludes the appearance of the donor on the day of the examination at work.
5. On the day of donation of blood and its components, the donor, by agreement with the employer, can go to work. This possibility is excluded in cases where the employee is engaged in heavy work and work with harmful and (or) dangerous working conditions.
If an employee goes to work on the day of blood donation, he is given another day of rest. Providing another day of rest is carried out at the request of the employee. The employee must notify the employer in advance about the time of use of this day. Unauthorized use of another day of rest for the specified reason should be considered a violation of labor discipline, but such a violation is not absenteeism. To avoid misunderstandings, it is advisable to determine the time of using another day of rest (or the procedure for notifying the employer about the time of using this day) upon reaching an agreement between the donor and the employer about the donor going to work on the day of blood donation.
6. Since when donating blood and its components during the period of annual paid leave, on weekends and non-working holidays Providing another day of rest is the responsibility of the employer; the employee’s desire determines only the time of use, and not the very fact of providing such a day.
7. Additional days of rest after each day of blood donation can either be used immediately following the day of blood donation, or added to annual paid leave, or used at any other time during the calendar year. The right to choose when to use these days belongs to the employee, however, he must notify the employer in advance of his desire to add them to his vacation, at least before the next blood donation.
The use of these days is possible throughout the year, i.e. 365 days from the date of blood donation. In this case, the employee must also notify the employer of his intention in advance.
8. Guarantees in the form of release from work and additional days of rest, as well as compensation in the form of maintaining average earnings for days of blood donation and additional days of rest are provided to all donors, regardless of whether they donate blood and its components for a fee or free of charge.
For the procedure for calculating average earnings, see Art. 139 of the Labor Code of the Russian Federation and commentary to it.
On the day of donation of blood and its components, as well as on the day of the associated medical examination, the employee is released from work.
If, by agreement with the employer, the employee went to work on the day of donating blood and its components (with the exception of work with harmful and (or) dangerous working conditions, when the employee’s going to work on this day is impossible), he is provided, at his request, with another day of rest.
In the case of donating blood and its components during the period of annual paid leave, on a day off or a non-working holiday, the employee is given another day of rest at his request.
After each day of donating blood and its components, the employee is given an additional day of rest. The specified day of rest, at the request of the employee, can be added to the annual paid leave or used at other times within a year after the day of donation of blood and its components.
When donating blood and its components, the employer retains for the employee his average earnings for the days of donation and the days of rest provided in connection with this.
Commentary to Art. 186 Labor Code of the Russian Federation
1. In the case of donating blood and its components, employees have the right not only to guarantees and compensation provided in accordance with this article, but also to other social support measures provided for in Art. Art. 10, 11 of the Law of the Russian Federation of June 9, 1993 N 5142-1 “On the donation of blood and its components” (Air Force of the Russian Federation. 1993. N 28. Art. 1064).
2. The procedure for medical examination of a blood donor and its components is approved by Order of the Ministry of Health of Russia dated September 14, 2001 N 364 (BNA RF. 2001. N 46).
Second commentary to Article 186 of the Labor Code
1. This article establishes guarantees and compensation for employees in the event that they donate blood and its components, related to the release of the employee from work and the preservation of his average earnings for such days.
The right to be released from work on the day of a medical examination and on the day of donating blood and its components is absolute, and therefore the employer is obliged to release the employee from work on these days. If the employer refuses to do this, the latter has the right not to go to work, which cannot be qualified as absenteeism without good reason.
2. An employee who, by agreement with the employer, went to work on the day of donating blood and its components, retains the right to another day of rest, provided at his request. Another day of rest at the request of the employee is also provided in cases where he donated blood and its components during the period of annual paid leave, on a day off or a non-working holiday. In practice, the question often arises whether the employer is obliged to provide rest on the very day that the employee requests. Obviously, the employer must satisfy this request if the employee contacts him in advance, and does not expose the employer to the fact of absenteeism due to the use of the rest days due to him. Rest days are provided by the employer.
3. An additional day of rest, to which the employee has the right after each day of donating blood and its components, at the request of the employee is added to the annual paid leave or is used by him within a year after the day of donating blood and its components.
IN new edition The article provides for the possibility for an employee to use an additional day of rest during the year, i.e. no later than 12 months after the day of donation of blood and its components. In the previous version, the employee could exercise this right during the calendar year, which, as is known, begins on January 1 and ends on December 31. This formulation practically excluded the possibility of using an additional day of rest by those who did not manage to use it before December 31, regardless of when the right to such rest arose (for example, only in December).
4. The second fundamentally important change made to this article is that the legislator obliges each employer to retain for the employee his average earnings for the days of donating blood and its components and the days of rest provided in connection with this, regardless of whether the employee performed donor functions on a paid or gratuitous basis.