Question: What is the working time for a pharmacist (pharmacist) - a front desk worker who dispenses prescription and over-the-counter drugs? Are their working conditions hazardous and are they entitled to additional leave for working under these conditions? If their work is associated with harmful factors, why is this category of workers not subject to mandatory periodic medical examination (Order No. 90 of March 14, 1996 of the Ministry of Health and Medical Industry of the Russian Federation “On the procedure for conducting preliminary and periodic medical examinations of workers and medical regulations for admission to the profession ", Order No. 83 of August 16, 2004 of the Ministry of Health and Social Development of the Russian Federation "On approval of lists of harmful and (or) hazardous production factors and work, during which preliminary and periodic medical examinations (examinations) are carried out, and the procedure for conducting these examinations (examinations)")? (“Regulatory acts and comments for pharmacy”, 2007, n 4)

"Regulatory acts and comments for pharmacy", 2007, N 4
Question: What is the working time for a pharmacist (pharmacist) - a front desk worker who dispenses prescription and over-the-counter drugs? Are their working conditions hazardous and are they entitled to additional leave for working under these conditions? If their work is associated with harmful factors, why is this category of workers not subject to mandatory periodic medical examination (Order No. 90 of March 14, 1996 of the Ministry of Health and Medical Industry of the Russian Federation “On the procedure for conducting preliminary and periodic medical examinations of workers and medical regulations for admission to the profession ", Order No. 83 of August 16, 2004 of the Ministry of Health and Social Development of the Russian Federation "On approval of lists of harmful and (or) hazardous production factors and work, during which preliminary and periodic medical examinations (examinations) are carried out, and the procedure for conducting these examinations (examinations)")?
Answer: For workers engaged in work with harmful and (or) dangerous working conditions, the Labor Code of the Russian Federation establishes a number of benefits: reduced working hours - no more than 36 hours per week (Article 92), additional paid leave (Article 117), increased remuneration (Article 147). The Labor Code of the Russian Federation provides for a number of measures aimed at protecting the health of such workers: they must be provided with special clothing and footwear and other personal protective equipment, flushing and neutralizing agents in accordance with established standards (Article 212), and periodic medical examinations must be carried out (Article 213 ).
The procedure for reducing working hours, the minimum duration of annual additional paid leave and the conditions for its provision must be established by the Government of the Russian Federation. To date, documents regulating these issues have not been approved. In such cases, according to Article 423 of the Labor Code of the Russian Federation, it is possible to apply regulatory legal acts issued before the adoption of the Labor Code of the Russian Federation, insofar as they do not contradict it.
Resolution of the USSR State Labor Committee and the Presidium of the All-Union Central Council of Trade Unions dated October 25, 1974 N 298/P-22 approved 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. Resolution of the State Committee for Labor of the USSR, All-Union Central Council of Trade Unions dated November 21, 1975 N 273/P-20 approved the Instructions for its use.
Paragraph 4 of the Instructions for the application of this List states that the right to additional leave and a shortened working day is available to workers, engineering and technical workers and employees whose professions and positions are provided for in production and workshops in the relevant sections of the List, regardless of what industry farms are located these production and workshops. That is, the obligation to provide additional leave for harmful working conditions falls on all employers - pharmacy managers. If such leave is not provided, in our opinion, the employee has a great chance of confirming his right to benefits in court.
Employees of pharmacies, in addition to those engaged exclusively in the dispensing of over-the-counter drugs and other pharmaceutical products, have a six-hour working day (clause 137 of the List). According to the Instructions for the application of the above List, a shortened working day of the duration specified in the List is established for employees only on those days when they were employed in hazardous working conditions for at least half of the shortened working day established for employees of a given production, workshop, profession or position (clause 19 Instructions).
According to the section on pharmacies of the same List, all pharmacy employees are entitled to additional leave - 12 working days. The length of service that gives the right to additional annual paid leave for work under harmful and (or) dangerous working conditions includes only the time actually worked in such conditions (Article 121 of the Labor Code of the Russian Federation). Consequently, the organization needs to organize separate accounting of working hours that give the right to such leaves.
Of course, in many ways these documents are outdated and do not correspond to currently existing working conditions. If previously prescription drugs were mainly prepared in pharmacies, now prescriptions are written mainly for finished dosage forms, the packaging of finished drugs has become more airtight, and strict requirements are imposed on the storage of drugs. Thus, classifying pharmacy workers as workers exposed to harmful or hazardous production factors raises many questions.
The Labor Code of the Russian Federation imposes the obligation on the employer to ensure safe conditions and labor protection, incl. carrying out certification of workplaces according to working conditions with subsequent certification of the organization of work on labor protection (Article 212). Such certification is carried out in accordance with the Regulations approved by the Resolution of the Ministry of Labor of the Russian Federation dated March 14, 1997 N 12. When conducting workplace certification, the parameters of harmful and dangerous production factors are measured, and indicators of the severity and intensity of the labor process are determined. The certification results are used, among other things. and to justify the provision of benefits and compensation to employees, to include working conditions for employees in individual and collective labor contracts and to familiarize the employee with working conditions in the workplace, to justify the organization’s expenses for medical examinations.
In 2005, as a result of the changes made, work in pharmacy organizations related to the manufacture, packaging and sale of medicines was included in the List of works during which preliminary and periodic medical examinations are carried out, approved by Order of the Ministry of Health and Social Development of the Russian Federation dated August 16, 2004 N 83.
It should be noted that in the field of conducting such medical examinations, the Ministry of Health adopted several documents at different times. The last of these was the above order. In its letter dated January 13, 2005 N 0100/63-05-32, Roszdravnadzor indicated regarding the application of this order and previously adopted documents, in particular Order N 90 dated March 14, 1996, that Order of the Ministry of Health and Social Development of the Russian Federation dated August 16, 2004 N 83 does not cancel the existing orders (N N 90 1996; 555 1989; 405 1996), regarding issues not reflected in it. Thus, the absence of this category of workers in the list of Order No. 90 of March 14, 1996 is compensated by the inclusion of this category in the List approved by Order of the Ministry of Health and Social Development of the Russian Federation of August 16, 2004 N 83.
Legal consultant of legal
Unico-94 company
N.I.STRELKINA
Signed for seal
16.02.2007

CHAPTER 4 WORKING TIME AND REST TIME OF HEALTHCARE WORKERS

CHAPTER 4 WORKING TIME AND REST TIME OF HEALTHCARE WORKERS

One of the basic institutions of labor law is working time.

This institution provides legal means for the production process and also regulates the participation of workers in it. The Labor Code contains a separate section IV “Working time”. Article 1 of this section for the first time introduces the concept of the term “working time” in the form of a legislative act.

Work time -this is the time during which the employee, in accordance with the internal labor regulations of the organization and the terms of the employment contract, must perform labor duties, as well as other periods of time that, in accordance with laws and other regulatory legal acts, relate to working time.

Human work always takes place in time. For all types of labor, the common measure of the amount expended is always working time. The labor activity of a person is subject to legal regulation, in which his work is carried out in accordance with an employment contract.

The Labor Code of the Russian Federation proceeds from the fact that normal working hours cannot exceed 40 hours. The Code and other federal laws may establish reduced working hours for certain categories of workers (teaching, medical and

etc.).

Working time consists of the time actually worked by the employee during the day (shift). Other periods of time equivalent to working hours, when the employee did not actually fulfill his job duties, include: breaks for feeding the child (Article 258 of the Labor Code of the Russian Federation); special rest breaks determined by the organization of work; duty at home.

To solve the tasks assigned to health authorities and institutions, the effective use of working time plays an important role.

Healthcare workers based on working hours can be divided into the following categories: a) with normal working hours; b) with reduced working hours; c) with work outside the normal working hours on the initiative of the employee himself (overtime work, irregular working hours, part-time work, both external and internal)

The specificity of the legal regulation of the working hours of medical workers is manifested in the fact that the chief physician, his deputies,

chief nurse, chief accountant, heads of pharmacies, individual services and departments, junior medical personnel (not working in facilities with hazardous working conditions), service personnel, in accordance with production needs determined by the interests of the medical institution, are involved in the performance of their labor duties outside normal working hours. For them it is applied irregular working hours. The list of employees of a medical institution with irregular working hours is established by a collective agreement, agreement or internal labor regulations of the institution (Article 101 of the Labor Code of the Russian Federation). For the vast majority of medical workers, reduced working hours are provided (TB doctor, physiotherapist, dentist, etc.)

Article 350 of the Labor Code of the Russian Federation stipulates that for medical workers a reduced working time is established - no more than 39 hours per week. Depending on the position, the working hours of medical workers are determined by a decree of the Government of the Russian Federation, for example a decree? 101 of February 14, 2003 “On the working hours of medical workers depending on their position and (or) specialty” (as amended on February 1, 2005).

The introduction of reduced working hours for medical personnel is due, in particular, to the following factors:

1) the presence of medical workers in harmful, often life-threatening working conditions (contacts with infectious diseases, mental patients, work on X-ray machines, work with contaminated blood, etc.);

2) work with special neuropsychic stress caused by a sense of responsibility for human life and health;

3) high intensity of work of medical workers, requiring significant physical stress.

There are several types of reduced working hours for healthcare workers. So, according to Art. 92 of the Labor Code of the Russian Federation, for workers (including medical workers) engaged in work with harmful and (or) dangerous working conditions, the normal working time is set to no more than 36 hours per week.

The Constitution of the Russian Federation enshrines right to rest and leisure, including the right to a reasonable limitation of working hours and to periodic paid leave. This right is one of the socio-economic rights and is one of the fundamental human rights.

The rules governing the right to rest are included in Section V of the Labor Code of the Russian Federation. According to Art. 106 TK, Time relax- this is the time during which the employee is free from performing work duties and which he can use at his own discretion. The main goal of legal regulation of rest time is, firstly, to ensure

limitation of working hours established by law and, secondly, in creating conditions for employees to actually use their free time.

However, this rule of law does not provide for these guarantees for everyone, since, based on the fundamental principles of equality enshrined in the Constitution of the Russian Federation, the principle of freedom of labor does not allow the state to regulate the working hours of persons who are not working for hire.

A person working under an employment contract is guaranteed the length of working hours established by federal law, weekends and holidays, paid annual leave, and the employer, in turn, is obliged to provide the employee with conditions for exercising his right to rest.

Thus, during the working day (shift), the employee must be given a break for rest and food lasting no more than 2 hours and no less than 30 minutes, which is not included in working hours.

The Labor Code of the Russian Federation defines such types of rest time, as breaks during the working day (shift), daily (between shifts) rest, weekends and non-working holidays, vacations.

The time for granting a break and its specific duration are established by the internal labor regulations of the organization or by agreement between the employee and the employer.

At jobs where, due to production (work) conditions, it is impossible to provide a break for rest and food, the employer is obliged to provide the employee with the opportunity to rest and eat food during working hours. The list of such work, as well as places for rest and eating, are established by the internal labor regulations of the organization.

In addition, for certain types of work, special breaks are provided for heating and rest. The types of these works, the duration and procedure for providing such breaks are established by the internal labor regulations of the organization (Article 109 of the Labor Code of the Russian Federation). According to established practice, as a rule, people who work part-time work without a break for rest and food.

According to Art. 111 of the Labor Code of the Russian Federation for employees, either a 5-day working week with 2 days off, or a 6-day work week with 1 day off can be established. The general day off is Sunday. The second day off in a 5-day work week is established by a collective agreement or the internal labor regulations of the organization. Both days off are provided, as a rule, in a row, while the duration of weekly uninterrupted rest cannot be less than 42 hours (Article 110 of the Labor Code of the Russian Federation), and involvement in work on weekends and non-working holidays is prohibited, except for the exceptional cases listed in Art. . 113 Labor Code of the Russian Federation.

Article 112 of the Labor Code of the Russian Federation establishes 11 non-working holidays per year, work on which is allowed only in certain organizations. This provision of the law provides that if a day off coincides with a non-working holiday, the day off is transferred to

the next working day after the holiday. At the same time, in order to rationally use weekends and non-working holidays by employees, the Government of the Russian Federation has the right to transfer weekends to other days.

As for the conditions of remuneration and the provision of another day of rest for work on a weekend or non-working holiday, then in accordance with Art. 153 of the Code, work on weekends and non-working holidays must be paid at least double the amount. In addition, this provision also provides for the right of an employee to use another day of rest for working on a day off or a non-working holiday. In this case, work on a non-working holiday is paid in a single amount, and the day of rest is not subject to payment.

The requirements of the above norm of the Law also apply to persons working in organizations with shift work.

It is necessary to take into account that the specificity of the work of medical institutions lies in the fact that different categories of workers work here, some with a 5-day work week, others with a 6-day work week, and some categories of medical personnel work in institutions that operate permanently ( such as ambulance and emergency stations, hospitals, outpatient clinics). Therefore, due to the need for constant uninterrupted service to the population, days off are provided on different days of the week in accordance with the work schedule and internal labor regulations.

In some cases, the employer, by agreement with the trade union committee, may provide additional paid days off, which are fixed in the collective agreement or agreement between the employer and employees.

The Constitution of the Russian Federation guarantees the right to paid annual leave to all persons working under an employment contract. All employees have this right, regardless of their place of work and the organizational and legal form of the institution. This right of workers is not limited in any way. The main and only condition is the labor relationship between the employee and the employer. The employment contract of each employee guarantees the right to annual paid leave, regardless of the degree of employment, place of performance of work duties, position held, form of payment, or term of the employment contract.

Vacation -This is an annual continuous rest for a certain number of days in a row, which is provided to all employees to restore their working capacity while maintaining their place of work (position) and average earnings.

Annual paid leave is provided once in each year of work. The working year is calculated from the moment the employee concludes an employment contract. During the period when the employee is on annual paid leave, the employer cannot dismiss him on his own initiative, except in cases of liquidation of the organization or when the activities of the employer - an individual - have ceased (Article 81 of the Labor Code of the Russian Federation). At the same time, the employee himself has the right, while

on annual paid leave, submit a resignation letter to the employer. During the vacation, the employee receives payment. The payment is made in accordance with Article 136 of the Labor Code of the Russian Federation on the eve of the employee going on vacation, but no later than 3 days before it starts. An employee on leave retains his seniority and all benefits. Also, during vacation, transfer to another job is not allowed and any changes in working conditions are generally not allowed.

The time of annual paid leave is included in the employee’s total and continuous work experience, as well as in the length of service giving the right to annual paid leave.

The number of calendar days of vacation (Article 112 of the Labor Code of the Russian Federation) does not include non-working days and holidays if they fall during the vacation period. But on the basis of Art. 120 of the Labor Code of the Russian Federation, Sunday is included in the number of calendar days of vacation.

The minimum duration of annual paid leave is at least 28 calendar days (Article 115 of the Labor Code of the Russian Federation). Until 2002, an employee was granted regular leave only after he had worked for 11 months. In the current Labor Code (in accordance with Article 122), the right to use vacation for the first year of work arises for the employee after 6 months of continuous work with this employer. According to Part 1 of Art. 123 of the Labor Code of the Russian Federation, the order of provision of paid leave is determined annually in accordance with vacation schedule, approved by the employer, taking into account the opinion of the elected trade union body of this organization. Part 2 of Art. 123 of the Labor Code establishes that the vacation schedule is mandatory for both the employer and the employee. The employee must be notified of the start time of the vacation against signature no later than 2 weeks before it begins. If an employee wants to split his vacation time into parts, this can be done by mutual agreement with the employer. In this case, one part of the vacation must be at least 14 days.

Failure to provide annual paid leave for 2 years in a row is prohibited, as well as failure to provide annual paid leave to employees under the age of 18 and employees engaged in work with harmful and (or) dangerous working conditions (Part 7 of Article 124

Labor Code of the Russian Federation).

All vacations are divided into basic (regular) and additional annual vacations. Other types of vacations provided for by the Labor Code of the Russian Federation are not rest periods and have a different purpose. These include: leave without pay (Articles 128, 263 of the Labor Code of the Russian Federation); educational leave for employees combining work with training (Articles 173-177 of the Labor Code of the Russian Federation); parental leave (Article 256 of the Labor Code of the Russian Federation) and

etc.

Annual additional paid holidays differ from the main paid leave in duration, procedure for provision and basis. While basic paid leave is guaranteed to an employee regardless of where he works, additional paid leave is not provided to all employees. This applies primarily to work in certain specialties,

associated with harmful and (or) dangerous working conditions, the special nature of the work, irregular working hours (Article 116 of the Labor Code of the Russian Federation). In some cases, providing additional paid leave is intended to stimulate long-term work in a certain area, i.e. for long work experience. The duration of annual paid leave depends on the basis for its provision.

In accordance with Art. 118 of the Labor Code of the Russian Federation, annual additional paid leave for the special nature of the work is provided to certain categories of employees whose work is related to the specific characteristics of the performance of the labor function, as well as the place of its performance. Thus, in connection with the gradual introduction of the positions of “general practitioner (family doctor)” and “nurse of a general practitioner (family doctor)” into the staff of medical institutions, the Government of the Russian Federation decided to establish an additional 3-day paid annual leave for this category of doctors and nurses for continuous work in these positions for more than 3 years. Medical workers who are directly involved in the provision of anti-tuberculosis care are entitled to additional paid leave of 12 working days.

It is not allowed to replace with monetary compensation annual basic paid leave and annual additional paid leave for pregnant women and employees under the age of 18, as well as for jobs with harmful and (or) dangerous working conditions (with the exception of payment of monetary compensation for unused leave upon dismissal).

In all other cases, when an employee has the right to an extended vacation of more than 28 calendar days or when the total duration of vacation when summing up vacations (main and additional) exceeds 28 calendar days, he has the right to receive monetary compensation for the part of the vacation exceeding the specified amount.

The Labor Code provides that upon dismissal, an employee is paid monetary compensation for all unused vacations (Article 127 of the Labor Code of the Russian Federation). The right to receive leave or monetary compensation is not limited by the statute of limitations.

For family reasons and other valid reasons, an employee, upon his written application, may be provided leave without pay, the duration of which is determined by agreement of the parties.

Article 99 of the Labor Code of the Russian Federation provides a detailed definition of the concept of “overtime work”. Overtime work- this is work performed at the initiative of the employer outside the working hours established for the employee: daily work (shift), and in the case of cumulative accounting of working hours - in excess of the normal number of working hours for the accounting period.

There are two groups of grounds for attracting employees to work overtime. Group 1 includes circumstances when

in which the employer's involvement of workers in overtime work is permitted without their consent. This is the performance of work in emergency conditions (to prevent a natural disaster, catastrophe, industrial accident or eliminate their consequences, etc.). The 2nd group includes circumstances when the employer needs to obtain the written consent of the employee in order to attract overtime work. For example, if it is necessary to carry out (finish) work that has begun, which, due to an unforeseen delay, could not be completed (finished) within the allotted working hours, if failure to complete this work may result in damage or loss of property or pose a threat to the life and health of people.

In some cases, it is possible to be required to work on weekends and non-working holidays with the consent of the employee and taking into account the opinion of the primary trade union organization.

For the first time, the Labor Code of the Russian Federation also established legal norms by which labor relations of persons working part-time are regulated. These norms are reflected in the independent Chapter 44 of the Labor Code of the Russian Federation, which explains this concept. Part-time job - This is the performance by an employee of other regular paid work under the terms of an employment contract in his free time from his main job (Article 282 of the Labor Code of the Russian Federation). Employment contracts are concluded with part-time workers, therefore they are fully covered by labor legislation in those issues that are not regulated by Chapter. 44 Labor Code of the Russian Federation. These are issues related to the term of the employment contract, labor protection, labor discipline, financial responsibility, etc.

For the first time, the legislator described and divided the concepts of part-time work and combining professions (positions). Part-time work can be both internal and external. An employee has the right to enter into employment contracts to perform other regular paid work in his free time from his main job with the same employer (internal part-time job) or with another employer - external part-time job (Article 60.1 of the Labor Code of the Russian Federation).

With the written consent of the employee, he may be entrusted with performing, during the established duration of the working day, along with the work specified in the employment contract, additional work in a different or the same profession (position) for an additional fee (Article 151 of the Labor Code of the Russian Federation). That is, the legislator has expanded the possibilities of the parties to the employment contract: for the employee it is an opportunity to receive additional payment for additional work, and for the employer it is to ensure uninterrupted work without attracting new employees, which is especially important in healthcare institutions.

Internal part-time work is characterized by the fact that the employee works for the same employer. An employment contract is concluded with the employee, in addition to the main employment contract. The employee also has the right to enter into an employment contract with another employer to work on an external part-time basis in another institution. A special decree of the Government of the Russian Federation dated April 4, 2003 is devoted to these issues? 197 “On the peculiarities of part-time work

pedagogical, medical, pharmaceutical and cultural workers.”

Thus, medical workers have the right to carry out part-time work (Article 151 of the Labor Code of the Russian Federation), i.e. perform other regular paid work under the terms of an employment contract in free time from the main job at the place of main work or in other organizations.

The legislator has provided for the following types of combination of professions (positions): 1) combination of professions; 2) combination of positions; 3) expansion of the service area; 4) increase in the volume of work performed; 5) performing the duties of a temporarily absent employee.

Combination of professions - this is the performance by an employee, along with his main work, stipulated by the employment contract, of additional work in another profession. Combination of positions- performance by an employee of additional work in another position. Expanding the service area and increasing the volume of work performed refers to the performance of an additional amount of work in the same profession or position. Under performing the duties of a temporarily absent employee, without release from his main job, they mean replacing an employee who is unable to perform his job duties due to illness, vacation, business trip or other temporary reasons, provided that he retains his job. Combination of professions (positions) can only take place with the consent of the employee.

Medical law: educational complex for universities / Sergeev Yu.D. - 2008. - 784 p.