Every year, the Ministry of Health recommends getting vaccinated against influenza on the eve of the autumn-winter season. And this year, a vaccination against coronavirus infection was added to the list of vaccinations. Employees of a number of enterprises were told about the need for vaccination, especially citizens at risk.
But not everyone agrees to be vaccinated against influenza and COVID-19. Some people do not trust domestic drugs, others do not get vaccinated for personal reasons or for medical reasons. What to do if the refusal caused problems at work? Can an employer force you to get vaccinated? And what may be the legal consequences of refusal for the employee? Yulia Kholodionova answered these questions to the FAN .
From the personal archive of Yulia Kholodionova /
Why does an employer require vaccinations?
By law, the employer is obliged to create safe working conditions at production and in the organization. This is required not only by the Labor Code, but also by other legislative acts, regulations, and recommendations of the Ministry of Health, which are updated almost annually.
Another responsibility of the employer is to ensure the safety of the services that his organization provides to consumers and the goods that it produces and sells. Thus, each enterprise must make its contribution to the sanitary and epidemiological well-being of the country’s citizens.
“It is impossible to prevent the spread of infectious diseases in society, especially dangerous ones that pose a threat to the lives of citizens, without the involvement of employers,” comments lawyer Yulia Kholodionova. “Therefore, legal entities and individual entrepreneurs are required to carry out appropriate work within their enterprises. One of these measures is vaccination, which is an integral part of preventing the spread of infections.”
This is especially true for employees of enterprises who come into contact with a huge number of people every day. On the one hand, their employees themselves are at risk and should be interested in protection from infection. On the other hand, they can serve as sources of spread of infection if the disease was not detected in time or the employee is negligent in the prevention of infectious diseases and goes to work sick.
But whatever the employee’s beliefs, at the moment when he is at the workplace, responsibility for labor safety and the absence of threats to third parties (customers, clients) lies with the employer. And the failure of a canteen or store employee to be vaccinated against infections can become a serious problem for a business owner or enterprise manager.
“In general, vaccination is voluntary,” the expert clarifies. - Every citizen has the right to refuse it. But since the employer is obliged to take part in the prevention of infectious diseases, he must insist on vaccination of employees. It turns out to be a vicious circle.”
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Flu shots for workers. Expense accounting
The director decided to vaccinate workers against influenza. We entered into an agreement with a medical organization. How to reflect this in accounting? Insurance premiums, personal income tax? We use OSN.
According to Art. 35 of the Federal Law of March 30, 1999 No. 52-FZ “On the Sanitary and Epidemiological Welfare of the Population”,
preventive vaccinations
are carried out to citizens in accordance with the legislation of the Russian Federation to prevent the occurrence and spread of infectious diseases.
In accordance with Art. 10 of the Federal Law of September 17, 1998 No. 157-FZ “On Immunoprophylaxis of Infectious Diseases”
Preventive vaccinations
for epidemic indications
are carried out to citizens
when there is a threat of infectious diseases
, the list of which is established by the federal executive body in the field of health care.
At the same time, decisions on carrying out preventive vaccinations
according to epidemic indications,
they are accepted by the chief state sanitary doctor of the Russian Federation
, the chief state sanitary doctors of the constituent entities of the Russian Federation (Article 10 of Law No. 157-FZ).
Resolution No. 39 of July 26, 2013 “On measures to prevent influenza and acute respiratory viral infections in the 2013 epidemic season
-
2014"
The Chief State Sanitary Doctor of the Russian Federation established that
heads of organizations,
regardless of their organizational and legal form, timely
allocate financial resources for organizing and conducting vaccinations of employees against influenza
.
In accordance with Art. 11 of Law No. 52-FZ individual entrepreneurs and legal entities
in accordance with the activities they carry out,
they are obliged to
:
– carry out requirements
sanitary legislation, as well as decrees and
instructions
of officials
carrying out federal state sanitary and epidemiological supervision ;
– develop and carry out sanitary and anti-epidemic (preventive) measures.
In the sanitary and epidemiological rules SP 3.1.2.3117-13 “Prevention of influenza and other acute respiratory viral infections”
, approved by Resolution of the Acting Chief State Sanitary Doctor of the Russian Federation dated November 18, 2013 No. 63, it is stated that
compliance with sanitary rules is mandatory for individuals and legal entities
.
Heads of organizations whose employees are at risk for influenza and ARVI
(workers of medical and educational organizations, trade, public catering, transport),
measures must be taken to carry out specific prevention of influenza
and nonspecific prevention of ARVI.
Heads of other organizations
Preventive vaccinations against influenza are organized for employees
in accordance with current regulatory legal documents
.
Organizations ensure the implementation of plan measures for the prevention of influenza and ARVI.
Art. 9 of Law No. 157-FZ establishes that the national calendar of preventive vaccinations
includes preventive vaccinations against,
in particular, influenza
.
National calendar of preventive vaccinations, timing
preventive vaccinations and
categories of citizens
subject to mandatory vaccination
are approved by the Ministry of Health of the Russian Federation
.
In the National Calendar of Preventive Vaccinations
, approved by Order of the Ministry of Health of the Russian Federation dated March 21, 2014 No. 125n, it is stated that
, in particular, adults
working in certain professions
are subject to mandatory vaccination against influenza; pregnant women; adults over 60 years of age; persons subject to conscription for military service; persons with chronic diseases, including lung disease, cardiovascular disease, metabolic disorders and obesity.
Therefore, on the one hand
, vaccination of other persons
not listed in the vaccination calendar is not mandatory, but recommended
.
On the other side
, since individual entrepreneurs and legal entities are obliged to develop and carry out sanitary and anti-epidemic (preventive) measures, and vaccination is a preventive measure,
employers are obliged to carry out vaccination
.
In a letter dated 06/01/2007 No. 03-03-06/1/357, the Ministry of Finance of the Russian Federation stated that if an organization fulfills the duties assigned to it by law, then the costs of compulsory vaccination for profit tax purposes should be taken into account as other miscellaneous expenses
related to production and (or) sales, based on
paragraphs.
49 clause 1 art. 264 Tax Code of the Russian Federation .
However, from the analysis of arbitration practice it follows that the tax authorities refuse to recognize vaccination expenses
.
Arbitration courts have not developed a unified position on this issue.
Some courts side with taxpayers, but subject to certain conditions.
Thus, the Federal Antimonopoly Service of the North-Western District
supported the taxpayer, since he, firstly,
complied with the order
of Rospotrebnadzor to carry out vaccination.
Secondly, the taxpayer’s obligation to carry out preventive and rehabilitation measures requiring dispensary observation, as well as to carry out and finance activities aimed at preventing the epidemic of influenza and other infectious diseases, was provided for by the collective agreement
(Resolution of
the Federal Antimonopoly Service of the North-Western District
dated December 1, 2008 No. A21-7038/2007).
Let us recall that clause 25 of Art. 255 Tax Code of the Russian Federation
classifies as labor costs for profit tax purposes expenses incurred in favor of employees,
provided for in an employment contract and
(
or
)
a collective agreement
.
FAS Ural District
considers it justified to take into account the costs of vaccinating workers against influenza on the basis of
paragraphs
7 clause 1 art. 264 of the Tax Code of the Russian Federation , according to which
other expenses
associated with production and sales include
expenses for ensuring normal working conditions
and safety measures provided for by the legislation of the Russian Federation, expenses for civil defense in accordance with the legislation of the Russian Federation, as well as expenses for the treatment of occupational diseases employees engaged in work with harmful or difficult working conditions, costs associated with the maintenance of premises and equipment of health centers located directly on the territory of the organization.
The court considers these expenses to be economically justified, since the employer is obliged to ensure compliance with safe working conditions for workers and labor protection standards ( Articles 22, 209, 212, 223 of the Labor Code of the Russian Federation
) (resolution dated December 19, 2007, No. F09-10406/07-S3).
But the FAS of the East Siberian District
in the resolution of September 25, 2007 No. A19-5905/07-40-F02-6667/07 indicated that, according to
Art.
264 of the Tax Code of the Russian Federation, medical services for influenza vaccination
are not included in the list of other expenses
associated with production and sales, and, therefore,
cannot be taken into account
for tax purposes.
Thus, today the question of attributing the costs of vaccination of employees to expenses taken into account when taxing profits does not have a clear answer.
.
According to Art. 211 Tax Code of the Russian Federation
When a taxpayer receives
income
from organizations and individual entrepreneurs
in kind in the form
of goods (work, services), other property,
the tax base for personal income tax is determined as the cost of these goods
(
work, services
) and other property, calculated on the basis of their prices determined in accordance with the procedure , similar to that provided for
in Art.
105.3 Tax Code of the Russian Federation .
Income received by a taxpayer in kind, in particular, includes
:
– payment (in whole or in part) for it by organizations or individual entrepreneurs for goods (work, services) or property rights, including utilities, food, recreation, training in the interests of the taxpayer;
– goods received by the taxpayer, work performed in the interests of the taxpayer, services provided in the interests of the taxpayer free of charge or with partial payment;
– remuneration in kind.
Flu vaccination is in the interests of the employer, not the employee.
.
Therefore, it cannot be said that in this case the employee receives income in kind.
In accordance with paragraph 10 of Art.
217 of the Tax Code of the Russian Federation are not subject to personal income tax tax on amounts
paid by employers
for the provision of medical services to their employees
, their spouses, parents, children (including adopted children), wards under the age of 18, as well as to their former employees who resigned due to retirement. disability or old age pension, and
remaining at the disposal of employers after paying corporate income tax
.
Based on this norm, the Ministry of Finance of the Russian Federation, in letter dated 02.02.2006 No. 03-05-01-04/18, stated that if an organization has consumption funds formed after paying income tax
, from which, in particular, payment for medical care of employees is made (in this case,
vaccination
),
the cost of vaccination is not subject to personal income tax
on the basis of
clause 10 of Art.
217 Tax Code of the Russian Federation .
In letter dated August 13, 2012 No. 03-04-06/6-237
The financial department repeated that amounts paid by the employer for medical care of employees are exempt from personal income tax on the basis of
clause 10 of Art.
217 of the Tax Code of the Russian Federation , subject to the conditions established by this norm.
At the same time, the possibility of payment
The employer's provision of medical care for employees
without personal income tax is associated with the organization's availability of funds after payment of income tax
, from which, in particular, payment for medical care is made.
And in a letter dated July 24, 2014 No. 03-04-05/35546, the Ministry of Finance of the Russian Federation emphasized that these incomes are exempt from taxation in the case of non-cash payments by employers to medical organizations for expenses
for the provision of medical services to taxpayers, as well as in the case of issuing cash intended for these purposes directly to the taxpayer or crediting funds intended for these purposes to taxpayers’ bank accounts.
Thus, if the person to whom the payment was made for treatment submits documents confirming the targeted nature of the expenditure of these funds, income in the form of funds received will be exempt from taxation in an amount not exceeding the cost of medical services provided
.
Other provisions providing
exemption from taxation of payments for treatment, in
Art. 217 of the Tax Code of the Russian Federation is not contained
.
Therefore, according to officials, if documents confirming the intended use of funds are not provided, the above payment is subject to personal income tax in accordance with the generally established procedure.
Clause 1 Art. 7 of the Federal Law of July 24, 2009 No. 212-FZ “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund”
It has been established that
the object of taxation of insurance premiums
for payers of insurance premiums making payments and remuneration to individuals is recognized as payments and other remuneration accrued by payers of insurance premiums in favor of individuals within the framework of labor relations and civil contracts, the subject of which is the performance of work, provision of services.
Subject to insurance premiums
for these payers of insurance contributions, payments and other remunerations accrued in favor of individuals subject to compulsory social insurance in accordance with federal laws on specific types of compulsory social insurance are also recognized.
The bodies of the Pension Fund of the Russian Federation and the Federal Insurance Fund of the Russian Federation require that insurance premiums be calculated on the cost of vaccination
.
However, the funds spent
for the purchase of
a flu vaccine and vaccination
of employees,
are not part of the employees’ wages
,
do not depend on the results of their work
, are not incentive or compensation and are of a one-time nature.
In the Determination dated 04/03/2013 No. VAS-3338/13 of the Supreme Arbitration Court of the Russian Federation
indicated that
the cost of vaccination of employees
, which is the responsibility of the employer and carried out
in the interests of the organization, is not subject to insurance contributions
.
Does an employer have the right to force people to get vaccinated?
In 2021, the problem of the spread of infectious diseases in Russia has become more pressing than ever. In this regard, changes were made to the preventive vaccination calendar for epidemiological reasons. And professions that are included in risk groups for the likelihood of encountering an infection and contributing to its spread have become priorities for vaccination.
According to new recommendations, doctors, nurses and other employees of medical institutions should be vaccinated against influenza and coronavirus infection. The first level priority group also includes workers:
- schools and kindergartens;
- social service institutions and multifunctional centers;
- citizens living in social institutions.
The second level priority group includes transport and energy workers, military personnel, law enforcement officers, shift workers, social workers and volunteers who work with the public. Civil servants, conscripts and students of educational institutions over 18 years of age should be vaccinated in the third stage.
“Vaccination may become mandatory for workers in these areas,” says Yulia Kholodionova.
Mandatory vaccination
At the same time, the Labor Code of the Russian Federation establishes the employer’s obligation to provide all employees with safe working conditions, and Federal Law No. 52 of March 30, 1999. It is the duty of an entrepreneur or a businessman to produce a safe product. And this is impossible at the moment without vaccination.
Therefore, Federal Law-157 and Federal Law-52 establishes that individual entrepreneurs and enterprises must carry out such measures as part of the immunoprophylaxis of infectious diseases. Not all employers are required to do this, but only those who employ employees specified in the following regulations:
- list of works, the performance of which is associated with a high risk of infectious diseases and requires mandatory preventive vaccinations, which is approved by Decree of the Government of the Russian Federation No. 825 of June 15, 1999 (it indicates employees of educational institutions, persons working with blood, biological fluids, etc. .d.);
- the national calendar of preventive vaccinations and the vaccination calendar for epidemic indications, approved by Order of the Ministry of Health of the Russian Federation No. 125n dated March 21, 2014.
For workers whose professions are indicated in these documents, vaccination is required for admission to the workplace. If an employee refuses to be vaccinated, he or she must be suspended from work by the employer. However, if you are forced to get vaccinated against coronavirus, everyone can refuse it, even teachers and doctors.
Is it legal if an employer forces you to get vaccinated?
The right of every person to refuse vaccination, regardless of his position and area of work, is enshrined in the law “On the Prevention of Infectious Diseases.” According to this regulatory act, vaccination is recognized as an intervention in human health. And any intervention can only be carried out with the consent of the citizen, and not even in words, but in the form of a document signed by the person.
But the same law also considers the other side of the issue. In particular, it suggests that the lack of certain vaccinations may be sufficient grounds for refusal of permission to enter certain countries where the risk of encountering a dangerous infection is high. Also, on completely legal grounds, a person may not be hired if his work activity is associated with the threat of infection.
If we are talking about an employee who refuses to be vaccinated, the employer has the right to take measures. For example, it may prevent an employee from entering the workplace or temporarily suspend him from performing professional duties until the threat of infection disappears.
“The vaccination calendar clearly states which categories of workers, what types of vaccinations and with what frequency should receive,” says lawyer Yulia Kholodionova. — At the same time, they take into account the specifics of the work, the territory where the professional activity is carried out, if it creates a risk of contracting a certain disease. Thus, vaccination against influenza and measles is recognized as general. It is mandatory for health workers, teachers, public utilities and transport workers to undergo it.”
If an employee works in an area where vaccinations are approved by the national calendar, but refuses to do them, this cannot serve as a basis for bringing him to disciplinary action. Deprivation of a bonus, reprimand, demotion, and especially dismissal - all these are illegal methods of “force” influence, to which the employer has no right.
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What to do if your employer forces you to get vaccinated against coronavirus or flu
If an employee does not intend to be vaccinated, he must write a written refusal at his place of work. Since vaccinations are strictly voluntary, the presence of this document should be sufficient to resolve disagreements between the employee and the employer.
If the employer is not satisfied with the refusal, he continues to insist on his position and, even more so, applies disciplinary methods, the employee should contact the labor inspectorate.
“An employee can write an application to the labor inspectorate, which is responsible for protecting the labor rights of employees,” the expert notes. — Since consent to vaccination largely depends on the person’s health status, refusal can also be argued based on the presence of medical contraindications. But in any case, refusal is an exclusively personal decision of a person; it is unacceptable to consider it as a disciplinary offense. In resolving this dispute, the labor inspectorate must side with the employee.”
