“But the worst thing happened when a fixed-term employment contract was concluded with a woman for the duration of the duties of an absent worker, during which the woman found herself in an interesting position. The employer actually found itself in a stalemate: the absent employee finally showed up at work, and it was no longer possible to fire the employee replacing him.
So, now it is allowed to dismiss an employee hired under a fixed-term employment contract during her pregnancy, if it is impossible, with her written consent, to transfer her to another job available to the employer before the end of her pregnancy.
Temporary worker for the period of maternity leave
Tell me please. I was accepted as a temporary worker for two months, after the expiration of which my employment contract was extended for another two months, a little later I understand that I am pregnant, they leave me at work, with big problems, and before the birth. So that's what rights I have in general. and how the employer should act correctly in this case. (as a temporary worker, I am only entitled to sick leave for 90 days. Will I get maternity pay)
Section 261.
Temporary worker going on maternity leave
Hello. During the maternity leave, the main employee was hired on a temporary basis. The temporary worker is also going on maternity leave, but the main one is already leaving. Do we have the right to fire a temporary employee, and when can we do it?
Article 261 of the Labor Code of the Russian Federation allows the dismissal of a woman due to the expiration of the employment contract during her pregnancy, if the employment contract was concluded for the duration of the duties of the absent employee and it is impossible, with the woman's written consent, to transfer her to another job available to the employer (as vacant position or work corresponding to the qualifications of the woman, and a vacant lower position or lower-paid work) that a woman can perform, taking into account her state of health.
Conclusion of a fixed-term employment contract to replace the maternity
- a fairly common case of hiring a temporary worker. Given that it has its own characteristics, employers often have many questions related to its registration and termination.
Such an employment contract is concluded when a place of work is retained for the absent employee in accordance with labor laws and other regulations containing labor law norms, a collective agreement, an agreement, local regulations, an employment contract.
I am replacing an employee during maternity leave.
It is allowed to dismiss a woman in connection with the expiration of the term of the employment contract during pregnancy, if the employment contract was concluded for the duration of the duties of the absent employee and it is impossible, with the written consent of the woman, to transfer her to another job available to the employer (such as a vacant position or job, the corresponding qualifications of the woman, and the vacant lower position or lower-paid job).
How to calculate maternity leave?
You got an interesting, promising job, but intend to go on a long maternity vacation. Naturally, you will be faced with the question: how to calculate maternity leave. We will try to answer it in as much detail as possible.
To begin with, there is no such thing as a “decree” in laws. There is a period of temporary disability due to pregnancy and childbirth and there is leave to care for a child until he reaches one and a half or three years.
Transfer for the period of maternity leave
Question: It is necessary to transfer an employee from the position of "design engineer", to which she was hired for maternity leave in 2011, to the same position in the same department, only for the period of maternity leave of another employee who went on maternity leave this month (05/21/12). Is it possible to do without dismissal? From what date should the transfer be made? And in case of transfer, will she retain the right to leave?
Answer: First, you should clarify what you consider "maternity" leave: maternity leave or parental leave until the child reaches the age of 3 years, or all the time the employee is absent.
The position of a temporary worker replacing the one who has gone on maternity leave
Quite often, an employer hires an employee to replace an employee who is on maternity or parental leave.
At work, the employee went on maternity leave and, therefore, the maternity position was vacated. What pitfalls can arise when working at this place, we will consider in this article.
General points
Maternity position -) this is a vacant place while a pregnant employee is on vacation
As a rule, the vacated place while a pregnant worker is on vacation presupposes the emergence of personnel rotations. The employer for this period is looking for an appropriate replacement for a temporary period of time. The position remains the same, but the salary may increase.
A newly recruited employee must clearly understand that if he does not "take root" in the team and does not show himself in work, the main employee will stop fulfilling his duties in the maternity position after leaving the vacation. Therefore, a fixed-term employment contract will be concluded with the employee, indicating the end of the working time - until the corresponding employee leaves the decree.
It is also important to understand the fact that even if the main employee does not want to return to work, the place can be given to someone else. Often employers are cunning and ask the mother who has given birth to work for 1 day in order to dismiss the unwanted worker from the maternity place with this number.
But new employees can also renew their fixed-term contract if they become pregnant during this period and also go on maternity leave. The employer will be forced to renew the contract until the end of the pregnancy. Keep in mind that if the replacement employee is going on parental leave, then the contract will not be extended, it will be terminated at the appropriate time. And the end of the term, as we already know, is the exit of the first worker to her position.
If a substitute employee has come to the place, then the company can offer him another similar position according to the staffing table, or organize a different one and create conditions at a new place of work.
The general procedure for hiring a newcomer for a maternity position is practically no different from the usual procedure.
An employment contract is concluded with the employee, indicating the expiration date, the employee's personal card is started, an order for hiring is drawn up. If the first employee goes on the next parental leave, then the current contract ends and a new fixed-term employment contract is concluded before the “old” employee leaves the second decree. And in this case, the head of the company writes a new order of employment.
Transfer to a maternity seat
Transfer to a maternity position is carried out only with the consent of the substitute employee
If the company has been on the market for a long time, has an established friendly team, high salaries, then often such a place is offered to one of the people already working for the company.
This refers to the transfer of an existing employee to temporary work. We draw your attention to the fact that the open-ended employment contract concluded earlier with the transferring person is preserved. Both his position and his salary are preserved. It's just that he performs other job duties for a while.
Therefore, an employee who was offered to move to a maternity place of work is more protected under the current labor legislation. Since it is quite difficult for a person to get into the above-described large companies from the outside, employees are happy to return from the decree and try to work as long as possible.
Substitution during maternity leave
Special attention should be paid to the issue of substitution within the company. If a deputy works in a substitute position without interrupting his duties, then in this case an additional agreement must be concluded with him to his open-ended employment contract with an indication of the amount of the additional payment being made.
If the deputy is transferred to another position with the performance of only other people's duties, then the salary will be calculated according to the position being replaced.
But in any case, an additional agreement will be concluded with the shiftman, which should indicate all the nuances of the transfer, payment and performance of duties.
An order for temporary transfer is also issued, with which the transferred worker must familiarize himself and sign. In addition, the changes are reflected in the personal card, although there will be no record of the transfer in the work record book. In fact, the temporary employee will be listed in the previous position in all other documents of the enterprise.
Upon the exit of the woman who has given birth from the decree, he is released from the duties of the maternity position in accordance with the order for the transfer to the previous position.
The main disadvantages of this kind of work with an internal replacement at the firm for a deputy is the lack of official work experience in the new position and the possible loss of qualifications for the previous position.
Dismissal from maternity position
With the dismissal of female workers, not everything is so simple.
Under article 261 of the Labor Code, it is impossible to terminate an employment contract with a woman who has a baby under three years of age, or with a single mother who has a disabled child under 18 or a minor child under 14 on the initiative of the company's management.
Therefore, according to Russian law, there are two main reasons for the dismissal of an employee who is on maternity leave:
- at the ladies' own will)
- upon liquidation of the company.
Also, if during social leave the substitute employee also goes on maternity leave, then he can be safely dismissed after the main employee leaves the decree. With the exception of the pregnancy condition of the deputy himself, we considered him at the very beginning of the article.
In addition, the employment contract with the "vacationer" can be terminated by agreement of the parties. In this case, a letter of resignation is not drawn up. The parties determine the day of dismissal on which the dismissal order will be issued. On the same day, a work book must be issued and a full payment must be made between the employee and the employer.
Often, such an agreement includes conditions for the payment of certain funds to the employee, which the head of the company is obliged to pay.
Maternity leave is the leave granted to women who are at the end of their pregnancy, as well as in the 1st postnatal months. When an employee is on maternity leave, he essentially receives the same salary from his employer.
Under what circumstances is the conclusion of an employment contract for the period of the decree carried out?
What is an employment contract for?
Women are provided in the following forms:
- Pregnancy period, postpartum period;
- Caring for a child under one and a half years old;
- Caring for a child under three years old.
This year, maternity leave is obtained in accordance with Articles 255 and 256 of the Labor Code of the Russian Federation. The category of women who are able to receive a decree include:
- Female workers who work in accordance with an employment contract;
- Female persons who are officially unemployed;
- University students;
- Women in military service;
- Female workers employed in military-type departments as civilians.
A female official who works on an official basis has the opportunity to receive vacation pay during childbirth / pregnancy, as well as at the stage of caring for children.
If a female representative has the status of unemployed, then she can be given vacation pay through the NEO at the registration site.
According to article 255 of the Labor Code of the Russian Federation, paid can be provided to an employee:
- When pregnancy proceeds normally for one hundred and forty days - 70 prenatal days and 70 postpartum days;
- If the birth period is accompanied by complications, and the woman undergoes surgery, the doctor may extend her leave after childbirth (up to 68 days). The vacation can last up to 165 days;
- If a woman has 2 or more children to be born at the same time, then in the prenatal period she receives 84-day leave, and in the post-natal period - one hundred and ten days. Payment for these days is calculated on the basis of the average wage accrued to a woman for two years.
Cash benefits during pregnancy and the postpartum period
The size depends on some factors.
Receiving this type of cash allowance is possible only for the category of women who are officially engaged in work, because payments are made from funds.
The social fund receives deductions exclusively from the salary paid to the employee on an official basis.
This benefit can be issued to women in the following categories:
- having official employment;
- females dismissed up to twelve months prior to receiving maternity leave from an official enterprise that is being liquidated;
- university students who study full-time and also receive a scholarship;
- female persons undergoing contract service;
- women in each of the categories listed above. True, only women who have adopted a three-month-old child are taken into account.
A citizen of the Russian Federation cannot apply for maternity benefits of both types (for pregnancy and childcare). You can choose only one form of cash payments.
A woman cannot receive an allowance given during pregnancy if she is not on maternity leave, but continues to engage in labor activities, respectively, with receipt. By law, the employer does not have the authority to pay a woman both wages and maternity benefits.
If an employee has been engaged in labor activities for two years, both at the main workplace and part-time, she must receive a cash benefit from two employers.
The maternity / pregnancy allowance will be paid only after the registration of special documents:
- Sick leave. You can issue it in the accounting consultation. The extension of the sick leave is carried out only at the initiative of the attending physician who was responsible for the delivery;
- An application drawn up to the employer, in which there is a request for maternity leave, due to childbirth and pregnancy. It is drawn up in an absolutely arbitrary form, but on an organizational form;
- Photocopy of the passport: registration data and a photo of the owner must be present;
- The number of the bank account or card where the cash benefit is transferred. The money can be issued to the designer in cash. The legislation of the Russian Federation takes this form of granting benefits.
The issuance of a medical certificate occurs only for two periods: for 140 or 184 days (if the pregnancy is multiple). The closing of the document is done at the time of delivery.
To take a leave for caring for a small child (up to one and a half years old), a woman will have to draw up documents of the following nature:
- Child's birth certificate (copy);
- An official application issued to the employer for the provision of maternity leave. The term of the leave ends when the baby is one and a half years old. The application itself is drawn up in an arbitrary way or an organizational form is used for this;
- A certificate provided from the husband's official workplace, which indicates that he is not on vacation and he is not receiving cash benefits;
- Application for the transfer of maternity benefits to the citizen for the postnatal period. It is drawn up in the same way as an application for maternity leave, but the request for granting benefits is also taken into account.
How much benefit can be given
Calculated in a specific order.
There are legal restrictions on the amount of the prenatal and postnatal benefits for a worker. The restriction does not apply to the benefit per se, but to the woman's full wage earned in twelve months.
At the time of 2015, the largest amount of earnings was 670 thousand rubles, and in the previous year it was 46 thousand rubles lower. Benefit payments in year 18 will be calculated based on these periods.
The total cost of maternity benefits for the period of 2016 will be 248 thousand rubles. To calculate the second type of benefit, you need to use the average earnings.
The amount of the cash benefit must be 40% of the amount received in two years.
True, the amount of payments should not be more than the threshold set by the legislature. The amount of this type of benefit for the period of 2016 will be 21 thousand rubles.
The procedure for paying for maternity leave
The payment of benefits is carried out in 100% (the average wage of an employee) for two years, regardless of how long the employee has at the enterprise. To calculate the average salary, you will have to take into account the following points:
- The salary itself;
- Bonus payments;
- Accrual of vacation pay;
- Business trip payments;
- Other payments related to work.
To calculate the amount of wages received by an employee on average for one day, it is necessary to take the aggregate of all days over the past two years. In total, this will be 730 days. However, when calculating, the following points should be excluded:
- the period of time when the sick leave was in effect;
- previous leave during pregnancy and the postpartum period;
- a previous decree related to caring for a child under one and a half years of age;
- administrative leave;
- other working periods during which the payroll was not carried out.
For foreign women working in the Russian Federation on the basis of one of the forms, maternity allowance is charged through the FSS of the Russian Federation.
Calculation of cash benefits in two forms
A sick leave is required for the calculation.
Accruals under the decree this year need to be carried out, starting with a full calculation of the employee's salary received by her for 2016-2017. If accounting is carried out correctly, then the amount of money can be found out from the personal income tax reference information.
The length of service of an insurance-type employee affects only the amount of cash payments. If the working experience of a citizen is at least six months, settlement operations are carried out in accordance with the MPOT. For the period of 16 years, the income is about 6 thousand rubles.
The leave is calculated by the doctor based on the data of the registration consultation. Usually, a citizen receives a decree for thirty weeks (in the case of multiple pregnancies, for twenty-eight weeks). The moment of termination of the decree is established by the attending physician based on medical indicators.
Sick leave accounts for 140 days or 184 days. If the gestation period is normal, but childbirth is carried out with complications, the decree can be extended by the doctor for another 86 days. The allowance for this period will be paid without fail.
The vacation allowance is calculated in aggregate form for the full vacation period.
Receipt of cash payments must be made no later than ten days from the time of transfer to the employer himself, either at the most deadline for calculating salaries, or an advance payment to other employees of the organization.
Receiving benefits can be carried out both in a personal form, and by transferring funds to a card or bank account. These points are not understood in the official document.
Payments related to caring for a small child are made at 40% of the average monthly salary. The allowance is calculated in the same way as the vacation pay, as well as the allowance calculated during and after pregnancy.
How cash payments are calculated
The calculation procedure depends on the length of service.
For example, a citizen of the last two years had a salary of 24 thousand rubles.
She did not get any additional vacation pay. She had to work out a full two years, i.e. she does not have periods of deduction. The decree for the period of birth / prenatal was 140 days.
As a result, the vacation pay amounted to 100,000 rubles. According to the same data, the leave for caring for a small child will be 9,500 rubles. If a citizen is officially unemployed, vacation pay will be calculated based on the lowest unemployment contribution.
If a citizen has less than six months of experience, then the calculation of the amount of money will be made on the basis of the MPOT.
Its value for the period of 17 years is 6,300 rubles, which means that the cost of vacation pay will be 27,565 rubles.
What is the maximum period for maternity leave?
If the gestation period passes naturally, the decree is granted in the thirtieth week for a period of 140 days: 70 prenatal and 70 postnatal. In the case of multiple pregnancies, the decree is issued at 28 weeks, the period will be 184 days: 84 prenatal days and 110 postnatal days.
If complications are observed during childbirth, the doctor can shed the decree for up to 86 days. If a pregnancy in a multiple form is not known in advance, then the extension of the sick leave is not carried out.
A citizen is on maternity leave to care for a small child. In this case, the calculation algorithm is made based on the date when the child was born.
A citizen can receive a second decree, while continuing to remain on the first. To implement this, you will have to submit an official application to complete the 1st vacation, and then issue the second.
According to the law, a citizen will not be able to receive two benefits at the same time. Fixed-term contracts can be drawn up on the basis of Article 59 of the Labor Code of the Russian Federation.
From this video you will learn about the features of registration of labor relations for the period of maternity leave.
Form for accepting a question, write your
It happens that employed young women take maternity and pregnancy leave. And then it becomes necessary to find a temporary employee who will be provided with work under a fixed-term contract for the duration of the main maternity leave. If you are to be employed or transferred to a maternity rate, you must first figure out what it is, what period you will have to work, what are the disadvantages and advantages of such work.
Features of the maternity rate
Employed women awaiting the birth of a child go on maternity leave at the 30th week of pregnancy, and with twins - already from the 28th. The sick leave period for pregnancy and childbirth lasts 140 days when expecting one child and 194 days for several. And after childbirth comes the time of parental leave for a child up to one and a half or three years.
The return to the workplace of the main employee can occur both after the end of the sick leave for pregnancy and childbirth, and after a longer period - parental leave. A young mother can go to work at any time before the end of the decree.
For the duration of the decree, his place is reserved for her. And the employer is forced to look for a specialist to replace the main employee. At the same time, you can transfer to this position an employee who is already employed in the organization and can perform the duties of another during his maternity leave. And you can hire a new employee for the maternity period of the main one.
Such a substitution is drawn up in the form of a fixed-term employment contract. It indicates that the hiring or transfer of the employee is carried out for the period until the main one leaves for work. For a person who already works at the enterprise, an additional agreement can be drawn up to the agreement already concluded with him.
In this regard, if an employee gets a job at a maternity rate, then he must understand that this is a temporary job, from which he will be fired after 1.5 or 3 years, or even earlier (at any time when the young mother decides to return to the service) ...
Pros and cons of employment for the period of another employee's maternity leave
When agreeing to employment at a temporary rate, you need to know that this vacancy is characterized for the most part by disadvantages.
- A short period of employment. It can be as long as 3 years and several months, and the minimum time is 140 days.
- Not knowing the exact day of dismissal. The contract indicates that its end occurs when the main specialist leaves the decree.
- Legal insecurity. A deputy can be notified of dismissal in just a few days, or even in one day. No compensation is paid for this. And even a mother of a child under three years old and a pregnant woman can be dismissed, since the urgent agreement clearly states that the dismissal occurs when the employee leaves the maternity leave.
This vacancy also has some advantages. First of all, this is a less strict selection of candidates compared to the hiring of the main employee. For young professionals, temporary work is an opportunity to gain the experience necessary to get a permanent job in another organization. There is a possibility of concluding a long-term employment contract. If the specialist has shown himself well at the maternity rate, then he may be offered a transfer to another permanent place. And, finally, no one will take away the right to leave - calendar and maternity leave.
How is admission and transfer to a temporary position made out?
For the period of the decree of the main employee, the manager can appoint in his place a person who is already employed in the organization. In this case, an additional agreement is concluded with him, and the transfer is recorded only in the specialist's personal documents. A temporary transfer is also fixed by an order. Applying for a new employee includes a number of stages.
- The applicant for the position provides all the necessary documents and their copies (passport, TIN, diploma of education, SNILS and others).
- The hired person writes an application for temporary employment.
- An order is drawn up for hiring from a specific date until the day when the one who is being replaced will leave the decree.
- A fixed-term employment contract is drawn up and signed. It also indicates the time of its end - the exit of the replaced employee from parental leave.
- Registration of a personal file and a personal card of a temporary employee.
- Record in the work record for admission to the organization.
When an employee on maternity leave decides to return to work, his substitute specialist will be notified of this. Dismissal occurs with an entry in the work book that the reason is the expiration of the fixed-term contract. If a temporary employee is offered a transfer to another vacant position, and he agrees, then a new employment contract will be concluded with him.
Temporary employee decree
A woman on a maternity wage can get pregnant herself. When transferring to a temporary position, there will be no problems. The employee will receive maternity leave and benefits, and the previous position will remain for him. But with regard to a new employee, hired under a fixed-term contract, disputable situations may arise.
The contract clearly states that its validity period expires from the moment the main employee leaves the workplace. But it is generally accepted that women should not be fired during pregnancy. Unfortunately, the maternity rate is not the case. When an employee who was being replaced goes to work, the temporary one should be fired, even if it is a woman in an "interesting position."
However, if there is a vacant position in the organization that corresponds to the qualifications of the applicant, it is possible to transfer to it. The employer must notify the temporary employee of the available jobs, and if agreed, extend the contract until the end of the pregnancy. If there is no free space at this time, it is not forbidden to dismiss the accepted one on a temporary basis, even if he is in the position.
When a maternity worker is in the 30th week of pregnancy, he or she is entitled to paid maternity leave. Of course, if the main employee did not return before this period. For registration of a vacation, the deputy provides a certificate of incapacity for work and writes a statement. As long as a woman is listed in the organization, she is also entitled to parental leave with the accrual of benefits.
A temporary employee who is on leave to care for a baby can be dismissed when the person replaced by him leaves the decree. In this case, you need to contact the social protection department for subsequent payments. The minimum allowance will be accrued from the day following the dismissal.
If management asks a person to quit because the organization needs to find a new one, it is illegal. If the contract has not yet expired, a woman is entitled to a decree, even if the company pays two decrees for one position. If you quit before the maternity leave period, then the length of service and the due payments are lost.
The deputy may return to his duties after maternity leave if the employee being replaced has not yet returned to work. You can continue to work until the end of the employment contract, and you can apply for parental leave for your dad or grandmother.
Since July 11, 2015, the procedure for granting maternity leave and calculating maternity benefits to women working on a fixed-term employment contract... Federal Law No. 201-FZ, signed by the President of the Russian Federation Vladimir Putin on June 29, 2015 and entered into force 10 days after its official publication, changes the provisions of Art. 261 of the Labor Code of the Russian Federation on guarantees of the rights of expectant mothers upon termination of an employment contract.
The amendments relate to a situation common in practice when an employment contract is concluded between an employer and an employee. for a certain period, the expiration date of which falls on the period of pregnancy or.
Previously, in such cases, it was not always clear: whether it is necessary to renew the fixed-term contract before the end of the decree or whether the employment relationship should end on the date of the end of the pregnancy, providing only prenatal leave and incomplete maternity ?
Termination of a fixed-term contract during pregnancy
Upon completion of the labor contract concluded for a certain period during the woman's pregnancy, in accordance with Art. 261 of the Labor Code of the Russian Federation employer must renew it immediately before the birth of the child.
To extend the term of the employment contract, a pregnant woman must provide:
- appropriate written statement in the name of the employer;
- medical certificate from the antenatal clinic, confirming the fact and state of pregnancy.
If after the end of pregnancy(including as a result of her artificial interruption or spontaneous miscarriage), the woman actually continues to carry out her work duties at the previous place of work, the employer in a week after having learned (or should have learned) about this fact, she has the right to terminate the labor contract concluded with her - in fact, the termination of pregnancy indicates the date of expiration of the fixed-term contract.
When extending a fixed-term contract for the period of pregnancy, the employer has the right no more than once every 3 months require the woman to provide him with a medical certificate from the antenatal clinic confirming her current condition as a pregnant woman.
If a woman goes on maternity leave under a fixed-term employment contract
To all working expectant mothers regardless of the conditions of their employment(including conditions on the duration of the employment contract) upon their written application addressed to the employer in accordance with the norms of labor legislation, ( maternity leave) total duration.
For the indicated periods of incapacity for work in connection with maternity, it is paid in the amount of 100% of average earnings for 2 full previous calendar years or according to the minimum wage (in 2016). In this case, maternity allowance is calculated in total for the entire period of incapacity for work according to the antenatal clinic issued by the doctor.
Thus, a woman who is in an official labor relationship with an employer (including under a fixed-term employment contract) has the right to provide her with an maternity benefits when going on maternity leave, starting from the obstetric period of 30 weeks (or 28 - with the simultaneous bearing of several children).
In this case, starting from July 11, 2015, in accordance with the amendments to the Labor Code introduced by Law No. 201-FZ of June 29, 2015, the validity of the fixed-term contract extended until the end of maternity leave, and the "conscript" has the right to count on receiving benefits for pregnancy and childbirth in full.
The size of maternity payments in 2018
Thus, the amendments actually provide pregnant women working under a fixed-term employment contract, guarantees of the right to:
- full;
- payment of maternity benefits in full, in proportion to the total duration of the period of incapacity for work.
Recall that earlier the employer had the right to terminate a fixed-term employment contract immediately after the end of pregnancy, even if the woman was on maternity leave. at the same time, it was paid for the actually provided prenatal leave- 70 days (regular labor) or 84 days (complicated labor or two or more children).
If a woman on a fixed-term contract replaces an absent employee
The above rule on the extension of a fixed-term employment contract until the end of pregnancy or maternity leave, taking into account the amendments made in 2016 so far does not apply to cases when a pregnant woman is performing work replacing the position of a temporarily absent worker.
In this case, the same admits dismissal of a pregnant woman by an employer upon expiration of a fixed-term contract, if it is impossible to transfer her to another position with the written consent of the employee herself (both appropriate to her qualifications and to a lower or lower paid), taking into account the state of health of the pregnant woman and medical contraindications.
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