How to arrange an employee during maternity leave. Registration of employment records during maternity leave

mari_010, Read this: Question: To an employee with whom a fixed-term contract was concluded employment contract, maternity leave was granted. On the date of birth of the child, the employment contract will still be in force; the contract will expire approximately three months after the birth of the child. What benefits should the employer pay the employee in this case?

Answer: First of all, we note that in accordance with Art. 261 of the Labor Code of the Russian Federation, termination of an employment contract at the initiative of the employer with pregnant women is not allowed, except in cases of liquidation of the organization or termination of activities by an individual entrepreneur.
If a fixed-term employment contract expires during a woman’s pregnancy, the employer is obliged, upon her written application and upon provision medical certificate, confirming the state of pregnancy, extend the term of the employment contract until the end of pregnancy.
Federal Law No. 81-FZ of May 19, 1995 “On state benefits for citizens with children” establishes the following benefits for citizens with children:
- maternity benefits;
- one-time benefit to women registered with medical institutions V early dates pregnancy;
- one-time benefit for the birth of a child;
- allowance for child care until he reaches the age of one and a half years.
Women who are subject to mandatory social insurance, in particular those working under employment contracts (Article 2 Federal Law dated December 29, 2006 N 255-FZ “On provision of benefits for temporary disability, pregnancy and childbirth to citizens subject to compulsory social insurance”).
The assignment and payment of maternity benefits is carried out by the employer at the woman’s place of work (Clause 1, Article 13 of Law No. 255-FZ).
Since the employment contract will continue to be in force during the period of maternity leave, the employer is obliged to pay maternity benefits.
Women who are registered with medical institutions in the early stages of pregnancy have the right to a one-time benefit in addition to maternity benefits (Article 9 of Law No. 81-FZ).
This benefit is assigned and paid at the place of assignment and payment of maternity benefits (clause 17 of the Regulations on the assignment and payment of state benefits to citizens with children, approved by Decree of the Government of the Russian Federation of December 30, 2006 N 865).
Thus, in this case the benefit is also paid by the employer.
One of the parents has the right to a lump sum benefit at the birth of a child (Article 11 of Law No. 81-FZ). A one-time benefit for the birth of a child is assigned and paid to one of the parents or the person replacing him at the place of work (service, study), and if the parents or the person replacing them do not work (do not serve, do not study), - by the authority social protection of the population at the child’s place of residence (clause 23 of the Regulations).
You can apply for payment of this benefit within 6 months from the date of birth of the child (clause 55 of the Regulations).
Therefore, if a woman applies for payment of benefits during the term of the employment contract, the benefit is paid by the employer. If, by the time the employment contract is terminated, the woman still does not apply to the employer for payment of benefits, the benefit is paid by the social security authority at the child’s place of residence.
The right to a monthly allowance for child care until the child reaches the age of one and a half years are given to mothers or fathers, other relatives, guardians who actually care for the child, are subject to compulsory social insurance (i.e. working under employment contracts) and are on parental leave for the child (clause 35 of the Regulations).
That is, only working mothers (fathers) on parental leave have the right to a monthly child care allowance.
Therefore, upon termination of the employment contract, the mother (father) of the child loses the right to receive monthly child care benefits.
The right to this benefit is retained only as a result of dismissal on the grounds listed in paragraphs. "g" clause 35 of the Regulations, in particular during the liquidation of the employing organization.
Thus, the employer pays a monthly benefit to a mother on maternity leave only until the employment contract is terminated due to its expiration. After termination of the contract, payment of benefits ceases.

A woman who goes on maternity leave must retain her job. The employer has two options in this situation. He shifts the employee’s responsibilities to another employee or several, who will temporarily perform her work during the maternity leaver’s absence.

For this purpose, a special agreement is concluded with him labor agreement, where all the conditions for part-time work or transfer are indicated. Another option is a fixed-term employment contract during maternity leave. To do this, the employer needs to invite a new employee to the position, who will also have to perform her duties for a certain time.

Concluding an employment contract with a new employee allows the employer to avoid future problems not only with him, but also with the maternity leaver. In fact, there will be two employees at one workplace for some time.

A fixed-term employment contract (FTC) is a regular agreement between a hired employee and an employer, which specifies their rights and obligations, wages, position and much more. One of the differences is the duration of the relationship between the parties, with normal conditions it is indefinite. Another feature is the termination of relations, the process of which is provided Labor Code.

For what period should it be concluded?

By provision of the contract, the employer must provide for the duration of its validity without specifying a specific date, so that it is associated with the period of absence of the maternity leaver. It should be taken into account that probation for a temporary worker cannot be assigned in the standard manner - 1-2 months. For example, if the employer expects that the employee will perform his duties for 6 months, then the maximum period can be set to only 2 weeks.

The employer can set the validity period for the STD, guided by such concepts as:

certain period, this may be one or several months (years);
certain season;
the time period associated with the circumstances of the performance of work duties.

The legislator does not separately stipulate in the Labor Code the situation that a fixed-term contract must be concluded when the main employee goes on maternity leave. But he points out that such a document can be concluded with a temporary worker. Regulatory documents for this agreement, they provide for its validity period, but do not indicate how specifically to establish it.

An employer may be guided by the following principles:

Duplicate the period specified in the medical certificate or sick leave, which the woman will submit before giving birth. In this case, when a woman submits postpartum sick leave or comes to take out maternity leave, the employer will have to make an additional agreement to the main STD, which will indicate new terms.
Take the wording on the urgency of the employment agreement from the Labor Code. Having studied the norm labor law, the head of an enterprise or individual entrepreneur can initially hire a temporary worker for the maximum period that a woman is entitled to for maternity leave, i.e. 3 years.

The issue of probationary period is decided in individually by the employer himself, he has the right not to give it to a temporary employee when he hires to fill a vacant position:

a graduate of a secondary specialized or higher educational institution;
an employee who has passed testing on a competitive basis;
employee for only 1–2 months;
on the transfer of an employee from another enterprise after agreement with his employer;
a pregnant woman or who has children under 1.5 years of age;
minor citizen.

Sample of a fixed-term employment contract for the duration of maternity leave of the main employee:

Features of a fixed-term employment contract during maternity leave

A fixed-term employment contract for the duration of maternity leave must necessarily contain the reason for its execution; the legislator sets out this requirement in Art. 57. Otherwise in judicial procedure the agreement can be qualified as unlimited.

The employer must initially decide with the woman going on maternity leave how long she plans to be away from work. The same must be done with the hired temporary worker; he must be informed about maximum period, for which he will be able to get a new job, but a situation cannot be ruled out when the STD will have to be interrupted, because the maternity leaver will go to work.

Art. 79 regulates the actions that an employer must take in case of one of the situations:

A contract of agreement was concluded with the temporary worker, which indicated a certain period of its validity. At some point, the agreement came to an end. The employer must notify the temporary worker 3 days in advance. In this case, there are 2 options: labor relations the parties are terminated or a new fixed-term agreement is concluded (additional agreement to the main STD).
The maternity leaver decided to go to work early and wrote an application to return to her previously held position. In this case, the employer is obliged to notify the temporary employee that their employment relationship is being terminated, although the contract period has not expired. But at the moment was specified in advance in the fixed-term contract.

In the second case, the legislator does not oblige the maternity leaver to fill out an application to return to work, but she can do this in advance. In this case, there will be time to prepare documents for the temporary worker upon termination of the employment relationship.

To others important point execution of this type of contract is the possibility of its transition to the category of an unlimited term, the legislator reports this in Art. 58. This will become possible if none of the parties involved in the employment relationship expresses a desire to terminate it. It is best for the employer and the temporary employee to draw up an agreement that the STD from such and such a moment should be considered unlimited, although the legislator does not require this.

Conditions of registration

The conditions under which a fixed-term employment agreement must be drawn up can be divided into 2 groups, when the situation is:

explains the temporary nature of the activity that the future employee needs to begin;
cannot be related to the future activities of the temporary worker.

The conditions that become the basis for concluding a STD for temporary performance of work include:

hiring an employee who needs to undergo practical training;
the enterprise’s need for an employee who can engage in a specific type of work, their list is indicated in the STD;
seasonal work for which a specific employee is hired;
a situation where the activity of the enterprise itself is temporary, i.e. it was opened for the purpose of performing certain work for some time (this provision is indicated in the charter);
sending an employee to work abroad for a certain period of time.

Dismissal upon return of employee

A temporary employee quits as soon as the main one returns to work, interrupting maternity leave, or at the end of it. IN work book it is necessary to indicate that the reason for dismissal was termination of the contract.

If, for example, a temporary employee decides to quit before the end of the contract, he has the right to do this on a general basis, notifying the employer 2 weeks in advance. But by agreement of the parties, they may not wait until the end of the 2-week period, but terminate the relationship at any time as soon as the temporary worker expresses his desire. In fact, the employment relationship must end from the moment determined by the parties.

According to translation to vacant position An existing employee can be registered for the period of maternity leave. In this case, an additional agreement is concluded with the employee to his main agreement. fixed-term contract, on the basis of which he works at the enterprise. It can be concluded for a period of 1 year. The employee starts professional responsibilities maternity leavers, leaving theirs. There is no need to make entries in such an employee’s work record.

If a situation arises that a maternity leaver subsequently quits immediately after maternity leave without starting her work duties, then the employee temporarily performing her duties may be appointed permanent. Then in his work record it will be necessary to make a note about admission to new position based on the order of the manager.

But in this way, the issue can be resolved individually by the employer; the employee does not have a preemptive right to fill the position of a resigned maternity leaver. He can be returned to his main place of work, and a new employee can be hired at the vacated one.

Due to the main employee going on maternity leave and another woman being accepted under the STD, a situation may arise that at this time she will also become pregnant. In the Labor Code, in Art. 41 states that a temporary worker has the same rights as one who went on maternity leave.

It will be possible to dismiss a temporary worker in this situation if the following conditions are met:

it was issued under the STD for the period the main employee was on maternity leave;
there is no other vacancy at the enterprise where she can be transferred or she refused the transfer.

If a suitable job is found for a pregnant woman registered under the STD, and she agrees in writing, then the agreement with her is extended until the moment of childbirth. It will be possible to fire her only when the child is born. In another situation, when a temporary employee went on maternity leave and the child has not yet been born, the day of her dismissal should be considered the date when the permanent employee returns from maternity leave.

Regulated by the Labor Code of the Russian Federation.

Temporary workers are those employees who are hired for the period of absence of the main worker or to perform certain work.

The basic rules for hiring and hiring a temporary worker are the same as for main employees. The applicant provides the same package of documents. However, when concluding an employment contract with a temporary employee, there are some peculiarities. Additionally, the Labor Code establishes special benefits and guarantees for them.

Probation

() is the period of time established by the employment contract during which the employer evaluates business qualities employee and has the right to dismiss him if the employee does not pass the test. According to Article 70 of the Labor Code of the Russian Federation:

if the contract is concluded for a period of up to 2 months, a trial period is not established;
when imprisoned for a period of 2 to 6 months, the probationary period cannot exceed two weeks.

Termination of contract

of its termination due to expiration, the employee must be notified in writing no later than 3 calendar days;
if it is concluded for the performance of certain work, it is subject to termination upon its completion;
The contract for the period of absence of the main employee is terminated with the return to work of this employee.

If the contract period has expired and both parties do not require its termination, and the employee continues to work, the contract will be considered concluded for an indefinite period.

Other benefits and guarantees

Employees who have entered into a contract for a period of up to 2 months are granted leave and paid compensation at the rate of two days per month worked.
Involvement in work on a day off is permitted only with their consent.

In what cases is a temporary employee needed?

Hiring a temporary employee during the absence of the main one may be necessary if:

on maternity leave;
on parental leave;
for the period of sick leave;
on a long business trip.

At the same time, the main employee retains his place.

Hiring a temporary employee is possible:

For the purpose of performing seasonal work, when due to natural and climatic conditions or the characteristics of the enterprise’s activities, they are carried out during a certain season.
With persons sent on a business trip abroad.
To perform certain work that goes beyond the normal activities of the enterprise or is of a short-term nature. Such as minor repairs, holding an advertising campaign, filing and submitting documents to the archive, etc.
With citizens who are sent to the organization to perform alternative civilian service.
With persons referred by the employment service for temporary or public work.

Registration

Below is a sample entry in a work book about temporary employment:

When hiring temporary workers, it is necessary to take into account the specifics of concluding an employment contract with them. First of all, this is a fixed-term employment contract; its validity is limited to a certain time frame. A temporary worker is subject to guarantees and compensation, just like the main one.. There are also additional ones that you need to know and follow. Registration of reception and documents related to work is carried out according to general rules registration of documentation and maintenance of work books.

It happens that employed young women take leave due to pregnancy and maternity. And then the need arises to find a temporary employee who will be provided with work under a fixed-term contract during the main maternity leave. If you are about to be employed or transfer to maternity leave, you must first understand what it is, how long you will have to work, and what the disadvantages and advantages of such work are.

Features of the maternity rate

Employed women expecting the birth of a child go on maternity leave at the 30th week of pregnancy, and in case of twins - already at the 28th week. The period of sick leave for pregnancy and childbirth lasts 140 days when expecting one child and 194 days when expecting several. And after giving birth, it’s time to take parental leave for up to one and a half or three years.

Return to workplace the main employee can occur both after the end of sick leave for pregnancy and childbirth, and after more than long period- maternity leave. A young mother can go to work at any time before the end of her maternity leave.

For the duration of the maternity leave, his place is retained. And the employer is forced to look for a specialist to replace the main employee. In this case, 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. Is it possible to hire a new employee at maternity period main

Such replacement is formalized in the form of a fixed-term employment contract. It indicates that the hiring or transfer of an employee is carried out for the period before the main one returns to work. For a person who already works at the enterprise, an additional agreement can be drawn up to the contract already concluded with him.

In this regard, if an employee gets a job on maternity leave, he must understand that this is a temporary job from which he will be fired in 1.5 or 3 years, or even earlier (at any time when the young mother decides to return to work) .

Pros and cons of employment while another employee is on 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.

Short period of employment. It can be as long as 3 years and several months, or the minimum time is 140 days.
Ignorance exact day dismissals. The contract states that it ends when the main specialist returns from maternity leave.
Legal insecurity. The deputy may be notified of dismissal in just a few days, or even one day. No compensation is paid for this. And even the mother of a child under three years old and a pregnant woman can be fired, since the fixed-term agreement clearly states that dismissal occurs when the employee returns from maternity leave.

Such a vacancy also has some advantages. First of all, this is a less strict selection of candidates compared to hiring a main employee. For young professionals, temporary work is an opportunity to gain the experience necessary to get a job. permanent job in another organization. There is the possibility of concluding a long-term employment contract. If a specialist performs well on maternity leave, he may be offered a transfer to another permanent position. And finally, no one will take away the right to leave - calendar and maternity leave.

How is admission and transfer to a temporary position processed?

During the period of maternity leave of the main employee, the manager can appoint in his place a person already employed in the organization. In this case, an additional agreement is concluded with him, and a record of the transfer is made only in the specialist’s personal documents. The temporary transfer is also fixed by order. Registration of a new employee includes a number of stages.

The applicant for the position provides everything necessary documents and their copies (passport, TIN, diploma of education, SNILS and others).
A person being hired writes an application for temporary employment.
An order for employment is drawn up from a specific date until the day when the person being replaced returns from maternity leave.
A fixed-term employment contract is drawn up and signed. It also indicates the time of its end - the replacement employee’s exit from parental leave.
Registration of a personal file and personal card of a temporary employee.
Entry in the work book about admission to the organization.

When an employee on maternity leave decides to return to work, his replacement specialist will be notified of this. Dismissal occurs with an entry in the work book stating 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, a new employment contract will be concluded with him.

Temporary employee's maternity leave

A woman on maternity leave can become pregnant herself. There will be no problems when transferring to a temporary position. The employee will receive maternity leave and benefits, and will retain his previous position. But with regard to a new employee hired under a fixed-term contract, controversial situations may arise.

The contract clearly states that its validity period expires from the moment the main employee enters the workplace. But everyone agrees that women should not be fired during pregnancy. Unfortunately, the maternity rate is not the case. When the employee who was replaced returns to work, the temporary one must be fired, even if it is a woman in " interesting position».

However, if there is a vacant position in the organization that matches the qualifications of the applicant, it is possible to transfer to it. The employer must notify the temporary employee about available jobs, and if he agrees, extend the contract until the end of the pregnancy. If free space At this time, no, it is not prohibited to dismiss someone hired on a temporary basis, even if he is in a position.

When an employee on maternity leave is in the 30th week of pregnancy, he is entitled to paid maternity leave. Of course, if the main employee has not returned before this period. To apply for leave, the deputy provides a certificate of incapacity for work and writes an application. While a woman is registered in the organization, she has the right to maternity leave with accrual of benefits.

A temporary employee who is on maternity leave can be fired when the person he replaces returns from maternity leave. In this case, you need to contact the social security department for subsequent payments. Benefit minimum size will be accrued from the next day after dismissal.

If management asks a person to resign because the organization needs to find a new one, this is illegal. If the contract has not yet expired, the woman has the right to maternity leave, even if the company will pay for two maternity leave for one position. If you quit before going on maternity leave, you will lose your seniority and allotted benefits.

The deputy may return to his duties after maternity leave if the employee he replaces has not yet returned to work. You can continue to work until the end of your employment contract, and take parental leave for your father or grandmother.

“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 employee, during which the woman found herself in an interesting position. The employer actually found himself in a stalemate: the absent employee finally showed up at work, and it was no longer possible to fire the employee who replaced him.

Thus, it is now 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 during maternity leave

Please tell me. 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 realized that I was pregnant, they left me at work, with big problems, and until the birth. So these are the rights I generally have. and what the employer should do in this case. (as a temporary worker, I am entitled to sick pay for only 90 days. Will they pay me for maternity leave)

Article 261.

Temporary worker going on maternity leave

Hello. During the maternity leave of the main employee, a temporary one was hired. The temporary worker is also going on maternity leave, but the main one is already leaving. Do we have the right to dismiss a temporary employee, and when can we do this?

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 written consent of the woman, to transfer her to another job available to the employer (as a vacant one) before the end of pregnancy position or work corresponding to the woman’s qualifications, as well as vacant lower position or lower paid work) that a woman can perform taking into account her health condition.

Conclusion of a fixed-term employment contract to replace a maternity leaver

- a fairly common case of hiring a temporary worker. Considering that it has its own characteristics, employers often have many questions related to its registration and termination.

Such an employment contract is concluded when the absent employee, in accordance with labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations, an employment contract, the place of work is retained.

I am replacing an employee during maternity leave.

It is permissible to dismiss a woman due to the expiration 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 before the end of pregnancy (as a vacant position or a job corresponding qualifications of a woman, and a vacant lower position or lower paid job).

How to calculate maternity leave?

You got an interesting job, promising job, but intend to go on a long maternity leave. 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.

Let's start with the fact that there is no such thing as a “maternity leave” in the laws. There is a period of temporary disability due to pregnancy and childbirth, and there is parental leave until the child reaches one and a half or three years of age.

Transfer for maternity leave

Question: It is necessary to transfer an employee from the position of “design engineer”, for which she was hired for the period of 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 (21.05.12). Is it possible to do without being fired? From what date should the transfer be processed? And in the event of a transfer, will she still have 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 the entire time the employee is absent.