For the period of maternity leave. Hiring an employee during maternity leave

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In another situation, the employer may be faced with the situation that when leaving maternity leave An employee on maternity leave will have two employees in one position at the same time.

Such features are due to the fact that after the initial registration of maternity leave for pregnancy and childbirth, leave is often extended at the request of the employee. The rules are regulated in paragraphs 46 and 48 of the Procedure for issuing certificates of incapacity for work.

The maternity leaver retains the right to leave vacation until the newborn turns 3 years old, and at any time during the vacation, which is prescribed in Article 256 of the Labor Code of the Russian Federation. In this regard, the only correct condition included in will be the provision on leaving the place of employment when leaving the position of the main employee.

The act states that such a date is considered to be the last day when the employee performed his labor duties. If he was released from them, then the last day on which his place of employment was retained.

For example, when going on vacation or sick leave. This provision is based on Article 84.1 of the Labor Code of the Russian Federation. Accordingly, the day of dismissal will be considered the date preceding the maternity leave from leave.

The date of dismissal should be transferred to the employee and a full payment should be made, taking into account the time worked and previously unpaid vacations.

The date of release of a maternity leave before reaching 3 years is usually known in advance, since she first submits an application for leave. The allotted time is sufficient to formalize the termination labor relations with an employee performing obligations on .

Grounds for concluding a contract for maternity leave

When concluding such contracts, one should be guided by the following grounds for executing fixed-term employment agreements:

Article 58 of the Labor Code, the provision states what constitutes fixed-term contract and describes cases in which the contract is concluded on a temporary basis;
Article 59 of the Labor Code of the Russian Federation - on the possibility of drawing up an employment contract to fulfill obligations on a temporary basis;
Article 60 of the Labor Code of the Russian Federation - on the limitation of obligations not related to the work performed and not directly specified in the job description;
Article 72 of the Labor Code of the Russian Federation - signing an additional agreement when changing the terms of the current employment contract;
Article 260 of the Labor Code of the Russian Federation - registration annual leave on a paid basis before or immediately after going on maternity leave, taking into account the period in the total length of service;
Article 261 of the Labor Code of the Russian Federation - transfer of guarantees if a pregnant woman quits.

Conditions for concluding an employment contract during maternity leave

If it is necessary to draw up an employment contract on a fixed-term basis when filling the position of an employee who has gone on maternity leave, an agreement is concluded according to a certain sample.

You can download a sample agreement.

It should be indicated in the contract that the date of termination of relations with the employer is fixed the day before the employee employed under the main contract goes to work.

What entry is made in the work book?

When registering an employee on a temporary basis under a contract, along with a package of documents, provided for by law in the form of an identity card and a diploma, a work book is provided. In its absence, the employing organization must apply to the newly hired employee if the citizen has been employed by the company for at least 5 days.

When making an entry, it is not indicated that the employee was hired on an urgent basis. Often, after women return from maternity leave, a new employee is transferred to the same company to another position at their main place of work, without severing employment relations with him. Thus, the agreement acquires an open-ended basis.

You cannot enter into temporary contracts several times in a row. Such actions for the employer entail attracting administrative responsibility on the basis of Article 5.27 of the Code of Administrative Offenses of the Russian Federation.

Payments to an employee under a contract during maternity leave

An employee holding a position on a temporary basis when the main employee goes on maternity leave has the following rights:

to receive wages based on the time sheet at an agreed rate in accordance with the employee’s qualifications;
for the payment of compensation and bonuses provided for by the organization’s internal documents, such as collective agreements and labor regulations;
on the last day of work, payments are made for the full period worked, accrued bonuses, and compensation for unused annual leave.

Termination of contract

The law provides for a special basis for terminating a fixed-term employment contract. The employer is obliged to notify about the termination of the relationship no later than 3 days in advance. calendar days. This condition is specified in Article 79 of the Labor Code of the Russian Federation.

When an employee is hired to replace another on a temporary basis when going on maternity leave, this provision does not apply.

The documentation does not record the temporary basis for the performance of labor functions.

The situation becomes more complicated if the employee hired as a replacement for the position is also going on maternity leave. There are two possible legal situations here:

The new employee is pregnant until the main employee returns from maternity leave. Dismissal can be carried out due to the expiration of the contract if it is concluded on a temporary basis and it states that the position held is retained until the main employee returns from maternity leave. At the same time, on the basis of Article 261 of the Labor Code of the Russian Federation, the employee temporarily refuses another offered position that is vacant at the enterprise, or such free seats not in the organization at the time of maternity leave.
If the contract is concluded with a temporary employee on a fixed-term basis, then there is no need to warn the employee who was hired under the contract about the dismissal, indicating the dates for the exercise of powers (Article 59 of the Labor Code of the Russian Federation).

The proposed position must correspond to the qualifications of the employee. It should be taken into account that she will be able to perform labor functions taking into account her state of health. The locality where the company's branch is located must be in the same region, unless otherwise specified in a collective or individual labor agreement.

The exception is cases when the woman was employed by labor contract on an urgent basis, not related to replacing an employee on maternity leave. In such a situation, the period of validity of the agreement should be extended until the end of the pregnancy.

Maternity leave is granted to female employees on the basis of a certificate of incapacity for work. During the period of maternity leave, the employer has the right to hire another employee. When hiring an employee, the temporary nature of the employment is taken into account.

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The period of maternity leave is determined strictly according to the certificate of incapacity for work. The period contains prenatal and postpartum period, indivisible and indicated in full on one sick leave.

The start and end dates of the vacation are determined by the pediatric consultation doctor. At the end of prenatal and postnatal leave, a period of child care is issued.

Basic provisions of the maternity period:

the period is 140 days and can be extended with a new certificate of incapacity for work in case of complicated childbirth;
in case of successful childbirth, the employee is given the right to take maternity leave;
child care time does not apply to the period of maternity leave, it is provided on the basis of the person’s application and by order of the employer.

During the period of temporary absence of the employee, it is allowed to hire another employee under a fixed-term contract. At the legislative level, the right is granted in the Labor Code of the Russian Federation.

During the hiring of a temporary person, the main employee is assigned a place of employment. After absence, the employee returns to the place he occupied before maternity leave.

If a temporary worker is hired only for the duration of the main employee’s sick leave, the period of his employment is limited to the expiration date of the sick leave.

Despite the urgent nature of the contract, the employer must not warn the person about the end of the agreement (Labor Code of the Russian Federation).

Possible employment options:

Hiring an employee to the main place of employment under a fixed-term employment contract.
Hiring a part-time employee who has his main place of work. When registering it is employment contract. The duties of a person on maternity leave are fulfilled by working off working hours.
Registration of combining the duties of an employee of the enterprise during the period of absence. The performance of the duties of a temporarily absent person is entrusted to an employee of the enterprise during the period of performance of the main work. Any employees have the right to combine positions, except those with positions special conditions work with increased harmfulness or related to transport management.

Temporary employment for the period of sick leave for prenatal and postnatal leave is allowed for enterprises of all forms of ownership.

Payments for sick leave are fully compensated by the Social Insurance Fund. Remuneration to the replaced employee does not lead to exceeding the approved wage fund, which is especially important for accounting for budgetary organizations.

How to fill out an order for employment during maternity leave and its sample

An administrative document (order) on employment is drawn up for persons hired under an employment contract. The employer independently has the right to choose the wording in the contract that determines the period of validity of the substitution.

TO possible forms include:

definition in the contract of a limited period of validity. The end date is the day the certificate of incapacity expires;
hiring for the period of temporary absence of an employee (specify data), whose place of employment is retained.

If you are hired before the main employee actually returns to work, the temporary agreement will also be valid for the period of parental leave.

There is no need to renew the contract. If the main employee is dismissed at the end of maternity leave (for example, due to moving to another location), the agreement becomes an open-ended contract.

If the contract is of a fixed-term nature and limited to the end date sick leave extension is possible by drawing up an additional agreement.

For example, you can formulate: “Extend the validity of contract No. 1 dated January 10, 2015. Ivanova A.A., concluded for the period of prenatal and postnatal leave by Petrova M.T., until the date of departure of the main employee.”

The employment order must reflect prerequisites hiring:

information about the enterprise;
document numbering assigned in accordance with the registration log;
information about the hired employee;
information about the position or specialty being filled;
conditions and nature of work;
remuneration and allowances;
probation;
the basis for issuing the order is an employment contract indicating the numbering of the document.

The form is signed by the manager or a person with similar rights - his deputy. The person being hired must be familiar with the order within 3 days from the date of employment.

If the enterprise formalizes a combination of positions to perform duties, the order is drawn up in free form. In document flow when registering a combination important role plays a statement.

An employee can be entrusted with combining positions only with his voluntary consent. Before issuing the order, the personnel authority of the enterprise draws up an additional agreement to the main contract of the employee who formalized the combination.

An approximate wording of the text of the order: “To formalize the combination of the position of manager for economist A.A. Petrova. for the period of maternity leave Serova K.K. (or until the main employee K.K. Serova leaves) from November 25, 2019. Establish an additional payment for combining duties in the amount of 30% of the salary of economist A.A. Petrova.”

The order is signed by the manager and then reviewed by the employee. The document serves as the basis for calculating wages.

No time records are kept for combination work. Wages the employee is accrued in the amount established in the order - a fixed amount or percentage in relation to the basic salary. Record of combining positions in work book not included.

With probationary period

The procedure for determining the probationary period is defined in the Labor Code of the Russian Federation. The period is provided to determine the employee’s suitability for the position held. The test is administered once during employment.

Features of the probationary period for replaced persons:

When drawing up fixed-term contracts for a period of validity from 2 to 6 months, the trial period should not exceed 14 days.
For contracts with a validity period of less than 2 months, the trial period does not apply.
If a combination of positions is arranged for a temporary employee, a probationary period is not established. When combining, only an additional agreement to the existing employment contract is not concluded, which cannot contain a test condition. There is no condition of initial employment.

The calculation of the end of the trial period is determined without taking into account the time of absence due to illness, vacation or other reasons permitted by law and subject to the consent of the employer.

If a person has begun performing temporary duties by way of transfer, a probationary period is not assigned.

In order of translation

The transfer of an employee is carried out either within the enterprise or from one permanent employer to another. The place of employment during the employee's maternity leave is not vacant.

Transfer to a permanent place of employment between enterprises is not carried out, except in cases where there are fixed-term contracts at both places of employment, which does not lead to a deterioration in conditions.

Translation is understood as a change in the terms of the contract, executed by agreement of the parties and on the basis of a written agreement.

The fact of transfer is not reflected in the work book due to the temporary nature of the work. Sample text: “Transferred to the position of economist.”

The additional agreement and order must indicate that the transfer is carried out for the period of temporary absence of a specific person. The employer must reflect information about the transfer in the employee’s personal card.

After the employee returns from maternity leave, the replacement employee is transferred to the previous place of employment. The temporary employee must be notified of the transfer 3 days in advance.

Part-time

A part-time worker may be hired while the employee is on maternity leave. The contract is of a fixed-term nature until the end of the sick leave or establishes a period until the departure of the main employee, taking into account the prospect of taking parental leave. An employee is employed in an additional position if there is a main contract.

The situation when an employee goes on maternity leave is far from uncommon. If a reliable person has already been found who is ready to temporarily replace the main specialist, you can begin preparing documents related to employment. After agreeing on all the details, it is necessary to make an entry in the work book about hiring during the maternity leave of the main employee.

Features of a fixed-term contract

A fixed-term employment contract concluded with a new employee must contain following conditions(Articles 57, 58 of the Labor Code of the Russian Federation):

grounds for conclusion

Maximum duration

Article 58 of the Labor Code of the Russian Federation limited the maximum duration of a temporary contract to five years. This provision provides that in the event of continuation of actual labor relations beyond the agreed period, the condition of urgent nature labor agreement becomes invalid and the contract is considered concluded for an indefinite period.

In some cases, the moment of expiration of the contract may not be indicated by a specific date, but by an indication of the occurrence of a certain event. But, despite the fact that the moment of the end of a fixed-term agreement can be designated as the absence of an employee from maternity leave, the registration of employment for the duration of maternity leave is made in the work book according to general rules.

Grounds

Along with the validity period, when concluding such an agreement, in mandatory One more condition must be indicated - the basis for its registration (Part 2 of Article 57 of the Labor Code of the Russian Federation). An exhaustive list of reasons that may be the basis for signing a fixed-term contract is contained in Article 59 of the Labor Code of the Russian Federation. In this case, the basis will be execution job responsibilities temporarily absent employee, who is legally retained workplace.

Employment order

The manager's order to hire a specialist for a position temporarily absent from the main employee is drawn up in the form approved by Resolution No. 1 of January 5, 2004 (No. T-1).

If the contract expiration date is determined not by a specific date, but by an indication of the occurrence of an event, instead of the contract expiration date, the event upon the occurrence of which the contract ends is indicated. For example, “by the date the temporarily absent employee returns from maternity leave.” Only after the publication of the appropriate administrative document does it become possible to make an entry in the work book for the appointment of the main specialist during maternity leave.

Making an entry in the work book

Entering relevant information into the work book of a new employee should follow the general rules. The entry in the work book when applying for a job during maternity leave has standard view. The basis for its inclusion is the employment order.

Sometimes there are situations when an employee who was on maternity leave quit without starting work labor responsibilities at the end of the maternity leave. In accordance with Part 4 of Art. 58 of the Labor Code of the Russian Federation, if after the expiration of the agreement neither party has declared a desire to terminate the contractual relationship and the employee continues to work, then the urgency condition loses force.

Wrong entry of deadline

If the employee personnel service entered information about the fixed-term nature of the contract into the work book, this is an error that needs to be corrected. Changes to the section containing information about the work should occur as follows:

Column 1 contains the serial number that follows the last entry)
Column 2 displays the date the entry was made)
The following note is made in column 3: “The entry numbered XX is invalid.” Then the correct option is written)
Column 4 contains details of the order that served as the basis for entering the initial information.

The specified procedure is provided for in paragraph 1.2 of Instruction No. 69 dated October 10, 2003.

Establishing a probationary period

Special attention needs to be paid correct design documents if the employer sets a probationary period for a temporarily hired employee (Part 1 of Article 70 of the Labor Code of the Russian Federation).

Test period limitation

The general rule is that the duration of the trial cannot exceed three, and in some cases six months.

For example, the probationary period can be extended to six months for specialists filling positions:

heads (their deputies) of organizations)
chief accountants and their deputies)
heads of branches and other separate structural divisions.

When concluding a contract for a period of two to six months, the duration of the trial cannot exceed two weeks. Condition about probationary period must be included in the employment contract. At the same time, the entry in the work book for the period of maternity leave should not contain a reference to this circumstance.

Termination of contract

If the contract does not stipulate a specific end date, and it was concluded for the duration of the duties of a temporarily absent specialist, its validity terminates upon the return to work of the main employee (Part 3 of Article 79 of the Labor Code of the Russian Federation).

The day of termination of the contract in this case is the date that precedes the start of work of the main specialist. If this date falls on a holiday or day off, the moment of termination of the employment relationship in accordance with Art. 14 of the Labor Code of the Russian Federation, it will be the next working day.

If a temporary employee exercises the right provided for in Part 3 of Art. 127 of the Labor Code of the Russian Federation, and the vacation ends after the expiration of the contract, the last working day will be considered the day the vacation ends.

An employee going on maternity leave does not come as a big surprise.

Usually expectant mother warns management in advance that she will be temporarily unable to work.

In such cases, the company is faced with the problem of how to hire an employee during maternity leave. This will be discussed further.

We register an employee for maternity leave

An employee who goes on maternity leave will be absent from the company for quite some time. long time and will not be able to do his job. Her duties will be carried out by a new person.

It is necessary to draw up a fixed-term employment contract with him during maternity leave. This document is especially strictly checked by the relevant authorities, and therefore must be compiled impeccably.

A candidate who wishes to take up a temporary position must write an application for employment, in accordance with all standard rules and with the obligatory indication of temporary cooperation.

In addition, the application must contain information about:

The period during which the candidate would like to work.
The name of the position and full name of the maternity leaver whom the candidate will replace.

After the application is registered, a personal card is created for the new specialist. Next, the second stage begins - concluding an employment contract.

A fixed-term employment contract is concluded with the employee who will replace him.. It differs from perpetual in that its validity period is strictly limited. It can be concluded for a specific period or until the occurrence of certain circumstances.

As a rule, such circumstances are when an employee returns from maternity leave. As for the timing, the “maternity” rate can be replaced within 5 years.

Despite this, when signing, conflicts may arise regarding the duration of the contract.

Usually, expectant mothers take out maternity leave, then it is extended for 3 years, but is already called “child care.”

But if a woman expresses a desire to go to work, then she can interrupt her vacation.

In this case, the maternity leaver has an advantage, because in labor legislation a right is enshrined that guarantees that the workplace is retained by an absent specialist.

This means that the service relationship with the new employee will be terminated.

That is why it is not necessary to stipulate in the contract exact dates his actions so as not to encounter similar problems in practice.

The document must indicate the date of hire of the temporary employee. This is the day that follows the day the employee goes on maternity leave in accordance with the sick leave.

It is better to record the end of the employment relationship as the last day that precedes the employee’s departure from parental leave.

This is the third stage of registration. After the parties have drawn up and signed an employment contract, the company prepares an order to hire an employee during the maternity leave of the main employee. The order is prepared according to approved form No. T-1.

This document must be compiled as accurately as possible. It will be kept in the company's archives and may be needed when the temporary employee applies for a pension. Therefore, the order must clearly reflect the employee’s period of work.

And the last point in this paperwork is an entry in the work book. It should be written there that the employee is hired on a fixed-term contract during maternity leave.

When applying for temporary employment, many lawyers advise not to enter a “fixed-term employment contract” entry in the book. This is justified if the maternity leaver decided to quit straight from her vacation without working a single day.

Then there are no grounds for ending the contract, and the new employee can continue to work. The employment contract will be considered concluded for an indefinite period.

This makes it possible not to make appropriate changes either to the work book or to the order.

When hired, a new employee retains all rights stipulated by law.

A temporary worker has the following rights:

If in the employment contract exact date is not specified, it ends when the main employee returns to work. When a woman goes on maternity leave for part-time, the contract with the new employee is not terminated.

To fire a temporary employee, you need to complete the following documents:

an order to leave a key employee;
order to terminate a fixed-term contract.

You also need to make an entry in the work book and personal registration card stating that the temporary employee was fired due to the return to work of the main one.

After this, the replacement employee is considered dismissed and receives a work book. Within a month, all necessary monetary compensation is transferred to him.

For many, an employee going on maternity leave becomes real problem, and they begin to wonder how to register a new employee.

The procedure goes through 4 stages: writing a job application, concluding a fixed-term contract, signing an order and making an entry in the work book. This scheme is still relevant today, in 2019.

The main task of the manager, when one specialist goes on maternity leave, is to correctly distribute responsibilities to the rest. If the volume of tasks performed is large, it is more advisable accept a new person during maternity leave of the main employee.

Hiring during maternity leave

The duration of maternity leave varies from 140 to 194 days. On such long term It’s hard to do without an employee, especially if the position is a managerial one or the position involves working with critical processes of the organization.

The employer has the right to temporarily hire another employee to perform the duties of a “maternity leaver.” At the same time, the process of hiring a temporary job is no different from hiring for the main place of work.

Attention!
Before placing an employee on maternity leave, inform that when the main employee leaves, the replacement will be fired.

A fixed-term employment contract must indicate its validity period and the reason for employment.

If the main employee takes parental leave, then a new fixed-term contract is drawn up with the replacement employee and an order is issued.

Drawing up a fixed-term employment contract

You can start the registration procedure only if the leave of the main employee who has gone on maternity leave has been registered.

When hiring a replacement employee, the contract must clearly state the duration of its validity and the condition under which it will cease to be valid. By avoiding this step, a situation may arise in which you will have 2 staff positions for one position. It is worth noting that the main employee can leave parental leave at any time, so it makes no sense to indicate the validity period. It would be more correct to write “A fixed-term employment contract expires on the working day before the working day of the main employee going to work”.

If you have entered into a fixed-term employment contract only for the pre- and post-natal period, and the employee decides to take maternity leave until the child reaches 1.5 or 3 years of age. Then the item is added « Extend the term of the employment contract from __.___.___ No. __ for the period that the position of the main employee, full name, is on parental leave until the child reaches the age of __ years.”.

Temporary employee going on maternity leave

The employer is not insured against the case when a temporary employee working on maternity leave also goes on maternity leave.

Questions immediately arise: can the employer fire him in this case? Let's consider the following cases when this is possible:

1. A temporary worker can be fired in the following situations:

If during the pregnancy of a replacement employee, the main employee returns to work. In cases where a fixed-term contract was concluded with a temporary employee due to maternity leave or the departure of a child of a permanent employee.
The employer offered the temporary worker other vacancies in the company, but the answer was refusal.
If the temporary employee has not provided a certificate of pregnancy.

2. The replacement worker is on maternity leave at the time when the main worker left.

Why you can’t reduce your maternity position

The law “protects” young mothers from dismissal; let’s look at what guarantees the state provides:

When laying off an enterprise, women on maternity leave or parental leave are laid off last in the event of bankruptcy of the enterprise.
Before layoffs, the employer is required to provide 2 months notice and offer other vacancies.

Dismissal of an employee on maternity leave

A fixed-term employment contract terminates at any time as soon as the main employee returns from vacation. Moreover, for termination it is necessary that one of the parties demand its termination due to the expiration of the term. If this point is not taken into account, then the fixed-term contract will be considered concluded for an indefinite period.