Ruling of the Supreme Court of the Russian Federation dated February 12, 2018 No. 309-KG17-15902 in case No. A50-26803/2016

Comment

To calculate benefits for disability, maternity and child care, earnings accrued for the two years preceding the year in which the benefit is paid are used. Employees who were on maternity and (or) child care leave in one of the years of the billing period (or both) can replace these years with previous ones. Replacement is carried out at the request of the employee and on the condition that this will lead to an increase in benefits.

A dispute between the employer and the territorial branch of the Federal Social Insurance Fund of the Russian Federation about the years for which such a replacement can be made has reached the Supreme Court of the Russian Federation.

The employer acted as follows: the calculation period included the years 2014-2015, while the employee had the right to a replacement for 2015. When calculating benefits, the employer replaced 2015 with 2012. The Federal Social Insurance Fund of the Russian Federation recognized such a replacement as unlawful and refused to offset the benefits paid. According to the fund, replacement in this situation could only be made in 2013.

The courts of three instances recognized the employer’s actions as lawful.

However, the Supreme Court of the Russian Federation did not agree with them.

The judges indicated that to calculate benefits, average earnings are taken, calculated for the two years preceding the year of disability, pregnancy or parental leave. Since the initial billing period must immediately precede the year of occurrence of the insured event, the replacement of the years (years) that make up this billing period can only be made for the years (year) immediately preceding this billing period. Thus, replacement can be made only for years (year) sequentially preceding the years (year) for which earnings are taken into account when calculating benefits.

Let us note that this decision, also included in the review of judicial practice of the Supreme Court of the Russian Federation No. 2 (2018), approved. by the Presidium of the Supreme Court of the Russian Federation on July 4, 2018, does not leave employers a chance to make a replacement for arbitrary years preceding the billing period. Especially considering the fact that the regulatory authorities broadcast an opinion coinciding with the opinion of the Supreme Court of the Russian Federation for a long time (for more details, see).

Replacing the years of the calculation period for payment of benefits is possible not for any previous years (year), but for the years immediately preceding the year of the occurrence of the insured event. This conclusion follows from the Supreme Court ruling dated September 22, 2017 No. 304-KG17-12780. If, say, the employee was on maternity leave and “children’s” leave for three years (in 2014 - 2016), and a new insured event occurred in 2017. In such a situation, the 2015 and 2016 years of the calculation period can only be replaced by the coming years preceding the year of the first insured event. That is for 2012 and 2013.

General rule for postponing the billing period

Part 1 of Article of the Federal Law of December 29, 2006 No. 255-FZ establishes the following. If in the two calendar years immediately preceding the year of the insured event (or in one of them) the insured person was on maternity leave and (or) child care leave, then the corresponding years can be replaced for the purpose of calculating average earnings previous calendar years. Such a replacement is made at the request of the insured and on the condition that this will lead to an increase in the amount of benefits.

The essence of the dispute

The court considered the following dispute. In 2015, the employee went on leave to care for her third child. According to the general rule given above, the years 2013 and 2014 must be included in the calculation period for calculating maternity benefits. However, from 2012 to 2014, the woman had periods of maternity leave and leave to care for her second child. In this regard, the employee filed an application to change the pay period. In the application, she asked to replace 2013 and 2014 with 2009 and 2010, which precede the periods of maternity and parental leave, but are not “immediately” preceding the years of the calculation period.

The employer changed the years and calculated the employee's benefits based on the income she received in 2009-2010. However, when he turned to the FSS for a refund, the inspectors refused. The fund said: transferring the calculation period to any previous years is illegal. Since the last fully worked year before the occurrence of the insured event was 2011, the billing period could only be replaced by 2010 and 2011.

Court decision

The courts of the first two instances supported the employer. As the arbitrators pointed out, the current legislation does not establish that the calendar years of the calculation period can only be replaced by the years “immediately” preceding the calculation period. Law No. 255-FZ contains the wording “previous calendar year”. Therefore, the employer legally moved the calendar years of the payroll period to an earlier time.

However, the cassation court and the Supreme Court agreed with the FSS. Replacement of calendar years can be carried out not for any previous years (year), but only for the years immediately preceding the occurrence of the insured event. Since the last fully worked year before the occurrence of the insured event was 2011, replacing periods when calculating benefits for 2009 and 2010 is illegal. In the described situation, 2013 and (or) 2014 can only be replaced by the immediately preceding years 2011 and 2010. If we follow the employer’s position (that is, allow the calculation period to be replaced by any years), then in this case the employee will be compensated not for the wages lost as a result of the insured event, but for any previously received wages.

As a general rule, benefits for temporary disability, pregnancy and childbirth, and monthly child care benefits are calculated based on the average earnings of the insured person, calculated for the two calendar years preceding the year of the insured event.

For example, if disability/maternity leave/parental leave occurred in 2014, then the employer will calculate benefits based on earnings for 2012–2013.
2012-2013 is the “calculation period”.

Temporary disability / maternity leave / child care leave are “insured events”, since their occurrence entails the payment of benefits from the Social Insurance Fund of the Russian Federation, to which the employer pays contributions for you.

We quote the Law

If in two calendar years immediately preceding the year of occurrence of the corresponding insured event, or in one of these years, the employee was on maternity leave and (or) child care leave, the corresponding calendar years (calendar year) the employee’s statement may be replaced for the purpose of calculating average earnings by previous calendar years (calendar year), provided that this will lead to an increase in the amount of benefits (see Part 1 of Article 14 of the Federal Law “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with motherhood").

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That is, you can ask the employer to replace one year of the pay period if you took maternity leave and (or) child care leave during it, or both years of the pay period if they included the specified leave (at least one day of leave each for each calendar year). However, the employer has the right to satisfy your request only if this leads to an increase in the amount of benefits.

A request to change the year(s) of the calculation period can be stated in the application for payment of benefits or in a separate application (at your discretion). Below are examples of individual statements for changing the year(s) of the calculation period that should be attached to the application for payment of benefits.

Briefly about the main thing...

I. The legislation of the Russian Federation does not contain a condition that the replacement can be carried out only for two years immediately preceding the billing period.

For example...

An employee receiving benefits in 2014, if he was on parental leave in 2012-2013, may well replace 2012-2013 with 2008-2009, and not with 2010-2011. Also in this situation, it is permissible to replace 2012-2013 with 2009 and 2011 (the years chosen for replacement do not have to be consecutive).

II. The calendar year can be replaced even if the maternity or child care leave did not fall entirely within it.

For example...

1) The employee goes on maternity leave in 2014 (the “default” calculation period is 2012 - 2013), in 2012 the employee did not go on the corresponding leave, and in 2013 she took 1 week maternity leave for the first child. In this situation, 2013 can be replaced by any other year, despite the fact that parental leave did not fall entirely on it and lasted only a week.

2) The employee goes on maternity leave in 2014 (the “default” calculation period is 2012 - 2013), from December 30, 2012 she went on maternity leave, immediately after it in maternity leave, and on September 19, 2013, she returned to work from maternity leave to care for her first child. In this situation, both years can be replaced, i.e., both 2012 and 2013 or one of them, despite the fact that 2012 had only two calendar days of maternity leave.

III. You cannot demand the replacement of both calendar years of the calculation period if maternity or child care leave fell on only one of them. In such a situation, you can request a replacement for the year of the billing period in which the corresponding vacation fell.

For example...

The employee goes on maternity leave in 2014 (the default calculation period is 2012 - 2013), she worked throughout 2012, and from January 1, 2013 to December 31, 2013 she was on leave for pregnancy and childbirth and for caring for the first child. In this situation, only 2013 can be replaced, since there was not a single day of maternity or child care leave in 2012.

Important!

– The employer is not obliged to change the years of the pay period on his own initiative, even if this change is beneficial for the employee. Therefore, in case of legal disputes, you must have written evidence that you asked the employer to change the years of the pay period when assigning benefits. For example, you can do the following:
1) state a request to change the years in the application for benefits and ask the employer to make a note of acceptance on a copy of this application;

2) write a separate application for changing years and ask the employer to put a mark on it and on the application for benefits;

3) send documents by mail, by a valuable letter with an inventory, and indicate in the inventory that an application for granting benefits is being sent to the employer with a request to change the years (years) of the billing period;

4) draw up a receipt in advance for the acceptance of documents, which the employer will then sign, and in this receipt note that the employer has accepted an application for a benefit containing a request to change the year(s) of the billing period

The options may be different, the main thing is that the existence of a request to change the years can be proven in court with written evidence.

You should know that when calculating maternity benefits and child care benefits, the number of calendar days in the calculation period excludes days falling during the periods:

• temporary disability (i.e. “sick leave”);
• maternity leave;
• maternity leave;
• as well as other periods specified in the Law.

Also, amounts paid to the employee during such periods (i.e. benefit amounts) are not taken into account.

In this case, the days of the billing period falling on paid leave (annual, additional) are NOT EXCLUDED from the number of calendar days in the billing period.

For example...

The conductor of the passenger carriage worked in 2013 from January 1 to January 4, on January 5 and 6 she rested on her days off, from January 7 she went on maternity leave, and immediately after that she went on maternity leave, and left maternity leave only on January 1, 2015. If you do not change the years of the billing period, then when calculating maternity benefits and (or) child care benefits in 2015 from the calendar days of the billing period (calculation period - 2013-2014 yy) days from January 7, 2013 to December 31, 2014 will be excluded.
Thus, the average daily earnings for calculating benefits will be calculated from the employee’s earnings for 4 days worked (from January 1 to January 4, 2013), divided by 6 calendar days (from January 1 to January 6, 2013), in which she is not was on maternity and child care leave. In this case, the amount of the benefit in any case cannot be higher than the maximum amounts established in the Law.

That is, if you were previously on maternity leave and (or) child care leave, then with a new pregnancy it does not always make sense to ask the employer to change the years of the billing period.
However, such rules (about excluding calendar days from the billing period) do not apply to the calculation of temporary disability benefits, therefore, when receiving this benefit in similar situations, changing the years of the billing period usually makes sense.

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Sample applications for replacing calendar years for the purpose of calculating average earnings when applying for benefits for temporary disability, pregnancy and childbirth, and child care. These statements are attached to the application for the appointment and payment of the appropriate benefit!

Sample 1

Ivanov I.I.

From Polina Pavlovna Petrova

Position: florist

STATEMENT

Guided by Part 1 of Art. 14 of the Federal Law of December 29, 2006 No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity”, I ask you to calculate my maternity benefit for the period from December 1, 2014 to April 19, 2015, taking into account the following.
In the period from August 10, 2012 to December 27, 2013, I was on maternity leave, and then on parental leave until my child reached the age of 3 years.
In this regard, I ask you to change the billing period, namely, to calculate the amount of benefits for me based on my earnings for the 2010 and 2011 calendar years.

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Sample 2

General Director of Romashka LLC
Ivanov I.I.

From Polina Pavlovna Petrova
Passport series 7070 number 121212, issued by the Federal Migration Service of Russia

in the No. region in the No. district 08.08.08
Address: 703400, No.-skaya region, No.-sk, st. Lenina, 1, apt. 1
Actual address****: 125009, Moscow, st. Tverskaya, 3, apt. 1
Position: florist

STATEMENT

Guided by Part 1 of Art. 14 of the Federal Law of December 29, 2006 No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity”, I ask you to calculate my temporary disability benefit for the period from December 1, 2014 to December 19, 2014, taking into account next.
During the period from August 17, 2011 to January 3, 2012, I was on maternity leave.
In this regard, in order to calculate the average earnings for payment of benefits, I ask you to replace the 2012 calculation period with 2010 and calculate the benefits due to me based on my earnings for the 2010 and 2013 calendar years.

No one is immune from the disease, especially in winter. This is the real period when the accountant has to work hard to calculate the sick leave of each employee working in the enterprise. Legislation does not stand still; changes are made so often that only the most responsible and active can keep up with all the innovations.

Whatever the cause of the illness, there is a uniform procedure for calculating benefits that must be followed and always observed. At the same time, the taxation system does not matter, be it “simplified” or ENKVD.

To calculate assistance for sick leave, the following information is required:

• duration of the settlement period;
• average wages accrued for this period;
• the average income that an employee of an enterprise receives per day;
• percentage for calculating benefits, which takes into account average daily earnings;
• the amount of assistance in the end;
• and finally, you need to understand and have an idea of ​​how to calculate sick leave in 2019.

In 2019, when calculating sick leave, the replacement of years worked is of paramount importance, because depending on the length of insurance, sick pay is reimbursed. One mistake and the employee will be paid less; if more, then you will have to deal with the return of funds. And all this is money from the state budget, for which they will demand to the fullest extent of the current legislation.

Changing years: basic terms and conditions

When starting to replace years when calculating sick leave, the responsible person must adhere to several rules:

1. Due to the occurrence of incapacity for work during the billing period, to fix the amount of assistance that will be issued to the employee, in 2019 the last 2 working years are taken into account. The employee reports accrued wages for this period of time and, summing up, receives total cash income.
2. The length of the settlement period is 730 days. Please note: the restrictive limit is different for each calendar year.

So, when calculating sick leave in 2019, 2 years are taken as a basis - 2017 and 2018, the limits for this time are set in the following values:

• 718,000 rubles – for 2016;
• 670,000 – for 2017.

Let’s say that the change of years when calculating the certificate of incapacity for work affected an employee who was on maternity leave or child care at that time, then the 2 years preceding the leave are taken. For this action to become valid, the employee must write a statement, no matter in written format or using a computer. The FSS employee does not have the official right to independently choose the last few years; this is not part of his authority.

As of 2019, the law does not allow a parent to choose which years to take into account and which not; actions are performed only in the context of the last 2 years.

To make the situation more clear, let's give an example. Let’s say an employee of an enterprise was on official maternity leave in 2014 and 2015, and she fell ill in 2017. Then 2014 and 2015 are discarded, and information for 2012-2013 is taken under control. In case of doubt, it is time for the employee to point to the letter from the Ministry of Labor of Russia, registered in the register in 2015 under number 17-1/ОOG-1105.

Also, changing years when calculating sick leave is permitted if it can increase the amount of the benefit paid.

For the convenience of the accountant, we have collected data on limits for the last 5 years, which will be useful when calculating the certificate of incapacity for work (2016 and 2017 were indicated above):

• 624,000 rubles – valid for 2014;
• 568,000 rubles – for 2013;
• 512,000 rubles – for 2012;
• 463,000 rubles – for 2011 and all previous years.

If in any of the 2 years the total salary exceeded the limit on insurance amounts, this limit is taken into account when calculating sick leave. Everything that remains from above is thrown aside.

So, the average earnings may not include:

• benefits paid with government support;
• compensation contributions required for payment to individual employees;
• financial assistance up to 4,000 rubles annually.

How to calculate average daily earnings in 2019

When the change of years has already occurred and the average earnings for the required period of time are known, it’s time to calculate the average daily wage. Use the following formula:

Average daily wage = employee’s salary for the billing period / 730 days.

Even if the employee works part-time or only until noon, still apply this formula.

Calculation of insurance period for sick leave

The amount of benefits that an employee of an organization will receive in the near future depends on the length of insurance coverage:

• 100% of wages are taken into account for employees who have worked in total for at least 8 years, or even more;
• if a person worked for 5 to 8 years, 80% of earnings is taken as the basis;
• they are guided by the indicator of 60% of wages if a Russian citizen has worked for up to 5 years;
• if the length of service does not exceed six months, the benefit varies within the established minimum wage for 30 days. From January 1, 2019, the minimum wage was adopted at 7,500 rubles.

How is the insurance period recorded correctly? The main reference point is the date of occurrence of the insured event. The last day of the insurance period is the day preceding the onset of the disease, secured by a certificate of incapacity for work. Let’s say a worker fell ill on April 2, 2017, then the length of service is calculated as of April 1, 2017.

The insurance period includes the following components:

• period of work in accordance with a pre-drawn up agreement;
• periods when the employee was in the state civil service or municipal service;
• the time when military service or other type of official activity was carried out, specified in the law of 1993, registered under number 4468-1;
• periods when the employee was engaged in other work activities, during which he still acted as an insured individual and made contributions in case of temporary disability or in connection with maternity.

Other work activities mean:

1. Work related to the provision of notary services, registered privately, the position of a private detective or private security guard, if the work was carried out before January 1, 2001 and after January 1, 2003, but only if social insurance contributions were paid at that time.
2. Work in a law firm, which was accompanied by timely payment of contributions to state social insurance funds, after January 1, 2003 and before January 1, 2001.
3. Activities on a collective farm or cooperative, during which deductions from wages continued to be made to the accounts of state insurance funds, in accordance with the norms of current legislation, before January 1, 2001 and after January 1, 2003.
4. Other work activities also include the time when the employee was registered and performed the duties of a deputy of the State Duma.
5. Periods of work as a clergyman who regularly sent transfers to social insurance funds.
6. Time of activity of the convicted person after November 1, 2001.

Sample calculation of sick leave in 2019

The amount of sick leave benefit in 2019 = average daily wage for calculating sick leave in 2019 × %, which is directly dependent on the employee’s insurance length (in 2019 from 60 to 100%) × number of calendar days for which sick leave was issued in 2019.

Here is an example of calculating disability benefits in 2019. Middle manager Petrov A.N. was on sick leave from January 15 to January 21, 2019; on January 22, he went to work for the first time after recovery. Our goal is to correctly calculate the amount of benefits due to the employee.

So, having raised the documents, we calculate the salary that Petrov A.N. received in the previous years 2017 and 2018, based on the amounts, the contributions made to state insurance funds are determined:

• in 2017 – in the amount of 240,000 rubles;
• in 2018 – in the amount of 288,000 rubles.

Now let's look at the limit values ​​​​set by officials for these reporting periods. The limit values ​​- 670,000 rubles and 718,000 rubles - have not been exceeded, which means that wages when further calculating sick leave take into account annual wages in full.

Dear policyholders!

In connection with numerous requests regarding the issue of replacing years of the calculation period when calculating benefits for temporary disability, maternity leave, and parental leave, we inform you as follows.

According to Part 1 of Article 14 of the Federal Law of December 29, 2006 No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity” (hereinafter referred to as Law No. 255-FZ), benefits for temporary disability, pregnancy and childbirth, monthly child care benefits are calculated based on the average earnings of the insured person, calculated for two calendar years preceding the year of temporary disability, maternity leave, child care leave, including during work (service, other activities) other policyholder(s).

If in two calendar years immediately preceding the year of occurrence of the specified insured events, or in one of the specified years, the insured person was on maternity leave and (or) child care leave, corresponding calendar years (calendar year) at the request of the insured person can be replaced for the purpose of calculating average earnings previous calendar years (calendar year), provided that this will lead to an increase in the amount of the benefit.

Replacing calendar years, which are used to calculate average earnings for calculating benefits, can be carried out not for any years (year) at the choice of the insured person, but for the years (year) immediately preceding the years in which the insured person was on maternity leave and ( or) on parental leave.

Examples:

1. if the insured event occurred in 2015, but in 2013-2014 the insured person was on maternity leave and (or) child care leave, then these years can only be replaced by 2011-2012 ;

2. if the insured event occurred in 2015, but the insured person was fully (in 2012 and 2013) and partially (in 2014 and 2011) on maternity leave and child care leave, then all of the above years can be replaced by calendar years immediately preceding the years in which the insured person was on the specified vacations, that is, 2009 and 2010. Or, earnings for 2014 and 2011 can be taken into account, but in this case, periods of temporary disability, maternity leave, parental leave, in some cases - periods of release from work with full or partial retention of wages, if insurance contributions were not charged on this wage (Part 3 of Article 14 of Law No. 255- Federal Law);

3. if the insured event occurred in 2015, but from November 2010 to July 2015 the insured person was on maternity and child care leave, and until November 2010 the insured person worked partially, then the calculation period according to his application may be shifted to 2008 and 2009, or earnings for 2010 (where the insured person partially worked) and for 2009 can be taken into account, based on which option the benefit will be greater;

4. if the insured event occurred in 2015, but the insured person was on maternity leave and child care leave in 2014, 2013, and worked in 2012, and was also on vacation in 2011 and 2010 for pregnancy and childbirth and on parental leave, then the calculation period at his request may be shifted to 2012 and 2009.

Please note that replacing the years of the billing period, if the years (year) of the billing period consist of excluded periods, is the right of the insured person, and not an obligation.

It should also be noted that a necessary condition for replacing the years of the calculation period is to increase the amount of the benefit.

In accordance with Part 4 of Article 15 of Law No. 255-FZ, amounts of benefits for temporary disability, maternity, monthly child care benefits, excessively paid to the insured person cannot be recovered from him, except in cases of calculation error and dishonesty with the recipient's side (submission of documents with deliberately incorrect information, including certificate(s) about the amount of earnings from which the specified benefits are calculated, concealment of data affecting the receipt of benefits and its amount, other cases).

Incorrect application by the policyholder of the legislation of the Russian Federation, including Law No. 255-FZ when calculating benefits, is not a calculation error.