How to take leave before maternity leave? Who is entitled to vacation and how to calculate it?

General information about maternity leave

Starting from the thirtieth week of pregnancy, a woman is on maternity leave (in colloquial speech they often say “on maternity leave”).
Its start date is calculated by the doctor at the antenatal clinic where the woman is being observed, and by this time she is issued a sick leave certificate. It looks exactly the same as a certificate of incapacity for work due to illness, but, of course, it is filled out differently. If the pregnancy is not multiple and not complicated, sick leave is issued for 140 days - seventy days before the expected birth and seventy days after.

After this period, the next one, called parental leave, automatically begins. It lasts until the child is one and a half years old.

Considering that, according to the legislation of our country, child benefits are paid only up to one and a half years, but the insurance period is accrued for the entire period that a woman is on maternity leave. So, if desired, a woman can extend her leave until the child’s third birthday. At the same time, the employer is obliged to retain her position and workplace.

Indeed, according to the law, an employee has the right to annual paid leave only after working for six months. But pregnant women are an exception to this rule - they can request leave earlier than six months, and you, as an employer, are obliged to provide it.

You also do not have the official right to refuse to hire a woman in position - she was not obliged to inform you. Your reaction is easy to understand, but take this fact for granted and do everything so that the woman can calmly go on maternity leave, even if you feel deceived in some way.

As I mentioned above, the Labor Code of Russia contains a norm that is unambiguous in its interpretation: before going on maternity leave, a woman can apply for annual paid leave. At the same time, length of service, namely the length of time worked for a given employer, does not matter at all.

It should be noted that the date of maternity leave will be considered the date of commencement of the sick leave for pregnancy and childbirth. Linking annual paid leave to the start of parental leave here would be incorrect.

○ Until how long is maternity leave paid:

As I mentioned above, the Labor Code of Russia contains an unambiguous norm in interpretation: a woman before going on maternity leave can apply for annual paid leave . At the same time, length of service, namely the length of time worked for a given employer, does not matter at all.

In other words, pregnant women are entitled to leave before maternity leave, regardless of whether the employer wants it or not, and also regardless of whether the lady has worked in the organization for more than 6 months.

It should be noted that the date of maternity leave will be considered the date of commencement of the sick leave for pregnancy and childbirth. Linking annual paid leave to the start of parental leave here would be incorrect.

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How to calculate leave before maternity leave

There are several options for the length of leave that can be provided before going on maternity leave. It should be borne in mind that, at her own request and by mutual agreement with the employer, a woman can apply for any of the options.

1. Vacation in advance, of any duration. The maximum period of such full leave is 28 days, or more if the conditions and nature of work imply an extended leave.
2. Leave for time worked prior to the start of parental leave. I note that the period of sick leave for pregnancy and childbirth should also be counted as time worked.

In order to calculate the duration of annual leave for the time worked, it should be taken into account that for each month worked in a year, 2.33 calendar days of leave are due.

The accounting year begins from the date of commencement of the employment relationship, that is, from the date on which you started working. But this is only a general rule; a more detailed and accurate calculation of the duration of annual leave for the time worked can be requested from the personnel department of the organization.

We invite you to read: The vacation schedule is mandatory for the employee and the employer

The law states that workers in most professions are entitled to 28 calendar days of vacation per year.

For example, a woman goes on maternity leave from September 26th. By this time, her 28 days had already accumulated. She already took 7 days of vacation in January. She is entitled to 21 days of vacation (28 – 7).

Let’s assume that a woman’s tenure in this workplace is less than a year. Then the vacation is recalculated depending on the number of months worked. For each of them, 2.33 days of vacation are accrued. If the month is not fully worked, then if you work less than 15 days, vacation pay is not yet accrued, if more than fifteen days, vacation pay is accrued in full.

2.33*8 = 19 days

In our example, vacation days were not accrued for April, since less than fifteen days were worked in the month, but for December these days were accrued, since the month is considered fully worked.

The legislator has provided for the possibility of monetary payment for unused vacation. This is the general rule, but in the case of expectant mothers such monetary compensation is prohibited.

The Labor Code says nothing about the reasons for such a restriction, but one can make the assumption that, otherwise, many women would prefer money instead of the necessary rest before a difficult ordeal. Compensation for unused vacation can only be paid if the employee decides to quit, for example, after the end of maternity leave.

But the employee has the right to take another leave after the child reaches 1.5 years old, and after that write an application for continued maternity leave. Or you can take the next vacation when the child turns three years old, and a short period of time is still needed for him to get used to kindergarten.

○ Answers to frequently asked questions from visitors:

✔ Are pregnant women entitled to additional leave before maternity leave?

If your work duties and working conditions provide for the provision of additional leave along with the main one, lasting 28 days, then you have the right to use all days of additional leave before going on maternity leave.

Please keep in mind that replacing additional leave with monetary compensation for non-use is prohibited by labor law.

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✔ How and when can you use your vacation time before maternity leave?

There are 3 main options according to which you can dispose of unused vacation when going on maternity leave:

1. Use paid leave for the entire duration until maternity leave, that is, until the start of sick leave issued due to pregnancy and upcoming birth.
2. Use paid leave for the entire duration after the end of maternity leave, that is, leave to care for a child up to 1.5 or up to 3 years.
3. Use partially available unused vacation days before going on maternity leave and the remaining days after.

All 3 options have the right to be used by you, taking into account your wishes and situation.

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✔ How long can paid leave before maternity leave be?

According to the meaning of Article 260 of the Labor Code, a woman before going on maternity leave has the right to leave of any duration, including the maximum, regardless of the amount of time worked and seniority in a given organization.

Please note that leave can also be provided in advance, i.e. taking into account that the time for which such leave is granted will be worked by you after the end of parental leave.

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✔ When is compensation payable for pre-maternity leave?

Replacement of leave before maternity leave with monetary compensation, according to the norms of the Labor Code, is not allowed for pregnant women.

Compensation for unused vacation may be paid if you decide to quit after the end of parental leave.

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What is pre-maternity leave in advance and what risks does the employer face?

So, we have established that a pregnant woman has the right to apply for leave regardless of the time she worked. This means that before going on maternity leave, a maximum duration of leave can be granted - from 28 days in the general order, and up to 56 days if the employee’s position provides for an increased duration of annual paid leave.

It will also not matter if the employee has already taken his vacation for the current year. In this case, the woman has the right to demand so-called leave in advance - that is, annual leave, which will be counted in subsequent periods, after the end of the maternity leave.

When applying for vacation in advance, you should consider the following features:

• If you receive leave in advance and in full, then after leaving maternity leave you will be able to apply for annual paid leave only with the onset of the next working year.
• If you decide to end your employment with your employer after your parental leave ends, you may be deducted or charged compensation for previously paid vacation pay.

The hire date is the starting point for determining the employee's pay period. Thus, it will be individual for everyone. For example, if employment occurred on October 20, 2016, then the employee’s pay period lasts from this date until October 20, 2021. This is an important point for calculating vacation pay.

In the event that all accrued vacation has already been used for the previous period and for the entire current one, and the pregnant employee asks for a few more days, we will be talking about vacation in advance. These days are taken, as it were, “on loan” from the future working period, which may come only in three years.

By law, the employer is not obliged to provide leave in advance, but can accommodate the employee halfway. In doing so, he puts himself at risk. If the employee quits immediately after returning from maternity leave, he is unlikely to be able to return the vacation pay paid to the employee. The fact is that there will simply be nowhere to get them from.

We invite you to familiarize yourself with: Maternity leave (maternity leave): duration, registration

Financial questions

The financial side of the issue of vacation pay worries many, especially accountants.

How to keep overpaid vacation pay if the employee never worked the allotted time and decided to quit? How are cases of leave granted in advance reflected in accounting?

Should there be a cash reserve for such purposes?

Neither the HR specialist, nor the manager, nor even the employee himself will be able to say in advance that he will take early leave. Usually this happens due to some circumstances.

Over the course of a year, several such situations may occur, or there may be none. Therefore, there is no need to include the cost of vacation benefits in the reserve for those who decide to take early leave.

How to calculate?

The calculation of vacation pay for an unworked period of time has one feature. The payment is calculated not based on accruals for the entire previous year, but for the time that the employee actually worked.

When is payment due?

The employer will be in a difficult position if an employee who has taken his vacation in advance decides to quit.

In matters related to retention upon dismissal, you must follow Art. 138 Labor Code of the Russian Federation. It says that the amount of withheld amounts cannot be more than 1/5 of all payments.

The procedure for returning leave is formalized in accordance with the established procedure.

Must be present:

• a timely approved withholding claim;
• the employee’s consent to deduct advance amounts.

It happens that the employee’s debt to the organization exceeds the amounts withheld.

In this case, management has two options:

• invite the employee to make up the difference with his own funds;
• collect the debt in court.

When is payment not made?

Not in every case the employer has the right to withhold wages from the employee for advance vacation days.

Payment is not made from the employee if the employment relationship was terminated in one of the following ways:

• the employee was laid off;
• the company was liquidated;
• the employee was drafted into the army;
• the employee was declared incompetent;
• as a result of the death of an employee;
• The owner of the company has changed.

Courts also take such circumstances into account when considering employers' claims.

Sizing

What payment should be made to an employee who has taken leave in advance? Let's look at the situation using a specific example.

The employee's salary is set at 20,000 rubles. He is taking a leave of absence in March 2021. In total this month there are 22 working days, they actually worked 15 days.

Then for March the employee will receive: (20,000/22)x15=13,636 rubles.

On average, for 1 day an employee receives: 13636/15 = 909 rubles.

He wrote an application for 14 days of vacation. Then his entire vacation allowance is equal minus tax: 909x14 = 12,726 rubles.

12726-(12726x0.13)=11072 rub.

Who is entitled to additional leave for hazardous working conditions? Does unused vacation expire upon dismissal? Find out here.

How to arrange a sabbatical? Information is here.

Calculation of taxes and insurance premiums

Personal income tax must be adjusted for the reporting period when vacation pay is accrued to the employee.

The return of overpaid amounts must also make adjustments to the final calculation upon dismissal of the employee, and this amount must be deducted from the tax base when calculating personal income tax.

How to make a deduction if an employee takes days off and quits?

Guided by Art. 137 of the Labor Code of the Russian Federation, the employer may demand back overpaid amounts from an employee who was given leave in advance, but subsequently resigned without working the allotted time.

Withholding must occur with the consent of the employee from his estimated amounts that he will receive after dismissal.

Is it necessary to retain during staff reduction?

Staff reduction refers to one of the cases when the employer does not have the right to withhold advance amounts from a reduced employee received for vacation.

In this case, the employee’s refusal of the positions offered to him instead of the vacancy being reduced does not matter if he refused the transfer for medical reasons.

Accounting entries

As already noted, the amounts for paying for early leave cannot be predicted in advance, so they are classified as expenses for regular wages:

Debit 20, 23, 25, 26, 44 – Credit 70.

Refunds of vacation advances are simply reversed based on the date of receipt.

Is it worth taking a vacation before maternity leave and how is vacation pay calculated?

When considering whether to take leave before maternity leave, I recommend considering the following.

Thus, labor legislation provides for the obligation to provide a woman with leave at her request either before going on maternity leave or after it ends. If you take your vacation in advance, you won’t have to apply for vacation after the end of your maternity leave.

Situations are different, and many women prefer to leave part of their vacation “in reserve” in order to be able to secure themselves in case of kindergarten closure, child illness and other unforeseen situations.

On the other hand, a vacation before maternity leave will allow you to spend more time in the fresh air, receive more pleasant emotions, and also with the advantage of vacation pay and vacation payments.

Thus, you should decide on the need for leave before maternity leave independently, taking into account your state of health, well-being, and material benefits.

It's definitely worth taking a vacation. The expectant mother will rest before an important event in her life. In the later stages, the woman’s condition may worsen, and work will not be her first priority in any case.

Here are a few examples of the pros and cons of taking leave before maternity leave.

Vacation pay is calculated according to the general rule. The basis is the average daily earnings for the previous 12 months.

Vacation payments

Accountants are especially interested in the rules for calculating vacation pay. There is no possibility of creating a reserve due to the fact that it is impossible to determine whether new employees will ask for leave in advance. When calculating vacation pay, it is not accruals for the previous year that are taken into account, but for the period during which the citizen worked in the company.

If an employee decides to quit after a rest, he will put the employer in a difficult situation, since he will have to use forced retention, information about which is available in Art. 138 TK.

Withholding can be carried out voluntarily, when the citizen gives his consent, as well as with the help of a court decision. It is not carried out when a specialist is laid off, a company is closed, a citizen is drafted into the army or when he is declared incompetent. The same applies to a change of company ownership or death of an employee. Personal income tax and insurance premiums must be paid on these payments.

Can a pregnant woman take additional leave if the main one is used up?

In order to apply for annual paid leave before going on maternity leave, I can recommend the following sequence of actions.

1. Decide for yourself what duration of vacation you want, taking into account the specifics of providing vacation in advance.
2. Try to agree with the head of the organization or immediate superior the duration of your vacation and its start date. Keep in mind that the manager also needs to redistribute the workload among employees and transfer your powers to another employee. If the manager protests against your decision to take leave, remind him of the contents of Article 260 of the Labor Code of the Russian Federation and mention your right to contact the State Labor Inspectorate in the event of the employer’s failure to comply with the guarantees of labor legislation.
3. Write a leave application in accordance with the rules in force in the organization. Let me remind you that it is advisable to write an application at least 14 days before the start date of your vacation.
4. Receive orders for vacation and vacation pay.

It is up to the employer to decide whether to provide additional leave. If the decision is positive, most often it is leave without pay, although there are exceptions.

• Articles 117, 119 and 321 of the Labor Code talk about categories of workers who have the right to paid additional leave. These are workers of the Far North, hazardous industries, and also without a standardized working day;
• Article 121 states that employees of government agencies have the right to one-time additional leave. Usually it is attached to the main one, but at the request of the employee it can be divided.

Here are some general categories of employees entitled to additional vacation days.

Legal requirements

The Labor Code clearly states exactly how leave is processed by each employee. To do this, the provisions of the schedule are taken into account, as well as the order in which people go on vacation. By law, it is not possible to arrange vacation in advance, but employers often offer people several days of rest even if they have not worked for the company for more than 6 months. For this purpose, an agreement between the parties is drawn up.

The most popular situation is when a new hired specialist, after working for several months, goes on a full rest. Under such conditions, he receives several days of vacation in advance. Typically, in this situation, only part of the period, represented by a week or 14 days, is provided.

How to transfer leave due to maternity leave

No later than two weeks before the proposed vacation, the employee must submit a vacation application according to the sample to the personnel department.

In order for a woman to reschedule her planned vacation to a more convenient time due to her pregnancy, she must provide the personnel department with an official document from the antenatal clinic.

The standard certificate indicates the name of the medical institution or details of a private gynecologist, as well as the timing of pregnancy. Even if a woman’s future motherhood is obvious, it is impossible to do without an official document.

We suggest you read: They will make irregular working hours for overtime work

The procedure for obtaining such leave will take place in several stages.

You can not. The law prohibits recalling a pregnant woman from vacation. There is another way out of the situation. You can agree with her in advance to divide her vacation into two parts. She can use the first part before maternity leave, the second after it.

You can not. According to Article 260 of the Labor Code, pregnant employees have the right to choose periods of their vacation at any time convenient for them, and the employer cannot interfere with this if he does not want to break the law.

○ Approximate contents of an application for leave before maternity leave.

The sample application for leave before maternity leave is not much different from the standard application for annual paid leave. The text of the application must contain:

• Name of the head of the organization.
• Information about the applicant, his position.
• Request for annual paid leave.
• Duration of vacation in calendar days.
• Request for financial assistance and other required payments.
• Link to Article 260 of the Labor Code of the Russian Federation.
• Date and signature of the applicant.

According to the standard procedure, the application must be endorsed by the head of the organization, on the basis of which the personnel department prepares a leave order, and the accounting department calculates the required payments.

Some features of leave followed by maternity leave

The expectant mother should take into account that in the internal documents of the company there may be a difference between just leave before going on maternity leave and leave followed by maternity leave.

The second concept comes into play when a woman chooses vacation days in such a way that the date of the last day of vacation flows into maternity leave. This has its own logic, because in this case she will not have to return to work, and she will go on vacation “to make ends meet.”

However, as mentioned above, due to the peculiar “gluing” of two types of vacations, a woman may lose some of her privileges. For example, if the company's internal documents indicate that company housing is no longer provided when a woman goes on maternity leave, the start date of this rule will coincide with the first day of annual leave followed by maternity leave.

Conclusion: if there is not a single working day between vacation and maternity leave, annual leave is “stuck” to maternity leave, which may have some restrictions for the expectant mother.

Grounds for refusal

Employers can rely on legal provisions that state that the first leave can be granted after the woman or other employee has worked for at least six months. This is stated in Article 122 of the Labor Code. But here we can safely say that pregnant women do not fall under these standards, but are an exception to the rule.

Here you should pay attention to Article 260, which states that if a pregnant woman has worked for several weeks, then she has the right to receive paid leave. Otherwise, if the employer does not meet you, you should write appropriate statements to the labor authorities.

Thus, there can be no grounds for refusing to grant leave to a pregnant woman before going on maternity leave. The application must be considered and a positive decision must be made. But at the same time, the document must have a copy, which is certified by management. This is done to ensure the reliability of the decision made.

When a woman plans to take any kind of leave before going on maternity leave, she may encounter certain problems that will have to be resolved. If the circumstances relate to a vacation that has already taken place this year, then Article 260 should be indicated in the application, under which no one has the right to refuse.

Legislative acts always have footnotes and additions that reveal this or that article in more detail. Here you can find possible benefits and favorable conditions that will be important to a pregnant woman. This is worth paying special attention to.

It is your responsibility to ensure that your vacation time is calculated correctly. Sometimes it happens that even a few days will pass by without your vacation. This is neglected by managers who are trying to get you back to work faster. When vacation falls on weekends and holidays, its duration should be increased by the corresponding number of days.