Features of the agreement
The employer can place a new employee in the place of the maternity leaver, temporarily transfer one of her colleagues to her position, or invite someone to perform her duties part-time.
The first option is the most common. In this case, the employee is employed under a fixed-term employment contract. These labor relations are regulated by Article 59 of the Labor Code of the Russian Federation. Internal part-time work is only possible for an additional fee and in accordance with Article 60.2 of the Labor Code.
To conclude a fixed-term employment contract, a person who will temporarily perform the duties of a maternity maid must submit an application for employment. Then the employer issues an order to recruit a new employee to the position, and a fixed-term employment contract is concluded.
Nuances of registering as a temporary employee
A definition of maternity pay that will help you understand what it is can be formulated as follows: a temporary vacancy created after the main employee goes on maternity leave. During this period, in order to fulfill her job duties, the manager has the right to hire a new employee or transfer a person working in the organization from another position.
Hiring an employee on maternity leave includes the following steps:
- conclusion of a fixed-term employment agreement;
- issuing a job order;
- making an entry in the work book;
- registration of a personal card.
If a company employee is transferred while maintaining his main position, an additional agreement is concluded. It should indicate that the employee will perform new duties until the end of the maternity leave.
Registration on maternity pay differs from employment in the usual manner in the period during which the employment relationship with the employee will last. It is difficult to determine its duration in advance. A permanent employee can interrupt her vacation at any time: either after a few months or after the birth of her next child.
When concluding an employment contract for a maternity position, it is recommended to follow some rules:
- do not indicate a specific end date;
- use the wording “until the full-time employee leaves parental leave” or “for a period of temporary absence”;
- indicate the position, full name of the maternity leaver.
How to draw up an agreement during maternity leave?
The basic rules for drawing up the document are the same as for a regular employment contract. The agreement states:
- information about the parties (full name of the employee and name of the employer);
- passport details;
- employer's tax identification number;
- place and date of conclusion of the document, grounds for its conclusion;
- labor responsibilities and wage conditions;
- the date from which the employee begins work;
- information about work schedule and rest.
The contents of the agreement depend on the specific employer.
Usually the document indicates that the contract is concluded for a period of temporary absence of the main employee in connection with the birth of a child and caring for him.
“The employee is hired for the period of absence of K.N. Beglova, who is on maternity and child care leave...”
In a temporary contract, it is necessary to indicate the period of its validity, and the wording must comply with the Labor Code of the Russian Federation.
The reason for concluding the contract and its termination must be selected from the list of Article 59 of the Labor Code of the Russian Federation and indicated in the contract.
also advisable to specify the procedure for terminating the agreement in the contract. Since in normal cases the employer warns employees about dismissal three days in advance, in a situation where the main employee wants to leave maternity leave earlier, it will most likely not be possible to meet this deadline.
An entry about employment under a fixed-term employment contract is made in the employee’s work book without indicating this feature. The registration will be the same as for a permanent employee.
We formalize an employment relationship with another employee
The fulfillment of the duties of a temporarily departed employee can be arranged in different ways: combination, temporary transfer, fixed-term employment contract. Let's look at the options often used in practice.
Method 1 - combination.
In this case, the functions of a maternity maid are performed by his colleague, while continuing to perform his main responsibilities as specified in the employment contract (Article 60.2 of the Labor Code of the Russian Federation). Naturally, working “for himself and for that guy,” the employee has the right to count on an increase in wages. The amounts of such additional payments are established by agreement of the parties to the employment contract. This method is convenient when an employee goes on short-term leave, since it entails a greater burden on the remaining employee, who may also get sick.
Method 2 - concluding a fixed-term employment contract.
In this case, the functions of a maternity maid will be performed by a temporary worker who is specially hired for this position. For example, a company employee or an outsider.
This is the most optimal method of replacement, because the employee can fully replace a maternity leaver.
What guarantees does a temporary worker have?
First, you need to decide on the expiration date of the fixed-term employment contract.
According to the letter of the Ministry of Labor of the Russian Federation dated March 7, 2019 No. 14-2/B-139, when concluding such contracts, the date is determined:
- specific deadline;
- period of absence of the main employee.
It is inconvenient to determine the term of the contract by a specific date, since it is impossible to accurately calculate the days a woman is on maternity leave. For example, childbirth may be complicated, then the calculation should take not 140 days, but 194 days. Then you will have to draw up new papers to extend the employment relationship with the employee.
Therefore, it is more convenient to indicate in the contract not the specific date of its end, but the period of occurrence of the event - the end of the maternity leave of the main employee (clause 3 of Article 79 of the Labor Code of the Russian Federation). Here, the expiration date of a fixed-term contract is not tied to a date and you will not have to fill out extra personnel papers.
But after the end of maternity leave, parental leave begins. A woman on maternity leave can return to work part-time or even interrupt her leave early and then go on maternity leave again.
The easiest option is to take two vacations at once. Then there is no need to renew the contract with the temporary worker. A temporary worker is subject to all the same guarantees as an absent worker: payment for vacation, sick leave, etc.
What pitfalls does a maternity pay pose for an employee?
Of course, “man proposes, but God disposes” and the maternity leaver’s plans may change.
A maternity leaver can go to work full-time or part-time at any time. Now many women or relatives who have taken leave go to work part-time. In this case, the benefit is maintained and the salary is paid.
The trouble is that a woman on maternity leave has no obligation to inform her employer of her desire to rejoin the workforce. And, as we have already noted, upon returning from maternity leave, the employer is obliged to provide the maternity leave with work in her previous position and provide a workplace to perform her job duties.
Often, the sudden departure of an employee is akin to “out of the blue”, because on the same day HR officers need to fill out the necessary paperwork - terminate a fixed-term contract with a replacement employee, issue an order to return to work in connection with the end of parental leave. At the same time, the employer cannot deny the woman her right to leave the vacation at any time. Judicial practice is also on the woman’s side (Appeal ruling of the St. Petersburg City Court dated October 17, 2019 No. 33-18820/2019).
For a temporary worker, this means the sudden end of a fixed-term employment contract.
More than a year ago, the Ministry of Labor developed amendments that provided for the obligation of a maternity leaver to notify the employer of her early departure at least 5 working days in advance. But they have not yet been accepted.
For what period can I conclude?
It is not recommended to specify the validity period of a fixed-term contract as a specific date. It is not known exactly how many days a woman will go on maternity leave or maternity leave.
Also, the main employee may not take leave at all to care for a child under three years of age, or take but terminate it at any time.
The correct way is to indicate in the terms of the agreement that the period of absence of the main employee is maternity leave and parental leave.
The last day of work of a temporary employee in the event of the main employee returning from maternity leave is the day preceding her return from maternity leave. This date will also be the date of dismissal (Letter of Rostrud dated October 31, 2007 No. 4413-6).
How to properly issue an order?
The employment order is issued on a unified form No. T-1, approved by Resolution of the State Statistics Committee of Russia No. 1 of January 5, 2004. If form No. T-1 is used, then the person responsible for drawing up the order will only need to fill in the empty cells and lines.
This can be done manually using a blue ballpoint pen, or using printing technology.
Features of filling out form T-1 are given below:
- The name of the employer is indicated according to the constituent documents. The OKUD code must be displayed;
- the expiration date of the order is not noted or the following text is written in the corresponding cell: “until the main employee leaves”;
- information about the position and department is entered in accordance with the staffing table;
- the conditions and nature of the work are indicated in accordance with the concluded employment contract;
- if the manager cannot sign the order personally, then this is done by the official temporarily replacing him. In this case, a link to the document must be provided that indicates the person’s authority to approve the order;
- data on the probationary period and its duration are indicated only if the employment contract provides for an internship.
Expert opinion
Petrov Grigory Vladimirovich
Practicing lawyer with 6 years of experience. Specializes in criminal law. More than 3 years of experience in drafting contracts.
Locally approved letterhead may also be used. When developing such a template, it is recommended to adhere to a certain structure and rules.
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The document should consist of the following parts:
- a cap . Located at the very top of the sheet. Company details are provided;
- Name . Indicate in the center of the sheet with a slight indentation from the header. The word “ORDER” is written in capital letters and then its number is noted. Below you can briefly describe what issue the order addresses;
- place and date of compilation . Indicated under the title of the document in a row;
- main block From a new line, a text is given that reflects the grounds and conditions for hiring a temporary employee, and instructions are given to executive officials;
- final part . Located under the main block. Signatures are placed with transcripts of the persons specified in the order.
The order for hiring an employee for a maternity position must reflect the following information:
- organizational and legal form and name of the company;
- company details;
- employment date;
- last name, first name and patronymic of the temporary employee;
- name of the document and its serial number;
- tariff rate, salary for a maternity position, allowances;
- the structural unit in which the subordinate will work;
- temporary employee position;
- availability of a probationary period, its duration;
- nature of work, conditions of employment;
- position of the head of the organization, his surname and initials;
- date and place of document preparation;
- details of the fixed-term employment contract (date and number);
- signatures.
When issuing an order to hire an employee for a maternity position, it is recommended to adhere to the following rules:
- do not make cuts;
- write in a business style, briefly and to the point;
- avoid mistakes;
- Do not make corrections with a proofreader or pen.
How much will they pay?
During the period of maternity leave of the main employee, both she and the one who temporarily performs her duties receive payments. Only the expectant mother is paid from the federal budget, and the new employee is paid by the employer.
Main employee
A woman on maternity leave receives maternity money - maternity benefits and child care benefits. Both payments must be documented in the employer's accounting department.
Within 10 days after receiving the application from the woman, the employer must transfer the subsidy. Then the money will come on paydays in the organization.
For workers, the maternity benefit is equal to 100% of the average earnings for the last two years, the care payment is equal to 40% of the average earnings for the previous two years.
Maternity benefits are calculated as follows: income for the last two years is divided by the number of days in this period and multiplied by the number of days of maternity leave.
Payment for child care is calculated using the formula:
average salary per day × 30.4 × 40%.
- Average salary per day - the amount of income for two years before maternity leave / 730 - the number of days when the employee did not work due to temporary disability.
- 30,4 — average monthly number of days per year (365/12).
The size of the minimum and maximum payments limits the amount of benefits. These sizes are indexed annually (Law No. 81-FZ of May 19, 1995). In 2021 the following minimum and maximum:
- the minimum allowance for the first-born is 4852 rubles;
- the minimum benefit for the second and subsequent ones is 6,751.54 rubles;
- the maximum benefit is 27,984.66 rubles.
If a woman decides to terminate maternity leave early, she can go to work part-time, enter into a civil contract, or perform duties at home.
If a woman on maternity leave works part-time, she will continue to receive a monthly benefit along with her salary for up to a year and a half.
Part-time working hours are not established by law. You can work four hours a day, three days a week, or you can work seven hours, five days a week, both options will be considered part-time. The main thing is to agree everything with the employer.
However, in practice, inspection authorities believe that the working day should be reduced by more than an hour. Otherwise, the benefit may be cancelled.
For an employee filling a vacancy for the position of a maternity maid
A conscript employee has the right to receive the full salary that is due for his position. In addition, he also has the right to take paid sick leave or go on annual paid leave while maintaining his job and salary (Article 114 of the Labor Code of the Russian Federation).
Article 114 of the Labor Code of the Russian Federation. Annual paid holidays
Employees are provided with annual leave while maintaining their place of work (position) and average earnings.
We are hiring during maternity leave in 2021
In fact, the possibility of employment in place of a temporarily absent main specialist is provided for by labor legislation. Despite the temporary nature of the work, the employer is obliged to register a new specialist in the usual manner, which is used when hiring citizens for permanent work.
In the case of registering this person to replace an employee who has gone on maternity leave, we are talking about hiring a temporary job, and not replacing the main employee.
For your information, the validity of a fixed-term employment contract, unlike an open-ended one, is limited in time. Therefore, this type of agreement is used when registering a temporary specialist. Typically, it is concluded for a certain period or until the conditions specified in the contract occur, i.e. until the employee returns from maternity leave.
In addition, the employer has the right to do the following:
- In place of an employee on maternity leave, hire another specialist from the organization through a temporary transfer.
- Entrust the performance of the work duties of the temporarily absent employee to another part-time specialist of the organization.
In all cases, the legal norms of the Labor Code of the Russian Federation are taken as the basis.
There is no probationary period for temporary workers if they work in their specialty or for no more than 2 months . They are subject to the same rights and privileges that permanent employees lawfully enjoy.
Hiring during maternity leave of the main employee
The rights of women who go on maternity leave are protected by the state. The manager is obliged to maintain the job until the woman returns from maternity leave. When maternity leave ends, she can return to her reserved place.
The law provides that during the absence of the main employee, management can hire a temporary employee for this position.
There are several options:
- conclude a fixed-term employment contract with a new employee;
- transfer someone from the staff to a vacant position;
- entrust another employee with some or all of the part-time duties of a woman who has gone on maternity leave.
The first two options are the most popular in practice: this is due to the fact that parental leave can last up to three years.
Read more about the specifics of registering and dismissing a temporary employee later in the article.
Benefit payment
Payment of benefits to a pregnant employee signed under a fixed-term employment contract is possible if:
- she went on maternity leave earlier, while the fixed-term contract was still in operation (before the main employee returned to the workplace);
- the employment contract was extended.
In this case, maternity benefits are paid in full for the entire period of maternity leave. And child care benefits will be paid until the day the contract is terminated.
What entry is made in the work book?
When registering a person to temporarily perform the duties of an absent employee, in addition to an identity document and a diploma, you will need a work book.
If it is missing, then the employer must create a new one (if the term of the employment agreement is at least 5 days).
The labor record contains the date and number of the appointment order.
Remember! The document does not indicate that a fixed-term contract has been concluded. After the main employee returns from maternity leave, a temporary one can be transferred to another position without terminating the employment relationship. And the contract on a temporary basis becomes indefinite.
The fact that the person is replacing the main employee is indicated in the personal file.
Watch the video. Fixed-term employment contract:
