Maternity leave at maternity rate - advice from lawyers and lawyers

Usually, when an employee goes on such leave, a new employee is hired to his full-time unit, who will temporarily replace him. The contract states that this position is temporary.

That is, at the end of the vacation of a permanent employee, the temporary one will either have to be fired or transferred to another vacant position, if such a possibility exists. In life, situations arise in which a new employee needs to take maternity leave from a temporary place.

This article will help you understand the nuances and answer the most common questions.

Legislative meaning of maternity rate

Many concepts related to the Labor Code are commonplace, but do not exist in modern legislative documents, for example, “maternity leave” and, accordingly, “maternity rate”. However, their meaning is usually clear to everyone, and they are strictly regulated by law, only under different terminological structures.

“Decree,” by analogy with the Soviet decree that gave a woman the right to maternity and child care leave, refers to two leaves associated with the birth of a child and caring for him, following one after the other. Accordingly, the maternity rate is the position that a woman held before going on maternity leave, to which she has the right to return at any time during or at the end of her maternity leave.

The legislation does not allow dismissing a pregnant woman or caring for a child under 3 years old (Article 256 of the Labor Code of the Russian Federation). Her place of work will be retained for her and await her return from leave, whenever it happens. During the absence of a permanent employee, the employer takes another person in her place, who will release him when the previous employee returns.

NOTE! Employment on maternity pay can only be temporary.

Registration of maternity leave

Registration of maternity leave begins with receipt of sick leave.

In this case, you need to know that such paper:

• is issued in both private and public clinics;
• the gynecologist, with whom the expectant mother is registered, issues a sick leave certificate;
• issued on the same day the patient applies.

The certificate of incapacity for work indicates the period during which the woman will be on maternity leave. The next stage of applying for maternity leave is drawing up an application.

Writing this document has its own characteristics:

• compiled in any form, since there is no established template;
• there must be a “cap” indicating who is provided and from whom;
• Note in the text information about the need to provide maternity leave and payment of benefits.

The application must be accompanied by a sick leave certificate and a certificate of income. After which the package of documents is submitted to the employer for review.

Two ways to “close” a maternity bet

To ensure the functioning of the position from which the main employee went on maternity leave, the employer has two possible ways. Each of them provides its own design nuances.

1. Internal translation or combination . Sometimes management does not want to hire an outsider, preferring to distribute responsibilities among already working people. If labor functions do not contradict the qualifications of employees already working at the enterprise, then new responsibilities can be assigned to them on the basis of an additional agreement to the employment contract and an order from the manager. In this case, you do not need to enter anything into the work book; a note can be made on your personal card.
2. Conclusion of a fixed-term employment contract . Occurs when a new employee is temporarily hired to fill a maternity position. In this case, an order for employment is necessary, as well as making an entry about it in the work book. A personal card must be created for a new employee, even if declared as temporary.

Is there a probationary period on maternity leave?

Hiring a new employee temporarily is a risk. The approved candidate is not always suitable for the company. As with any other new employee, a substitute on maternity leave may be subject to a probationary period.

The rules for assigning a probationary period on maternity leave are regulated by Art. 70 Labor Code of the Russian Federation. As a general rule, if the duration of the contract is more than 6 months, then the trial can be assigned to a standard duration. If the contract period is from 2 to 6 months, then the trial cannot exceed 2 weeks.

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If the replacement employee’s employment contract does not include a clause on probation at a temporary rate for the period of maternity leave, then it is not established.

It is worth noting that for some categories of citizens it is prohibited to assign a probationary period:

• pregnant women and mothers of children under 3 years of age;
• when transferring from another employer;
• when elected by competition;
• for minors;
• and other groups of citizens described in Art. 70 Labor Code of the Russian Federation.

Mandatory clauses of a fixed-term contract for a maternity position

The text of such a document will be somewhat different from similar temporary employment, for example, for seasonal work or a short term.

As a rule, a fixed-term contract contains two dates - the beginning and end of cooperation. When employing an applicant on maternity leave, this cannot be done. The reason is that maternity leave includes two periods - leave related to pregnancy and childbirth (more precisely, sick leave) and leave to care for a small child, which an employee who has become a mother has the right to interrupt whenever she pleases.

Thus, the duration of work in a maternity position can be of varying lengths: from 140 days guaranteed by the state for preparation for childbirth and recovery after it, to 1.5 or 3 years old when the baby turns, if the mother intends not to rush to return to work and devote yourself to take care of your family.

To resolve this contradiction, the following way out is provided: in a fixed-term employment contract at a maternity rate, the expiration date is not considered to be a specifically defined date, but the event that has occurred - the return to the ranks of the employee, whom the temporary employee is called upon to replace.

Features of working on maternity leave

It is worth noting that working on maternity leave has its advantages and disadvantages.

This is a good option for those who have just graduated from university. Work experience is a must for recent students. Without it, you won’t be able to get a well-paid job. And they can take the place of a woman who has gone on maternity leave.

There is an opportunity for further employment. If the employee shows the best professional qualities, there is a possibility that the company will wish to continue cooperation. Even if this does not happen, the employer's recommendations will help you find a new job.

In addition, in this case, wages are also paid, vacation time or monetary compensation for unused vacation is provided.

Difficulties of working on maternity leave:

1. Uncertainty. A permanent employee can leave at any time.
2. Interruption of work experience.
3. Payments for child care will not be provided.
4. Losing a place when going on maternity leave.

But a woman who becomes pregnant at a temporary job should know that she can go on maternity leave. There is no law that would prohibit this.

What if a temporary employee is also going on maternity leave?

Life is unpredictable, and it can often happen that a worker, called upon to replace a “maternity leaver” who is temporarily absent from work, is also planning to become a mother. In this case, everything will depend on the timing.

1. If the main employee decides to leave her vacation before the pregnant woman replacing her receives a temporary disability certificate from the antenatal clinic, she will lose her job. The employer will dismiss the temporary worker, despite her pregnancy, on the basis of an event that determines the end of the contract.
2. If the pregnancy of a person hired for a maternity position reaches 30 weeks, and the main employee continues to care for her baby, then the expectant mother will go on legally guaranteed maternity leave as calmly as her predecessor left. At the same time, she has every right to accrue payments due when going on maternity leave. Where to hire an employee now to take her place is the employer’s problem.
3. If the main employee does not return from vacation for a long time, which will allow the woman hired in her place to bear, give birth to a baby and recover from childbirth within the 70 days required by law, then since she went on maternity leave while officially employed, she has the right to take leave and child care. She will be assigned appropriate payments and will maintain her seniority until the termination of the employment contract, that is, until she returns to her position as the first mother.

IMPORTANT INFORMATION! The last point is possible if the employer has nothing against it. By law, he has the right to fire a pregnant woman who replaced the main employee after giving birth, even if the event marking the end of the employment contract has not yet occurred. In this case, she will have to apply to the social security authorities for payments.

By agreement with the employer and with the written consent of the woman, she may be offered other vacancies in the company (if there are ones suitable for her qualifications), if it is planned to keep her on staff after the end of maternity leave.

What does an employee’s maternity leave mean for an employer?

In most organizations, managers fear two possible problems.

Losing money

The duration of maternity leave consists of three parts:

• Sick leave for 70-84 days before birth;
• Sick leave for 70-110 days after childbirth;
• Parental leave – one and a half years.

In total, the employee is out of work for two full years, and during this entire time she can claim payments from the employer’s budget.

Maternity benefit:

Also, employees who decide to adopt a child have the right to rest from work and receive a similar benefit: they are given 70 days if we are talking about the adoption of one child, or 110 days for two or more children.

The amount of payments is determined based on the employee’s salary for the previous two years:

• If the average salary for the period was equal to the minimum wage or higher, the employee receives payments based on 100% of the specified average salary;
• If the average salary for the period was less than the minimum wage, the amount of payment will be fixed - in 2021 it is 11,280 rubles ( 367 rubles per day
  ).

The maximum amount of payments is also limited - in 2019 the amount is no more than 2021 rubles/day. So the general summary for maternity benefits is as follows:

Child care allowance

A working parent can go on parental leave until the child reaches one and a half years of age. The exact amount of the benefit is quite difficult to calculate; it is influenced by the following factors:

• The number of children in the family – and the presence of older children;
• Rate size and region of residence;
• Regional coefficient;
• Employment status of each parent, etc.

On average, an officially working parent who has gone on parental leave will receive 40% of their average monthly earnings monthly - but no more than 26,152 rubles ( for 2019

). This is provided that the employee (or employee) has worked for the organization for at least six months.

If an employee going on maternity leave has less than six months of experience, two conditions must be taken into account:

1. The amount of payment for a full month cannot exceed the minimum wage - for 2019 it is 11,280 rubles;
2. To calculate the payment, you need to calculate the employee’s average daily income.

Thus, you need to calculate the average daily income - and the allowance per day based on it. Then the allowance per day is calculated based on the minimum wage. And the lesser of the two results is applied. Please note: the amount of the minimum wage does not change depending on the month, so you will have to calculate it for each month separately - for example, in February (28 days) the maximum daily benefit will be minimum wage/28 = 402.85 rubles/day, and in March (31 days ) it will be less: minimum wage/31 = 363.87 rubles/day.

It turns out that losing money is inevitable?

If we summarize the above, then on average the organization will be forced to pay 51-390 thousand rubles to an employee who has gone on maternity leave during maternity leave, and then will have to pay her 40% of her average monthly salary for another 1.5 years. Naturally, the employer does not want to pay money “for nothing”... and should not do so.

Yes, the company must transfer all maternity payments to the employee’s account, but they will be fully compensated by the Social Insurance Fund. The Social Insurance Fund fully reimburses the employer for all expenses associated with the employee’s sick leave, as well as child care leave. Yes, compensation will take some time - up to 8-9 months - but in fact you will not lose anything.

Wasting time

While the employee is on maternity leave, her work must be done - accordingly, a new employee will be needed. And he needs to be found, brought into the team, trained - an additional waste of time and effort. Fortunately, all this is more than compensated for by the growth of your “social reputation”.

It is very important for potential candidates (especially people who are highly qualified) that the company not only pays them a good salary, but also provides all the social benefits they are entitled to. By announcing that you welcome maternity leave, you will gain additional weight in the eyes of similar candidates - and, accordingly, become a more attractive HR brand for job seekers.

If you supplement the company’s general loyalty to maternity leave with something like a “maternity support program” - for example, assign your own benefits or gifts for young mothers - the effect will be permanent. Taking into account FSS payments, your personal expenses will be very small, but they will significantly increase the company’s reputation in the labor market.

Advantages and disadvantages of the maternity rate

Taking a temporary position related to the maternity leave of the main employee has both positive and negative aspects. Before agreeing to such a job, it is worth analyzing them.

Disadvantages of maternity pay

1. The inherently transient nature of the work . When applying for a maternity position, a person must be aware that he will have to leave it.
2. Unpredictability of deadlines . Since a “maternity leaver” has the right to be absent for either 140 days or more than three years, it is impossible to predict when the cooperation will end and plan further employment. If the term of the employment contract comes to an end, the employer may not even warn about the impending freedom in the usual two weeks: if the employee-mother returns to her position suddenly, the employee taken in her place will be fired on the same date.
3. Minimum guarantees. Dismissal under this type of contract will not occur at the initiative of the employer, but due to circumstances that do not depend on the will of the parties: after all, the return of the main employee from maternity leave cannot be planned.
   Such a reason for dismissal does not guarantee social protection and additional compensation payments: a pregnant woman, a single mother, or a person caring for a disabled person can be fired.

   Upon dismissal, such an employee will receive only regular wages and compensation for annual leave if he did not have time to use it.

4. Insecurity in the event of one's own pregnancy . When working in a maternity position, a pregnant woman who has not managed to receive the coveted certificate of incapacity for work from the antenatal clinic can be mercilessly fired at any day without maintaining her seniority and assigning payments relying on the child.

Potential benefits of maternity leave

1. Less stringent selection . A maternity vacancy is often a good chance to take a position that would otherwise be inaccessible to a candidate. Temporary work allows the employer to somewhat reduce the criteria for the experience, qualifications and personal qualities of the replacement employee. Often the time during which the employer must find a replacement also works for the applicant.
2. New experience . While working on maternity leave, an employee acquires relevant skills that will be useful to him in future employment. Even if you take into account that the job is temporary, it may last long enough to get a job entry and the right to indicate additional experience in your resume.
3. An opportunity to prove yourself . Temporary cooperation often represents a long probationary period, as a result of which management can decide on employment on a more secure basis. If there is a vacancy, it is more convenient and profitable for an employer to hire an already proven specialist than to select third-party people. In practice, most specialists who replace maternity leavers receive permanent work immediately or shortly after the departure of the main employee.
4. Ordinary labor rights . A maternity rate is, although temporary, official employment with all the required guarantees: annual leave, the right to take sick leave, a salary not lower than the salary of the departing employee, and possibly receiving bonuses. While working in a maternity position, work experience follows the usual procedure.

Worker registration process

Having analyzed a number of legislative acts and the practice of their application in labor relations, we can conclude that the work of an employee in a maternity position has a large number of disadvantages, including:

• the short-term nature of such work. The main reason for this factor is that the maternity leaver has the opportunity to use maternity leave not in full or not to use it at all, which is expressed in going to work after the end of the leave period justified by childbirth. Maternity leave is 3 years. This means that the maximum duration of a temporary employee's employment will be just over 3 years;
• inability to determine the exact completion date of the contract. This circumstance forces the employer not to set a specific date for termination of the employment contract, but to determine it by indicating an event related to the termination of maternity leave for the main employee. The employer cannot have any idea at what point the employee will want to leave maternity leave;
• the presence of a minimum level of protection of the rights inherent in employees.
  The uncertainty of the term of the employment contract is a reason for the employee to be in a state of constant readiness for dismissal. At the legislative level, there are no requirements for the need for an employee to notify her employer in advance. As a result, the employer has no obligation to notify the temporary employee of the upcoming termination of his activities;
• a complete lack of guarantees associated with dismissal, which is expressed in the reason for dismissal, which is not justified by the employer’s initiative, but is associated with circumstances that cannot always be foreseen. Under these circumstances, those employees who have special social protection are also subject to dismissal, and such dismissal is carried out without the provision of compensation, with the exception of compensation associated with unused vacation.

Among the advantages are:

• reduction of requirements for a candidate, which is justified by the need for temporary replacement of an employee and the urgency of finding a replacement person;
• the opportunity to gain additional professional experience, as well as an official record of employment, which can be a help for further work in other companies;
• keeping the employee in the personnel reserve. This method is used in many modern companies for the purpose of personnel selection;
• the possibility of going on maternity leave, as well as taking annual leave and earning the same amount as a permanent employee.

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Each specific offer of employment for a maternity position should be considered from the point of view of the advantages and disadvantages.

It is also necessary to remember that positive reviews of a temporary employee can become a decisive factor in the process of new employment. Such an applicant will already have a work history and experience that allows him to apply for a job with a higher level of pay and better working conditions.

In addition to the employer having the ability to hire new employees, such a person can transfer an existing employee to a temporary position. For the latter case, there is an obligation to conclude an additional agreement, which is the basis for issuing an order. Information about this transfer is entered into the employee’s personal card, but is not reflected in the work book.

The hiring of new employees to the company has a certain difference, which is expressed in:

• submitting an application containing a request for temporary employment;
• preparation and provision of a certain package of documents, including: a person’s passport, his TIN, documentation of education, SNILS, medical documents, driver’s license (on request).

Depending on the requirements existing at the enterprise, the HR department specialist has the right to demand other documentation from the future employee. A potential employee has the right to independently clarify what documentation will need to be presented upon employment;

• preparation and signing of an order confirming employment, which reflects the temporary nature of the work. This document must contain the employee’s signature confirming familiarization;
• execution of an employment contract characterized as fixed-term, as defined by Art. 59 TK. The signed document must contain the approximate date of termination of the legal relationship. Wording may be applied: after a year, after 6 months, etc. The presence of such an indication in the contract will not allow the employer to dismiss a temporarily hired employee earlier than the period specified in the contract, even if the permanent employee expresses a desire to terminate his vacation earlier ;
• creation of a personal file containing copies of the documentation presented by the employee. Based on the proposed documents, a personal card is created, in which, subsequently, information related to the execution of labor relations must be entered;
• registration of a work book by entering into it a record of acceptance for work. The entry does not need to indicate the urgency of the employment relationship.

Registration of a work book upon dismissal should be expressed in the inclusion in it of a record of termination of work on the basis of the expiration of the period for which the contract was concluded, reflecting the legal norm of clause 2, part 1, art. 77 TK.

An employer can either hire a new employee for a temporary position or transfer a subordinate from his company to it. In the latter case, an additional agreement to the employment contract is drawn up, an order for temporary relocation is issued, and a corresponding entry is made in the employee’s personal card. As for the work book, no entry is made in it.

If a new employee is hired by a company, the registration procedure is slightly different:

1. Receiving an application from an employee. It is drawn up in the name of the director and contains a request for temporary employment.
2. Preparation of necessary documents. For a temporary employee, copies of the same papers are required as in other cases:
   passport;
3. TIN;
4. education document;
5. SNILS;
6. medical certificate;
7. driver's license (if necessary).
8. The specific package of documents may differ slightly, so it is better to clarify this issue with the employer’s HR department.
9. Drawing up an order for employment. It also indicates the temporary nature of the work. After preparing the document, the employee must familiarize himself with it by signature.
10. Preparation and signing of an employment contract. To hire a temporary worker, a fixed-term employment contract is concluded (in accordance with Article 59 of the Labor Code of the Russian Federation). At the same time, the document should not indicate the expected expiration date of its validity (for example, in three years). If the contract is concluded on such terms, and the main employee wants to leave maternity leave earlier, it will be impossible to dismiss the temporary one before the end of the specified period. It would be more correct to indicate that the contract is concluded for the period that the main employee is on leave for employment and labor and child care.
11. Formation of an employee’s personal file. It is formed in accordance with the established procedure and consists of copies of papers provided by the employee and some documents issued by the employer. It is also necessary to create a personal card for the employee.
12. Entering a record of employment in the work book. In this case, it is possible not to indicate that the contract is fixed-term and the work is temporary.

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However, upon dismissal, the work book shows that the termination of work is due to the expiration of the contract. Clause 2, Part 1, Art. is indicated as the legislative basis. 77 Labor Code of the Russian Federation.

Even at the interview stage, the conditions of work on maternity leave must be announced to the applicant. The employment contract does not specify a specific end date for the contract. The period of its validity is indicated not by the date, but by the occurrence of the event - the return to work of the main employee.

In the current situation, neither the replacement employee nor the employer can know exactly the expiration date of the contract, as well as its duration. They can only guess based on preliminary agreements with the pregnant woman. However, the situation in her life may change and she has the right to go to work either earlier than the agreed date or later. The woman is not obliged to warn in advance about the release date. The Labor Code does not contain such a provision.

The entire list of employment activities is carried out with a new employee:

• familiarization with the LNA and the collective agreement;
• signing an employment contract;
• issuing an order for admission;
• registration of a personal employee card.

An existing employee of the company can also be transferred to such a position. To do this, a temporary transfer is carried out while maintaining the main place. For registration, an additional agreement to the employment contract and an order for temporary transfer are issued.

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