In what cases is a statement written?
The definition of “maternity leave” hides two different concepts:
- maternity leave, which is granted to all women unconditionally;
- maternity leave.
It is the second that becomes exclusively voluntary. Moreover, it can be provided not necessarily to the mother, but also to the baby’s father, as well as his legal representatives (guardians) - but only to one person.
Premature departure from maternity leave is usually due to the fact that not every mother can afford to live on an allowance, which is only 40% of her usual average salary and is paid only until the child is 1.5 years old.
In some cases, the employer himself insists on the employee leaving (for example, if she is a particularly valuable specialist who has no one to replace).
In any case, in order to go to work, a young mother (or other person caring for the baby) must write a corresponding application addressed to the employer.
Organization of working hours
In case of returning to work before the end of the period of maternity leave, the employer must provide such an employee with the following benefits:
Let's look at what should not be allowed in relation to such employees. Of course, they cannot be sent on business trips. Force overtime work (including on weekends and holidays). They cannot be denied a certificate of incapacity for work. And such employees cannot be fired until the child reaches three years of age.
Please take into account that the employee can go back on maternity leave if necessary, but only by agreement with the manager.
You have probably encountered the need to hire a new employee on maternity leave. The employer can do this, but must warn the newly hired employee that this is a place for a “maternity leaver.” In turn, when an employee decides to return to work early from maternity leave, the employer must vacate her place and terminate the employment contract with the temporary employee on the basis of Part 3 of Art. 79 of the Labor Code, or offer him a transfer to another position.
Does the employer have the right to refuse
By law, a woman can either take advantage of parental leave or refuse it (by transferring, for example, this right to non-working relatives) or leave it at any time that suits her.
The employer does not have the right to challenge the will of the employee and not allow her to work.
In other words, if an employee has expressed a desire to begin her official duties, no one has the right to stop her. Otherwise, she can apply for restoration of justice to the territorial department of the labor inspectorate, where they will not only help her, but also impose administrative sanctions on the management of the enterprise in which she is registered.
What is useful for an employer to know?
A woman after maternity leave is not always an inconvenient employee. As I wrote above, many women study while on maternity leave, work as freelancers, and do their best to maintain their professional level.
An employer can and should discuss the following with an employee returning from maternity leave:
1. What position are you willing to return her to if her job is occupied by a good employee whom you would not want to lose.
2. What schedule is convenient for her (if labor discipline does not imply a fixed, agreed-upon schedule).
3. Who will stay with her child during sick leave.
4. Can she stay late and how often is she willing to go on business trips (if her job requires it).
5. Are you able and ready to provide her with the opportunity to do some of the work from home.
6. Agree on a trial probationary period - a time during which both can painlessly change their minds, and the woman will return further on maternity leave.
By the way, many women who start work after maternity leave are highly disciplined, efficient, and make excellent use of the time management skills they acquired while on maternity leave.
Separately, I would like to note that if a woman has her head on her shoulders, then:
- Firstly, she approaches her exit from maternity leave responsibly
- Secondly, it quickly catches up
- Thirdly, she is often sincerely grateful when her employing company gives her the opportunity to return to work - and works with special diligence.
Photo from inocon.at
Lawyer's comment
— Labor legislation protects the interests of an employee returning from maternity leave to a greater extent than the interests of the employer.
Petr Levantsevich Lawyer, corporate practice REVERA
1. You cannot be denied access to work.
According to Part 3 of Article 183 of the Labor Code, during the maternity leave, the employee retains his previous job. Previous means with the same employer, in the same specialty, position and qualifications, in the same workplace. Feature: for a woman on maternity leave, certain guarantees apply. For example, the employer does not have the right to fire her due to a reduction in staff. However, this guarantee is valid only for the duration of the vacation: as soon as it ends and the woman returns to work, the employer has the right to fire her due to staff reduction.
2. Extension of the contract with a maternity leaver.
With the consent of the employee who has returned from maternity leave, the employer is obliged to extend the contract with her (if it expires) until the child turns 5 years old. Here, again, there is a guarantee that the woman will not be fired simply because the contract has expired.
Important: the contract is not concluded (renewed) if the woman has not given her consent to it. Extending the contract means that the employee can count on the same work and rest schedule at the end of her vacation that she had before. That is, the working conditions specified in the previous contract are preserved.
Feature: Although this guarantee applies to all positions, there is an increased risk for female managers. Special rules apply to them, and even if the contract with a female manager is extended, she can be dismissed by decision of the owner before the expiration of the employment agreement (contract) (Article 259 of the Labor Code).
In order to dismiss on this basis, the contract of a female manager must contain a provision for the payment of compensation for its early termination and a specific amount of compensation must be established.
3. Going to work during parental leave.
At the request of a woman, during maternity leave she can work:
- The same employer, but in a different profession, position (for example, you worked as a translator, but while on maternity leave you can get a job as an office manager or secretary)
- With another employer in his main profession (by the same translator)
In both cases, we are talking about part-time work (no more than half the monthly norm).
In this case, the employee will receive not only wages, but also benefits in full.
Part-time working hours can be set in three ways:
1. Reduce the duration of daily work.
2. Reduce the number of working days per week.
3. Combine points 1 and 2.
The process of leaving maternity leave early
To begin with, you should notify your employer about the upcoming event in advance (at least several weeks in advance, but in general the period should be established in the company’s local regulations).
It is advisable to do this in writing, but sometimes it is enough to come to the organization in person or inform colleagues about it by phone. This is necessary so that the employer has time to free up the place of the maternity leaver (surely, in her absence, someone fulfilled her duties).
Next, a corresponding statement is written addressed to the manager, then on its basis an order is issued within the organization. The employee must report to work within the time period specified in the management order.
Sample notice of termination of an employment contract due to leaving maternity leave
Dear readers! The article talks about typical ways to resolve legal issues, but each case is individual. If you want to find out how to solve your particular problem , contact a consultant:
- military registration and enlistment office - if the employee is a citizen of the Russian Federation and is subject to military registration (he is given a bypass sheet and sent to the appropriate organization);
- Federal Migration Service , if a foreign worker was hired (deadline - no later than three days before the end of the contract).
General information about the application, features of the document
If you need to draw up an application for early leave from maternity leave, read our tips and view a sample document, based on which you can easily draw up your own form.
First, let's give some general information. There is currently no uniform standard for such a statement. This means only one thing: you can write it in free form or, if the employer is ready to provide a document template, in its form.
Regardless of which option is chosen, when drawing up an application, do not forget a few general points that are typical for all such papers. For example, keep in mind that the structure and content of the form must comply with certain office work rules. That is, the statement should be divided into three parts:
- the beginning or, as they also say, the “header”, where data about the addressee and the applicant is entered,
- main block,
- conclusion.
The main block contains the actual request for early leave from maternity leave and some other important information, and the conclusion is the personal autograph of the maternity leaver.
The application can be written on a simple blank sheet of any suitable format (preferably A4), by hand or typed on a computer - this does not matter in determining its legitimacy. You should only ensure that it is compiled without errors and blots, and if any do occur, it is better not to correct them, but to create another form.
An application is drawn up in two equivalent copies ,
- one of which must be given to the employer,
- the second one, after it has been marked to accept the copy, keep it for yourself.
In the future, this will help to avoid possible disagreements with the employer if a question suddenly arises about the very fact of the existence of the application or the deadline for submitting it to its intended purpose.
Notice of termination of the contract due to the departure of the main employee
To terminate a fixed-term contract, you must have documentary evidence of the end of its term. When a temporary employee replaces a permanent one, the basis for termination is an order for the second to return to his duties.
If a contract is terminated due to the expiration of a period, the confirmation is the contract itself with reference to the end date. HR specialists must check whether the grounds for terminating the employment contract are legal. If everything is in order, they draw up a notice (by order of the director) and send it to the employee. Are there unified forms? Russian legislation does not provide for an approved form of notification form. You can draw it up arbitrarily, not forgetting to indicate the reason for drawing up, as well as information about the persons between whom the agreement was concluded. The document is signed by the HR department employee and the dismissed employee.
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Sample application for early leave from maternity leave
In the “header” of the document (right or left, it doesn’t matter) it is written:
- addressee (name of the employing company), as well as the position and full name of the manager - the person to whom the application is sent;
- information about the applicant: also position and full name.
Then comes the main block, where the actual request for early leave from maternity leave is entered. Here you need to indicate:
- the period during which the mother was supposed to be on maternity leave (up to 1.5 or 3 years);
- the date from which she is ready to begin performing her labor functions;
- refusal to pay benefits.
If necessary, you can indicate other information, for example, about the mode in which the young mother wants to work - full-time or part-time. The latter is necessary so that the employer can determine whether the young mother needs benefits or no longer (if she works part-time, it continues to accrue).
And also take into account one important point: if during maternity leave an employee performs her work functions at home or on a part-time basis, the maternity leave is not interrupted.
Sample application for early exit from maternity leave up to 1.5 years
Answers to frequently asked questions
Question No. 1: A woman worked as a merchandiser for one employer for 1 year and 2 months. Leaves maternity leave ahead of schedule for a baby up to 1.5 years old. The employer does not want to hire her to her previous position, citing the fact that while she was on vacation, there were personnel changes in the organization and new people were hired. Is this legal and what can a woman do in this situation?
No, it’s not legal, because the employer is simply obliged, according to the Labor Code of the Russian Federation, to preserve the former workplace (position) for the maternity leaver. No reasons such as “production necessity”, “change of management”, etc., cancel this norm. If the employer does not do this or refuses, then the employee has the right to file a complaint with an authorized authority (for example, the State Labor Inspectorate).
Question No. 2: Can an application for early return to work be sent by mail or other means?
You can submit an application in any available way. Commonly accepted submission options: in person, by mail (registered letter with an inventory), by courier, through an authorized representative. Just remember that delivery time will be different in each case. Perhaps the longest time will be spent on delivery by postal mail. Therefore, everything should be done in advance.
Sample of filling out a notice of termination of a fixed-term employment contract with an employee
The notice can be drawn up in the form that is convenient for the originator. At the same time, the fact of the upcoming termination of the employment relationship due to the expiration of the fixed-term contract must be clearly clear from the contents of the notification paper.
- In the field for indicating the basis, the wording from clause 2, part 1, article 77 of the Labor Code of the Russian Federation is entered, and the number of the clause and article is also indicated in full without abbreviations;
- In the document/grounds field, the number of the clause of the employment contract is indicated, which specifies the moment of expiration of this agreement, and the details of the notification paper sent to the employee in connection with the end of his employment with this employer.
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