Article 260 of the Labor Code of the Russian Federation. Guarantees for women in connection with pregnancy and childbirth when establishing the priority for granting annual paid leave

Article 260 of the Labor Code is devoted to guarantees for pregnant and giving birth employees when establishing the priority for the provision of paid annual leave.
She links this regular leave with preferential additional leave, which is available only to these categories of working women. Labor Code of the Russian Federation
dated December 30, 2001 N 197-FZ

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Do I need to confirm pregnancy and when?

Before we tell you what guarantees are provided to working pregnant women, let us clarify: not a single law specifies the period for notifying superiors about pregnancy. Judicial practice shows that even if the employer did not know that the employee was planning to become a mother, this does not relieve him of responsibility for violating the norms of the Labor Code of the Russian Federation (clause 25 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated January 28, 2014 No. 1).

Since not only employers, but employees themselves are interested in providing benefits, we recommend explaining to the female part of the team how and when pregnancy is confirmed.

The very first document indicating a woman’s interesting position is a registration certificate, which is issued at any antenatal clinic. If you register for up to 12 weeks, the expectant mother will be paid a one-time benefit (from 02/01/2019 - 655 rubles 49 kopecks) along with maternity benefits. But the document itself or a copy of it can be presented earlier if, for medical reasons or other reasons, the employee has already received the right to certain benefits. The registration certificate will help the employer provide all the guarantees to pregnant women under the Labor Code of the Russian Federation, and the workers themselves will not be left at a loss.

Providing leave to pregnant women in advance

Pregnant employees enjoy certain privileges. The vacation schedule is suspended for them. At the request of such a lady, she will be able to take an additional paid break at any time convenient for her. At the same time, if we are talking about previously deserved rest, no problems will arise. You just need to write a statement.

It’s another matter if a worker decides to take a vacation in advance (in advance). Here she will have to negotiate with the employer. The law does not prohibit providing the expectant mother with an advance break at the expense of the company. But it does not oblige the manager to pay for periods that have not yet occurred. The employer's concerns boil down to the following points:

• vacation pay is calculated for the current year of work. The expectant mother simply will not work it out completely, because after the sick leave she will go on leave to look after the baby;
• in the event of an employee’s early dismissal, it will be impossible to withhold anything from her salary;
• You can wait over 3 years for the advance payment to be processed. It is during this period that a woman can inspect her baby. The company is obliged to keep her place of work.

Remember, a pregnant woman has the legal right to use the accumulated vacation days before the start of prenatal sick leave in full. Everything above is only in agreement with the employer.

Employment guarantees

In Art. 64 of the Labor Code of the Russian Federation directly states that when selecting candidates and hiring, it is prohibited to refuse to conclude an employment contract for reasons related to pregnancy. In order for the described guarantees for pregnant women in the Labor Code of the Russian Federation to be observed, it is permissible to appeal an unjustified refusal in court.

The next benefit that expectant mothers have the right to count on is employment without testing (Article 70 of the Labor Code of the Russian Federation). If a probationary period is assigned, then dismissal in case of failure cannot be made (clause 9 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated January 28, 2014 No. 1).

Application example

To ensure that the employer does not refuse to provide additional rest to a pregnant woman outside the approved schedule, the application must be completed in a slightly different form from the standard one. Such an application must necessarily contain the following details:

1. Full name and full name of the employer.
2. The name of the unit, position and decrypted full name of the applicant.
3. Title of the document (application).
4. The pleading part. Here it is important to start with a reference to Art. 260 of the Labor Code of the Russian Federation, which provides a pregnant woman with the opportunity to rest at any time convenient for her. Next, you should indicate the number of days of vacation, as well as the start date. Counted in calendar days. Please check with your HR department in advance for the duration of the required rest period. You can also indicate the need to pay financial assistance for recovery, as well as other payments due under the collective agreement.
5. Add date and personal signature.

You can write such a statement by hand, or by typing and printing on a computer. The applicant’s signature must be “living”. The application must be registered through the office.

Please keep in mind that it takes some time to review the application, prepare and sign leave orders, calculate and pay entitlements. Therefore, such a document should be written in advance (at least three days before the start of the vacation).

Remember, mentioning Article 260 of the Labor Code of the Russian Federation when writing an application for the vacation period of a pregnant woman is mandatory. This will make it possible to avoid forgetfulness of the administration and formal denial of a legal additional break from work.

What working mothers-to-be have the right to expect?

Certain prohibitions and guarantees for pregnant women under the Labor Code also exist in situations where a woman is preparing to become a mother after some period of work in a company. According to current regulations, she has the right:

How to receive compensation for unused vacation.

Compensation for unused maternity leave can be issued only in two cases:

• upon termination of an employment contract;
• if the required rest period is more than 4 weeks.

In the second case, compensation can only be paid partially, for additional vacation days, if the employee is entitled to them.

Replacing rest time with a cash payment is not the employer’s responsibility, so he can provide the employee with full vacation and pay for it.

Upon dismissal from the company, an employee will be able to receive the following types of benefits:

• earnings for the period actually worked;
• vacation compensation;
• dismissal benefits, if required in accordance with legislation or local regulations.

However, termination of an employment contract entails the termination of all relations with the employer.

This method is usually used if compensation is needed for unused leave after maternity leave, and the woman does not plan to return to her old duty station.

Rights of pregnant women upon dismissal

Employers have the most problems when dismissing expectant mothers, because they either do not know what guarantees and compensations there are for pregnant women in the Labor Code of the Russian Federation in this case, or they ignore them. Here you need to remember two rules (Article 261 of the Labor Code of the Russian Federation):

1. If a fixed-term employment contract has been concluded with an employee, in the event of pregnancy it must be extended until the end of maternity leave. If the contract is terminated due to the departure of the main employee, the pregnant woman must be offered a transfer to another position. If she refuses the transfer or the employer does not have another suitable job (including low-skilled or low-paid work), the contract is terminated.
2. An employee cannot be fired at the initiative of the employer, including for violation of labor discipline (for this it is allowed to bring disciplinary action). If a person wants to leave voluntarily (at his own request or by agreement of the parties), there is no reason to keep him; his employment contract is terminated according to the general rules. If the company is liquidated (closed), there are also no obstacles to dismissal.

Let us remind you that in case of violation of her rights, a pregnant worker can appeal to the labor inspectorate or to court. As practice shows, judges most often side with women.

Source: www.klerk.ru

Vacation before maternity leave: pros and cons

The advantages of taking leave before maternity leave are as follows:

1. The duration of rest before the upcoming birth increases.
2. The vacation pay that is paid to a woman is paid in the amount of her average earnings (that is, she practically does not lose in earnings).

But many women prefer to leave part of their vacation in reserve. For example, she may need additional days of rest to pick up her child from kindergarten when it closes and if other unforeseen circumstances arise.

This is the main disadvantage of taking leave before maternity leave: after all, after the end of maternity leave, a woman will no longer be able to apply for a new leave.

Therefore, the decision on the need to take leave before maternity leave should be made individually, taking into account the woman’s well-being.

Is it possible to take additional leave?

At the moment, the issue of additional leave is decided by the employer, and the decision depends only on him. And, of course, whether such leave will be paid is a moot point. It all depends on the financial situation of the organization and the reasons that led to the need to ask for additional rest.

1. Typically, such a privilege goes to those who have increased complexity or harmfulness of work (Article 117 of the Labor Code), do not have an established work schedule (Article 119 of the Labor Code), or work in unfavorable climatic conditions (Article 321 of the Labor Code). It should be remembered that people who belong to these categories have every right to paid leave;
2. Enterprises and organizations that are financed from the state or local budget can count on both annual and one-time additional vacation. As a rule, such leave is given along with the main one, but the employee has the right to divide them by writing a corresponding application (Article 125 of the Labor Code).
3. Pregnant women can add additional leave to their annual leave. The duration of such rest will depend on working conditions and length of service.

Cash compensation for leave when going on maternity leave

Vacation pay is calculated based on average daily income throughout the entire working year.

Calculation formula: CO=SZG: 12 :29.3*KDO

• SO – amount of vacation pay;
• SZG - the amount of salary for the year;
• 12 – number of months in a year;
• 29,3 – average number of days in a month;
• KDO – number of calendar days of rest.

How are they calculated?

The amount of vacation pay is calculated using a calculation formula and accrued to the employee.

The employer does not have the right to replace the required vacation with monetary compensation, even with the consent of the employee. This is evidenced by the provision of Article 126 of the Labor Code of the Russian Federation.

When are vacation pay issued when going on maternity leave?

Vacation benefits are paid within ten calendar days after the employee provides all the necessary documents.

Extended vacations can be replaced with compensation, but not for everyone

Some employees are entitled to vacation longer than the usual 28 days:

- disabled people - 30 days - Art. 23 of Law No. 181-FZ;

- workers with hazardous working conditions - at least 35 days - Art. 117 Labor Code of the Russian Federation;

- employees with irregular hours - 31 days - Art. 119 Labor Code of the Russian Federation;

- workers of the Far North - 52 days, and from equivalent areas - 44 days - Art. 321 Labor Code of the Russian Federation;

- minors - 31 days - Art. 267 Labor Code of the Russian Federation;

- teachers of kindergartens, schools, universities and colleges - from 42 to 56 days - Art. 334 Labor Code of the Russian Federation;

- extended vacation for any employee, if the employer has decided so, and this has been written down in the employment contract.

Vacation days over 28 can be replaced with money. For a replacement, you must take an application from the employee. The employer himself cannot make such a decision - Art. 126 Labor Code of the Russian Federation.

Vacation cannot be replaced with money for pregnant women, minors and workers with hazardous working conditions - Art. 126 Labor Code of the Russian Federation.

Article: list of all vacations due to the employee