Life circumstances and the Labor Code often provide for the possibility of an employee being legally absent from work for a long time. For example, an employee is on vacation, undergoing scheduled training, is ill for a long time, or goes on a long business trip - all this time he cannot perform his main duties. However, it is not always possible to simply leave work for a designated period of time; more often than not, stopping it is unprofitable, and then the employee needs a temporary replacement.
- How to register temporary performance of duties of a legally absent employee?
- How are such activities paid for?
- What points should not be overlooked?
Let us consider all these issues below and also help in drawing up the appropriate order.
Is it possible to conclude a fixed-term employment contract for the duration of the duties of an absent employee?
Features of a fixed-term contract
Art. 58 of the Labor Code of the Russian Federation indicates 2 possible options for the validity of employment contracts:
- for an indefinite period of time;
- within the specified period.
Find out about the rules for hiring under a fixed-term employment contract here.
These contract options are united by the employee’s rights and guarantees that the employer is obliged to provide to him. The employee, in turn, must obey the internal labor regulations and conscientiously perform his functions. A fixed-term contract, just like an open-ended one, can be changed.
The situation of concluding a fixed-term employment contract becomes special for the following reasons:
- Possible grounds for its execution are defined by law and must be given in the text of the agreement (Article 57 of the Labor Code of the Russian Federation).
- The term of the contract cannot exceed 5 years and must be indicated in the text.
Attention! If the duration of the employment contract is more than 5 years, then disputes with the employee may arise in court.
- It is possible to re-qualify an agreement as an open-ended one (Article 58 of the Labor Code of the Russian Federation): if the basis for concluding such an agreement is not indicated in the text or if this basis does not comply with the restrictions established by law;
- the absence of a reference to the validity period in the text or the continuation of work after the expiration of the period established for the contract.
Employment for a specific period, as well as with an open-ended contract, is formalized by order. The contents of the order must correspond to the details of the employment agreement. If there are discrepancies in these documents, priority is given to the text of the agreement.
Read about the specifics of filling out an order when applying for temporary work in the material .
And ConsultantPlus experts spoke in detail about the nuances of leave for conscripts. If you do not have access to this legal system, trial access is available for free.
What to take as a basis for an order
All developed orders must be based on something. In particular, each such order must have a documentary basis and justification.
The basis may be either an article of law directly related to the essence of the order, or an internal document of the company (for example, some act, Accounting Policy Regulations, an official or memorandum). With justification, everything is simpler - this is the real reason for which the order is issued.
Test in the case of a fixed-term contract
The establishment of a probationary period for a fixed-term contract, as well as for an open-ended one, is not mandatory. But if there is an intention to install it, then it is necessary to remember that:
- it is not installed for a contract period of up to 2 months.
- it cannot be more than 2 weeks for a contract period of 2 to 6 months.
The condition for establishing the test must be fixed in the contract.
For those who cannot be given a probationary period when hiring, see here.
Reasons for introducing an employee as an interim employee
An employee's absence from work when a temporary replacement is required can be caused by various reasons:
- any leave (annual, maternity, at your own expense, for training, etc.);
- business trip;
- sick leave;
- assignment of public or government duties (election commission, employment as a jury, etc.);
- any other circumstances of absence from work, including those that have not been clarified.
Is it necessary to make entries in the work book about the performance of duties of a temporarily absent employee ?
Termination of a fixed-term contract
If there are no grounds for reclassifying the contract as unlimited-term, then it will expire:
- within the period specified in the text (clause 2 of Article 77 of the Labor Code of the Russian Federation), about which the employee must be notified no less than 3 days in advance (Article 79 of the Labor Code of the Russian Federation), if the contract is not related to the replacement of an absent employee;
- with the occurrence of an event to which the validity period of the contract is tied (Article 79 of the Labor Code of the Russian Federation): the replacement employee goes to work, the end of the season or the assigned work.
Exceptions may be situations related to pregnant women whose contract expires during pregnancy (Article 261 of the Labor Code of the Russian Federation):
- at the request of the employee, the contract can be extended until the end of this condition;
- if pregnancy requires a transfer to another job appropriate to the woman’s condition, and the employer has nothing to offer or the woman does not agree to this job, then the contract is terminated until the end of the pregnancy.
Just like a contract valid without a term, a fixed-term contract can be terminated on other grounds specified in Art. 77 of the Labor Code of the Russian Federation, for example, by agreement of the parties or the initiative of the employee, due to a change in the essential terms of the contract, due to disciplinary action or any external circumstances.
Read about what claims may arise against an employee regarding labor discipline in the following articles:
- “What is considered late under the Labor Code?”;
- “How to properly register absenteeism for an employee under the Labor Code of the Russian Federation?”.
Acting Acting Person according to the Labor Code of the Russian Federation
Labor Code of the Russian Federation in Art. 60.2 talks about combining professions, increasing the number of assigned labor functions, expanding the zone of influence, and also separately notes issues related to the performance of the duties of an employee who is temporarily absent, but not released from work under an employment contract. This article was introduced into the Labor Code on the basis of Federal Law of June 30, 2006 No. 90-FZ.
Art. 151 of the Labor Code of the Russian Federation allows employees to agree to additional work offered to them in addition to their main responsibilities for an increase in pay.
HR officers usually understand by acting the performance of additional labor functions along with the main responsibilities in accordance with the signed employment contract, both for the same and for another position, providing additional remuneration.
Extension of a fixed-term employment contract for a new term
Repeated extension of a fixed-term employment contract for a new term may entail its reclassification into an open-ended employment contract, especially if the same job function is expected to be performed.
However, you need to take into account some features:
- Repeated extension of a fixed-term employment contract for a new term with the director of an LLC does not entail its recognition as an indefinite employment contract. This exception is explained by the fact that, according to Part 1 of Art. 275 of the Labor Code of the Russian Federation, the validity period of an employment contract with a director is determined by the company’s charter or agreement of the parties. The director is elected for the period established by the company's charter (Clause 1, Article 40 of the Law “On Limited Liability Companies” dated 02/08/1998 No. 14-FZ). In this case, the provisions of Art. 58 of the Labor Code of the Russian Federation regarding the recognition of a fixed-term employment contract as open-ended does not apply to relations with the heads of companies. In this case, the director can be re-elected an unlimited number of times.
- It is allowed to extend a fixed-term employment contract with employees of the scientific and teaching staff who are elected by competition to fill a previously held position. In this case, an additional agreement can be concluded between the employee and the employer to extend the fixed-term employment contract (clause 8 of Article 332 of the Labor Code of the Russian Federation).
- If the term of a fixed-term employment contract expires during a woman’s pregnancy, the employer is obliged to extend it at the written request of the employee (Article 261 of the Labor Code of the Russian Federation). An order to extend a fixed-term employment contract, or rather a sample of it, can be downloaded from the link:
Recommendations from ConsultantPlus experts will help you fire an employee after the expiration of a fixed-term employment contract. Get trial access to the system and go to the Ready-made solution.
Three things without which VRIO is impossible
In order for the replacement of an employee to be legal, three conditions must be met simultaneously.
- Written agreement of the parties. Without the written consent of the employee (additional agreement), the employer cannot involve him in replacing another employee.
- Organizational order. Any replacement option must be formalized by order of the head of the institution, carried out in the usual manner.
- Assignment of additional payment for additional work. The temporary replacement must be paid in addition to the regular remuneration of the employed employee. The amount is not specified by law; it can be calculated in any way convenient for the employer and to which the employee agrees.
FOR YOUR INFORMATION! The employee’s signature confirming familiarization with the order does not constitute a legal basis for issuing a replacement. An additional document is also required that specifically formalizes the consent of both parties, that is, both clauses 1 and 2 must be available, without excluding or replacing each other.
Who must sign an order to replace a temporarily absent employee
The order refers to those documents that always come from the top management of the enterprise.
Therefore, this document must be signed either by the director of the organization personally or by an employee who temporarily performs his duties. Also, all persons in respect of whom it was issued and those responsible for its execution must sign the order.
Thus, all the above-mentioned employees will testify that they are familiar with the order and are ready to carry it out.
What benefits
Maternity benefit
The benefit amount is 100% of the average salary. For calculations, take two calendar years before the start of the vacation. For example, in 2021, salaries for 2021 and 2021 are taken into account. The most convenient way is not to count in Excel, but to use a special calculator.
The benefit is assigned within 10 days after receiving documents from the employee. They are paid on the next payday after appointment.
Example
At Romashka LLC, salaries are paid on the 11th and 25th of each month. Anna went on maternity leave on October 10. The director calculated her benefits on October 15 and paid her on October 25. He did everything right.
One-time payment at the birth of a child
From February 1, 2021, the benefit is 18,886.32 rubles. Some regions increase the payment at the expense of their budget, for example, Moscow - by 5,500 rubles for the first child, by 14,500 rubles - for subsequent ones.
Monthly allowance for child care up to 1.5 years old
The benefit is paid monthly: from the first day of parental leave until the child turns 1.5 years old.
The benefit amount is 40% of the average salary. For the calculation, they take the salary for the previous two calendar years. For the first child, the minimum payment in 2021 is 4,852 rubles per month, the maximum is 27,984.66 rubles per month. For subsequent children - from RUB 6,751.54 to RUB 27,984.66 per month. Calculate your benefits using a special calculator to avoid mistakes.
Monthly child care allowance for children under 3 years of age (cancelled for children born from January 1, 2021)
When an employee is on parental leave, the employer pays him benefits at his own expense. The benefit amount is 50 rubles per month. Pay day - the day the salary is paid.
The benefit is paid during parental leave of up to 1.5 years in parallel with the main leave. If the child is already 1.5 years old and the employee remains on maternity leave for up to 3 years, 50 rubles is her only allowance.
Results
The order assigning duties during vacation does not have a legally established form and is drawn up in any form. In addition to the mandatory details of any internal document (number and date), the replacement order must provide for the timing of replacement and clarify additional responsibilities of the employee. The order is completed with the signatures of the manager and employee.
For information on documenting the combination of positions, see the article “Registration of combining positions in one organization.”
You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
Who will replace an employee during maternity leave?
First, let's determine what options there may be for replacing the main employee. There are three of them:
- hire a new employee to replace the maternity leaver by concluding a fixed-term employment contract with him;
- transfer another employee to the position of the main employee, while relieving him of his main duties;
- arrange for one of the existing employees to work together to perform part of her work.
Considering that the main employee will spend quite a long time on vacation, the first and second options are mainly used.
