Changes in the Labor Code 2020: leave for the father (stepfather) at the birth of a child

Rest on equal terms

The legislation of the Russian Federation allows parental leave for fathers. They got this opportunity in 2007 with the adoption of a corresponding amendment. The old law stated that when working at an enterprise, only the mother has the right to take leave to care for a child under three years of age, including an adopted child. Now paternity leave is also available for the father, which can be taken out either partially (alternating with maternal leave) or in full at once. Moreover, any relative, being a guardian (grandmother, grandfather, aunt, etc.), has the opportunity to take advantage of this kind of leave.

Resolution of the Supreme Court of the Russian Federation dated January 28, 2014 No. 1 states that the availability of leave does not depend on the degree of relationship. Such a person does not need to live at the same physical address as the child’s parents. The Supreme Court insists only on some kind of monitoring. The check should show how reliable is the fact that the child is being cared for by the relative who is applying for the leave, and whether the same leave has been granted to his natural mother.

Please note that several relatives do not have the right to go on parental leave at the same time. The law prohibits this and contains a number of measures to prevent this possibility.

Answers to common questions

Question No. 1: Can I claim vacation pay for paternity leave at the birth of a child?

Answer: No, this short-term leave is not paid. However, if the enterprise’s collective agreement contains a clause on incentives for an employee who has become a father, the payment is mandatory for the employer. That is, paying vacation pay in this case is the right, but not the obligation of the employer.

Question No. 2: Can both parents go on maternity leave at once? Can a father go on maternity leave if the child's mother is unemployed?

Answer: No, maternity leave can be issued either to the child’s mother or to the father. If a woman is unemployed, it is automatically considered that she has the ability to care for a child, which means that the father cannot be granted leave.

How to arrange a vacation

Regardless of who gave birth to the child, in the context of certificates and documents, the procedure for applying for paternity leave at the birth of a child in 2021 is the same for any relative. In this case, it is advisable for the father to notify the employer of his intentions in advance, since the latter will have to look for a temporary replacement.

First, you need to decide what kind of leave the father wants to take: full or partial. A man is required to notify his employer at least two weeks before leaving for such a vacation. He must complete all work tasks and hand them over to the person who will replace him during his vacation.

The employer is obliged to provide leave to the father based on his application. To do this, the father should provide the company with a list of the following documents:

• birth or adoption document;
• application for vacation;
• application for monthly benefits;
• a copy of the wife’s work record book, which will serve as evidence that she is not registered at any enterprise and does not receive maternity benefits from her employer;
• a certificate from the job where the child’s mother works, stating that she does not use the specified leave and has not received benefits.

If the child’s mother does not work or study, a certificate confirming that she has not received benefits will be issued by the social security authorities. It should be received at your place of residence.

There are usually benefits to fathers who choose to take parental leave. Eg:

• wife's salary, which is significantly higher;
• wife is a full-time student;
• disability or incapacity for work of the child's mother;
• the birth of twins or triplets, when each parent arranges care for a specific baby;
• the right to part-time employment, rest from intense and stressful work.

You can leave your vacation early by notifying management in advance, and you can also go on it again at any convenient time.

The employer is obliged to provide the employee who has a child with unpaid leave (leave at his own expense) for up to 5 calendar days (Article 128 of the Labor Code of the Russian Federation).

Such leave is granted on the basis of a corresponding application from the employee. The document confirming the right to this leave is a copy of the child’s birth certificate, which must be attached to the application.

Sample documents

Download an application from the father for time off due to the birth of a child in the family - sample.

This is what the sample looks like:

Download an order for providing unpaid days off - sample.

This is what the sample looks like:

What to do with annual paid leave

Having understood the question of whether a father is entitled to leave at the birth of a child, let’s consider the remaining privileges for him.

Having become a father, a man has the right to go on paid leave regardless of his schedule. If the employee wishes, the employer is obliged to provide him with leave while his wife is on maternity leave. This situation implies the possibility of going on leave, despite the length of continuously worked time and the fact whether the father “earned” the right to leave by working at this enterprise. In any case, he can take paid leave.

Read more in our article - “Procedure for granting annual paid leave.”

If the father wants to go on vacation unscheduled, he should write an application addressed to his boss, attaching to it a document about the birth of the child.

Common mistakes

Error: An employer refuses to grant an employee short-term leave for the birth of a child on the grounds that the subordinate has recently returned from annual leave with pay.

Comment: All employees have the right to receive time off for the birth of a child, regardless of the last time they were on paid leave.

Error: The manager does not allow an employee who has had a child a 5-day vacation on the grounds that he was employed only last month.

Comment: Even if an employee signed an employment contract and started work only yesterday, he has the right to 5 days of leave on the occasion of the birth of a child.

Employer Responsibilities

According to Art. 22 of the Labor Code of the Russian Federation, the employer is obliged to strictly follow laws and legal acts, internal regulations, and also provide maternity leave for the father upon his request. This possibility should be reflected in collective agreements and agreements.

Keep in mind: any refusal by the employer to provide leave is unlawful. The father has the right to appeal to the labor inspectorate, and, as a last resort, to demand it in court.

Often, in order to avoid aggravation of the situation at work, the father prefers to come to an agreement with his superiors. He may ask to work remotely or on a part-time, part-time basis.

What to do if the employer refuses leave?

The manager’s refusal to provide guaranteed days of rest in connection with the addition of a family is regarded as a violation of the legal rights and interests of workers.

They defend their interests in different ways. For example, when you need to pick up your wife from the maternity hospital, but the boss does not sign an application for 5 days at his own expense, you can:

• prepare a photocopy of a written request to issue the desired period of leave without pay on the occasion of the birth of a child;
• leave documents confirming the arrival of a baby in the family, along with the application, in the reception area of ​​the secretary or office of the organization, asking to register incoming correspondence;
• keep a copy of the application with a mark of the number and date of registration, a certified signature with a transcript of the position, surname, initials of the first name, patronymic, and the responsible person who accepted the correspondence.

In this case, it will be very problematic for management to bring disciplinary action against an employee who went on vacation without issuing an appropriate order.

A man can appeal against unlawful actions of his employer:

• to the state supervisory authorities - the prosecutor's office or the territorial labor inspectorate, which will conduct an inspection, upon confirmation of the specified facts of violations, issue prescriptive documents on their elimination, and bring the guilty officials to justice;
• through the court.

Reflection of leave at the birth of a child in the time sheet

In the working time sheet (form No. T-12 or form No. T-13, approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1), the reflection of the employee-father’s leave depends on the situation:

How much time off can you take?

According to Article No. 128 of the Russian Labor Code, in the event of the birth of a child, a man can take up to 5 days of leave . The new father decides on his own how many days off to take: it can be 1-2 or all five days. In local regulations, the employer may provide for a different duration of time off due to the birth of a baby.

It must be taken into account that the duration of the weekend should not be less than that provided for in Russian legislation.

Time off for overtime, holidays and weekends

What a day . It may be necessary for an employee to stay late in the evening or work on a weekend or holiday. For such work, the employee chooses: to receive a salary at an increased rate or take time off. The employer cannot force you to take money or, conversely, time off. This is up to the employee to decide.

Rest days for overtime work

Working after the end of the working day or more than the number of working hours per month is overtime.

You can’t just force an employee to overwork. The reasons for overtime work are specified in Art. 99 Labor Code of the Russian Federation:

- you need to finish the work already started;

— urgently repair work equipment;

- replace a replacement who did not show up.

For overtime work, written consent is taken from the employee. The exception is when it is necessary to eliminate an accident or a state of emergency is declared in the country. The maximum overtime limit is four hours on two consecutive days and 120 hours per year.

An irregular working day under an employment contract is not overtime. If, according to the agreement with the designer, he has an irregular day, he can be left in the evening to finish the layout without asking consent. There is no need to pay extra or give time off. But for an irregular day, the employee’s annual leave is extended by three days.

Article: list of holidays required for employers

Increased wages are paid for overtime work. For the first two hours - at a rate of 1.5 salaries, for subsequent hours - at 2 salaries.

Instead of an increased salary, an employee can choose to take a vacation. It turns out that if an employee has worked overtime for a whole day, he can take time off. If you worked half a day, you can take half a day. But then there will be no increased payment - Art. 152 Labor Code of the Russian Federation.

Rest days for working on holidays and weekends

To work on weekends and holidays, written consent must be obtained from the employee. And only if you need to do urgent, unforeseen work. An exception is an accident, accident or emergency. Rules - from Art. 113 Labor Code of the Russian Federation.

Work on a holiday or day off is paid at double rate. Instead of money, an employee can take a day of rest, but without paying for it - Art. 153 Labor Code of the Russian Federation.

How to register . The employee writes an application for time off. The employer issues an order. Leave dates are agreed upon. The Labor Code does not have a time limit within which an employee is required to take overtime days. There is also no rule that time off expires after some time.

Two days for blood donors

What a day . The employee is released from work on the day of blood donation and the next day. For both days he is paid the average salary - Art. 186 Labor Code of the Russian Federation.

But if the employee wants, he can take two donor days off at any time during the year. The State Labor Inspectorate explained that the employee chooses the dates of his days off.

If on the day of blood donation the employee was on annual leave, the vacation is extended by two days. And if he went to the donor center on a day off, he gets additional time off.

How to register . The employee writes an application for a day of rest to donate blood and a day of rest. The employer issues an order. Then the employee brings a certificate from the transfusion point.