Guarantees for pregnant women under the Labor Code: a reminder for employers

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.

What documents do I need to provide for translation?

In order for an employee to be transferred to an easier job, he must complete the following documents:

• Honey. a conclusion that the employee provides, and it confirms his right to transfer to light work, for example, pregnant women provide a certificate from a gynecologist with a specified period.
• Statement from the employee in which he agrees in writing to the transfer. Add. agreement to the contract indicating the validity period and new conditions for the fulfillment of obligations.
• Order on translation of the unified form.
• Entry in a personal card and work book.

What benefits and guarantees are stipulated in the law?

Let us recall that labor guarantees for pregnant women are provided for in local regulations of the employer, collective agreements, and industry agreements. But the minimum that all organizations and individual entrepreneurs with hired employees must adhere to is prescribed in the Labor Code of the Russian Federation. We will focus on its norms.

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What is light work?

There is no clear definition of the concept of “light labor” in Russian legislation; however, in legal practice, light labor is generally considered to be the performance of such labor functions in which:

• an organ damaged due to an industrial injury is not involved;
• there is no negative effect on the body due to a general disease;
• there is no teratogenic effect on the fetus or a negative effect on the body of a pregnant woman, which can significantly undermine her health, complicate or make it impossible for her to perform her reproductive function.

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).

When to transfer for medical reasons

An employee is transferred according to a medical report in cases where he is unable to perform professional duties at his workplace for the reasons listed below:

• receiving work-related injuries or injuries;
• pregnancy;
• injury or injury;
• disability;
• presence of diseases;
• undergone operations.

For example, a production employee who has undergone back surgery has the right to demand that his duties be changed if he has a certificate for light work due to health reasons, in order to eliminate the negative impact on his back. A person who has injured his arm can also be transferred to another type of activity that allows him not to use the injured limb, and so on.

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:

Reasons for transfer

There can be various reasons for transfer: pregnancy (a certificate for light work during pregnancy is issued), caring for a child under one and a half years old, work injury, serious illness or surgery. If the employer refuses to transfer the employee, this will be considered a violation of the law.

If an employee needs to be transferred to a lighter job (a certificate for light work due to health reasons will confirm this), it means that he is not able to perform professional duties without performing actions that are contraindicated for him.

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.

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Cases of transfer to another job exceeding 4 months

In the event that an employee, with a certificate of transfer to light work, needs to transfer to another job for a period exceeding 4 months or permanently, then if such a transfer is refused or if the employer does not have a suitable vacancy, the employment contract is terminated, in accordance with clause 8 of Part. 1 tbsp. 77 of the Code.

The employment contract with the heads of enterprises or organizations, representative offices, branches, chief accountants and deputy managers is also terminated if such a transfer is refused, or if there is no suitable work, in accordance with clause 8 of Part 1 of Art. 77 of the Code. The employer also has the right, with the written consent of the employee, to suspend him from work for a period determined by agreement of the parties. The employee is not paid any salary during such a period of suspension. Exceptions are cases provided for by this Code, other federal laws, employment contracts, agreements, and collective agreements. Medical workers have a sample certificate for light work.

Design rules

How is an employee transferred to light duty? When preparing a transfer, it is important to take into account some points enshrined in law that determine for how long a certificate for light work is issued:

• During the entire period while the manager decides on the issue of transferring the employee to light work in connection with medical reasons. In conclusion, the latter retains his average earnings. Also, a person may not perform the previous work in full if they are contraindicated for him due to his health condition.
• If we are talking about a pregnant woman, then her transfer must be completed before the end of the pregnancy period. For the entire period, she retains her average earnings, which she received in her previous position.
• If it is necessary to transfer to light work due to a work-related injury or the development of an occupational disease, the employee’s average earnings are retained until his recovery or the loss of his occupation is determined. legal capacity.
• When an employee needs to switch to light work for a period of up to 4 months, and the person refuses the options that are offered to him, or the employer cannot offer options for the transfer, then the employment contract is terminated. In this case, the employee is paid severance pay, which is equal to his average earnings for 2 weeks.
• When an employee needs to switch to light work for a period of more than 4 months, and the person refuses the options that are offered to him, or the employer cannot offer options for the transfer, then the employment contract is terminated. In this case, the employee is paid severance pay, which is equal to his average earnings for 2 weeks.
• After the expiration of the period for transfer to light work, which is specified in the add. agreement to the contract, the employee returns to his previous place of work.
• If the period specified in the additional agreement has expired, and the employee remains in the place where he was transferred and does not object, then the period specified in the additional agreement. agreement becomes invalid, and the employee remains in the new place on a permanent basis.

Employment of an employee with a disability

Disabled people with group 3 (the mildest) usually do not experience significant problems with employment, since the restrictions on their ability to work are insignificant. But whether it is possible, according to the Labor Code, to employ a group 2 disabled person with harmful conditions is not so easy to determine. Formally, the Labor Code of the Russian Federation does not contain such a prohibition, which means that it is necessary to be guided by the employee’s individual rehabilitation program (IRP) and the sanitary rules SP 2.2.9.2510-09, which exclude the work of persons with disabilities in conditions of increased influence of harmful and hazardous production factors. As for the first group, it was traditionally considered non-working; recently, such restrictions have been partially lifted, but the first group is still assigned to people who are unable to work. However, if an individual rehabilitation program implies the opportunity to work, and the employer is ready to create the necessary conditions, it is not forbidden to employ them.

What positions do people with disabilities work in?

If the employee’s work is not contraindicated, then he is hired for any position that is suitable for his qualifications and health status. For example, personnel with disabilities are employed in positions for which optimal working conditions of class 1 are determined, and examples of professions of people with disabilities of group 2 in this case are as follows:

• pickers;
• watchmen;
• wardrobe attendants;
• massage therapists;
• accountants;
• call center operators;
• Internet marketers;
• SMM managers;
• copywriters;
• programmers, etc.

For large companies with more than 100 employees, a mandatory quota has been established for the employment of employees with disabilities. Their number in the company's staff should be from 2 to 4% of the staff. “Hamsters” are excluded from the calculation, since although the work of disabled people in hazardous working conditions is not regulated under the Labor Code of the Russian Federation, it is prohibited by sanitary rules.

What documents are needed for employment?

When hiring such an employee, the law allows you to require from him only those documents that are provided for in Article 65 of the Labor Code of the Russian Federation:

• passport;
• work book;
• SNILS.

The employer has the right to supplement this list with other documents determined by the nature of the future work, for example, a certificate of no criminal record, which is necessary for teachers. Requiring documents on health status is not allowed if the work is not associated with harmful or dangerous production factors or if the position is not named in Appendix No. 2 to Order of the Ministry of Health and Social Development dated April 12, 2011 No. 302n.

If there are restrictions, the employee, on his own initiative, can present to the employer documents confirming his status as a disabled person, these include:

• certificate of disability indicating the assigned group. According to the current procedure, disability group 1 is assigned for two years, 2 and 3 for one year. Thus, the certificate has a certain validity period: after its expiration, the employee presents a new document or loses benefits and compensation due to his status;
• individual rehabilitation program (IPR). It specifies the restrictions and requirements for working conditions for this specialist, the work parameters allowed for him, etc.

The employer needs to study the applicant’s IPR and decide whether he can provide the necessary conditions or not.

Example

Citizen Ivanova A. is applying for the position of HR specialist, whose disability certificate states that she needs to work in a room where there are no harmful production factors, which would classify the workplace as a third hazard class. Work in this position does not involve being on the street, working conditions in the workplace are optimal, which is reflected in the SOUT card, therefore, we are hiring A. Ivanov.

If an organization does not have the ability to organize special workplaces or is not ready to bear the costs of retrofitting existing ones, the candidate is denied employment. This issue should be taken seriously, especially if the applicant came with a referral from the employment service or applied through a similar portal. It is necessary to justify your position in detail and indicate the reason for the refusal. Otherwise, the employer will be accused of discrimination against people with disabilities and will be subject to administrative liability.