Why don’t they pay maternity benefits and what to do in this case?

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Published: 05/06/2016

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Russian legislation provides for the mandatory receipt of maternity benefits by pregnant women . However, there are a number of reasons why an employer or the Social Insurance Fund may deny a woman this right. In this case, a woman can protect her rights in the labor inspectorate, the prosecutor's office or in court.

Pregnant women today are protected by the state more than ever. That is why women in an “interesting” position are guaranteed to receive paid maternity leave.

• Deadline for paying maternity benefits
• For what reasons may an employer not pay maternity benefits? Liquidation of an organization
• Bankruptcy of the organization or a difficult financial situation that makes any social payments impossible

Can the Social Insurance Fund not pay maternity benefits, what could be the reasons for this?

Maternity pay was paid to an employee who was recently hired

An employee's salary was unreasonably increased before maternity pay was accrued.

Benefit paid to working pregnant woman

The benefit was paid to the head of the enterprise or its founder

Where to go if maternity benefits are not paid

Deadline for paying maternity benefits

The amount and timing of maternity payments are strictly regulated by the state. According to Russian law, each manager is obliged to prepare all the necessary documents no later than ten days from the moment of notification of his employee’s pregnancy. For this purpose, the woman must present a sick leave certificate to the administration.

So, maternity benefits are paid to women on the day the salary is paid, i.e. according to the schedule established by the enterprise.

The entire payment amount must be given to the recipient in full; payments in installments over several months are unacceptable!

In cases where a pregnant woman is unemployed or unofficially employed, maternity benefits are paid to her by the district social security department. In this case, payments begin on the 26th of the month following the month of submission of documents.

In addition, there is a maternity benefit for child care. Unlike maternity benefits, dads can also receive it. It is paid monthly, from the day the child is born until he reaches the age of one and a half years.

Who can receive benefits?

Order of the Ministry of Health and Social Development No. 1012 of December 23, 2009, fall into the following categories can count on it :

1. Women registered as an individual entrepreneur and paying insurance premiums at their own request for at least six months.
2. Those who have lost their jobs due to the liquidation of a company or the termination of the activities of an individual entrepreneur, as well as those suspended from work as a notary or lawyer and not officially recognized as unemployed for the current year.
3. Officially employed and having an insurance policy with the Social Insurance Fund.
4. Voluntarily insured and paying insurance premiums on time.
5. Women who perform military service or are employees of the police department, drug control, and the Ministry of Emergency Situations.
6. Full-time female students of higher educational institutions.
7. All of the above are citizens who have adopted a child under three months old.

REFERENCE. Women who do not officially work anywhere and are not registered with the employment center will not be paid maternity benefits.

For what reasons may an employer not pay maternity benefits?

The head of the organization does not have the right to refuse to pay maternity benefits to a pregnant employee if the financial and economic activities of the enterprise are carried out, and the payment of wages to other employees is carried out as usual.
However, there are still 3 reasons why an employer may not pay maternity benefits.

Liquidation of an organization

Current Russian legislation recognizes the right of the owner of an enterprise to dismiss all employees, including pregnant women, upon its liquidation. The main condition is a written warning about the upcoming dismissal procedure no later than two months before the start of the liquidation process. In this case, all social benefits due to dismissed employees, including maternity benefits, are paid to the district branch of the Social Insurance Fund.

Bankruptcy of the organization or a difficult financial situation that makes any social payments impossible

If an organization is declared bankrupt, payment of maternity benefits also becomes the responsibility of the district social protection department. In this case, a pregnant woman has the right to receive a monthly benefit in the amount of 40% of her average monthly earnings if documents confirming this right are presented.

The location of the employer and his property may also be unknown, which may be subject to seizure and subsequent confiscation.

The legislative framework

Guarantees of payment of all legal charges are enshrined in Article 130 of the Labor Code (LC). In particular, such payments include amounts for certificates of incapacity for work. In addition, Article 236 contains a rule on the recovery of compensation from the employer for a delayed transfer. The amount is calculated at 1/150 of the Central Bank rate for each day of delay.
Officials are held administratively liable under Article 5.27 of the Code of Administrative Offenses (CAO). The text provides for penalties of varying sizes. For a primary violation, for example, the following financial penalties are provided:

• officials (manager and chief accountant) - from one to five thousand rubles;
• individual entrepreneurs in the same amount;
• legal entities - from thirty to fifty thousand rubles.

Article 145.1 of the Criminal Code describes the offense of delaying payments for a period of three months. This is punishable in the following ways:

• a fine of up to 120.0 thousand rubles;
• prohibition from holding office for up to one year;
• imprisonment for the same period.

, is punishable by imprisonment for up to five years.[/warning]

In studying the issue under consideration, the legislator's commentary on the text of Article 145.1 is also important. This explains the essence of partial non-payment of the mandatory accrual. It recognizes a situation where a person received only part of the due amount within 2 months or did not receive anything at all within 3 months.

Article 130 of the Labor Code of the Russian Federation “Basic state guarantees for remuneration of workers”

Article 236 of the Labor Code of the Russian Federation “Financial liability of the employer for delay in payment of wages and other payments due to the employee”

Article 5.27 of the Code of Administrative Offenses of the Russian Federation “Violation of labor legislation and other regulatory legal acts containing labor law norms”

Article 145.1 of the Criminal Code of the Russian Federation “Non-payment of wages, pensions, scholarships, benefits and other payments”

Can the Social Insurance Fund not pay maternity benefits, what could be the reasons for this?

There are 4 reasons why the Social Insurance Fund may refuse to recalculate maternity benefits or to pay them.

Maternity pay was paid to an employee who was recently hired

In general, an employer cannot refuse to hire a woman solely because

the reason for her pregnancy. However, when hiring a pregnant woman, you should be prepared for the fact that FSS employees will consider this act an attempt to illegally obtain funds to pay maternity benefits.

There are several certain conditions under which social security has the right to refuse to pay money to a recently employed pregnant woman:

• lack of sufficient qualifications;
• failure by the employee to fulfill her job duties (i.e. formal employment);
• a significant excess of the pregnant woman’s salary over the earnings of other employees occupying similar positions;
• creation of a new position in the staffing table specifically for the hiring of a pregnant woman.

An employee's salary was unreasonably increased before maternity pay was accrued.

If an employee received a certain salary for a long period before maternity leave, and immediately before the benefit was issued it increased sharply, then the employer will have to clearly explain to the Social Insurance Fund employee the economic justification for this action. Good reasons may include: an increase in the length of the working day, an increase in the volume and complexity of work, as well as an increase in production load.

If social security considers such a sharp increase in wages unjustified, then maternity benefits will be recalculated at the previous level of wages.

Benefit paid to working pregnant woman

Maternity leave is a way to reimburse a pregnant woman for her previous earnings due to the impossibility of receiving it.
Therefore, they are not available to women who continue to work even with an officially issued sick leave. A similar rule also applies in cases where a woman who has received benefits in full decides to go on maternity leave later or, conversely, to return to work earlier. Then maternity benefits are considered to be accrued in excess, and part of the money must be returned or can be deducted from the current salary of the recipient of the benefit.

The benefit was paid to the head of the enterprise or its founder

In this case, it is necessary to understand that the director of the organization is the same employee as his subordinates, therefore payment of maternity leave to him is mandatory! But under one condition: an employment contract must be concluded.

What to do if the employer does not pay wages? In our material you will find the information you need on this topic.

If your salary is delayed by more than two weeks, you are entitled to compensation. Read more in this article.

All about piecework payment for your work - find out about it here.

Duration of sick leave

According to laws No. 255-FZ of December 29, 2006. and No. 81-FZ dated May 19, 1995. The Labor Code of the Russian Federation establishes the number of calendar days of maternity leave indicated by the attending physician on the sick leave certificate of the mother in labor.

The number of days of incapacity and maternity leave is determined according to the following criteria:

• singleton pregnancy and one child is born - 140 days of sick leave (70 days before and 70 after birth);
• in case of complicated childbirth, 16 days of leave are added to the postpartum period;
• in case of premature birth, 156 days of rest are prescribed;
• for a woman carrying 2 or more children, sick leave is issued at 28 weeks and leave before childbirth is 84 days, and after - 110, but if a multiple pregnancy is detected only during childbirth, leave for the postpartum period is extended to 124 days;
• if a woman in labor lives in a radiation-contaminated area, her prenatal leave is extended to 90 days;
• when adopting a newborn, the guardian receives leave until the child is 70 days old, but if he has adopted several babies at once, it is extended to 110 days.

REFERENCE. A sick leave certificate must be issued to a woman in labor no later than the 30th week of pregnancy, and in case of premature birth, from the 22nd week.

At the request of the woman, a certificate of incapacity for work can be issued later if she continues to officially work.

Authorized bodies

Refusal by the employer is not the only option for violating this right of women. In some situations, the social service authorized to pay such benefits also denies mothers their entitlement.

In such cases, workers can protect their legitimate interests in the following bodies:

• regional office of the labor inspectorate;
• the prosecutor's office at the location of the employer or social service;
• courts at the place of registration of the employer or social service.

A special appeal is sent to each authority. So, if you need to send a complaint to the labor inspectorate, then you need to write a statement to the court or prosecutor's office.

However, the contents of these documents do not differ from each other.

It must reflect the following information:

• name of the institution to which the document is sent;
• data of a woman whose right to maternity leave was violated;
• employer or social service information;
• the nature of the offense (refusal to provide maternity leave or maternity benefits);
• the grounds on which a woman has the right to maternity leave (child’s birth certificate, medical certificates);
• date of entitlement;
• date of refusal by the employer or social service;
• signature and date of submission of the application.

It is advisable to support your arguments with legal norms, however, women’s maternity rights are one of the indisputable rights in labor legislation, so it is not necessary to specifically indicate legal norms.