Procedure for granting paternity leave for a child

Thus, 35% of married working men completely exclude the possibility of going on parental leave instead of their wife. 26% of men would rather not agree to such a vacation. Every seventh person (12%) allows the possibility of going on maternity leave instead of his wife. 27% of respondents claim that they are ready to babysit.

At the same time, according to the Social Insurance Fund, every year in Russia more than 13 thousand maternity leave are taken out by men. And for women, for comparison, almost 700 thousand vacations.

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.

“The Code should not be a frozen document”

–

Irina Anatolyevna, in recent years, comprehensive changes have been made to the Labor Code more than once.
In particular, in 2007 and 2014. Quite a bit of time has passed -
and here again is a significant adjustment to the Labor Code. How necessary was it?

– The labor situation is changing rapidly. New challenges are emerging in the world related to issues of globalization, demography, labor migration, climate change, and the development of the digital economy. These trends need to be monitored and decisions must be made in a timely manner to adapt the current legal system. This approach is a global trend. For example, the International Labor Organization (ILO), which, by the way, celebrated its centenary in 2019, initiated a discussion about the future of the world of work several years ago. Among the most important issues discussed by the ILO is the updating of labor legislation.

Thus, in modern conditions there can be only one answer to the question posed - the Labor Code of our country should in no way be a frozen document. It must be constantly improved taking into account new socio-economic realities and new needs of society.

– In what main areas have changes been made to the Labor Code?

– The document implements labor law norms enshrined in other legislative acts, primarily decrees and decrees of the President. Here, first of all, we are talking about Decree No. 5 “On strengthening requirements for management personnel and employees of organizations”, Decree No. 29 “On additional measures to improve labor relations, strengthen labor and performance discipline”, Decree No. 180 on the procedure for applying Decree No. 29. Of course, the provisions of other regulatory documents related to the application of the above-mentioned decrees and decree were also analyzed and taken into account.

The norms of Decree No. 5 introduced a number of changes and additions to the practice of regulating labor relations between employer and employee. They have already become part of labor legislation since the entry into force of Decree No. 5, that is, from January 1, 2015. They have now been implemented in the TC. I will note, from my point of view, the most noticeable ones. So, in Art. 26 of the Labor Code, an addition has been made, according to which employers have the right, when hiring, to request a reference from an employee from his previous places of work, which is issued within five calendar days from the date of receipt of the corresponding request. The procedure for collecting damages caused by an employee to an employer has also been simplified. If it does not exceed three average monthly salaries, it can be collected from the employee by order of the employer. Larger amounts of damage are recovered in court. Also, taking into account Decree No. 5, Article 198 was supplemented with a new, fourth disciplinary measure. In addition to the reprimand, reprimand and dismissal, deprivation of additional incentive payments in full or in part for up to 12 months was added.

I would like to emphasize that when preparing the draft Law, all the provisions of Decree No. 5 were carefully analyzed for their relevance. For example, we paid special attention to the issue of the timing of warning an employee about changes in significant working conditions. As you know, Decree No. 5 reduced the minimum period from one month to seven calendar days. At the same time, as part of the development of the bill, a position was developed that this part of the Labor Code norms should be left unchanged, i.e. maintain a one-month notice period. Still, seven days is too short a period for an employee to be able to evaluate the pros and cons of whether he is ready to continue working for a given employer under new conditions.

The issue of implementation of the legislation regulating the contract form of employment into the Labor Code aroused great interest. The document includes a new chapter “Features of labor regulation of workers with whom contracts are concluded.” An important innovation in the legislation was also the procedure for extending or concluding contracts with employees who do not violate labor discipline.

– It is known that the amendments to the Labor Code also implement two decisions of the Constitutional Court...

- Right. “single parent” is included

. In this case, opportunities have been created for fathers, adoptive parents and adoptive parents raising minor children to receive appropriate guarantees from labor legislation, similar to single mothers. In particular, this is protection against unjustified refusal to hire, guarantees for termination of an employment contract at the initiative of the employer, and the provision of labor leaves. Also, an adjustment was made to the first part of Art. 244 regarding the offset of certain amounts paid to the employee during forced absence, when recovering average earnings in favor of the employee in the event of his reinstatement to his previous job.

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.

What types of vacation can a man expect?

In connection with the birth of a child, a man has new concerns and responsibilities as a parent. Taking into account the principle of equal responsibilities of both parents, the Labor Code of the Russian Federation allows a man to take 2 types of leave:

1. Unpaid, according to Art. 128 Labor Code of the Russian Federation. The duration of absence is several days, as agreed with the employer.
2. Paid when a parent takes out full paid leave for the period until the child reaches 1.5 years of age.

In each case, a different set of actions is provided, based on the provisions of labor legislation, however, both options provide guarantees of the law when the employer is obliged to provide the spouse of the woman who gave birth with the opportunity to fulfill parental responsibilities. The main thing is that when applying, the employee submits an application and supporting documents. Let's look at each situation separately.

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.

Innovations in contracts

–
You mentioned a new approach to concluding and extending contracts with conscientious employees.
What are the goals of the new approach and what is its essence? – This innovation of the Law is receiving the greatest attention now. This is not accidental, since a significant number of workers in our country work under the terms of a contract concluded with the employer. As is known, current legislation, in particular Decree No. 29, defines the minimum and maximum terms of contracts - one year and five years, respectively. Having defined such limits, the legislation did not further establish conditions for the employer for how long he can conclude or extend a contract with an employee, even if this employee has been working for this employer for several years. At the stage of preparing the bill, the Federation of Trade Unions of Belarus (FTB) raised the issue of the excessive prevalence of one-year contracts in the country's labor relations system. Monitoring conducted by the FPB showed that a large number of contracts are concluded or extended for one year, not only upon hiring, but also when the employee has worked for the employer for a sufficient period of time and has already proven himself on the positive side. A situation arises in which the employer wants to continue the employment relationship with the employee, but for some reason offers him a contract for only one year. In order to turn the situation around, the Labor Code defines new approaches to extending and concluding contracts with employees. The following procedure is provided. When hiring an employee, the contract is concluded for a period of one to five years based on the wishes of the parties. Further, the contract extension is carried out within a five-year period for a period of at least one year, and with an employee who does not commit violations of production, technological, performance and labor discipline - for a period until the expiration of the maximum contract period. That is, if the contract was initially concluded for one year, then its extension is carried out for four years.

If a new contract is concluded, in particular, after the expiration of the five-year contract period or in the case of transfer of the employee with his consent to another job, the contract is concluded for a period of at least one year, and with an employee who does not commit violations of production, technological, performance and labor discipline - for a period of at least three years. I would like to emphasize that the new procedure for determining the terms for concluding and extending contracts in no way implies the mandatory automatic conclusion and extension of contracts. At the end of the contract, the employment relationship will only continue if both parties (employer and employee) wish to continue the relationship.

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 to grant leave to the father

Employers do not have the right to refuse a man leave at his own expense or regular work leave upon the birth of a child, since this obligation is assigned to them by labor legislation.

If the Collective Agreement between the manager and the team (trade union body, etc.) stipulates that in such a situation other compensation is provided, then they must be provided without fail.

A man has the right to take maternity leave on the same basis as his wife. At the same time, he must retain his place of service for the entire period.

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:

Short-term leave (time off) for the child’s father

The father's right to short-term leave is enshrined in Article 128 of the Labor Code of the Russian Federation. According to the law, a person can take time off for up to 5 days in the following cases:

• marriage;
• birth of children;
• death of a relative.

Time off is granted subject to the following conditions:

• Vacation is not paid.
• Provided solely at the request of the employee.
• An employer cannot refuse an employee leave.
• Issued for any length of service, regardless of the last paid leave. For example, even if an employee has just gotten a job, he can take time off based on Article 128 of the Labor Code of the Russian Federation.
• If a man does not take advantage of the right to time off, it will be impossible to receive rest days in the future.
• The employer may require supporting documents from the employee. This is not entirely legal. The employee has the right to provide all documentation after the baby is discharged from the maternity hospital.
• If an employee is on a business trip during the birth of a baby, he has the right to go on vacation on the day the application is submitted.
• An employer cannot call an employee back to work from leave.

IMPORTANT! As a rule, an application for time off is submitted in advance. However, the case under consideration is an exception, since it is quite difficult to predict the exact date of birth of the baby. The application can be submitted one day before the leave date.

ATTENTION! Time off is not paid by the employer. However, the lack of compensation is a manager’s right, but not an obligation. An employer may well reward an employee by awarding him vacation pay. In this case, the right to paid time off for the father is secured in the collective agreement of the enterprise.

Registration of short-term vacation

The granted time off must be recorded in the time sheet. Days on which the employee was not present at the enterprise are marked with the following codes: “17” and “OZ”.

The employer also needs to issue a corresponding order. It is issued on the basis of an employee’s application. The employee must be familiarized with the order and signed.

Information about time off is entered into the employee’s personal card. In particular, you need to record the duration of the leave and the reason for its provision.

What to do if your employer refuses time off?

Article 128 of the Labor Code of the Russian Federation clearly states that the employer does not have the right to refuse an employee time off. If the employee has provided all supporting documents and drawn up an application, but the employer ignores the requests, it makes sense to take action. In particular, an employee can contact the labor inspectorate or the prosecutor's office.

Typically, an employer refuses time off on the following grounds:

• There is no possibility to provide rest days.
• No one can replace an employee.
• The manager is on vacation.
• The assigned work plan for the month was not completed.
• An employee is called on a business trip.

All these grounds for refusal are not legal. All possible difficulties are problems of the employer, not the employee.

ATTENTION! There are a number of nuances in the law that become of fundamental importance when trying to solve the problem through legal structures. In particular, the Code states that the employer must provide time off at the request of the employee. That is, when contacting the labor inspectorate, the employee must prove that he submitted the appropriate application. Therefore, when submitting a document to the secretariat, you should make a copy with an acceptance mark. If this is not done, the employer may claim that no application was received and therefore it is not breaking the law.

How to write it

An application for leave under the BiR is filled out on the employer’s letterhead or drawn up in free form in compliance with the general requirements for its content:

• the document is drawn up in writing;
• indicate the start and end dates of the period of absence from work;
• apply the reason - sick leave;
• indicate a request for registration of all due payments;
• indicate the details for crediting benefits.

Pay attention to the correctness of filling out the sick leave. The form of the certificate of incapacity for work was approved by order of the Ministry of Health and Social Development No. 347n dated April 26, 2011. The rules for filling it out are established by the issuance procedure approved by order of the Ministry of Health and Social Development No. 624n dated June 29, 2011.

After receiving documents from the employee, the employer must issue an order in form T-6 (approved by Resolution of the State Statistics Committee No. 1 of 01/05/2004) or a form developed by him independently, and familiarize the woman with the order against signature.

Postponement of the end of vacation in this case is not provided for by law, even if the woman stopped working later than the date indicated on the sick leave (decision of the Supreme Court of the Russian Federation No. AKPI12-1204 of November 14, 2012).

From the first day of incapacity for work until the day the sick leave ends, the employee will be paid the appropriate benefit (Article 2.1, Part 1, Article 13 of Federal Law No. 255-FZ of December 29, 2006). It is prepared by the employer himself.

Statement standard

The form of application acts is not regulated by regulatory documents. A request for maternity leave is the same application as any other, so it is written according to the scheme that is accepted in the organization where the woman works.

The structure of the application is standard:

• the upper right corner of the sheet (the so-called “header”) - indication of the addressee of the application: position, full name of the manager in the dative case and name of the organization;
• continuation of the “header” - information about the author: position and full name of the applicant;
• the title of the document, in this case, “statement”, is not enclosed in quotation marks, but is located in the middle;
• main text: can be arbitrary, the main thing is that it contains key positions - a request for leave, its terms, a request for benefits;
• attachments: you need to list the documents that the employee provides along with the application (this is sick leave and, if available, a certificate from the antenatal clinic about registration before 12 weeks);
• filing date – placed in the lower right corner;
• The applicant's signature must be handwritten.