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.

Responsibility for violation

For managers who do not respect the rights of employees and pregnant women in particular, liability has been established. It can be of several types:

• if employment is refused without a reason, a maximum fine of 200,000 rubles is imposed. Another option would be the salary for 1.5 years. Compulsory work of up to 360 hours also applies;
• In case of non-payment of wages to an employee, including partial non-payment of labor, the following sanctions may be imposed on the guilty person - a fine of up to 120,000 rubles, a ban on holding a position. In case of complete non-payment, the fine increases to 500,000 rubles;
• dismissal without a valid reason will result in a fine of 200,000 rubles and a ban on holding a position for a period to be determined by the court. In this option, the woman is reinstated to her previous position.

The employer must fully comply with all legislative norms, for example, dismissal of a woman if she is pregnant is possible only in the cases prescribed in the article of the Labor Code of the Russian Federation. Failure to comply with legal requirements will result in personal liability, as well as fines and inspections against the organization.

Article 81 of the Labor Code of the Russian Federation “Termination of an employment contract at the initiative of the employer”

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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Is it possible to fire an employee in a position under the article

Closing the company is the employer’s only chance to fire a pregnant woman. Therefore, even if the expectant mother does not fulfill her duties or violates labor discipline, she cannot be fired. The maximum penalty in this case is a reprimand. It is also impossible to fire an employee in a position who was hired on a probationary period, but did not pass the test.

This also applies to staff reductions. The entrepreneur must offer another position that meets the employee’s medical conditions, and if there are no such positions, do not reduce the position occupied by the expectant mother.

Important! A woman expecting a child, at the request of her manager, must confirm her position with medical certificates (no more than once every 3 months).

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).

Work in order not to work

The employer is obliged to establish part-time working hours at the request of the pregnant woman, but taking into account the production conditions in the company (Part 2 of Article 93 of the Labor Code of the Russian Federation).

note

The company does not have the right to refuse employment just because the applicant is pregnant (Part 3 of Article 64 of the Labor Code of the Russian Federation). If an employer does not hire an employee for a position for this reason, he faces criminal liability (Article 145 of the Criminal Code of the Russian Federation). It is impossible to prescribe a probationary period in a contract with a pregnant woman (Part 4 of Article 70 of the Labor Code of the Russian Federation).

The duration of daily work, its start and end times, working days and weekends, and lunch breaks should not interfere with the normal functioning of the company.

In conflict situations with employees, it remains controversial what is considered a priority: the wishes of the pregnant woman regarding the work schedule or production conditions. Judicial practice on this topic is quite contradictory. Sometimes the courts decide the case in favor of the employee and oblige the employer to establish the part-time work schedule that the employee wants (decision of the Oktyabrsky District Court of Murmansk dated December 22, 2021 in case No. 2-5200/2017).

According to another position, the courts point to the possibility of the employer not to agree on the schedule option required by the employee and, for production reasons, offer him an alternative part-time schedule. For example, an employee in her application asked to establish a part-time working schedule, from 8 hours to... 8 hours 30 minutes.

The employer put forward a resolution and refused this mode of work. The company then provided the employee with a written response in which it offered other working hours options, including a shortened working day of at least four hours.

The State Labor Inspectorate inspector regarded the company's decision as a refusal to allow the employee to work part-time and qualified this as a violation (Part 1 of Article 5.27 of the Administrative Code). The organization successfully challenged the decision of the State Tax Inspectorate. According to the court, the resolution on the application does not confirm the refusal of the employee. The company proposed a different working time option, that is, it took sufficient measures to agree with the employee on a part-time working schedule in accordance with Part 2 of Article 93 of the Labor Code of the Russian Federation (decision of the Oktyabrsky District Court of Ivanovo dated November 14, 2021 in case No. 12- 234/2017).

When a company cannot provide a pregnant woman with part-time work under the conditions it has established, indicate the reason. Then offer the employee in the notice alternative regime options that will be as close as possible to the conditions that she requested in the application. Such actions will protect the company, but will not completely eliminate the risk that in the event of a dispute with an employee, the court will side with her.

Important

Pregnant women should not be sent on business trips or required to work overtime, at night, on weekends and holidays. A pregnant woman cannot be fired from work, even if she violates labor discipline (Decision of the Constitutional Court of February 27, 2021 No. 353-O). At the same time, the employer has the right not to agree with the pregnant woman on the desired part-time working schedule according to production conditions and offer her another option. In addition, the company may deny an employee annual leave before maternity leave if she has already taken leave in the current working year.

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:

Easy work

Pregnant women have the right to easier work. That is, a woman can ask for a reduction in workload Article 254 of the Labor Code of the Russian Federation. The production norm Encyclopedia of law or service The dictionary of economic terms should be changed: to allow serving fewer clients in a certain time, making fewer parts, etc.

A pregnant woman is also required to transfer Article 254 of the Labor Code of the Russian Federation to another job where there is no exposure to unfavorable factors:

• noise louder than 60 decibels;
• hazardous chemicals;
• substances with repulsive and disgusting odors;
• vibration, ultrasound;
• draft and so on.

In this case, the employee cannot:

• pick up objects from the floor;
• walk more than 2 kilometers;
• work in conditions where clothes and shoes get wet;
• work squatting, on your knees, bent over;
• Constantly lift weights greater than 1.25 kilograms.

These and other standards are recorded in the sanitary rules SanPiN 2.2.0.555-96 “Hygienic requirements for working conditions for women,” as well as in the hygiene recommendations Hygienic recommendations for the rational employment of pregnant women for the employment of pregnant women.

If we take into account all the sanitary standards, it turns out that even at a computer a woman in a position cannot work for more than three hours. in a day.

Despite the easier working conditions, pregnant women must be paid the average wage. Article 139 of the Labor Code of the Russian Federation.

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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I'll go to the doctor whenever I want

He will go, he has the right... Pregnant women can visit a doctor during working hours. But without documents about where the employee was, the accounting department has the right not to pay for this time. The same conclusion, by the way, can be drawn from the recent explanations of Rostrud.

An employee can confirm her visit to a doctor with a certificate from the antenatal clinic with the date and time of the examination. If you notice that the examination time does not confirm the entire period of absence, taking into account travel time, the employee may be abusing her right.

Ask her to provide an explanation within two working days and assess whether the reasons for the delay can be considered valid (Part 1 of Article 193 of the Labor Code of the Russian Federation).

Formulations in a local act, for example, in the internal labor regulations, will help reduce the number of cases when pregnant women use their position in bad faith.

Include a rule on medical examination in internal documents so that it applies not only to employees in the same position, but also to other employees of the company, when they retain their place of work and average earnings (Article 185.1, Article 254 of the Labor Code of the Russian Federation).

If a pregnant employee violates the clause of the local act stating that she must notify the company about her absence, or does not provide documents on medical examination, she cannot be fired for absenteeism (Part 1 of Article 261 of the Labor Code of the Russian Federation). As a disciplinary sanction, the employer has the right to reprimand or reprimand her.

Changing the working conditions of a pregnant employee

According to clause 7, part 1, art. 77 of the Labor Code of the Russian Federation, an employee may refuse to work in an organization if the terms of his employment contract have changed. It is important to note here that when changing working conditions, the employer must have evidence of the technological and organizational need for the changes, otherwise the dismissal will be illegal. If the upcoming changes are justified, the employer is obliged to notify the woman expecting a child about them two months in advance. If she disagrees, she will have to offer other available vacancies that correspond to her state of health (Article 74 of the Labor Code of the Russian Federation).