We draw up a fixed-term employment contract for the period of maternity leave. Fixed-term employment contract during maternity leave

Since July 11, 2015, the procedure for granting maternity leave and calculating maternity benefits to women working under a fixed term contract. Federal Law No. 201-FZ, signed by the President of the Russian Federation Vladimir Putin on June 29, 2015 and entered into force 10 days after its official publication, amends the provisions of Art. 261 of the Labor Code of the Russian Federation on guarantees of the rights of expectant mothers upon termination of an employment contract.

The amendments relate to the situation, common in practice, when an employment contract is concluded between the employer and the employee. on the certain period , the expiration date of which falls on the period of pregnancy or.

Previously, in such cases it was not always clear whether it was necessary to extend the fixed-term contract until the end of the decree or the labor relations must be completed on the end date of the pregnancy, providing only maternity leave and incomplete maternity leave ?

Termination of a fixed-term contract during pregnancy

Upon termination during the period of pregnancy of a woman, the validity of an employment contract concluded for a certain period, in accordance with Art. 261 Labor Code of the Russian Federation employer must extend it immediately before the birth of the child.

To extend the term of the employment contract, a pregnant woman must provide:

• corresponding written statement in the name of the employer;
• medical certificate from the antenatal clinic, confirming the fact and condition of pregnancy.

If a after the end of pregnancy(including due to her artificial interruption or spontaneous miscarriage) the woman actually continues to carry out her work duties at her former place of work, the employer in a week after he found out (or should have known) about the indicated fact, he has the right to terminate the employment contract concluded with her - in fact, the termination of pregnancy marks the expiration date of the fixed-term contract.

When extending a fixed-term contract for the period of pregnancy, the employer has the right no more than once every 3 months require a woman to provide him with a medical certificate from a antenatal clinic confirming her current state of pregnancy.

If a woman goes on maternity leave under a fixed-term employment contract

To all working expectant mothers regardless of the conditions of their employment(including terms and conditions of the employment contract) upon their written application addressed to the employer, in accordance with the norms of labor legislation, is provided ( maternity leave) total duration .

For the specified periods of incapacity for work due to motherhood, the amount is paid in the amount of 100% of average earnings for 2 full previous calendar years or according to the minimum wage (in 2016). In this case, the maternity allowance is calculated in total for the entire period of incapacity in accordance with the doctor issued by the women's consultation.

Thus, a woman who is in an official labor relationship with an employer (including under a fixed-term employment contract) has the right to provide her and accrue maternity benefits when going on maternity leave, starting from the obstetric period of 30 weeks (or 28 - with the simultaneous bearing of several children).

In this case, starting from July 11, 2015, in accordance with the amendments to Labor Code term contract extended until the end of maternity leave, and the "conscript" has the right to expect to receive benefits for pregnancy and childbirth in full size .

The amount of maternity payments in 2018

Thus, the amendments introduced actually provide pregnant women working under a fixed-term employment contract, guarantees of the right to:

• complete;
• payment of maternity benefits in full, in proportion to the total duration of the period of disability.

Let us remind you that earlier the employer had the right to terminate the fixed-term employment contract. immediately after the end of pregnancy even if the woman was on maternity leave. at the same time, it was paid for the actually provided prenatal leave- duration 70 (normal childbirth) or 84 days (complicated childbirth or the birth of two or more children).

If a woman under a fixed-term contract replaces an absent employee

The above rule on the extension of a fixed-term employment contract until the end of pregnancy or maternity leave, as amended in 2016, is still does not apply to cases when a pregnant woman performs work, replacing the position of a temporarily absent employee.

In this case, the same allows dismissal of a pregnant woman by an employer at the end of a fixed-term contract, if it is impossible to transfer her to another position with the written consent of the employee herself (both corresponding to her qualifications, and to a lower or lower paid one), taking into account the state of health of the pregnant woman and medical contraindications.

In many ways, it is convenient for employers. Therefore, they try to use it nominally when hiring new employees. This type of formalization of relations is simply irreplaceable when a person is hired to perform a certain amount of work, to provide services instead of a temporarily absent employee, in other cases. This method employment must go in accordance with the law. This is the Labor Code (Article 59).

If a woman who is expecting a child is registered under a fixed-term contract, the question arises about her future fate. How her relationship with her superiors will develop - these issues are discussed in this article.

A fixed-term contract is valid for a fixed period

A fixed-term contract is called so because it is valid for a specified period. The text of the contract must indicate the date of commencement of work, the time of their completion. Instead of the end date, the amount of work that needs to be done can be prescribed.

The temporary nature of the employment relationship does not relieve management from standard duties: pay for work on time, create working conditions that meet the standards. The employee is also obliged to fulfill everything, obey the internal regulations of the company.

When such an agreement expires, the hired worker / employee ceases to be considered working here. In doing so, he gets paid. The procedure for dismissal is included in Article 59 of the Labor Code. However, things don't always go according to plan.

If, during the duration of a fixed-term contract, it is discovered that an employee is pregnant, different rules apply. Only in order to extend the employment contract, it is necessary to prove the fact of pregnancy.

Ways to prove the fact of pregnancy

Pregnancy must be documented

In order to make it possible to extend an employment contract previously concluded for a limited period, it is required to be documented. Oral communication is not valid in such a situation.

No external changes will also play a role. When the period is already considerable and a rounded tummy is noticeable, you still have to take care of the availability of certain documents. Only the certificate of the official medical institution, containing the corresponding entry, will be evidence of the special condition of the employee.

If the document is not provided, the manager will dismiss immediately after the expiration of the term. The certificate must include the following information:

• personal information (name, date of birth);
• diagnosis (pregnancy);

It doesn't matter in what order these data will be written. It is necessary that the certificate be issued by a state medical institution. Moreover, it must be brought not on the day of dismissal, when all the documents have already been drawn up, but in advance.

As soon as a woman receives reliable information about her interesting situation, she must immediately provide such a certificate for work. This medical document will have to be brought to work several times. As soon as the employer demands it, you will need to go to the antenatal clinic again for this certificate. This may be repeated several times.

The administration has every right to make sure that the employee is really expecting a child. After all, a big belly can be a consequence, and the lady herself can get rid of an unwanted pregnancy.

Making an application

A decree with a fixed-term employment contract has features

Bringing one certificate of pregnancy is not enough. If you do not write an application demanding an extension of the employment relationship, then later you may find yourself without paid funds for pregnancy and childbirth. To avoid this situation, you should bring it to the personnel department.

The application is written to the head. In the text they state their request to extend the employment relationship, as the reason they call their pregnancy. In this case, it is necessary to refer to the prepared one.

You also need to ask for maternity leave. Then the dismissal will come after the exit from it. Such a rule operates in accordance with Article 261. After receiving such an application, the management will draw up a new one. This document will supplement the fixed-term contract itself.

Standard renewal terms

If the employee is pregnant, the extension of the fixed-term contract is issued for a certain period. This is usually the time when the pregnancy resolves. It can be childbirth, as well as termination of pregnancy (it does not matter, spontaneous / artificial).

If the pregnant woman stated in the application a request to extend the employment relationship until she leaves the maternity leave, then the term of the contract will end on that date. Thus, the contract will be valid for another 140 days after taking such leave under normal circumstances.

There are cases when the vacation is extended. For example, with multiple pregnancy. When living in dangerous regions, which are classified as zones of man-made disasters. Even operative delivery prolongs this period by more than 2 weeks.

The conditions provided to pregnant women help them to work without problems and even get a job under a fixed-term contract. Before employment, you can additionally consult a lawyer on issues containing the intricacies of this type of employment relationship.

Features of the design of the decree

Pregnant workers have their rights

Even when working under a time-limited employment contract, you can enjoy all the rights that are granted to pregnant women.

To calmly go on maternity leave, you need to state all your wishes in a statement. Then, after 30 weeks of pregnancy, they calmly go on maternity leave. These norms are contained in Article 261.

Receiving maternity benefits

For women registered under a fixed-term contract, it is carried out according to the usual principles. They receive all the money due by law until the end of maternity leave. Employees employed under a fixed-term contract are entitled to the following payments:

• a special allowance that is paid for early registration;
• lump sum, childbirth;
• allowance (as the average salary for 140 days) for pregnancy and childbirth.

All payments are made to the account of the pregnant woman / woman in labor.

When the employment relationship ends

Article 84 of the Labor Code contains a number of provisions, in accordance with which labor relations with pregnant women who are employed under a fixed-term contract are terminated. In a situation where the temporary nature of the employment relationship was due to the temporary absence of an employee at the workplace, then after the absent employee leaves, the employer offers the temporary employee another free place.

It may involve performing a different range of duties, but still correspond to the level of qualification. The new place should also be suitable for the state of health of the pregnant woman.

If a new place does not suit a pregnant woman, she is fired. The second case of a possible dismissal of a woman carrying a child is the liquidation of the entire company. In bankruptcy and dissolution, everyone quits, even pregnant women.

How to get leave after childbirth?

70 days - maternity leave

Staying on maternity leave related to the care of a newborn is not considered an indispensable requirement of the law. Therefore, the management of the company is not obliged to send the employee on this vacation.

But if she sets out such a request in writing and submits it in an application, then the manager will most likely satisfy her. After all, refusal becomes a reason for going to court.

The court almost always takes the side of the pregnant woman. Therefore, employers prefer to pay employees these 70 days, so as not to waste useless time in lawsuits. A woman can stay for 70 days after childbirth if there were no particular difficulties during childbirth.

When 70 days after giving birth, the employee is fired. However, they do so after a warning. A young mother must find out about her dismissal no later than 3 days in advance. Notification methods 2:

1. in person;
2. in writing by mail.

Consequences of dismissal for the head

If management dismisses a pregnant woman after receiving official confirmation of her position, she can go to court. In any case, the court will protect her, restore her to her previous workplace.

Even if the dismissal happened because the woman could not bring the certificate on time, then she takes it and goes to court with it. There they will definitely take into account her employment, support the pregnant woman and punish the leader for lawlessness.

After all, he had oral evidence of her situation, but simply did not wait for her to go to the hospital for a certificate. And it can't always be done quickly. After all, a woman works, so not every day she can appear in the clinic.

It will allow a pregnant woman not to be nervous, to do everything in a timely and correct manner to extend the employment relationship. Then she will be calm and will be in harmony with herself and with the world to expect the birth of a baby.

Opinion of a legal expert:

Another question also arises. And what about parental leave with a fixed-term employment contract? Article 261 of the Labor Code of the Russian Federation determines that if the employer, after the end of pregnancy, does not want to extend the employment relationship, then no one can force him to do this. But, if you managed to agree, then everything can be in order and you will get a vacation.

Labor rights are not violated. The real conclusion can be drawn if we analyze the initial situation in which she entered into a fixed-term contract. She knew in advance that the situation with her pregnancy could arise or had already arisen. But she deliberately entered into an agreement, realizing what the consequences could be. Therefore, there are no legal grounds to demand from the management of the enterprise more than prescribed by law. If you try to force the administration through the court to extend the employment contract, then the court, most likely, will refuse the claim. And it will be a fair decision.

The rights of the employer are also protected by law. And abuse of the right is unacceptable. This constitutional provision is also mandatory for pregnant women. The Constitution of the Russian Federation guarantees the observance of rights and freedoms, as well as their judicial protection.

Video seminar on the topic "Peculiarities of registration of temporary labor relations for the period of "maternity" leave of the main employee.":

Actually, the possibility of employment instead of the temporarily absent main specialist is provided labor law. Despite the temporary nature of the work, the employer is obliged to register a new specialist in the usual manner, which is used when hiring citizens for permanent job. In the case of the design this person to the place of an employee who has gone on maternity leave, we are talking specifically about hiring a temporary employee, and not replacing the main employee.

For your information, the validity of a fixed-term employment contract, unlike an indefinite one, is limited in time. Therefore, it is this type of agreement that is used when registering a temporary specialist. As a standard, it is concluded for a certain period or until the conditions specified in the contract occur, that is, until the employee exits the decree.

In addition, the employer has the right to do the following:

1. In place of an employee on maternity leave, arrange for another specialist of the organization through a temporary transfer.
2. Assign execution job duties temporarily absent employee to another specialist of the organization for combination.

In all cases, the legal norms of the Labor Code of the Russian Federation are taken as a basis.

There is no probationary period for temporary workers if they work in their specialty or for no more than 2 months. They are subject to the same rights and privileges that are legitimately used by permanent employees.

Step-by-step registration of a temporary specialist during maternity leave

Employment of a temporary, as well as permanent, specialist is carried out in a general manner. Registration begins with writing an application and submitting it, along with the required documents to the employer (usually a passport, an applicant's work book, etc.).

Thus, when finding employment for the duration of the decree of the main worker, the new specialist draws up and submits an application for employment along with personal documents. Further, an order is issued sequentially, marks are made in the personnel documentation, after which he proceeds to fulfill his labor duties.

Mistakes in drawing up a fixed-term employment contract for the work of a temporary specialist

Expert opinion on the issue of the timing of termination of a fixed-term employment contract for a temporary specialist

The Ministry of Labor provides clarifications on this issue (letter No. 14-2 / ​​V-935 dated October 18, 2017). In particular, the focus is on Art. 29, part 1 of the Labor Code of the Russian Federation, which defines the following legal norms. During the absence of a permanent employee, he retains his former workplace, and when registering a temporary employee, a fixed-term employment contract is concluded.

In accordance with uniform rules, it is terminated at the end of its validity period. In this situation, the provisions of Art. 79 of the Labor Code of the Russian Federation. In detail, the urgent type of contract, if it was concluded for the period of absence of the main employee, is terminated with the return of this permanent specialist and the start of his work.

Summing up, the Ministry of Labor notes that if such an agreement was drawn up for the period of stay of a permanent specialist on sick leave, then it is terminated on the very first day that follows after the sick leave is closed.

This letter was written by the Deputy Director of the Department of Remuneration, Labor Relations and Social Partnership T. V. Malenko.

Example 1. Employment during maternity leave: drawing up an application

Vasilyeva G.P. is employed at Most LLC. Her new job is temporary, since the absent employee is on maternity leave. When applying for a job, G.P. Vasiliev writes a statement stating:

1. Own initials and address of residence (Yaroslavl, 3, apt. 1).
2. The temporary nature of the future work (this is evidenced by her request for employment in the place of the employee who went on maternity leave).
3. Full name of the employee who went on maternity leave (L. R. Dmitrieva).
4. His new position (methodist).
5. Department where he is going to work (economic and legal).
6. The start date of work (01/19/2018).
7. Test period (month).

The application is dated 01/16/2018 and signed personally by the applicant (Vasilieva G.P.).

For your information, the main employee, Dmitrieva L.R., who is on maternity leave, will retain her former place of work and the position of a methodologist. She has the right to return to work before the end of her maternity leave. Upon her return, the employment relationship with specialist Vasilyeva G.P. will be terminated.

Answers to frequently asked questions

Question #1: Can temporary worker, who was employed during the maternity leave of the main employee, become permanent?

Maybe, but on one condition that an employee who is on maternity leave, without leaving maternity leave, quits. Then the circumstances prescribed in the fixed-term contract (the woman's return to work after the end of the decree) will not come. Accordingly, a short-term contract is modified into a permanent one.

A fixed-term employment contract is a type of employment relationship agreement concluded for a set period of time. In the event that an employee becomes pregnant, the federal law. According to the submitted legal act, if a pregnant employee worked on the basis of such an agreement and its duration comes to an end during the pregnancy, then her employer undertakes to extend the contract until the subordinate can return to her work. The regulation is regulated 261 articles of the Labor Code of the Russian Federation. In order to carry out the contract renewal procedure, it is necessary to provide a proper certificate and declaration of pregnancy.

Features of the decree with a fixed-term employment contract

Since the Labor Code of the Russian Federation provides a guarantee of the safety of the contract between the subordinate and the employer, the agreement concluded between the parties cannot be terminated even when such an agreement expires. The only exception is the case when the liquidation of the organization occurs.

Despite the fact that the contract is temporary, the legislation of the Russian Federation entitles pregnant employees to receive the following payments:

• Cash payments for pregnancy and childbirth;
• Allowance for a registered pregnant woman.

Also, many workers are wondering if they can be fired on a decree under a fixed-term employment contract?
In accordance with Russian legislation the employer does not have the right to dismiss an employee who is in position. Terminating a fixed-term arrangement during pregnancy is a violation of civil and labor rights.

Is it possible to go on maternity leave with a fixed-term employment contract?

Maternity leave is issued in accordance with the norms of the Labor Code of the Russian Federation. The presence of a work contract with an employer should not be an obstacle for a subordinate to leave in a rest position. When implementing this process, the procedure will follow the standard scheme.

• To go on maternity leave, you must submit a written application;
• In this case, the employer may request from the employee the relevant documents confirming her position. One of these documents may be the certification of a physician from a medical institution where a woman is being examined;
• Also, while on maternity leave, the employee has the right to receive financial benefits.

How to go on maternity leave from a fixed-term employment contract?

The rights of a woman in a position are protected by the legislation of the Russian Federation, therefore, the head cannot have any obstacles in order not to allow his employee to go on maternity leave. It should be borne in mind that a fixed-term agreement allows this procedure to be implemented.

• First of all, in order to receive her legal leave, a woman must write an application to the head for a decree for her due to pregnancy;
• Also provide Required documents to complete the process;
• The final stage will be the preparation of an order for the subordinate to leave on maternity leave.

What to do if a fixed-term employment contract ends during the decree?

The law is on the side of a pregnant woman, so do not be afraid of dismissal or deprivation of benefits. According to 261 article of the Labor Code of the Russian Federation, employer in without fail must renew the contract with his employee, the term of legitimacy of which ended during the period of her decree. In turn, there must be grounds for this, which are an application and a medical certificate.

Payments for a fixed-term employment contract and maternity leave

The Labor Code of the Russian Federation obliges the employer to pay material benefits to a pregnant employee in case of pregnancy and childbirth. The corresponding payments can be accrued according to the minimum wage, as well as in the amount of 100% of the average wages for two full years of service. The calculation of the amount of accruals is based on the sick leave for the entire time that the woman was disabled. If the employee decides to revoke the employment contract or the pregnancy ends, then cash stop paying.

Fixed-term employment contract for the period of maternity leave and pregnancy - sample

The contract must indicate a certain period of time for which the pregnant employee will be absent, this is indicated. A sample document is drawn up in writing, signed by both parties to the employment relationship and supported by the seals of the management. The content of the document specifies the essence of the contract, its terms, duties and rights of both the employee and the manager, working conditions and life safety, as well as all necessary guarantees.

To conclude urgent contract the following documents are required:

• Employee's passport;
• Employment history;
• Diploma of education.

The onset of pregnancy of a working woman marks the preparation for going on maternity leave. This process must be executed in accordance with legal norms, therefore, in case of violation of the labor rights of a subordinate, she has the right to demand justice.

Today, such a phenomenon as fixed-term employment agreements is gaining popularity. To a greater extent, this is due to the fact that the employer has the right to formalize a working relationship with a subordinate for a specified period. Labor contract at the time of maternity leave in this case is not an exception to the rule.

What is a fixed-term employment contract during maternity leave?

Russian legislation provides for the need to establish professional relations by signing an appropriate act. This certificate is an ordinary agreement between the employee and the employer. hallmark The presented agreement stands for setting its duration and completion.

Also an important condition for a fixed-term employment contract for the duration of the decree is an indication of the basis for its execution. The content of the Labor Code of the Russian Federation states the need to take into account this criterion. If the relevant clause is not observed, then the contract is recognized as open-ended.
The conclusion of this kind of agreement can only occur when the main employee takes leave before and after childbirth. Or subsequently writing a request for maternity leave to take care of a child up to one and a half or three years.

How to draw up a fixed-term employment contract during maternity leave?

Aspects of registration of this type of contract are divided into 2 parts:

• Situations that imply a non-continuous nature of labor;
• Situations that are not associated with the intermittent nature of the activity.

Article 59 of the Labor Code of the Russian Federation accurately describes all the reasons for concluding a fixed-term contract. The employer has the right to set the duration of the work contract in three ways:

• For a specific period;
• For the season;
• For a set period of time, based on the stipulated situations, the temporary absence of the main employee.

When drawing up a fixed-term working agreement for the maternity period, it is necessary to correctly and accurately indicate the basic principles and circumstances of its conclusion. If an error is allowed, a situation may occur when both subordinates will work simultaneously in the same position for a specified period.

An important aspect when drawing up a contract for the duration of maternity leave is that the exact date of its termination cannot be indicated. An employee who is on legal leave may return to work earlier than the end date of the child care period. In the situation presented, it would be correct to state in the contract the reason why the replacement subordinate is hired.
AT work book of the hired employee will not indicate the fact of signing a fixed-term contract.

Termination of a fixed-term employment contract during maternity leave

If a woman accepted on a non-permanent basis becomes pregnant, then there are several versions of terminating a fixed-term contract:

• The term comes to an end before the birth, the employer extends the contract with her until the birth of the child. In this case, the obligation will be listed as terminated on the next day of the end of the disability certificate.
• The term comes to an end after childbirth and the end of the disability certificate, then the employer has the right to break off working relations with her on a general basis.

In the first case, the payment of benefits on a sick leave is entirely the responsibility of the boss. In the second case, the provision of childcare benefits is partially assigned to him. It follows from this that until the moment of dismissal, the employer is obliged to make monthly payments in the prescribed amount. After the contract is terminated, payments stop.
The dismissal of a worker under a fixed-term employment contract during pregnancy has the right to be if:

• She fulfills the temporary obligations of an employee who is on maternity leave;
• The employer cannot provide this employee with a suitable vacancy;
• Disagreement with the provided free vacancy.

If an agreement is reached with a temporary candidate for a certain position, the agreement will be extended until the birth of the child.

Termination of a fixed-term employment contract during maternity leave

Cancellation of a temporary working agreement is made the day before the departure of the main worker. At the same time, the colleague replacing him must be informed of this circumstance at least three days in advance. In the work book, dismissal due to the expiration of the contract will be listed as a circumstance for leaving work.
It is not prohibited to terminate a short-term employment contract for the period of maternity leave by decision of the employee in the general manner. The application must be submitted two weeks before the due date.
Termination is permissible in another way: at the initiative of the parties, in this case, you will not have to wait for a two-week period.

Fixed-term employment contract for the period of maternity leave - sample 2018

The principle of drawing up and concluding a fixed-term employment agreement for the period of maternity leave is similar to standard working agreements. The only features will be an indication of the period during which the act will be valid and the specific motives for its execution.