How to hire an employee to take the place of a maternity leaver

Legislative framework

Employment rules, rights and obligations of the parties to an employment contract are regulated by the Labor Code of the Russian Federation.

Temporary workers are those employees who are hired for the period of absence of the main worker or to perform certain work.

The basic rules for hiring and hiring a temporary worker are the same as for main employees. The applicant provides the same package of documents. However, when concluding an employment contract with a temporary employee, there are some peculiarities. Additionally, the Labor Code establishes special benefits and guarantees for them.

Termination of contract

In accordance with Art. 79 Labor Code of the Russian Federation :

• of its termination due to expiration, the employee must be notified in writing no later than 3 calendar days;
• if it is concluded for the performance of certain work, it is subject to termination upon its completion;
• The contract concluded for the period of absence of the main employee is terminated with the return to work of this employee.

If the contract period has expired and both parties do not require its termination, and the employee continues to work, the contract will be considered concluded for an indefinite period.

Probation

A probationary period (Article 70 of the Labor Code of the Russian Federation) is a period of time established by an employment contract during which the employer evaluates the employee’s business qualities and has the right to dismiss him if the employee does not pass the test. According to Article 70 of the Labor Code of the Russian Federation :

• if the contract is concluded for a period of up to 2 months, a trial period is not established;
• when imprisoned for a period of 2 to 6 months, the probationary period cannot exceed two weeks.

Features of a fixed-term contract

A fixed-term employment contract concluded with a new employee must contain the following conditions (Articles 57, 58 of the Labor Code of the Russian Federation):

• term
• grounds for conclusion

Maximum duration

Article 58 of the Labor Code of the Russian Federation limited the maximum duration of a temporary contract to five years. This provision provides that if the actual employment relationship continues beyond the agreed period, the condition on the fixed-term nature of the employment agreement loses force and the contract is considered concluded for an indefinite period.

In some cases, the moment of expiration of the contract may not be indicated by a specific date, but by an indication of the occurrence of a certain event. But, despite the fact that the moment of the end of a fixed-term agreement can be designated as the absence of an employee from maternity leave, the registration of employment during maternity leave, an entry in the work book is made according to the general rules.

Reasons

Along with the validity period, when concluding such an agreement, one more condition must be indicated - the basis for its execution (Part 2 of Article 57 of the Labor Code of the Russian Federation). An exhaustive list of reasons that may be the basis for signing a fixed-term contract is contained in Article 59 of the Labor Code of the Russian Federation. In the case under consideration, the basis will be the performance of official duties by a temporarily absent employee, who, by law, retains her job.

Employment contract

How to write a job application?
Due to the fact that there is no unified model, some rules should be followed. They will help you draw up a document in accordance with regulations and legislation. According to the Labor Code of the Russian Federation, namely Article 65, every employee who gets a new job must provide his employer with the following list of documents:

1. Passport. It can be replaced with another piece of identification paper.
2. Employment history. If it is missing and the employee gets a job for the first time, then this paper is filled out by the organization.
3. TIN and SNILS.
4. Military ID. It is provided by military personnel.
5. Education documents. This includes both a diploma from an educational institution and various courses to improve qualifications and gain additional knowledge.

Next, an employment contract is concluded between the parties. It is on its basis that the relationship between employer and employee is regulated. When concluding a contract, there is no need to draw up a separate application.

Based on the contract, an order for employment will be issued. However, in practice, employers often ask to write a statement.

The application may indicate specific dates from which the employee will begin his duties. In a situation where there is no work book, this point can also be recorded. In any case, filing an application is a voluntary decision of the employee.

Admission to civil service

The legislation of the Russian Federation establishes the rules for recruiting employees into the civil service. There are two options:

1. On general terms. In this case, the employee can receive a position according to the general procedure and enter into a contract.
2. As part of the competition. The candidate must pass the competition. Civil servants are hired under this scheme. At the same time, they do not enter into an agreement, but a contract for service.

Another condition for civil servants is to fill out a form. Its content and structure were developed within the framework of Government Order No. 667-r dated May 26, 2005 and Part 2 of Art. 26 No. 79-FZ.

One of the features is that the document must be filled out by hand - personally by the candidate for the position. You cannot enter data electronically.

The text of the application must contain the following points:

• Full name of the employee entering the job;
• structural unit and position in which the person will work;
• official salary in accordance with the developed staffing table;
• work start date;
• confirmation of familiarization with labor regulations;
• date of preparation of the application.

After formation, the document is sent for signature to the head of the company, and it is he who confirms it. Since the specifics of formalizing labor relations are not regulated, an instruction to hire a person can be expressed in an order to immediately begin work or by ordering the secretary or personnel officer to draw up employment documents.

If management decides to hire a new employee to replace a temporarily absent maternity worker, then in this case an employment contract must also be concluded. But first, a temporary worker must fill out a job application.

Although, in accordance with the law, the application is not considered a mandatory document, it may be asked to be written at the employer’s discretion. In the future, it can help not only the employer, but also the employee if it comes to litigation. The application should clearly state what position the candidate wishes to obtain and under what conditions.

The application is not much different from a regular application for employment, it indicates the same data, and expresses the applicant’s request to accept him in the place of a temporarily absent so-and-so (we indicate the details of the maternity leave) for a position (we indicate the position) indicating the start date of work. The application is signed by the candidate and registered in the journal of incoming applications.

According to Articles 57 and 58 of the Labor Code of the Russian Federation, an employment agreement must have two mandatory clauses - the term and grounds for concluding such an employment contract. In accordance with Article 58 of the Labor Code of the Russian Federation, the maximum duration of the contract is established - up to five years and no more. In this regard, it is very difficult to determine the end date of such an agreement, since a maternity leave can either extend her maternity leave by taking additional leave to care for the child.

We invite you to familiarize yourself with: P 6 Part 1 Article 24 5 Code of Administrative Offenses of the Russian Federation

And also, a young mother can, if she wishes, go out to work earlier, and this is legal and confirmed by Article 256 of the Labor Code of the Russian Federation. Therefore, it is recommended, when concluding an employment contract for temporary cooperation, to indicate not a specific end date, but the date of the event, i.e. exit of a temporarily absent employee from maternity leave (Article 79.3 of the Labor Code of the Russian Federation)

As for the basis for concluding a TD, Art. 59 of the Labor Code of the Russian Federation provides a list of the grounds that are used to draw up such fixed-term contracts. In this case, the basis will be the temporary performance of the duties of an absent employee, who retains her place of work (Article 59 of the Labor Code of the Russian Federation)

After the application for employment in place of a maternity leaver has been correctly written and an employment contract has been concluded, the management of the enterprise issues an order to hire an employee to replace the temporarily absent employee. The order is issued according to form No. T-1 approved by the State Statistics Committee. Moreover, if the fixed-term contract does not indicate a specific end date, but only indicates an event, for example, the absence of an absent employee from maternity leave, then the event should be indicated in the “by” column of the order. The order should also indicate that the temporary employee is performing the duties of a temporarily absent employee.

The registration is made exactly the same as for regular employment. The basis for making an entry in the work book is an employment order, which already contains a record of temporary duties. It is not necessary to indicate in the employment contract that the contract is fixed-term and has an end date, since later this agreement may become permanent.

For example, the main employee decided to quit without waiting for the end of maternity leave. And on the basis of Art. 58 of the Labor Code of the Russian Federation, a temporary worker becomes permanent, unless other circumstances arise. If the entry about the end of the employment relationship is erroneously entered in the work book, it should be corrected in accordance with the requirements of the instructions for maintaining books.

Employment order

The manager's order to hire a specialist for a position temporarily absent from the main employee is drawn up in the form approved by Resolution No. 1 of January 5, 2004 (No. T-1).

If the contract expiration date is determined not by a specific date, but by an indication of the occurrence of an event, instead of the contract expiration date, the event upon the occurrence of which the contract ends is indicated. For example, “by the date the temporarily absent employee returns from maternity leave.” Only after the publication of the appropriate administrative document does it become possible to make an entry in the work book for the appointment of the main specialist during maternity leave.

QUESTIONS AND ANSWERS TO THEM

Question No. 1: What to do if an employee who is on maternity leave unexpectedly decides to interrupt it, and the company hires a temporary worker?

Answer: As mentioned above, in order to avoid such a situation, it should be stated in the employment contract with a temporary employee that the date of termination of his work activity will be considered the date the permanent employee starts working. In this situation, the day of dismissal of the temporary employee will be the previous day.

Question No. 2: Is it necessary to write a new application for a temporary employee hired for the position of a woman who has gone on maternity leave for the period of such leave if she goes on her next leave?

Answer: If a fixed-term contract was concluded only while the employee was on maternity leave, then after she goes on her next maternity leave, it is not necessary to write a new application and draw up a new contract. In this case, it is enough to draw up an additional agreement to the fixed-term employment contract.

Making an entry in the work book

Entering relevant information into the work book of a new employee should follow the general rules. The entry in the work book when hiring during maternity leave has a standard form. The basis for its inclusion is the employment order.

Sometimes there are situations when an employee who was on maternity leave quit without starting to perform her job duties at the end of her maternity leave. In accordance with Part 4 of Art. 58 of the Labor Code of the Russian Federation, if after the expiration of the agreement neither party has declared a desire to terminate the contractual relationship and the employee continues to work, then the urgency condition loses force.

Wrong entry of deadline

If a personnel service employee entered information about the fixed-term nature of the contract in the work book, this is an error that must be corrected. Changes to the section containing information about the work should occur as follows:

1. Column 1 contains the serial number that follows the last entry}
2. Column 2 displays the date the entry was made}
3. in column 3 the following is added. After which the correct option is written}
4. Column 4 contains details of the order that served as the basis for entering the initial information.

The specified procedure is provided for in paragraph 1.2 of Instruction No. 69 dated October 10, 2003.

EXAMPLE OF APPLICATION FOR EMPLOYMENT DURING MATERNITY LEAVE

In principle , an application for employment during maternity leave is usually presented in free form and is not much different from a regular application . Next, you will be offered an approximate option for filling out an application, which can be used as a sample or template.

Features of hiring a temporary employee

It doesn’t matter that a candidate for a temporary position will stay at the company for only a short time - he must be formalized in accordance with all the rules of labor legislation.
And he, in turn, must submit the same package of documents as when entering permanent service.

A fixed-term employment contract is concluded in accordance with paragraph. 2 hours 1 tbsp. 59 of the Labor Code of the Russian Federation for the period of absence of the main specialist. Such an agreement ceases to be valid from the moment the absent employee returns to work, as specified in Part 3 of Art. 79 Labor Code of the Russian Federation.

Article 79. Termination of a fixed-term employment contract

A fixed-term employment contract is terminated upon expiration of its validity period. The employee must be notified in writing of the termination of the employment contract due to its expiration at least three calendar days before dismissal, with the exception of cases where a fixed-term employment contract concluded for the duration of the duties of the absent employee expires.

An employment contract concluded for the duration of a specific work is terminated upon completion of this work.

An employment contract concluded for the duration of the duties of an absent employee is terminated when this employee returns to work.

An employment contract concluded to perform seasonal work during a certain period (season) is terminated at the end of this period (season).

If the absent employee is a financially responsible person, then an agreement on financial responsibility must be concluded with the new employee. Otherwise, the employer does not have the right to recover damages caused by the loss of material assets.

A probationary period is not provided for temporary employees if they come in their specialization or will be involved in the company for less than 2 months. At the same time, they are assigned the same benefits and rights as permanent specialists on staff.

In what cases is a deputy needed?

There are a number of circumstances in which an organization may need a new specialist.

Admission to a position for a temporary period is provided if the person holding it permanently:

• is on maternity leave;
• disabled for a long time;
• went on a business trip abroad.

In addition, temporary employment is also carried out for seasonal activities, work for a period of up to 2 months, to fulfill a specific labor purpose, or for work of a public nature.

Most often, hiring is carried out during the maternity leave of the main employee and hiring during the absence of the main employee. Hiring while on sick leave is practiced only in cases of long-term illness and incapacity of the employee.

Application for employment during maternity leave

Hiring during maternity leave requires concluding a fixed-term employment contract. In addition, the candidate must write a job application in accordance with all standard rules, but with an indispensable indication of the fact of temporary cooperation.

The document also indicates how long the candidate would like to be employed. The name of the desired position and the full name of the expectant mother (maternity maid) who needs to be replaced must be written down. Next, the application is officially registered, and the new specialist is given a personal card.

Application for employment during maternity leave, form to write.

A sample application for employment during maternity leave can be seen in the photo below:

Important! A fixed-term employment contract must contain a clause stating that the position will be filled by a temporary employee until the day the new mother wants to return to work.

Thus, the woman has the right to go to work before the end of her maternity leave. And at the same time, the official relationship with the temporary specialist will be terminated.

A fixed-term employment contract differs from an open-ended one in that its validity is limited in time. It can be concluded for a specific period, or until the occurrence of the circumstances specified in it (the employee’s return from maternity leave, the employee’s recovery).

The absent specialist is assigned his workplace, which follows from the current labor legislation, regulations with labor law norms, an agreement with the absent specialist and an employment contract (Part 2 of Article 59 of the Labor Code of the Russian Federation). Do not forget that it is extremely necessary to record employment during maternity leave in the work book.

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 regarding this issue (letter No. 14-2/B-935 dated October 18, 2021). In particular, attention is focused 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, his former job is retained, and when a temporary employee is registered, a fixed-term employment contract is concluded.

In accordance with the uniform rules, it is terminated upon expiration of its validity period. In this situation, the provisions of Art. 79 Labor Code of the Russian Federation. In detail, a fixed-term type of contract, if it was concluded during the absence of the main employee, is terminated with the return of this permanent specialist and the start of his work.

To summarize, 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 first day following the closure of the certificate of incapacity for work.

This letter was written by 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. gets a job at Most LLC. Her new job is temporary because the absent employee is on social maternity leave. When hiring Vasilyeva G.P. writes a statement stating:

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

The application is dated January 16, 2018 and signed personally by the applicant (G.P. Vasilyeva).

Example of a job application during maternity leave

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

In what cases is a temporary employee needed?

Hiring a temporary employee during the absence of the main one may be necessary if:

• on maternity leave;
• on parental leave;
• for the period of sick leave;
• on a long business trip.

At the same time, the main employee retains his place.

Hiring a temporary employee is possible:

1. For the purpose of performing seasonal work, when, due to natural and climatic conditions or the characteristics of the enterprise, they are carried out during a certain season.
2. With persons sent on a business trip abroad.
3. To perform certain work that goes beyond the normal activities of the enterprise or is of a short-term nature. Such as minor repairs, holding an advertising campaign, filing and submitting documents to the archive, etc.
4. With citizens who are sent to the organization to perform alternative civilian service.
5. With persons referred by the employment service for temporary or public work.

COMPLEX SITUATIONS WHEN WORKING WITH A TEMPORARY EMPLOYEE

Despite the correctness of the formalization of labor relations with the employee replacing the position of a person who has gone on maternity leave. Difficult situations may arise that the HR employee must resolve.

Let’s assume that an employee with a third group of disability has been hired for a temporary position. When hired, he did not provide any documents or information indicating his status. Now, when the main employee leaves, he threatens to appeal to the prosecutor's office in connection with the dismissal of a disabled employee.

Of course, based on Russian legislation, the organization could not hire such an employee under a fixed-term contract. But in this situation, the employer should not be afraid of the prosecutor’s inspection and can dismiss the disabled person according to general standards. After all, the disabled person independently refused to provide information about the need for his rehabilitation program. This does not entail any consequences for the organization.

A rather interesting situation can also arise. The permanent employee went on maternity leave, after which the employer hired a new temporary replacement in her place. The temporary employee also decided to have children before the expiration of the contract and went on maternity leave, after which she plans to go on maternity leave. In this case, the HR department should take care of temporarily replacing these women by hiring a new employee. How to do it?

First of all, it is worth noting that the employer does not have the right to fire an employee after learning about her pregnancy. Also, dismissing an employee without her desire is illegal while she is on maternity leave. To solve this problem, other measures are used. In this case, the optimal wording in the job application is to indicate the vacation period of the employee who is expected to be the first to return from vacation. This will exclude the situation when two employees apply for one position.

Decor

When conducting an interview with an employer or HR employee, the applicant must be informed that he is being hired temporarily.

Registration is carried out in the same manner as for main employees:

• the employee writes an application for employment;
• provides a set of documents necessary for employment>;
• an employment contract is concluded with him>;
• a hiring order is issued.

Such an employee is subject to all local regulations in force in the organization. He must be familiarized with them under his signature.

During maternity leave

In an application for hiring an employee for the period of maternity leave, you must indicate:

1. that the employment is temporary;
2. for the period of an employee’s maternity leave or childcare leave;
3. Last name, first name, patronymic and position of the replaced employee

A temporary employment contract is concluded with a temporary employee.

This is an agreement between the parties, concluded for a certain period or to perform certain work. A special feature of such contracts is the provision for its termination after a certain period of time or the occurrence of events specified in it.

A complete list of grounds for concluding a fixed-term employment contract is contained in Art. 59 Labor Code of the Russian Federation.

Order for acceptance during illness or maternity leave

The order is issued on the basis of a concluded employment contract . It is drawn up according to a unified template or on a form developed by the organization.

In addition to general information about the last name, first name, patronymic, position or profession, remuneration must contain information:

1. about the start and end date of work;
2. instructions “for the period of absence of the main employee”;
3. information about the probationary period.

If an employee is registered for the period of maternity leave or illness of the main employee, the start date of work is determined by the day of its actual start. End date – the day the certificate of incapacity for work is closed.

As a general rule, the period of maternity leave is 140 days , and in case of complicated childbirth it is subject to increase. Therefore, in the order for employment for the period of absence of employees on maternity leave or absent due to illness, it should be stated: “for the duration of the duties of an employee who is on maternity leave / child care until he reaches the age of 1.5 or 3 years / for a period of temporary incapacity for work"

What do you need to provide to apply for a maternity position?

When an employee goes on maternity leave, according to Russian legislation, her place and position are retained.
But for 1.5-3 years without an employee who performed important work and was responsible for a certain process, the enterprise cannot function. Therefore, many managers resort to temporarily hiring a new employee for a vacant position. To apply for a maternity position, you need to write a job application.

The legislation does not establish a unified form for this document. But the administration has the right to develop and approve a special form for such papers. In most cases, the document is drawn up in free form. It is important to understand the essence of this document.

The application constitutes the basis for concluding a fixed-term contract. It contains a person’s request to be accepted into a temporary position. At its base, an order is issued to appoint a new employee to replace the maternity leaver.

To conclude a fixed-term employment contract with a person, the candidate for a vacancy should provide a standard package of documents, usually this requires:

• passport;
• SNILS;
• employment history;
• military ID (for men);
• certificate of good conduct (optional);
• documents that confirm the employee’s qualifications (diploma, certificates);
• certificate of absence of use of psychotropic and narcotic substances (optional, submitted at the request of the employer).

The HR specialist responsible for applying for a job must ensure that all documents are provided, the application is drawn up correctly, and all conditions and requirements are met. If everything is in order, the manager approves the candidate, then the process of concluding an employment contract begins.

It should be noted that an application for registration of an employment contract is optional in many companies. But, if the employer asked to submit this document, then you need to know how to write it correctly.

How to send an employee on maternity leave: registration of leave, payment of benefits, compensation from the Social Insurance Fund

The Labor Code protects the rights of a pregnant employee: the employer is prohibited from dismissing her. Eight months pregnant, she goes on maternity leave. It lasts 140 days: 70 before birth and 70 after. Maternity leave is replaced by parental leave - usually up to one and a half years. All this time, the employee receives benefits from the Social Insurance Fund. In most regions, the fund pays directly, in others - with the help of the employer. The employer then reduces insurance premiums by the amount of expenses.

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Child care leave up to 1.5 years

The employee decides for herself whether to take vacation or return to work. Instead, any working relative can go on parental leave: the child’s father, grandmother, grandfather, aunt or uncle. You can alternate the vacation as you like: for example, the mother stays with the child for a month, then the father spends a month.

For vacations of up to one and a half years, the benefit is 40% of the average salary for the previous two years.

To apply for leave, ask the employee for the following documents:

- Statement.

— Child’s birth certificate.

— A certificate from my husband’s work that he is not on similar leave.

Issue the leave order again, fill out your personal card and time sheet.

It is allowed to combine parental leave and work. There are two options here: part-time or part-time. For example, an employee can work 7 hours a day or 4 days a week. The main thing is that the bet is incomplete. Otherwise, there is a risk that the Social Insurance Fund will refuse to compensate for the costs.

Maternity leave

The employer receives documents from the employee:

1. Sick leave from the antenatal clinic. Remember that electronic sick leave works just as well as paper sick leave. They work with them in the FSS personal account.

2. Application for maternity leave in any form. It is not necessary to take it before the start of your vacation. It is possible after that, within 6 months.

The vacation lasts 140 days: 70 before childbirth and 70 after. Sometimes employees do not apply for leave and work until the last minute. This is normal: vacation is a right, not an obligation. Only for days of work they do not pay benefits.

Non-standard situations from the order of the Ministry of Health and Social Development .

— In case of multiple pregnancy, leave is taken at the 28th week for 194 days: 84 before birth and 110 after.

— When adopting a child, leave is taken from the date of adoption. It ends when the child turns 70 days old. If the child is more than 70 days old at the time of adoption, maternity leave is not allowed.

— In case of complicated pregnancy, an additional 16 days are taken. In this case, the employee writes an application to extend the vacation.

When you have found out the duration of your vacation, fill out the following documents:

— Sign the order granting leave.

— Fill out your personal card.

— Fill out the time sheet.

Find out who pays benefits: you or the Social Insurance Fund

There are two payment schemes:

1. The entrepreneur pays the employee and then reduces insurance contributions to the Social Insurance Fund.
2. The Social Insurance Fund pays the employee directly.

The second scheme is a pilot project that was launched in 2012. Direct payments free employers from unnecessary calculations and documents, and employees are guaranteed benefits regardless of the state of the company. Therefore, more and more regions are joining the new scheme, and in 2021 it will spread throughout the country.

Maternity benefit

The benefit amount is 100% of the average salary. For calculations, take two calendar years before the start of the vacation. For example, in 2021, salaries for 2021 and 2021 are taken into account. The most convenient way is not to count in Excel, but to use a special calculator.

The law sets the upper and lower limits of benefits. At the time of publication of the article, with 140 days of vacation, the minimum benefit is 55,831 rubles, the maximum is 322,192 rubles. The first amount depends on the number of vacation days and the minimum wage, the second - on the number of vacation days and the maximum amount of annual earnings. In 2021 it was 815,000 rubles, in 2021 - 865,000 rubles.

The benefit is assigned within 10 days after receiving documents from the employee. They are paid on the next payday after appointment.

Example

At Romashka LLC, salaries are paid on the 11th and 25th of each month. Anna went on maternity leave on October 10. The director calculated her benefits on October 15 and paid her on October 25. He did everything right.

One-time payment at the birth of a child

From February 1, 2021, the benefit is 18,004.12 rubles. Some regions increase the payment at the expense of their budget, for example, Moscow - by 5,500 rubles for the first child, by 14,500 rubles - for subsequent ones.

Monthly allowance for child care up to 1.5 years old

The benefit is paid monthly: from the first day of parental leave until the child turns 1.5 years old.

The benefit amount is 40% of the average salary. For the calculation, they take the salary for the previous two calendar years. For the first child, the minimum payment in 2021 is 4,852 rubles per month, the maximum is 27,984.66 rubles per month. For subsequent children - from RUB 6,751.54 to RUB 27,984.66 per month. Calculate your benefits using a special calculator to avoid mistakes.