Fixed-term contract for maternity leave in 2021

Who will replace an employee during maternity leave?

First, let's determine what options there may be for replacing the main employee. There are three of them:

1. hire a new employee to replace the maternity leaver by concluding a fixed-term employment contract with him;
2. transfer another employee to the position of the main employee, while relieving him of his main duties;
3. arrange for one of the existing employees to work together to perform part of her work.

Considering that the main employee will spend quite a long time on vacation, the first and second options are mainly used.

Translation processing

By mutual written agreement between the employer and the employee, the latter can be transferred to another position to replace an employee whose job is legally retained.
In such circumstances, the period for changing the job function expires when the permanent employee returns to work, and the temporary one is given the position he previously occupied. If the absent employee decides to resign without returning to work, the employer may well provide the transferred employee with his previous position by issuing an appropriate order. In this case, there are no grounds for transforming a fixed-term contract into an open-ended one. remain in a temporarily held position only by mutual agreement of the parties.

However, if, after the expiration of the transfer period, the organization does not provide the replacement employee with the same place, and he does not insist on this and continues to work in his position, the condition regarding the temporary nature of the change in the job function is considered invalid, and the transfer becomes permanent.

How to draw up a fixed-term contract correctly

The most important thing that needs to be taken into account when drawing up a fixed-term contract is the wording in the terms of the contract of its term and moment of termination. To avoid getting into a situation where the main employee has already started work, and the temporary one has not yet completed his term. At the same time, it is not advisable to indicate any date in the contract with such a temporary employee. Even taking into account the fact that maternity leave has a certain duration, no one forbade going to work earlier than the specified period. Or vice versa, if, for example, a young mother is forced to extend her vacation.

It is important in a fixed-term contract to provide for a period that is equal to the period of absence of the main employee due to maternity leave.

How to determine which day is the last working day for a temporary employee? In this case, the day of dismissal is considered to be the day before the day the main employee leaves. Simply put, if an employee leaves maternity leave on the 2nd of a certain month, then the day the temporary worker is fired is considered the 1st of the same month.

It is very important that when management hires an employee for a limited period, the contract also provides for the fact that the mother can return from maternity leave without warning. To do this, you need to indicate that at the moment the main employee returns from maternity leave, the moment of termination of cooperation with the temporary employee comes.

Here is an example of the correct wording of these points in an employment contract:

• “The employment contract is fixed-term and is concluded for the period of temporary absence of accountant O.P. Petrova. in connection with the birth of a child and caring for him.”
• “The employment contract is terminated on the working day preceding the day Petrova O.P. goes to work.”

Let's consider a case where a contract with a temporary employee was drawn up only for the period of the main employee's maternity leave, and she decided to continue her maternity leave after it ended. In other words, she took out maternity leave. Now you need to draw up an additional agreement to the employment contract. The wording in the additional agreement will look like this:

• “The term of the employment contract dated “” _______ 20___ No. ____ is extended for the period of stay of the accountant O.P. Petrova. on parental leave until the child reaches the age of 1.5 years"

If necessary, it will be possible to draw up a new agreement to extend the temporary contract to 3 years. In addition to all this, the employee’s contract for the term must indicate the basis for its conclusion. In this case, the basis is the temporary performance of the duties of an absent employee, whose job will be retained.

Download: Example of a fixed-term contract to replace an employee during maternity leave

Cash payments

After dismissal during maternity leave, a woman has the right to apply for minimal financial assistance from the state social protection agency or from the Employment Center for unemployment payments. At the same time, the organization in which the employee worked at the time of going on leave is obliged to provide her with benefits for the entire period of maternity leave.

In addition, payments from the enterprise are due to the replacement worker if the woman:

• goes on maternity leave until the permanent employee returns to work;
• agrees to transfer to another position during pregnancy, as a result of which the employer extends the contract with her.

Signing a fixed-term employment contract with a replacement employee during the absence of a permanent one can cause the employer a lot of trouble.

To avoid the latter, the manager should treat the preparation of the necessary papers with full responsibility, and if any difficulties arise, try to resolve the problems with the employees amicably. If it is not possible to reach a peaceful agreement, only the court will be able to assess the correctness of the decisions made.

We make an entry in the work book

Having received an order to hire a new employee, the employer makes a proper entry in the work book. As for employees hired under a fixed-term contract, no special records are required. For example, there is no need to indicate that a contract was concluded with an employee for a period of time. Since any temporary employee can become a permanent employee in the future.

For example, if the main employee decides to quit immediately after her maternity leave. In such a situation, the fixed-term contract is not terminated, it ceases to be fixed-term and is considered to be extended for an unlimited period. Or you can draw up an additional agreement to the contract.

Download: Example of an entry in a work book

The dismissal entry made in the work book must be certified by the signature of the responsible person, the signature of the employee and the seal of the organization.

Going on maternity leave from a maternity place

A fixed-term employment contract must be concluded with an employee taking the place of an employee who is on legal pre- and post-natal leave (which usually goes inextricably into parental leave).

This type of government document implies a strictly fixed date of dismissal in the future. This does not go against the law, since the new employee is hired temporarily.

It is clear that it is not at all profitable for the employer when a person goes on maternity leave from a maternity position. Both he and the woman temporarily employed have several questions related to pregnancy: how to arrange everything correctly so as not to break the law or infringe on the rights of the employee and the employer. How should payments be made, is dismissal possible?

The law in this case is on the side of a woman who becomes pregnant while replacing one who is on maternity leave. Everything is simple here: she can go on pre- and post-natal leave with complete peace of mind. The issue of payments and dismissal requires additional consideration.

Expert opinion

Irina Vasilyeva

Civil law expert

An employee who is on maternity leave must exercise her right to receive benefits under the B&R, just like the main employee.

Dismissal of a temporary worker

According to the rules of any employment contract, the employer is obliged to notify about the expiration date no later than three days in advance. But when we are dealing with a temporary contract that was concluded for the duration of a maternity leave, this rule cannot be applied. Since we have already found out that the return to work of the main employee is difficult to accurately determine. Moreover, on the last day, when the temporary worker is still working, it is necessary to make a full settlement with him and issue him a work book in accordance with all the rules.

If the main employee returns to work after a 3-year leave, the employer is ready to settle payments with the temporary employee in advance. But, even if the main employee leaves earlier, having warned management in a very short time, the employer is not relieved of the responsibility to settle payments with the temporary employee. He must be ready for this at any moment.

Is it worth taking a maternity position when planning a family?

Expert opinion

Novikov Oleg Tarasovich

Legal consultant with 7 years of experience. Specializes in criminal law. Member of the Bar Association.

A vacancy is not always a reason to immediately agree. The maternity rate position on offer may be very tempting, but it may not be suitable for everyone. It is important to understand the basic nuances of work in this case, in particular for women. To do this, we will highlight the advantages and disadvantages.

Pros of the job:

1. Accumulation of seniority and work experience. Since the employment relationship is on a temporary basis, employers can accept graduates and young professionals;
2. High level of remuneration;
3. Possibility of obtaining a permanent position. If an employee can demonstrate the quality of his knowledge and skills and finds a common language with the team, then it is likely that the company will not immediately want to part with the replacement staff;
4. When going on maternity leave, you receive compensation and vacation from the organization, and not from the state. There is also a chance to receive baby care services.

Flaws:

1. The contract period is limited. A guarantee of job security can be provided only until the time when the main employee returns from maternity leave;
2. When going on maternity leave, there is a high probability of losing your job. The work experience is interrupted, it is necessary to look for new vacancies that may not be so attractive;
3. Payments are provided for no more than 194 days. All that remains is to hope that they will last to care for the child.

The maternity rate is not about stability. Sick leave and payments in case of pregnancy will be provided, but they will not ensure the upbringing of the baby for the next 1.5 or 3 years. You can rely on yourself and luck, but the law will be on the side of the main worker.

Payments and benefits to temporary workers

When working under a fixed-term contract, the same provisions apply to the employee as to main employees. For example, like any other insured person, a temporary employee has the right to count on benefits that are paid from social insurance. Such as benefits in connection with maternity or temporary disability.

Upon termination of the employment contract, an employee hired for a temporary period has the right to payments:

• wages – paid on the employee’s last day at work, includes bonuses and allowances;
• compensation for unused vacation - also payment occurs on the last working day, having previously calculated the unused vacation;
• severance pay - only those temporary employees whose contract period does not exceed 2 months can receive it, and only if this is provided for in an employment or collective agreement. Other employees do not have the right to count on this payment.

Early termination of a fixed-term contract

The Labor Code provides for the possibility, at the initiative of the employee, to terminate a fixed-term contract. The employee must notify his employer in writing in advance (as under normal conditions, the deadline is two weeks). But if the term of a fixed-term contract is two months or less, the employer must be notified no later than three days before dismissal. Read also the article: → “Procedure for extending maternity leave to 3 years and 4.5 years.”

Legislative framework on the topic

It is recommended to study the following documents in advance:

Sample application for employment

It is not uncommon for workers to move jobs from one employer to another. Why it is beneficial to resign by way of transfer is not a question for this article. But when translating, a statement on the procedure for translation is hardly an optional document. Not because the law requires it, but because it is generally accepted practice.

• Passport or other document that proves your identity. Here it is necessary to separately note that if you are changing your passport, then the amendment issued by the Federal Migration Service on accepting your documents to replace your passport will not be suitable. You just need a document proving your identity. So, when replacing your passport, ask the Federal Migration Service employee to issue you a temporary identity card.
• Work book. However, you should provide it only if you have already worked somewhere. If you are going to work for the first time, then your employer must provide you with a work permit. It is he who is responsible for providing work record forms. The employer is prohibited from accepting forms of work record books from employees. Yes, you may be asked to buy a work book form. If your goal is to gain work experience with this employer, then it is better to buy and bring it. And if not, it is better to run away from this employer, because the situation when employees bring work record forms themselves indicates that personnel records in the organization are carried out by persons who have absolutely no idea about personnel records management.
• SNILS. Everyone has it now. Previously, it was issued by the employer, but a little later they began to register it at school upon reaching 14 years of age. And now it is assigned to a child at birth.
• Military registration documents. They are provided by military personnel and those subject to conscription.
• Diploma. This is a document confirming your knowledge. You must provide it only when applying for a job that requires special knowledge. However, even at the stage of posting vacancies, employers often write a diploma as a mandatory requirement.
• Certificate of no criminal record. It is needed if previously convicted persons cannot be allowed to work. For example, this is working with children.

We recommend reading: Sanatorium of the Ministry of Internal Affairs in Baltym Official Website