Vacation before or after maternity leave - how to take it in 2021

Maternity leave is a guarantee for Russian women

Every woman who is preparing for childbirth knows that before she goes to the hospital, she has the right to spend some time at home and prepare for this event.

In modern legislation there is no such thing as maternity leave; it was present before. That is why, according to old memory, most women call maternity leave the last days before childbirth and the first days with a newborn.

However, modern legislation defines this time as maternity leave. Article 255 of the Labor Code of the Russian Federation says that to apply for leave you will need a sick leave, and the order of the Ministry of Health and Social Development No. 624n dated June 29, 2011 determines the period from which such leave is granted. In a normal pregnancy, without complications, a woman goes on maternity leave at the 30th week of pregnancy (clause 46 of the Procedure for issuing sick leave), and the total duration of such leave is 140 days according to the calendar.

It is imperative to remember that the benefit for such sick leave is financed entirely by the Social Insurance Fund, based on 100% of a woman’s average earnings.

An important point is also that if the employee has not taken her next vacation for the current period, then it can be added to maternity leave. The employer does not have the right to refuse such a woman’s desire, regardless of the period in which she wishes to receive it - before or after maternity leave.

Decor

In order to properly arrange your vacation, you must adhere to the following algorithm:

1. Write an application for legal leave. The basis of the document should be Article 260 of the Labor Code of the Russian Federation. This is done so that the employer sees the woman’s awareness of her rights. And besides, indicating an article of the code will not allow refusing a woman if this leave has not been used previously.
2. Provide a certificate of pregnancy.

If the leave has already been used up to a specific point, the employee does not have the right to take it again.

Another vacation before maternity leave. Peculiarities

The Labor Code gives a pregnant woman the right to receive annual leave immediately before going on maternity leave.

According to Article 260 of the Labor Code of the Russian Federation, a pregnant employee can receive such leave regardless of the employer’s wishes and the vacation schedule approved by the company.

A fairly significant advantage of using the next vacation before going on maternity leave is the material benefit. Many women use this option to get not only additional rest time, but also money before giving birth.

Duration of maternity leave.

It should be noted that compensation for leave after maternity leave is not possible, even if according to the schedule the woman was supposed to take annual leave at that time. All cash payments for unused days will be assigned only upon termination of the employment contract.

Annual leave must last at least 28 days, which is stipulated in the Labor Code of the Russian Federation.

But there are categories of workers whose rest period is extended to 56 days. These include employees of educational, medical institutions, Ministry of Internal Affairs and others.

By agreement with the head of the organization, before maternity leave, a woman can take leave:

• fully due to her under labor legislation;
• for the time worked before going on maternity leave.

In the latter case, the calculation also includes the days prescribed on the sick leave certificate that will be issued for pregnancy and childbirth.

To calculate the duration of vacation, you should take into account each month worked, for which you are entitled to 2.33 days of rest (with a standard vacation duration of 28 days).

The calendar year for which leave is due does not begin on January 1, but on the date on which the employment agreement was drawn up with the employee.

In order to find out the exact number of days for rest, you should contact the company’s human resources department.

If an employee, before going on maternity leave, worked less than the amount required to take leave, then she can take it “in advance,” including in full.

An employer cannot prohibit a woman from using this right, enshrined in labor legislation. But there are also disadvantages to vacation in advance.

Among them are:

• After the end of maternity leave, the employee will be able to rest only after one calendar year.
• If the employee decides to quit, she will need to return compensation for the vacation pay paid in advance.

Another vacation after maternity leave. Peculiarities

The second option for using your next vacation is to go on it after maternity leave or parental leave.

You can go on annual leave immediately after the end of maternity leave. However, in most cases this option will not be profitable from a financial point of view. If a woman intends to continue caring for her child, and the sick leave ends in December, then she can take leave until the end of the year, and from January go on care leave for up to 1.5 years. When calculating vacation pay in this case, you should keep in mind that the time spent on sick leave is not included in the calculation.

For those who want to extend their stay with the child after he reaches 1.5 or 3 years, there is also the opportunity to go on another vacation. In this case, income data can be taken from earlier periods if data for the last year is not available. If it is not possible to determine the amount of income, then data on earnings by position of the employee are taken for calculation.

It is necessary to take into account two features of leave after maternity leave:

• If leave is taken immediately after the end of sick leave, then the duration of parental leave is proportionally reduced. For example, if a woman decides to take annual leave for 14 days, then leave up to 1.5 years will be reduced by the same 14 days
• After the end of sick leave, vacation is usually taken by those employees who plan to return to work. In this case, another working relative of the woman is granted maternity leave.

Vacation before maternity leave: how many days and who is entitled to it

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Anastasia Klimenkova (Lawyer)

7 years of experience.

Author: Anastasia Klimenkova (Lawyer) (All articles by the author)

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All officially employed employees have the right to receive annual paid leave. Some categories of employees are entitled to additional days of rest. One such category is pregnant women. Often it is difficult for them to work before maternity leave, and they want to go on vacation. Let's figure out whether it is possible to go on vacation before maternity leave, how many days of rest are required and whether it is possible to take it in advance.

Pregnant women are especially protected by the state. Therefore, they are provided with a number of additional benefits at the workplace. One of them is the right to go on vacation at any time. This is due to the fact that a woman expecting a child needs to be constantly supported and recuperated.

To receive rest days, length of service and scheduled vacation time are not important.

If the pregnancy is going smoothly, often employees do not want to go on vacation early. It is often added to maternity leave.

According to the law, a woman can exercise her rights even on the second day of employment.

The employer does not have the right to refuse to provide days of rest if a certificate from a gynecologist is attached to the application. Even in cases where vacation is given in advance, the employer has no right to subsequently demand paid vacation pay, even if the woman quits.

The main advantage of such a guarantee is the ability to independently determine at what time to take a vacation and for how many days.

At the same time, the maximum duration of rest cannot exceed the required 28 days (for special categories of employees, the vacation period may be longer).

The disadvantage of adding annual leave to maternity leave is that you can only receive payments for maternity leave and vacation pay.

Therefore, many try to work until the end, receiving a full salary.

According to Russian legislation, there is no definition of maternity leave. It combines two periods of release of an employee from work:

1. Maternity leave. Its total duration is 140 days. A woman is given 70 days before her due date and 70 days after. If the pregnancy is complicated or the mother is expecting more than one child, the leave period increases. The control date is determined by the gynecologist supervising the woman.
2. Parental leave until the child reaches one and a half years (three years). This leave begins the day after the end of seventy days after the birth. While only the mother can take rest days during pregnancy, any family member can care for the baby. For example, if the father takes leave, the payments are issued to him, and the mother provides a certificate from work that she did not take out this type of leave.

Before the start of the seventy-day period, a woman can take days of annual leave within the limits of the time worked or in full.

If an employee went on vacation in advance, they have no right to withhold the amount of vacation pay from her. The maximum amount is 20 percent of the final settlement. The rest can only be retained by force.

Although such employees are often forgiven of this debt due to the expiration of a long period of time.

Be sure to read:

• Going on maternity leave: payments and benefits in 2021
• When can I take annual leave after maternity leave?
• Can an employer force you to go on vacation?

A pregnant woman can take early leave following the standard steps:

1. Determining the feasibility of taking annual leave before going on maternity leave. If this is not profitable, and there are no problems with pregnancy, it is better to take rest days after maternity leave.
2. Calculating the date of going on vacation. It is best to submit an application fourteen days before the start of your vacation. This will allow management to complete all the documents and calculate the amount of vacation pay, as well as find an employee to take the place of the maternity leaver.
3. Drawing up an application.
4. Management's decision to grant leave. Document endorsement.
5. Registration of leave by the HR department.
6. Calculation of vacation pay. By law, this money must be given to the employee three days before the start of the official vacation.

By law, a pregnant woman can declare her desire to take a vacation the day before it starts.

In this case, they will not be able to transfer vacation pay to her in a timely manner.

According to the law, there are no established requirements for the content of the application. It can be written in free form. The document must contain the following information:

• Full name of the manager, his position;
• Full name of the employee, her position;
• title of the document (in this case it is an application for leave);
• the petition part indicating the start day of the vacation days and its duration;
• date of writing the application, signature of the employee.

The calculation of the amount of vacation pay is carried out according to the general scheme: determining the average daily wage for the past period, multiplying the amount of income per day by the number of days of rest.

If a woman has worked in an organization for more than one year, the basis for calculating the amount is her salary for the last twelve months.

If she has been employed for a shorter period of time, the amount will be calculated based on the salary already received.

If an employee has worked for less than a month, she is paid the salary specified in the employment agreement.

When calculating the average salary, travel payments, periods of sick leave and other payments that are not fixed in the agreement are not taken into account.

According to labor law, it is prohibited to replace vacation days for a pregnant woman with monetary compensation.

Its payment is possible only upon dismissal of the employee. But leaving your job before going on maternity leave is not advisable.

According to the law, an employer does not have the right to refuse to grant leave to a woman expecting a baby, even if she has worked at the company for only a couple of days.

This is established by Article 260 of the Labor Code.

If such a violation is established, the employee has the right to file a complaint with the labor inspectorate. In this case, the employer will be obliged to grant the woman leave and will be fined. The only exception is that a woman has taken all the required days off for the previous calendar period.

A pregnant woman has the right to go on leave before maternity leave at any time. The employer cannot deny this right.

The only exception is if the employee has already taken all vacation days during the accounting period. Advance days of rest are issued by agreement with the director.

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Duration of leave before and after maternity leave

As a general rule, employees' annual leave is 28 calendar days. In some areas, for some positions, a larger number of rest days is provided (including additional vacation) and can be 56 days.

For pregnant women and those who have already given birth, a maximum period of rest is provided. Leave can be granted in 2 ways:

• Partially, depending on the duration of work in the current period. The number of rest days varies for different employees
• Vacation is provided in full “in advance”, no less than 28 days

The employee can also independently decide how long she is willing to take annual leave. In this case, additional leave can be added to the main one.

Antonova M.S.,

Lawyer-consultant

There is one very important nuance of receiving vacation in advance. If a woman subsequently goes to work and continues her activities in the company, then there will be no problems. However, no one knows how the circumstances may turn out; the employee will probably want to quit. In this case, you will have to return the overpaid amount of vacation pay, and this is not at all beneficial for the woman. Another way to solve the problem is to work for a certain time and then quit, but this is not always possible.

Duration of main leave before maternity leave

The duration of the upcoming rest may be as follows:

1. Not a single day will be given to those workers who have already fully used the accumulated days in the current year. It is impossible to get the days before the maternity period for the next year.
2. 14 days is the mandatory minimum duration for those who wish to use vacation days before maternity time only partially. When submitting an application for a share of the required time off, cash payments are still guaranteed.
3. Full duration, calculated depending on the months already worked.
4. 56 days is the maximum duration that employees who did not use accumulated days in the previous calendar year can count on. That is, this is double the duration for the last and current year.

When considering an employee’s application, the head of the enterprise can independently increase the number of days off, guided by personal desire, the terms of the employment contract or the provisions of the agreement with the trade union.

Documents for registration of the next vacation

In order to go on vacation, a woman must provide her employer with:

- statement. It does not have a strict template and contains a request for leave with a specific indication of the leave period. Based on the application, an order for granting leave will be drawn up

– certificate of registration for pregnancy from the consultation. It is provided only if leave is taken before going on maternity leave

No further documents are required from the employee. After receiving the application, the employer’s task is to check the possibility of providing leave and accruing leave amounts. Payment of vacation pay is made at least 3 days before the start of the vacation, in accordance with Article 136 of the Labor Code of the Russian Federation.

How to calculate the date of annual leave before maternity leave

As noted above, the duration of annual rest depends on the period of work at a particular enterprise. And for each month the employee receives an additional two days of paid time off. To calculate the duration of an existing rest, you need to use the following formula:

KMR * 2.33 = TO, where:

• KMR – number of months of work;
• 2.33 – universal coefficient;
• BEFORE – days before maternity leave.

As for the rules for accounting for the current month, that is, the application is written before the 15th day, then the month is not counted, but if after, it is taken into account.

For example, Khomenko O.A. has been working as an accountant at the company for more than five years. On May 5, 2021, the gynecologist set a date for the woman to go on maternity leave. The employee decided to get the days in advance and wrote a statement starting April 7, 2021. The HR employee considered that Khomenko O.A. can get:

4 * 2.33 = 9 days.

The HR officer also counted April, since at the time of entering maternity leave, the woman will already have four full months of work. Khomenko O.A. I discussed with the director the possibility of receiving a day in advance, and therefore was able to fully use 28 days.

In addition, labor legislation provides a list of jobs and vacancies for which a long duration of regular and paid rest is recorded. An employee can add the main and additional days before maternity sick leave and use them together.

Algorithm for taking leave before maternity leave

In order to get leave before or after maternity leave, you need to follow several steps:

When planning a vacation, it is very important to correctly calculate its duration. It is recommended to discuss this issue with a member of the HR or accounting department.

Working period for taking annual leave

According to general rules, in accordance with the provisions of Art. 122 of the Labor Code, paid rest is provided to an employee after six months of constant work with the same employer or later during any period of the working year according to the approved vacation schedule .
Attention! From the norms of Art. 123 of the Labor Code it follows that a woman’s husband also has the right to ask for another paid vacation while his wife is on maternity leave. The time spent working on it is also not taken into account here. In addition, by agreement between the worker and the employer, annual rest may be provided under any circumstances without six-month work.

Also, six months of service are not required to receive rest for adoptive parents who have adopted infants under three months of age.

Example of calculating vacation payments

All vacation payments are calculated based on the amount of average daily earnings. To calculate the amount of vacation pay before maternity leave, the usual procedure is used, that is:

Suppose employee Ivanova decided to take 14 days of vacation before her maternity leave. With an income of 300,000 rubles, she will receive vacation pay in the amount of 11,945.36 rubles (300,000/12/29.3*14)

As mentioned above, if leave is granted after maternity leave, then the time of maternity leave is not taken into account.

If, after returning from maternity leave, the employee quits and the vacation was not used, then it is necessary to calculate how many days compensation is due. The payment must be transferred to the employee in accordance with the general procedure.

Other nuances

1. It is impossible to arrange additional, rather than main, rest before maternity leave - the Labor Code of the Russian Federation does not contain such an opportunity.

2. The Labor Code of the Russian Federation does not contain the opportunity to go on vacation in advance at the beginning of the accounting year without having worked. This point needs to be discussed with the employer - if he agrees to this, the woman can receive leave in advance. But practice shows that employers are not “ecstatic” about this state of affairs and strive to prevent this in every possible way. If the employee subsequently resigns, the organization will collect 20% of the vacation pay - at the same time, the subordinate will receive the bulk of her monthly salary.

○ Should I take leave before maternity leave? Advantages and disadvantages.

When considering whether to take leave before maternity leave, I recommend considering the following.

Thus, labor legislation provides for the obligation to provide a woman with leave at her request either before going on maternity leave or after it ends. If you take your vacation in advance, you won’t have to apply for vacation after the end of your maternity leave.

Situations are different, and many women prefer to leave part of their vacation “in reserve” in order to be able to secure themselves in case of kindergarten closure, child illness and other unforeseen situations.

On the other hand, a vacation before maternity leave will allow you to spend more time in the fresh air, receive more pleasant emotions, and also with the advantage of vacation pay and vacation payments.

Thus, you should decide on the need for leave before maternity leave independently, taking into account your state of health, well-being, and material benefits.

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Work or leisure?

Should I leave early or work until my due date? This question often arises when a pregnant woman goes to work in the morning in a great mood, but after a couple of hours she feels extremely tired or is bothered by any symptoms. I want to finish my workdays early, relax at home, start preparing the family nest for the arrival of a child and, finally, not get up early in the morning.

But not all women are sure of the correctness of this step. There are often many fears and doubts regarding this issue. Many pregnant women are afraid that the amount of maternity payments will decrease, that they are not entitled to this leave by law, or, in the end, that their boss will not sign the application. It is very important to understand this topic and learn information not only about what financial opportunities open up for a woman from taking leave before maternity leave, but also about what nuances may arise during the desired vacation.