Pregnancy is a responsible and often difficult period in the life of many women. Especially if it is combined with intense, exhausting work. It is not surprising that often before pregnancy a woman writes an application for annual paid leave.
In what cases can you receive it, the positive and negative aspects of its registration, how to correctly calculate the beginning, how many days are required, in what amount it is paid - all these issues are regulated by the Labor Code of the Russian Federation. We will look at them in the article.
Is it possible to take an annual one before pregnancy and childbirth?
Article 260 of the Labor Code of the Russian Federation provides guarantees for a woman before maternity leave to receive annual paid leave, regardless of the duration of work with a particular employer. At the request of the woman, it can be provided both before and after the end of maternity leave. An employer has no right to refuse a woman her choice. The application must be accepted and signed.
Article 260 of the Labor Code of the Russian Federation. Guarantees for women in connection with pregnancy and childbirth when establishing the priority for granting annual paid leave
Before or immediately after maternity leave, or at the end of parental leave, a woman, at her request, is granted annual paid leave, regardless of her length of service with a given employer.
There are situations when a woman has not worked the period required by law to be granted annual leave. In this case, it is provided in advance by agreement of the parties. With the assumption that the shortened time will be worked upon returning from maternity leave or upon dismissal, the woman will reimburse the employer’s expenses incurred in paying her vacation pay.
Annual paid leave and maternity leave are two different types:
- The first is issued upon application and at the request of the pregnant woman, regardless of work schedule.
- The second is based on the issuance of a certificate of incapacity for work during pregnancy and childbirth.
They should not have any intersections. Therefore, it is necessary to carefully calculate the start date of annual leave. You can take a time period arbitrarily, without using the entire allotted period at once. A woman can take the remaining days after maternity leave ends.
Vacation in advance, why employers don’t like it
Whether the employee goes on vacation before or after maternity leave is not so important for the employer. He is more concerned about whether the employee has worked enough time to receive such leave. If not, according to the law, she will need to be provided with leave in advance, and this may be unprofitable for the enterprise.
After the end of maternity leave, a woman can quit her job. According to the law, the vacation compensation issued in advance will need to be withheld from her. In practice this is difficult to do. In case of dismissal, the organization has the right to recover only 20% of the last salary (Article 137 of the Labor Code of the Russian Federation). By law, a quitter is required to work for 2 months before dismissal, no more. During this time, they will not be able to collect the entire amount.
If a woman is subject to dismissal due to liquidation of the organization, layoff, etc. Deduction of compensation for vacation paid in advance is not provided for by law.
The employer's opinion on maternity leave is not so important, because labor legislation in this case is on the side of the expectant mother. And in case of refusal of annual paid leave, a pregnant woman has the right to file a complaint with the labor safety inspectorate.
Pros and cons of this solution
The undoubted advantages of taking a vacation before going on sick leave due to pregnancy include:
- Additional official leave. For many, it is simply difficult to work - shortness of breath, swelling, fatigue, toxicosis, blood pressure and other frequent “delights” of pregnancy. This time can simply be used to gain strength before the onset of motherhood.
- Payment of an additional amount accrued upon registration of annual paid leave. Giving birth to a child is an expensive business, and many seek such an increase in maternity benefits.
- The absence of stressful situations that could adversely affect the further course of pregnancy and the emotional background of the woman.
- Such a vacation will allow you to use all the rest time required by law. There is always a risk, albeit small, that there will be no way out of maternity leave due to the liquidation of the enterprise.
- Any use of sick leave or registration of rest time in the future will affect the calculation of the amount of maternity benefits and monthly child care benefits, since the calculation takes into account the actual time worked and the amount of earnings for it.
Sometimes it can even be beneficial to take sick leave, since it reduces the number of actual days in the denominator in the benefit calculation formula. It is better to calculate everything in advance with the company’s accountant, since he has all the accurate data for calculations.
There are also disadvantages to this design. If the vacation was arranged in advance, then there is an unpaid debt to the employer in the form of working out the previously provided vacation time. This can often be very difficult from a moral point of view. You won’t be able to take a vacation after maternity leave and extend the time you take care of your children. They often start getting sick as soon as mom goes to work.
Each woman must decide for herself whether to use it or not, based on her needs and calculating all the possible benefits.
Video about vacation planning
Expert opinion
Lebedev Sergey Fedorovich
Practitioner lawyer with 7 years of experience. Specialization: civil law. Extensive experience in defense in court.
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How many days can you stay in prison according to the law and how can you get them?
Article 123 of the Labor Code of the Russian Federation determines that the distribution schedule for annual leave is drawn up and approved no later than two weeks before the start of the new calendar year. For some categories of employees, it can be provided upon application at the time required by them, without taking into account the drawn-up schedule. A woman expecting a child also falls into this category.
In accordance with Article 122 of the Labor Code of the Russian Federation, an employee receives the right after six months of time worked. Before the expiration of this period, certain categories of workers can use it, incl. pregnant woman. In fact, she has the right to write a statement from the very beginning of the employment relationship.
According to Art. 125 of the Labor Code of the Russian Federation, the employer has no right to call a pregnant woman to work to perform her job duties.
Annual leave at the request of a pregnant employee can be established based on the maximum period of 28 days. Additional time may be added if it is required by law.
An employer may grant additional rest time in the following cases:
- based on one’s own considerations and initiative;
- according to the letter of the law, according to which certain categories of workers are entitled to additional days;
- according to the terms of a collective or labor contract.
Accordingly, if a pregnant woman has the right to basic and additional leave in the current reporting period, she can add both of them to a future maternity leave. The same applies to unused vacation for the previous period. An accountant in your organization or a personnel officer will help you calculate the exact amount.
Is it possible to take it?
A pregnant woman has the right to take leave before maternity leave. As you know, annual leave is provided to employees in accordance with the schedule adopted 14 days before the new year.
However, current legislation establishes the possibility of obtaining leave, regardless of the schedule drawn up.
Pregnant women can receive annual leave before maternity leave if they have not already taken it.
It is recommended to notify the employer of your decision in advance so that he can resolve organizational issues.
Pregnant woman's right
A pregnant woman has a number of rights, one of which is the right to annual leave.
However, the employer does not have the opportunity to refuse to provide it.
How to fill out an application correctly?
The algorithm for registering annual paid leave, which is issued immediately before maternity leave, is as follows:
- Obtaining a pregnancy certificate, which determines the period of sick leave. Issued by a gynecologist monitoring the pregnancy.
- Writing a free-form application addressed to the manager for the provision of vacation, indicating the terms and dates.
- The manager approves this statement with his signature. An order for vacation, calculation and payment of vacation pay is issued.
There is nothing difficult about writing an application. A standard wording written to the manager is sufficient:
“Please provide me with basic (and/or additional, unused) annual paid leave for the period worked from ___ (date) to ___ (date), in accordance with the Labor Code, Article 260, for ___ (number of days) calendar days.
Date Signature."
The application must be registered with the secretary or sent by mail.
Within the framework of the law, a pregnant woman has the right, after writing a statement, to go and rest the next day. But if there are no compelling reasons, then it is better to notify the manager some time in advance so that an employee can be found to fill the vacant position.
If for some inexplicable reason a woman is refused days of rest, she must file a complaint with the labor inspectorate to clarify the circumstances.
Payment for rest before going on maternity leave
Vacation pay is calculated and accrued according to the same rules as in the normal mode for an ordinary employee. The planned vacation is taken into account in accordance with the application and signed order and the average daily earnings of the pregnant woman.
The calculation does not include such indicators as payment of bonuses, vacation pay, payment of sick leave, and travel expenses.
Article 136 of the Labor Code of the Russian Federation requires the employer to pay for the upcoming vacation no later than three days before it starts. If the deadlines are violated, a pregnant woman has the right to appeal to the labor inspectorate.
Is it possible to be denied the allotted days and what should you do if they refuse?
An employer cannot legally refuse to provide a pregnant woman with days off.
The following formulations are often used to justify refusal:
- submitting an application less than two weeks in advance;
- lack of personnel replacement for a pregnant woman;
- unfinished business or work-related projects.
All these reasons have nothing to do with the letter of the law. All that a future maternity leaver needs to know is Article 260 of the Labor Code of the Russian Federation. It clearly outlines the grounds for providing such rest without additional conditions. The quantity is determined by the woman herself, based on her own needs, taking into account the maximum possible period.
If the employer refuses to sign the application and gives reasonable arguments, then the woman has the right to use the following means of influence:
- Send your application for provision to the manager by post with acknowledgment of delivery. Having received such a letter, they have no right not to register it with the organization. And when they register, an order will be issued calculating the vacation amount.
- Fill out the application in two copies. Have the secretary put a mark of delivery on your copy with the date, entry number and signature of the person receiving it.
- If one of the above methods does not have an effect on management, then contacting the labor inspectorate will definitely help resolve the issue.
The labor inspectorate will take into account all the details of the current situation and record violations. In any case, the employer will provide the days required by law. But at the same time, you will also receive a fine for violating labor laws.
When the issue is referred to the labor inspectorate, for the employee this means that the relationship with the manager is clearly damaged. It is possible that you will need to return from maternity leave to another organization. However, during this time the management may change. You should not be afraid to protect your rights, but it is better to assess the possible risks and benefits for you.
Vacation before Maternity Leave Labor Code 2021
Contents: Women who are expecting a child, and at the same time do not stop performing their work duties directly at the workplace, can count on additional social protection from the state.
All useful information was collected in our article. Is it possible to take another vacation immediately before or after maternity leave? This question worries many pregnant women. Often it is already problematic for a woman to carry out her routine duties or even just get to her workplace.
This is important to know: Application for a day on account of vacation: sample 2021
Is it possible to determine the beginning yourself and how to do it?
The pregnant woman herself can make such a calculation if she has all the data, or entrust this matter to an employee of the HR department. The calculation scheme is standard - days worked in the current billing period, days of unused rest for previous periods, and the possibility of providing additional leave (if applicable) are taken into account.
The overlap of these holidays is unacceptable. Therefore, the start date of rest is determined based on the expected date of opening of sick leave for pregnancy and childbirth.
For example. If the sick leave must be opened on September 3, 2021, then the rest days end no later than the previous day, that is, September 2, 2021. From this date it is necessary to subtract the days of rest to which the woman has the right and which she wants to take.
Any woman expecting a child has the right to take annual paid leave. Such a decision may be associated with poor health, increased emotional tension in the workplace, the desire to calmly prepare for the upcoming birth, arrange an apartment for a new family member and make the necessary preparations for the birth of the baby. And labor legislation is completely on the side of the pregnant woman.
How to calculate the duration of vacation before maternity leave
Most employees are entitled to 28 days of leave. If she has already taken vacation days (for example, at her own expense), then they are simply deducted from this period.
Example:
The lady worked for less than 12 months. Vacation for her is calculated based on the number of months worked. For each of them, 2.33 rest units are awarded, expressed in days. If the month is not fully worked out - less than 15 days - no units of vacation days are added. If she is on shift for more than 15 days, accrual occurs.
Benefits of vacation
An employee has the right to take leave before maternity leave, regardless of the schedule drawn up earlier. This is beneficial because you don’t have to adapt to other employees. Payment is made three days before going on vacation. No changes related to the special situation of the employee are provided. In addition, the benefit is that before an important medical event, a woman can relax by taking a vacation.
