Rules and procedure for drawing up an employment contract with a temporary employee during the maternity leave of the main employee

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Hiring during maternity leave of the main employee

The rights of women who go on maternity leave are protected by the state. The manager is obliged to maintain the job until the woman returns from maternity leave. When maternity leave ends, she can return to her reserved place.

The law provides that during the absence of the main employee, management can hire a temporary employee for this position.

There are several options:

• conclude a fixed-term employment contract with a new employee;
• transfer someone from the staff to a vacant position;
• entrust another employee with some or all of the part-time duties of a woman who has gone on maternity leave.

The first two options are the most popular in practice: this is due to the fact that parental leave can last up to three years.

Read more about the specifics of registering and dismissing a temporary employee later in the article.

Design nuances

The procedure for registering a replacement for an absent employee seems simple at first glance, given that all you have to do is receive an application, draw up an order and an agreement or a contract.

But in fact, this specified process may change if emergency or unexpected circumstances arise.

If the company is planned to be liquidated

As a rule, it is quite difficult to fire existing employees at the initiative of the company. It is necessary to take into account not only the requirements for preferential categories and a number of prohibitions, but also the complex documentation procedure.

However, this rule does not apply to the liquidation of an institution, since during this process all employees, including maternity leavers and fixed-term workers, are subject to dismissal according to a procedure similar to layoffs, that is, two months after the decision is made with the payment of benefits.

How is financial assistance reflected in the 2-NDFL certificate? Details are in our material. What can become the basis for an order to grant leave to an employee? Find out here.

If a temporary employee also goes on leave under the BiR

Under Article 261 of the Labor Code of the Russian Federation, it is almost impossible to fire a pregnant woman, with the exception of a single case, which specifically relates to the situation described.

That is, if the contract expires while the replacement is pregnant, she is subject to dismissal due to the main employee returning to his position. But only if it is impossible to transfer her to another vacant position due to health reasons or due to the lack of one on staff.

If she takes out maternity leave before the main employee leaves, then the fixed-term contract is extended until the end of the maternity leave due to the fact that it is impossible to terminate the employment relationship with a woman on sick leave or with a child under three years of age being raised on the basis of the same Article 261 of the Labor Code RF.

Hiring a new employee for the period of temporary maternity leave

The law does not establish a ban on hiring an employee during the absence of even a replacement who has also gone on maternity leave. But the employment of the third employee will be carried out as part of the maternity leave of the main employee.

That is, when a replacement is hired, the validity of her cooperation agreement will be directly based on the period of validity of the first maternity leave.

When does a temporary employee become permanent?

Of course, a temporary employee, even hired during the absence of the main employee, can become permanent:

• A contract with a limited duration can be transformed into a permanent one if the same maternity leaver quits while on maternity leave. Because of this, circumstances that should terminate the contract will not occur.
• The transfer may become permanent if the maternity leaver resigns, but her replacement, within the framework of Article 72.2 of the Labor Code of the Russian Federation, will not demand a return to her previous position. This will naturally lead to the recognition of her contract as permanent with all the ensuing circumstances, namely, the same entry in the book of labor.

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• All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.

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Employment contract

Application for employment during maternity leave

A person applying for a temporarily vacant position must submit an application for employment. The document must comply with all standard rules. It is important to point out that this is a temporary replacement!

The application must indicate:

• period of cooperation;
• job title;
• Full name of the employee whose duties are to be performed.

Next, the application must be registered, and the new employee is given a personal card. After this, an employment contract is concluded.

ATTENTION! Look at the completed sample application for employment during the maternity leave of the main employee:

Features of the agreement

The employer can place a new employee in the place of the maternity leaver, temporarily transfer one of her colleagues to her position, or invite someone to perform her duties part-time.

The first option is the most common. In this case, the employee is employed under a fixed-term employment contract. These labor relations are regulated by Article 59 of the Labor Code of the Russian Federation. Internal part-time work is only possible for an additional fee and in accordance with Article 60.2 of the Labor Code.

To conclude a fixed-term employment contract, a person who will temporarily perform the duties of a maternity maid must submit an application for employment. Then the employer issues an order to recruit a new employee to the position, and a fixed-term employment contract is concluded.

The order of acceptance to work

After preparing and signing the employment contract, an order is prepared in form No. T-1. This document will be stored in the archive and may be useful in the future (for applying for a pension), so it must indicate the period of work at a temporary place.

Is it possible to go on maternity leave on maternity leave?

Read how to apply for time off here.

Vacation at your own expense: can they refuse, read the link:

How to properly prepare a document

It is important to specify in the text of the contract the conditions for termination of cooperation in order to avoid a situation where the main employee has already returned to work, but the temporary one has not yet been terminated. And this is possible, since sometimes key employees return from parental leave ahead of schedule.

Note! In a fixed-term contract, it is better to include the wording that it is concluded for the period of temporary absence of the main employee in connection with the birth of a child and caring for him.

Since there are cases when the main employee extends maternity leave (takes out parental leave), an additional agreement can be concluded with a temporary employee to extend the contract for the period while the main employee is on parental leave.

Admission to maternity leave: features of the employment agreement

The topic of replacing a maternity place originates from Art. 59 of the Labor Code (LC) of the Russian Federation. It directly states exceptional cases of concluding a fixed-term employment agreement. One of these is the performance of the duties of a temporarily absent employee, who retains his job. In theory, this is possible both during the period when the main employee is on any of the possible types of leave, and in the event of his temporary disability. In practice, the most popular situation is maternity leave.

Despite the fact that the labor legislation of the former countries of the Soviet Union has the same roots, in Belarus the situation with the terms of labor agreements is exactly the opposite: the rule is a fixed-term employment agreement (contract), the exception is an indefinite one. It is the second one that is concluded there for the duration of maternity leave, since the contract is concluded for a period accurate to the day, minimum - for a year, maximum - for five years. The overall picture for an employee in such conditions is not the most profitable - in simple words, there is no job “for life”. For temporary workers (including those on maternity leave), the situation is even worse - they cannot count on the “benefits” provided by the Decree for the contract form of employment.

The only difference between a fixed-term employment agreement and a regular one - open-ended - is the condition on a specific period of work (up to indicating the date of dismissal). Other features follow from this - in particular, the procedure for terminating the agreement is prescribed (in general, the employer has the obligation to remind in this part three days in advance).

The Labor Code of the Russian Federation spells out the specifics of maintaining a job for a temporarily absent employee who has gone on maternity leave.

Duration of the employment agreement with a temporary worker

When planning actions to fill the so-called maternity leave, all interested parties (the maternity leaver herself, the employee replacing her, the personnel officer, the manager) must clearly distinguish between the two parts of the period of absence of the main employee, because the law does not contain the concept of “maternity leave”:

1. First, a woman goes on vacation for pregnancy and childbirth - the basis is sick leave. In general, the length of absence can be predicted, but you must definitely “keep in mind” the possible extension of sick leave. A woman has no right to refuse sick leave or leave early. The only option is not to provide the sheet to the employer at all. But this is hardly possible in practice due to the undeniable need for rest after childbirth.
2. The second part of the absence is maternity leave. And here there are many options for the development of events - from a complete refusal to leave work to quitting at any moment. In practice, the decisive role is often played by the provision of benefits, the payment of which stops when the child reaches 1.5 years of age (maternity leave can last up to three years).

The presence of two periods of relatively indefinite duration dictates the main condition for the duration of the employment agreement with the replacement employee: it is limited, but not defined by an exact date. At the time of hiring a replacement employee, the term condition indicating a specific date will not violate anyone’s rights, but problems may arise when this date arrives (the employment contract ends, but the main employee has not yet left) or upon early termination of maternity leave (the replacement employee’s employment contract continues to be valid , and the main employee has already left). In practice, the phrase most often used is: “...before the main employee returns to work.”

The best option for wording the term of the agreement is “until the main employee returns to work”

In the urgent agreement, it is necessary to indicate the reason for the absence of the main employee. Variations are possible in solving this issue:

1. Indicate the period of absence as a whole (“the employee is hired for the period of absence due to being on maternity leave, to care for the child of I. I. Ivanova...”). The option is the most convenient - you don’t have to make changes to the name of the vacation. But scrupulous legal scholars can argue: after all, the fact of parental leave at the time of concluding the agreement does not yet exist, and may not occur at all (situations can be different - dads or grandmothers go on vacation, a child is born dead, etc.). In the meantime, for the replacement worker this will sound like a kind of guarantee of the continuation of the employment relationship after maternity sick leave.

   
   It is most convenient to immediately conclude an agreement for the period of both parts of the main employee’s maternity leave

2. Indicate in the original version of the contract the reason - maternity leave, and after the main employee takes care leave, enter into an additional agreement with the replacement employee, changing the reason. Text of paragraph 1.6. (see image of paragraph 1) will sound like this: “... the employment contract is concluded for the period of maternity leave of the main employee Zoya Petrovna Vasilevskaya and is valid until Z.P. Vasilevskaya leaves the specified leave.” The main text of the additional agreement should be formulated as follows: “State clause 1.6 of the Employment Agreement as follows: 1.6. This employment contract is concluded for the period of maternity leave and childcare leave of Z.P. Vasilevskaya until Z.P. Vasilevskaya leaves the said leaves.” This method should be called extension of the employment contract.

Either a new employee can be accepted into a maternity position, or one of those already working in the company can be transferred (a few more options for the latter are part-time work (Article 60.1 of the Labor Code) and temporary transfer (Article 72.2 of the Labor Code). Regardless of this (reception, translation, part-time work), the rules for concluding an employment agreement are the same.

Video - features of filling a maternity place

Rules for drawing up a fixed-term employment agreement

The obligatory points are dictated to us by Art. 57 TK. Among them:

• information about the parties and persons who signed the agreement: Full name - for the employee;
• name of the employing organization, INN, full name, position and document giving authority to sign - for the person signing the agreement;

The list of conditions is not exhaustive - in the employment agreement, the parties are free to detail any points, only if this does not contradict the law. The absence of any of the mandatory clauses does not invalidate the agreement.

Photo gallery: sample of a fixed-term employment contract for the period of maternity leave

The “head” of an employment contract always consists of the place, date of conclusion of the agreement and a detailed indication of its parties

The work schedule is one of the mandatory points to be covered in the employment agreement

Rights and obligations of the parties - from the point of view of the Labor Code, sections are not at all mandatory, because the main ones are applied by default

An important point of a fixed-term employment contract is the terms and conditions regarding the time and procedure for its termination (it is not necessary to describe them in detail, but they must be agreed upon on the first page)

An entry about employment under a fixed-term employment contract is made in the work book without indicating this feature, i.e., as for a permanent employee.

What entry is made in the work book?

When registering a person to temporarily perform the duties of an absent employee, in addition to an identity document and a diploma, you will need a work book.

If it is missing, then the employer must create a new one (if the term of the employment agreement is at least 5 days).

The labor record contains the date and number of the appointment order.

Remember! The document does not indicate that a fixed-term contract has been concluded. After the main employee returns from maternity leave, a temporary one can be transferred to another position without terminating the employment relationship. And the contract on a temporary basis becomes indefinite.

The fact that the person is replacing the main employee is indicated in the personal file.

Watch the video. Fixed-term employment contract:

Normative base

An employee can be hired with a fixed-term or open-ended employment contract. These points are regulated by the Labor Code of Russia (LC), which came into force on December 30, 2001.

The types of contracts are described in Article No. 58 of this regulatory document. The right to conclude a fixed-term employment contract during maternity leave is enshrined in Article No. 59 of the Labor Code .

At the same time, the employer does not have the right to terminate the contract with the main employee who is on maternity leave or released from work while caring for the baby. Guarantees for pregnant and young mothers are provided for in Article No. 261 of the Labor Code. A temporarily absent employee retains her place, position and salary.

An agreement with an employee who is accepted on maternity leave must be drawn up in writing. This is stated in Article No. 67 of the Labor Code. The expiration date of the contract is regulated by the second paragraph of Article No. 77 of this legal document. The possibility of excluding the probationary period for temporary employees is given in Article No. 289 of the Labor Code of the Russian Federation.

Also, when concluding a fixed-term contract, the following articles of the Labor Code must be followed:

• №60. It is stated that the employer has no right to require an employee to perform work that is not provided for in the contract;
• №70. The first part talks about the probationary period of a temporary subordinate;
• №79. The third part provides information that the term of a conscript contract is limited to the vacation of the main employee;
• No. 22 and 132. They say that for identical positions with similar functions, salaries should be equal.

If you do not specify the period for concluding the contract, the employment relationship will be considered unlimited.

For what period should it be concluded?

As noted above, the contract period should not contain specific dates. The period is directly related to the period of absence of the main employee who is on maternity or child care leave.

The first working day of the replacement employee is the date of hire (the next day after the main employee goes on maternity leave). The last day is the day before the main employee leaves. For example, a woman goes to work on the 15th. The last day of work for a temporary employee is the 14th.

The issue of a probationary period is decided individually by the employer himself; he has the right not to give it to a temporary employee when he hires him to fill a vacant position. The employer makes the decision to assign or not assign a probationary period independently.

Please note! A probationary period may not be given if the temporary employee:

• graduate;
• passed the competition;
• will replace the main employee for only a few months;
• temporarily transferred from another enterprise with prior agreement with his employer;
• pregnant woman;
• a woman raising children under 1.5 years of age;
• minor person.

Fixed-term contract for maternity leave in 2021

A fixed-term contract for the duration of maternity leave implies not only compliance with a certain procedure, but also documentary support. It has both its nuances and features.

Reasons for drawing up

Any administrative act, that is, the same order of admission, as well as the execution of an agreement on mutual cooperation or an additional agreement, is issued on the basis of certain documents.

In this situation they will be:

• an order for a woman to go on maternity leave;
• a statement from a person who is ready to take on new responsibilities, both as a temporary transfer and as a newly hired employee.

Sample

Samples of an application for acceptance, an order, as well as a fixed-term employment agreement can be found below.

Statement:

Order:

Employment contract:

Attached documents

As a rule, acceptance even in the urgent cooperation mode implies the attachment of a certain package of documents within the framework of the requirements of Article 65 of the Labor Code of the Russian Federation.

But during translation, the specified information is already present in the worker’s personal file, so completely different documents should be drawn up.

So, it will be necessary:

• undergo a medical examination again, especially if we are talking about harmful conditions at the new place of work;
• provide a diploma qualifying for a new position if it was previously missing from your personal file.

But the employee’s consent to take a maternity position will be the same statement, as well as the signature in the transfer order.

If the initiative comes from the employer, it is advisable to issue a free-form notification in the form of an offer to occupy a position on a temporary basis.

Form and structure of the agreement

As mentioned above, if an existing employee is transferred to another position during the parental leave of the main employee, a new contract is not concluded.

However, due to the fact that the work function of the shift worker, as well as the range of responsibilities, is changing, it is necessary to draw up an additional agreement to the main document, in which all the nuances will be spelled out.

A sample agreement can be found below:

In what cases is it necessary to extend sick leave for pregnancy and childbirth? Who issues sick leave for child care? Read here.

You can download the job description for Deputy Chief Accountant here.

Entry in the work book

Employment in a cooperation mode with a limited duration is the same as hiring, which, in addition to a number of documentary actions and a standard procedure, includes filling out a work book.

Moreover, due to the fact that the worker is hired not on a permanent basis, but temporarily, the entry in the work book also contains similar information indicating the start date of the contract and the grounds for its termination.

That is, for example: “Accepted as an economist from 02/01/2018. during the absence of the main employee.”

But a record of a transfer on a temporary basis is not entered into the labor book, given that this type of legal relationship is not permanent and is documented only in orders.

Although if a woman subsequently takes a maternity position on a permanent basis, a record of the transfer will need to be made.

What payments are due?

From the date of admission or transfer to another position, the employee is set not only the salary, which is developed within the framework of the staffing table for a particular position, but also allowances.

They are relied upon if the same harmful conditions or irregular work are present.

That is, the fact that a worker is transferred or hired again should not in any way affect his salary or other payments, which are made in full on the basis of the same Regulations on wages and other acts.

Termination and expiration

Termination of an agreement to perform the duties of a maternity leaver has some features that not everyone knows about or does not understand.

In particular, Article 79 of the Labor Code of the Russian Federation states that on the eve of termination of cooperation, the employee must be notified of dismissal in writing three days in advance, but with the exception of certain cases. A fixed-term contract for the duration of maternity leave is one of these.

That is, legislators believe that a newly hired employee already knows about the date of termination of work, as well as the grounds for dismissal. Therefore, there is no need to notify him of this, and even in writing.

At the same time, the maternity leaver herself also does not notify about her leave one day in advance, but fills out an application where she asks to terminate maternity leave early at least several days in advance, and in most cases, two weeks in advance.

An example of such a statement:

That is, the replacement has time both to receive information about the termination of the contract and to look for a new job.

Dismissal of persons working temporarily

If a fixed-term contract was concluded

When maternity leave is over or interrupted and the permanent employee has returned to his place, the temporary replacement employee is fired by order of the manager. The labor contract states that the fixed-term employment contract has been terminated.

But a person serving under a temporary contract may leave before the end of the employment relationship. This can be done on a general basis. Management must be notified of the decision 2 weeks before dismissal. In case of mutual agreement, this period can be reduced.

Sample

Typically, the preparation of the text of a fixed-term contract is carried out by the manager’s secretary or an employee of the legal or personnel department. Sometimes such a document is drawn up directly by an individual entrepreneur.

To quickly and correctly draw up a contract, it is worth using an example. A sample employment contract for the period of maternity leave of the main employee is worth looking in the archives of the enterprise. If the company uses a corporate template, then there should be no problems with drawing up a temporary contract.

A sample of a fixed-term employment contract for an employee who is hired instead of the main employee who is on maternity leave is available.

In what cases can a pregnant woman be fired?

Cooperation with a pregnant woman can be terminated at the will of the expectant mother. As described above, a pregnant employee can be fired if the main employee returns from maternity or postpartum leave. Also, the reason for severing official relations may be the liquidation or reorganization of an enterprise.

Know! If a temporary employee with whom a fixed-term employment agreement is concluded becomes pregnant, she can be fired only after the birth of the child and completion of maternity leave, or after childbirth.

To be granted leave, as in the case of the main employee, the temporary worker must present a sick leave certificate and write an application addressed to the manager.

The employer must notify the employer of dismissal 3 days before the end of the employment contract.

If the pregnancy is interrupted and does not end with the birth of a child, the employer has the right to dismiss the employee within 7 days after this fact has been established.

Attention! Our qualified lawyers will assist you free of charge and around the clock on any issues. Find out more here.

Guarantees for temporary workers

Speaking about the guarantees provided for temporary workers, let us pay attention to the following:

• the maximum period for which an employee can be paid severance pay is 3 months;
• Temporary workers who have entered into an employment contract for a period of not more than 6 days may, within this period, be involved in work on public holidays, as well as holidays and weekends, without their consent. Moreover, for work on these days, other days of rest are not provided, and wages are paid in a single amount (Article 297 of the Labor Code);

For reference What employees and employers should know about vacations

• Chapter 23 of the Labor Code does not establish any special rules for granting labor leave to temporary workers, from which it follows that labor leaves are provided to them on the same conditions as to employees who are not classified as temporary.

Moreover, as is known, in accordance with the provisions of Part 1 of Art. 166 of the Labor Code, labor leave for the first working year is granted no earlier than after 6 months of work with the employer (with some exceptions).

Since a temporary employment contract can be concluded for a period of no more than 4 months, it seems that the only way to compensate the employee for the lack of vacation is to pay him compensation for unused vacation upon dismissal due to the expiration of the employment contract.

Benefit payment

Payment of benefits to a pregnant employee signed under a fixed-term employment contract is possible if:

• she went on maternity leave earlier, while the fixed-term contract was still in operation (before the main employee returned to the workplace);
• the employment contract was extended.

In this case, maternity benefits are paid in full for the entire period of maternity leave. And child care benefits will be paid until the day the contract is terminated.

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