The law of the Russian Federation protects and protects the interests of pregnant women. It is important to understand in which cases you can part with such an employee, and in which this is a gross violation. What compensation can an expectant mother expect upon dismissal and who should provide it?
A working woman should notify her boss about the onset of pregnancy as early as possible, providing a certificate from a medical institution stating that she is registered at the antenatal clinic. From this moment, according to Art. 261 of the Labor Code of the Russian Federation, the director has no opportunity to either fire or lay off the expectant mother.
Legal provisions
The main document defining the rights and responsibilities of pregnant women upon termination of employment relationships is the current Labor Code (LC). Its articles do not contradict the Constitution of the Russian Federation, but only explain in detail legal behavior in a given labor situation.
Thus, based on these laws, a woman expecting a child belongs to the group of socially vulnerable people, and therefore has a number of benefits and advantages compared to other working citizens. It is worth noting that violation of the legal rights of pregnant women leads not only to administrative, but also to criminal liability.
Provisions that provide comprehensive explanations in matters of labor relations with pregnant women are indicated in the fourth part of the Labor Code of the Russian Federation in the twelfth section (in chapters 40 and 41).
The most interesting are the following articles:
- Art. 254 - explains the procedure for transferring pregnant women to another job;
- Art. 255 - guarantees the provision of leave related to pregnancy and childbirth;
- Art. 256 - describes the procedure for being on parental leave;
- Art. 258 - regulates the provision of time for feeding the child;
- Art. 259 - prohibits sending women preparing for motherhood on business trips, using them for overtime work or at night and on non-working days;
- Art. 260 - provides benefits to women when distributing planned annual leaves.
In addition, Article 251 of the Labor Code, which emphasizes the specifics of labor regulation, and Article 236, which guarantees additional leave without payment of wages to persons caring for children, are often used, as well as Articles 38 and 39 of the Constitution of the Russian Federation, which outline support for maternity and guaranteeing social benefits. provision. Payments are regulated by the Federal Law “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Maternity.”
Maternity leave during liquidation and bankruptcy: what is the difference
The difference is that in the event of liquidation, maternity benefits are clearly paid by the social security authorities, and in bankruptcy, if the bankrupt enterprise does not have enough money for maternity benefits, they are paid to the Social Insurance Fund in the area where the woman is registered.
In addition, if there is a certificate of exclusion of the company from the Unified State Register of Legal Entities due to its closure, the woman is paid benefits based on the minimum established for it by law. And in case of bankruptcy, payment is made in full based on data on average earnings taken into account for calculating maternity benefits.
This means that if a bankrupt organization does not have the funds to pay off the debt to a pregnant woman for maternity payments, then they are provided not by the social security service, but by the Social Insurance Fund in the amount that the woman under normal conditions could receive at the enterprise itself.
Rights and responsibilities of a pregnant woman
The state protects the position of pregnant women, understanding the difficulty of fulfilling labor obligations while expecting a child. Therefore, a woman preparing to become a mother is obliged to receive a loyal attitude from the employer towards herself, but this does not mean that she has no obligations.
Its main rights are as follows:
- Recruitment. An employer has no reason to refuse employment due to pregnancy. In case of refusal, the employee may demand a written explanation. In this case, the applicant for a vacant position has the right not to inform the employer about her pregnancy. A woman who gets a job and is in an “interesting” position is not assigned a probationary period by law.
- Transfer to lighter labor. The Labor Code guarantees the right of a pregnant woman to work on a reduced schedule, but in this case wages will also be reduced. She is entitled to a transfer to lighter work with a limit on heavy lifting (no more than 2.5 kg) and a reduction in production standards.
According to sanitary rules and regulations, pregnant employees are subject to restrictions on the organization of working conditions.
Thus, they are prohibited from working in drafts, in basement-type rooms and with low lighting, under conditions of exposure to harmful substances and dampness.
Regardless of the time worked, the expectant mother can go on annual paid leave both before and after maternity leave. It is also important to note that calling an employee back from maternity leave is prohibited, even if she does not object.
If a pregnant woman is absent from her workplace due to being in a clinic or hospital, then these missed hours are counted by the workers and paid based on the established wage. Of course, for this, the employee must provide documents confirming her presence in a medical institution.
The law prohibits interrupting the employment relationship with a pregnant employee on one’s own initiative. But this is only possible if the enterprise is not completely liquidated. That is, staff reduction is not a reason for dismissal. Even a careless attitude of an employee towards the performance of her duties can lead at most to a reprimand.
It is worth noting that in order to exercise most of her rights, a pregnant employee will have to submit applications. For example, at the end of the contract, an application with an attached certificate is written to renew it, on the basis of which an additional agreement is concluded, usually expiring after the birth of the child.
What should you do if you quit your job and find out that you are pregnant?
Dismissal at will implies that the employee leaves the company of her own free will, having agreed with management on the time of departure. If there are no violations in the dismissal procedure, except for payments related to care, the pregnant woman cannot expect more from the employer.
A woman should follow several legal paths:
- apply for benefits at your husband’s place of work, sending him on maternity leave (if desired);
- contact the social employment service;
- get another job and go on maternity leave there.
If the dismissal was illegal and did not imply the employee’s own desire, she has the right to be reinstated in her job by going to court.
Also, other competent government agencies (labor inspectorate and prosecutor’s office) will help restore justice by holding the company accountable. In addition, a woman must understand that finding a new job while in an interesting position is extremely difficult, since most companies are reluctant to hire someone who will soon have to look for a replacement.
It is recommended to focus on state-owned enterprises, where the attitude towards maternity leavers is more loyal. In addition, such organizations try to comply with labor laws, without discriminating in hiring.
Expert opinion
Irina Vasilyeva
Civil law expert
It is not profitable for private entrepreneurs to employ pregnant women. To refuse a job, they come up with other reasons that fall within the law. In this case, it is much more profitable to register with the employment service and subsequently receive legal benefits.
Dismissal by law
The Labor Code prohibits the dismissal of an expectant mother at the initiative of the employer. The only exception can be the liquidation of the organization. According to the third part of Article 261 of the Labor Code, dismissal is possible if a temporary contract has been concluded with the employee to perform the duties of a temporarily absent employee. In this case, such an agreement must expire.
According to Article 77 of the Labor Code, an employment contract with a pregnant employee can be terminated if the employer is unable to transfer her to a job that she can perform, or the employee refuses the options offered. There are no restrictions on the independent dismissal of a pregnant woman on her own initiative. This can be either the woman’s personal desire or an agreement of the parties.
The dismissal of an employee occurs according to the standard procedure. The expectant mother writes a letter of resignation, on the basis of which an order is issued. The only peculiarity is that the two-week work period is not mandatory.
According to Article 140 of the Labor Code, upon dismissal of an employee, all payments due to him must be paid no later than his last working day.
Upon dismissal, an employee has the right to receive the following payments:
- severance pay;
- all unpaid wages;
- compensation for unused vacation.
Payment for unpaid leave is calculated in accordance with Article 133 of the Labor Code. If the employee worked less than six months after the previous leave, then for each month 2.33 days of allotted leave are taken, more than six - compensation is calculated for the entire year. Calculation of severance pay occurs according to the norms of Article 178 of the Labor Code of the Russian Federation and is defined as the amount of average earnings per day.
If a pregnant woman was fired due to the liquidation of an enterprise, then she must go to the employment center to receive payments equal to her average monthly earnings within two months.
How can pregnant women obtain unemployed status?
In order for a woman awaiting replenishment to be recognized as unemployed, she must go through the registration procedure at the employment center at her place of residence, confirming the presence of a number of conditions:
- a real and not fictitious desire to find a job;
- readiness to start a new job at any time;
- lack of income at the current time.
Attention! Severance pay paid upon dismissal of a pregnant woman during the period of her employment at her previous place of work due to measures taken in connection with its liquidation is not considered earnings.
Maternity contributions
According to the law on social insurance, maternity benefits for pregnancy, childbirth and child care are made by the employer. The amounts paid are returned to him by the Social Insurance Fund of the Russian Federation.
The payment procedure occurs in the following order:
- the employee hands over her sick leave to her employer and writes an application for leave, the reason for which is child care;
- the employer calculates the amount of the benefit and begins to pay it;
- a report containing information on the costs of payments is submitted to the Social Insurance Fund;
- the fund verifies the data and compensates the amount in full.
If we are guided by this provision, then it becomes clear that the expectant mother can hardly receive maternity leave if she quit her job before going on vacation, since she is no longer bound by any employment relationship with the employer after termination of the contract.
A special mention is made of the situation when the organization where the expectant mother worked was liquidated. In this case, all concerns about payments fall on the Social Insurance Fund. But to do this, you need to apply to the fund yourself.
In addition, you will need to provide:
- certificate of incapacity for work;
- a photocopy of the work record book and a certified extract from it about the last place of employment;
- a document from the employment center confirming your unemployed status.
After a woman gives birth, she has the right to receive a one-time childbirth benefit.
As soon as her sick leave is over, she can go on maternity leave to receive payments. These payments will continue until the child is one and a half years old. The benefit is paid from the Social Protection Fund. At the same time, the right to receive payments remains even if a woman finds a new job, part-time or at home.
Where can unemployed people get maternity benefits?
If a pregnant woman was fired due to the liquidation of the company in which she worked before she was declared unemployed during the previous year, then she should visit the social security department in her area of residence to get maternity leave.
There she needs to submit the following documents :
- written request for payment of maternity leave;
- sick leave from the antenatal clinic confirming the start of prenatal leave;
- certified data from the work book;
- a certificate from the Central Bank of the population confirming that she has been assigned the status of unemployed;
- for individuals - former individual entrepreneurs, notaries, lawyers, you will need another sheet of entry from the Unified State Register of Legal Entities on the termination of such activities, provided that they carry out voluntary insurance with the Social Insurance Fund;
- if a pregnant woman applies to the social security department at her actual place of residence, then she must confirm the absence of payment of maternity benefits with a certificate from the relevant social security department in the area of registration;
- The amount of earnings for calculating benefits, if any, may be subject to a certificate from the former place of work.
If there is no certificate of earnings, then the amount of the benefit is calculated based on the information available in the social security service, or based on its minimum amount established by law.
Types of leave and payments
There are three types of maternity leave: for pregnancy, caring for a child under 3 or 6 years old. The document for granting leave is a medical certificate confirming pregnancy. Based on this certificate, the expectant mother is granted leave of seventy days before giving birth and fifty-six days after the birth of the child. In case of postpartum complications or the birth of two or more children, leave after childbirth is extended to 70 days.
This leave is paid. After its completion, the young mother can go on maternity leave to care for a child under three years of age.
In addition to maternity benefits, she is entitled to the following benefits:
- A one-time payment to pregnant women who registered at the antenatal clinic in the early stages of pregnancy (up to three months), amounting to 613 rubles 14 kopecks.
- One-time payment after childbirth - 16,759 rubles 09 kopecks.
- The minimum allowable amount of a one-time payment for caring for a child under one and a half years old for the first child is 2,718 rubles 34 kopecks, for the second and subsequent ones - 5,436 rubles 67 kopecks. These amounts are paid to all young mothers without exception, so if a woman quits her job during pregnancy, she will not be left without monetary compensation.
How to calculate the payment amount?
The first question that arises is: how much money should be paid to the dismissed employee? When calculating the amount of compensation, the number of unused vacation days is taken into account , not only in the current year, but also in all previous years at a given job.
Those days (140-194) that the employee is on maternity leave are included in the length of service, so they are added to the total working time, and the number of vacation days is calculated from them.
To calculate the amount of compensation, the number of entitlement days of annual leave (at least 28) must be divided by 12 months and then multiplied by 5 months (140 days). For example, according to an employment contract, annual paid leave lasts 36 days.
36/12*5 we get 15 days.
After this, the total number of vacation days (calendar and maternity) is multiplied by the average daily income. This is the amount of compensation that will be paid to an employee on maternity leave upon dismissal.
Suppose the average income per day is 1000 rubles. The total number of days is 36+15=51 (provided that the employee did not go on vacation over the last year), and the amount of compensation for dismissal on maternity leave is 51,000 rubles.
If we are talking about dismissal while on parental leave, then compensation is not provided. But this period is counted towards the length of service.
How does dismissal occur after maternity leave?
If a woman leaves work of her own free will, she does not need to provide any other documents besides the application. The document is drawn up in any form in two copies, one of which is transferred to the authorities through the secretary and on the second the date of transfer of the application, full name and signature of the person who accepted it is indicated.
The statement serves as a formal notice to the employer of the employee's intention to resign. It must be submitted no later than 2 weeks before the date of dismissal. That is, if a woman wants to quit on June 7, she should submit her application to the secretary no later than March 25.
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If you were fired before going on maternity leave, who will pay maternity benefits?
And please write how everything goes for you. But now I’m still wondering, Can I take a BL in the residential complex in a month? Pussy 04/20/2011, 22:16 We looked through the entire Internet, TK. Not a word about any 6 months. If it’s not difficult, write an article. Otherwise, while I’m looking, the remaining 3 months will pass. And that’s it. vip_jane 04/20/2011, 22:38 and you send your husband or mother to the employer - why should you waste your nerves? But they don’t have the right not to pay, ask for a written refusal if anything happens. It really works. Janvarina 04/21/2011, 00:38 well, generally within 30 days from the date of dismissal, and not 6 months... Federal Law of December 29, 2006 N 255-FZ
Dismissal or leave after maternity leave
Maternity leave is given to every woman by law. The same law (Article 255 of the Labor Code) states that the employee has the right to it, and it will last 70 days before giving birth and 70 days after - if they went well. Moreover, if for some reason the baby was born earlier, say, 7 days, these days are automatically added to the postpartum period.
Any citizen who will care for a newborn, be it a father, mother, grandmother or grandfather, or someone else, can take care leave after maternity leave. The benefit will be received by the person caring for the baby. The minimum amount for up to one and a half years will be 2326 rubles - this is for the first child, for each subsequent child - 4651.99. If a child is cared for by a person who participated in the liquidation of consequences at the Chernobyl nuclear power plant, these benefits will be paid in double amount until the child turns 3 years old.
26 Jul 2021 jurist7sib 76
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