Leave before maternity leave in 2020 - how much is required according to the Labor Code

Family law > Maternity leave > Is it possible to take leave before maternity leave?

This question often arises for a pregnant woman due to poor health, a desire to tidy up the house before the birth of the baby, or for other reasons.

The legal right of the expectant mother raises a number of questions for personnel officers, accountants and management.

Under what conditions and to what extent, in what terms and with what pay is this leave granted?

Can a pregnant woman be denied leave before maternity leave?

The Labor Code allows this only in one case - if during the current year the woman has already used her vacation in full, and the next working year has not yet begun. Moreover, the working year is counted from the date of hiring.

How to properly organize your vacation before maternity leave

Theoretically, it is enough to know how to write a statement addressed to your boss. This can be done using the following form:

“Please provide me with basic annual paid leave for the period worked from__, on the basis of Article 260 of the TK, for __ calendar days from __ to__. Date of. Signature."

Register it with the secretary or send it by mail the day before the start date of the vacation and the pregnant woman’s desire should be satisfied.

But in practice, it is better to notify the manager 14 working days in advance . This will allow management to find an appropriate replacement for the employee going on vacation. And he will not allow him to use articles 123, 124 and 136 of the TK RF.

According to these articles, if an employee is not paid vacation pay 3 working days before the start of the vacation and he was not notified in writing about the start date of the vacation 14 days in advance, the organization is obliged to postpone the vacation in accordance with the fulfillment of the conditions stipulated by these articles.

If management, by hook or by crook, is trying to prevent a pregnant woman from having her legal leave, you should contact the labor inspectorate and force your employer to comply with the law.

How to calculate the start date of annual leave before maternity leave

The estimated start date of compulsory annual leave is calculated relative to the fixed date of maternity leave.

Maternity leave

Its beginning and duration are stipulated in Article 255 of the Labor Code of the Russian Federation and corresponds to a document on temporary disability issued by the medical institution where the woman is registered for pregnancy.

This sheet establishes the period of incapacity for work of the expectant mother until the day of birth. It amounts to:

during normal pregnancy – 70 days;
with multiple births - 84 days.

The dates indicated on the certificate of incapacity for work are observed as strictly as the sick leave.

Even with an agreement between management and the employee, it is impossible to change these deadlines without breaking the law.

If such a violation is detected, sanctions will necessarily follow:

for the employer - from law enforcement agencies and labor protection;
for a woman, if she provided a certificate to the personnel officer later than the due date or did not submit it at all - from the federal budget authorities, when paying maternity benefits.

You can increase the vacation time before childbirth only on the day of registration for pregnancy, convincing the gynecologist of a shorter period of 7-10 days. This is quite possible, due to the difficulty of determining the exact date in the early stages of pregnancy.

Mandatory annual leave

Based on the fact that the boundaries of maternity leave are strictly defined, the start date of annual leave must be adjusted taking into account these data.

According to Article 123 of the Labor Code of the Russian Federation, regular vacations are provided to employees in accordance with the schedule approved 14 days before the new year.

But for some categories of workers this law does not work and leave is granted outside the schedule upon written request.

A pregnant woman has the right to apply for annual leave in a period other than the one indicated in the schedule.

The legal provisions of Article 260 of the Labor Code of the Russian Federation are the basis for a woman’s legal right to demand annual leave:

before maternity leave;
immediately after maternity leave;
or time it to coincide with the end of parental leave, that is, before going to work.

Having received the application, the employer is obliged to satisfy the request, regardless of the employee’s length of service in his organization.

According to the law, a pregnant woman can apply for leave on the second day after official employment, if she has appropriate confirmation from a medical institution.

In this case, the employer must provide, at the employee’s request, full leave, regardless of how much time she has worked.

Using vacation in parts is permissible only with the consent of the employee.

Recalling a pregnant woman from vacation is prohibited by Article 125 of the Labor Code of the Russian Federation.

Payment

During the period of maternity leave, a woman is paid a benefit of the same name . But only women who fall into one of the categories defined in clause 9 of the “Procedure and conditions for assigning payment of state benefits to citizens with children” have the right to receive it.

These include:

persons insured in accordance with the law “On Compulsory Health Insurance;
working under an employment contract;
clergy;
women holding municipal or government positions;
civil servants;
members of production cooperatives;
women who are full-time students;
women fired due to bankruptcy of the organization, if more than a year has passed since the dismissal and recognition of her as unemployed;
female military personnel serving under contract.

The amount of maternity benefits depends on the category of recipient.

The benefit for insured women is paid in the amount of full average earnings, which is calculated as the quotient of the amount of income for 2 calendar years before the leave and the number of calendar days in 2 years, multiplied by the number of days of maternity leave.

The number of calendar days for a period of 2 years does not include:

temporary incapacity for work confirmed by a sick leave certificate;
maternity and child care leave;
periods when the employee did not work.

If the final monthly benefit amount is less than 1 minimum wage, then it is increased to the minimum wage. If an employee works for less than 6 months, then the monthly benefit amount will not exceed 1 minimum wage.

Full-time students are paid an allowance in the amount of their scholarship. Moreover, the amount of the benefit does not depend on what form of education the pregnant woman is studying in: budgetary or contractual.

Women military personnel are paid benefits in the amount of their allowance.

Dismissed women are paid benefits at their last place of work in the appropriate amount , if no more than a month has passed since the dismissal.

How many days can you take before maternity leave?

The number of days in each individual case may vary:

If a woman has already taken annual leave in the current year, and her new working year has not yet begun, leave is not due. That is, in this case, vacation days are zero.
If a pregnant woman, for some reason, does not want to take a full vacation, she can write an application for part or half of the vacation. Then the vacation is determined arbitrarily. Article 125 of the Labor Code of the Russian Federation determines the procedure for dividing vacation into parts, according to which: 1 part must be at least 14 days in a row, and the other parts can be anything, even 1 day each.
If full leave is taken, the number of days will depend on the category of work. Article 334 of the Labor Code of the Russian Federation, Articles 5, 23, 46 of the Federal Law and Government Decrees of the Russian Federation No. 391 and 949 provide for extended paid leave for certain categories of work. If a pregnant woman falls into one of these categories, she has the right to go on extended leave. The vacation will range from 28 days, at least to the number determined by law.
If an employee has unused vacation for the past year, and the next one has already arrived, she has the right to take two vacations at once before going on maternity leave. Then the vacation will last 56 days or more.

Thus, full annual leave before maternity leave is 28 days or extended by law, and the amount of partial leave depends on the agreement of the employee and management.

The initiator of such an agreement can only be the employee herself, who also determines the size and timing of dividing the leave into parts.

In addition, the employer can provide additional days for vacation:

own decision;
fulfilling the terms of an employment contract or collective agreement;
according to the law on additional days in accordance with an irregular schedule, difficult working conditions, etc.

When a woman plans not to return to her previous place of work after finishing child care and does not want to have legal problems associated with overpayment for actually unearned vacation, she has the right to take only earned vacation days before maternity leave.

Video: Is it possible to take a vacation before going on maternity leave?

When is the best time to relax?

When is it better to go on maternity leave - before or after maternity leave - every woman must decide for herself.

If a woman does not tolerate pregnancy well, cannot or does not want to work for some reason, then it would be better for her to take maternity leave before maternity leave. This way she will have more energy and time for herself , her health and the health of her child.

But then she loses in receiving additional money, because... vacation pay will be calculated based on the time actually worked for the 12 months preceding the date of payment, i.e. the amount will be based on the average salary. Obviously, taking days before maternity leave is not profitable.

If a woman feels well, tolerates pregnancy easily and is ready to work before going on maternity leave, then she should take annual paid leave after leaving maternity leave .

The calculation of average earnings will be based on the actual salary accrued to her. The time spent on maternity leave is not included in the calculation period and will not affect the amount of vacation pay.

Annual leave. Law and calculation examples

According to the general rules under Article 122 of the Labor Code of the Russian Federation, the right to use annual leave occurs after the employee has worked for at least 6 months in this organization.

If the employee quits before the end of 6 months, leave is not issued, but is replaced by compensation at the rate of 2.33 days for each month worked.

For pregnant women, different rules apply:

a pregnant woman may request part or full leave on the first day after official employment;
she has the right to add two vacations to the maternity leave, in the case of unused vacation over the past year;
It is unacceptable for a pregnant woman to replace vacation days with monetary compensation.

Let's look at an example

Sitnikova was hired on February 15, 2016 . This means the beginning of the working year is 02/15/2016, the end is 02/14/2017 (the period of the working year is taken according to the calendar, regardless of various courses, sessions and sick leave).

In accordance with the schedule, Sitnikova was given leave from November 15, 2016 to December 12, 2020. According to the pregnancy certificate, she has been on maternity leave since June 13, 2016. Sitnikova has the right to take the entire vacation from May 15, 2016 to June 12, 2016.

Sitnikova took a vacation from September 15, 2016 to October 12, 2016 . The start of maternity leave is January 15, 2020. This means she is not entitled to annual leave before maternity leave. Since during the working period from 02/15/2016 to 02/14/2017 she had already used all her vacation, and the next year has not yet arrived.

Lavrova has been working at the plant since February 16, 2014 . Accordingly, the years of operation: from 02/16/2014 to 02/15/2020, from 02/16/2015 to 02/15/2020 and from 02/16/2016 to 02/15/2020.

Due to operational necessity and with the consent of Lavrova, leave for the period from 02/16/2020 to 02/15/2020 was not provided to her and was not replaced by compensation.

Next year, according to the schedule, she has a vacation from 10/02/2016 to 10/29/2016. Maternity leave from 09/10/2016. That is, Lavrova can apply for two vacations.

If Lavrova takes only 1 vacation , she will finish working on 08/12/2016, since the vacation is 28 days and they must be before the start of maternity leave from 08/13/2016 to 09/09/2016.

If both , then 07/15/2016, 28 x 2=56 days, from 07/16/2016 to 09/09/2016

Vacation in advance before maternity leave

According to the law, a pregnant woman has the right to take leave at the very beginning of the accounting year, without actually working it yet.

In this case, management must provide all or, in agreement with the employee, part of the annual leave in advance.

The number of days provided in advance is calculated according to the following algorithm: The days obtained by multiplying the number of months worked before the vacation by a factor of 2.33 are subtracted from the total number of days.

For example, a pregnant woman worked 4 months before her vacation, and her vacation is 28 days, then: 28 - 4 x 2.33 = 19 days

19 days are provided to this employee in advance, which she will have to work after leaving maternity leave. Upon dismissal, the situation worsens.

It is especially unpleasant for the employer, which is why there are cases when management uses all legal and illegal measures to avoid paying vacation pay in advance.

In accordance with Articles 137 and 138 of the Labor Code of the Russian Federation, the amount of vacation pay for unworked days must be withheld in the event of an employee’s dismissal before the end of the estimated working year for which the vacation was received.

The amount of recovery cannot exceed 20% of one salary.

And if a person quits immediately after a vacation, then the two months that he is required to work from the date of filing the application may not be enough to recover the entire overpayment.

However, there are a number of situations when vacation pay received in advance is not withheld:

by mutual agreement of the parties;
end of contract;
termination of employment relations at the initiative of the employer;
examination of the employee for incapacity for work;
conscription.

Women who, due to health reasons, are unable to continue to perform their duties may be transferred to easier work or admitted to hospital.

After maternity leave

In accordance with the law, a woman has the right to go on annual paid leave immediately after maternity leave or after a certain time.

Leave is given even if the woman’s work experience did not exceed 6 months before maternity leave (applies only to going on leave after maternity leave). A woman who wants to go on leave after maternity leave is not required to follow the company’s vacation schedule. Also, she has the right to go on vacation in advance .

An employee can take her next vacation after returning from maternity leave at any time. She just needs to contact her employer with a statement. Parental leave begins from the date of birth indicated in the certificate. If a young mother does not plan to stay at home with her child, she can take regular leave .

Returning from maternity leave does not always mean immediately fulfilling one’s work responsibilities. The state provides the opportunity to take an additional 1.5 or 3 years of child care.

Watch a video about parental leave:

Maternity leave

Many women are interested in what is included in the length of service that gives them the right to paid annual leave.

The length of service that gives rights to paid annual leave includes a woman’s maternity leave.

And, according to Article 121 of the Labor Code of the Russian Federation, parental leave is NOT included in the length of service that gives the right to paid annual leave.

As a result, if a woman used the right given in Article 260 of the Labor Code of the Russian Federation and took annual paid leave before maternity leave, then the next year or more, when she is already on maternity leave, she will not be accrued days of the next annual leave, but the end of the employee’s estimated working year is shifted by the number of days not included in the length of service for calculating vacation.

When calculating the length of work experience that gives the right to basic paid annual leave, the length of the working week and working day do not matter.

Part-time employees receive basic paid annual leave in the same way as others who perform the same work, but full-time.

When is the best time to take a vacation while pregnant?

The period and duration of maternity leave are determined by law. And deviation from these norms on the part of the employer will be a violation for which legal liability is provided. But as for other types of paid leave, there must be an agreement between the manager and the worker.

Of course, few people would dare refuse a pregnant woman. This may be considered discrimination with corresponding consequences. But here it is important to understand when it is more profitable for the employee to take out the available additional leaves.

You can take additional days:

Before the start of the required maternity leave.
After its completion.

In the first case, the calculation of the entitlement to vacation pay will be based on the total income for the last year of work. It is clear that with a full work schedule and all the entitlements, it will be the maximum.

In the second case, 5 months of maternity leave actually fall out of the calculation period. Because of this, the amount of vacation pay due, with the same number of days of rest, will be significantly lower. Therefore, it is advisable to arrange such a leave when a woman really needs additional rest.

It is important to take into account that the legislation, as well as the collective agreements of many companies, often provide for additional paid periods that are not cumulative and are not transferred to the next year (for loyalty to the company, length of service, Chernobyl and others). If you do not use this type of rest before the start of maternity leave, or immediately after it, but before the maternity leave period, you will simply lose the opportunity to rest at the employer’s expense.

Remember, it is more profitable to take out additional leave in addition to maternity leave before the start of the maternity period. This way the woman receives a full payment, as well as the opportunity to relax and prepare before the birth of a new family member.

Brief summary

A pregnant woman can take paid annual leave before, after, or after maternity leave outside the mandatory vacation schedule.
A pregnant woman has the right to full leave before the expiration of the mandatory 6 month period for others.
Cash compensation in lieu of vacation is not permitted.
With the onset of a new accounting year, a pregnant woman can take full annual leave before maternity leave, if necessary, in advance.
Maternity leave is included in the length of service, which gives the right to paid annual leave, but child care after maternity leave is not.
A pregnant woman is not granted basic leave before maternity leave if she has already used it during the current working year and the next one has not yet arrived.

Fortunately, many organizations and hospitals still maintain a caring attitude towards expectant mothers.

But there are also frequent cases when an employer, taking advantage of a woman’s legal ignorance and defenselessness, tries to infringe on her legal civil rights.

It’s good if a woman can count on qualified assistance from a lawyer or a confident Internet user. Then this article will arm her with enough information to protect her rights.

And we wish all women and their children health and prosperity.

Download:

Application for leave before maternity leave - Sample.doc

to the article “Is it possible to take a vacation before maternity leave?”

03/01/2018 at 11:14
Tatyana Sergeevna S writes:
Good afternoon Please help me figure it out. I have been working for the company since 01/25/2014 on a contract basis, since 07/04/2014. according to labor As of 02/28/2018 I have 16 days of vacation left. Estimated date of sick leave for care is 07/30/2018. Can I go on pre-sick leave for 28 days or 28 days + 16 days?
Answer
03/21/2018 at 11:29
Juno writes:
Good afternoon I want to figure it out.
I will have a full 30 weeks on 05/07/2018. The housing complex has not yet said when they will issue sick leave, whether it will be the week of 04/30. to 06.05. 30th week), or still from 07.05. to 13.05. (30 full weeks).
I want to take 28 days of vacation before my vacation under the BiR, I plan to take it from 04/02/2018 to 04/29/2018. Next in May there will be holidays from 30.04. to 02.05., and May 3 and 4 are working days.
What should I do, can I go to work for these two days if I don’t receive sick leave this week (accounting says it’s not possible)? And how can you accurately determine that these two vacations are not separated?
Read also: Application for inheritance - how to write correctly?
Answer
04/24/2018 at 04:45
Anonymous writes:
It is necessary not to reduce the gestational age, but to increase it, then going on maternity leave at 30 weeks, the woman will actually have 28-29 weeks, then the due date is postponed by 1-2 weeks, the 140-day maternity leave ends when the child is less than 2.5 months old and the benefit is up to one and a half months she gets longer.
Answer
06/28/2018 at 15:54
Anna writes:
Good afternoon I would like to know about your vacation. I have been officially working at the company since May 18, 2017, and was on vacation from November 25, 2017 to December 8, 2017. In 2020, on February 19, the manager changed. And I was fired, and then rehired at my own request and paid compensation. At the moment I am going on maternity leave on July 30, 2018. Am I entitled to earlier vacation or compensation?
Answer
07/26/2018 at 09:37
Alya writes:
How many days of vacation are allotted to a pregnant woman who, after returning from her first maternity leave, has only worked for two months?
Answer
08/02/2018 at 02:05
Nika writes:
Good afternoon, please tell me how many days of vacation I am entitled to before maternity leave, I was on vacation from 02/15/2017: from 10/20/2017. to 04.11.2017, from 01.03 to 15.03.2018, on maternity leave from 24.09.2018.
Answer
08/21/2018 at 13:23
Ksenia writes:
Help me please!!! I work in a budget institution. My maternity leave date is 01/05/2019 (these are holidays), do I have the right to somehow shift the period of maternity leave in order to take at least a couple of days (for the next few workers) of annual leave (it is important for me to take a lump sum payment for the vacation, and it will only be after new Year)???
Answer
08/28/2018 at 11:13
Ree writes:
Good afternoon. The fact is that I got a job at the company on March 29, 2018. On October 3, 2018, maternity leave begins. I was on sick leave for 15 days not due to pregnancy. The question is: how much vacation pay am I entitled to? minimal or full?
Answer
02/21/2019 at 11:40
Christina writes:
Hello. I'm interested in this question. I have been working officially since August 17, 2016. The last vacation I used was from 06/01/2018 to 06/28/2018. I am on maternity leave from 04/01/2019. Can I go on 28 days of maternity leave? Or is it only for 14 days?
Answer
05/27/2019 at 16:39
Galina writes:
Hello! The teacher was hired on September 1, 2014. From 03/30/15 he was given 28 days leave before going on maternity leave from 04/29/15. He returned to work on 07/20/18. Now the teacher is going on another labor leave for 56 calendar days. The teacher asks to add the remaining vacation days. How to calculate how many days to add? If a teacher went on maternity leave on sick leave from 04/30/15 to 09/15/15, it means that he actually worked the entire year (counting sick leave), so the difference must be added to 28 days to 56 days of full vacation per year. Is this legal? Or we count ma’s vacation only based on the time worked for 7 months from 09/01/14 to 03/30/15 for 32 days. Thank you
Answer
10/08/2019 at 10:10
Marina writes:
Good afternoon. Tell me, is it possible to replace the days of sick leave with the next vacation? For example, from December 7, 2019, the period begins to be 30 weeks. And in order not to lose money, I want to write an application to reduce the duration of sick leave, i.e. from 01/01/2020, not 140 days, but 117 days. But at the same time, the question arises with the next vacation, can I go on another vacation from November 26, 2019 to December 31, 2019? 36 days in Buryatia.
Answer

From maternity leave to maternity leave

If a woman becomes pregnant while on maternity leave, there are two scenarios:

When a woman goes to work, she interrupts her maternity leave and loses the right to paid benefits.
When applying for a second maternity leave immediately, without going back to work, the employee must choose which benefit she will receive: maternity or child care benefits. You cannot receive two types of assistance at the same time.

A pregnant working woman who has interrupted her maternity leave must take the following actions to free her from work in connection with childbirth:

submit an application addressed to the manager for leave to the head of the personnel department;
submit a sick leave certificate from a consultation to the HR department confirming the duration of maternity leave;
after the application is signed, the employee must be credited within 10 days with the full amount of assistance for the entire period indicated on the sick leave;
A visit to the HR department must be made at the end of the postpartum part of the maternity leave when submitting an application for child care under 1.5 years old.

According to the law, a woman cannot be on two vacations at the same time . When leaving one maternity leave for a second, a woman must perform a number of actions:

write a new application to the HR department addressed to the director to terminate parental leave and provide the next one in connection with the second pregnancy;
agree with your superiors in advance what benefits the pregnant employee would like to receive ;
when an employee is transferred from one maternity leave to another without going back to work , the amount of the benefit will change due to a change in the period of service to calculate the amount of a one-time payment;
the expectant mother can write an application to use certain years from her accrued length of service to calculate maternity benefits, in order to increase the cash payments received deducted from the insurance fund.

There are cases when an employer, due to ignorance of the law or guided by the opinion that a pregnant woman is not aware of the basic provisions of the law aimed at protecting her and her unborn child, tries to infringe or violate her rights.

In this case, the pregnant employee needs to contact the labor inspectorate, district court or magistrates to protect her rights and interests. The law in all controversial situations in relation to pregnant women is on her side , provides her with special privileges, protects and protects the interests and rights of pregnant women and punishes employers.