Early termination of an employee's maternity leave can occur at any time before the child's 3rd birthday. The consequences of going back to work for the employee and the employer, as well as the procedure for completing such a procedure, will be discussed in the article below.
Is it possible to leave maternity leave earlier?
Early exit from maternity leave: consequences
How to leave maternity leave early
Features of early exit from maternity leave up to 3 years
How to write an application for early leave from maternity leave
Exiting maternity leave early with the dismissal of a temporary replacement employee
Is it possible to leave maternity leave earlier?
with early exit from maternity leave if we are talking about interrupting maternity leave (hereinafter referred to as Maternity Leave). Yes, and interrupting parental leave (hereinafter referred to as UzR) also has its own peculiarities. Let's look at them.
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Nuances of interrupting vacation under the BiR
The fact is that, according to Rostrud officials, set out in the department’s letter dated May 24, 2013 No. 1755-TZ, interrupting this type of leave at the request of the employer is unacceptable. But if the employee has expressed such a desire, then when deciding whether to satisfy it, the employer must take into account all the nuances with the return of benefits, since the Labor Code does not have a rule allowing the employee to interrupt the labor and employment leave. However, it does not contain a ban on going to work before its completion.
Having allowed the employee to leave maternity leave early, the employer will have to recalculate the amount of the benefit in proportion to the number of days of work instead of being on leave under the BiR and return it back to the Social Insurance Fund. At the same time, the employer cannot deduct “excessively” paid benefits from the employee’s salary, since this basis is not included in the exhaustive list of circumstances allowing deductions from wages given in Art. 137 Labor Code of the Russian Federation.
Another nuance is that an employee can interrupt labor and labor leave on her own initiative, since the employer is deprived of such a right - this is categorically stated in the above-mentioned letter from Rostrud. At the same time, in Art. 255 of the Labor Code of the Russian Federation does not indicate that the employer will not require permission from the employer to return to work early for an employee who is on leave for employment and labor regulations. It is recommended that the procedure for resolving this issue be prescribed in a local regulatory act, and in practice, an employee usually needs to obtain the employer’s consent to early termination of leave under the BiR.
Nuances of interrupting vacation in Uzbekistan
The right to use UzR leave is fully or partially secured in Part 2 of Art. 256 Labor Code of the Russian Federation. This means that an employee (father or other relative on maternity leave) can at any time interrupt her UzR leave ahead of schedule and go to work either full or part-time.
The consent of the head of the company is not required for this, because Art. 256 of the Labor Code of the Russian Federation states that UzR leave can be used in parts. In addition, the employer’s responsibilities include maintaining the place of work for the maternity leaver. This means that he must be ready at any time to ensure her the right to resume work. The courts also agree with this position - an example of this, in particular, can be the ruling of the Saratov Regional Court dated August 15, 2013 in case No. 33-5193.
Moreover, an employee (employee) who is on leave under the UzR until the child’s 3rd birthday can interrupt it early as many times as she likes and go to work, and then resume her leave again. The only point is that the employee will need to write a corresponding application every time (when going to work / going on vacation) and submit it to the employer.
Can an employer refuse?
An employee’s right to leave to care for a child until he or she reaches 3 or 1.5 years of age is enshrined in Art. 256 of the Labor Code of the Russian Federation.
This legal norm protects not only the rights of the working person, but also the rights of the pupil.
Refusal to grant such a right is possible only in the event of liquidation of the enterprise.
In all other cases, the employer cannot refuse to provide care leave.
The fact that another person was hired at the workplace during maternity leave is not a basis for refusing to return to work for the main employee.
At the request of the vacationer, measures are taken to ensure a job for the applicant. Including dismissal of a temporary employee . This is done on the basis of the “end of the employment contract”.
What to do if management does not allow you to terminate maternity leave early?
When receiving any denial of a subject's legal rights, the following steps must be taken:
- Record the very fact of refusal to interrupt parental leave for up to 1.5 or up to 3 years. To do this, you need to submit an application, drawn up in 2 copies, and receive an incoming number and a signature confirming its receipt by the responsible person (the manager himself, the secretary). The form must indicate the requirement to provide a reasoned refusal to return to work early within the period established by law in writing.
- If they refuse to accept such an application , it must be sent by registered mail. The shipping receipt and a copy of the application with the incoming number must be kept.
- According to the law, citizens' appeals to officials, according to their competence, are made within 30 days . (Federal Law dated May 2, 2006 No. 59 “On the procedure for considering citizens’ appeals.” If a reasoned refusal is not received during this period (which, in principle, cannot be, because the employer’s actions are illegal), there is a well-founded reason for contacting the labor inspectorate , supervisory authorities (prosecutor's office), to the court, as well as to various bodies that protect the rights of children.The complaint states that the employer refuses to formalize the return to work from maternity leave ahead of schedule.
- There is absolutely no need to wait for an answer; you can turn to the above authorities for help at any time . It must be taken into account that time in this case is on the applicant’s side. All violated rights can be restored in court from the moment a person expresses a desire to exercise these rights.
Early exit from maternity leave: consequences
reasons for leaving maternity leave early , but their consequences are usually quite monotonous:
- When leaving a full working day from leave under the UzR, a maternity leaver loses the right to benefits, but it can be taken over by her relative, who will look after the child.
- Having returned to work part-time or having arranged to work from home, an employee (employee) on maternity leave has the opportunity to maintain benefits and additionally receive a salary for the time actually worked.
- If you leave your employment leave prematurely, you will have to somehow resolve the issue with the employer due to overpaid benefits due to a reduction in vacation days. On the one hand, the employer does not have the right to demand the return of the benefits received in excess, but on the other hand, the employee cannot receive both the B&R benefit and the salary, even if she works part-time (decision of the Supreme Court of Russia dated November 14, 2012 No. AKPI12-1204 ).
How to leave maternity leave early
Registration of early exit from maternity leave is, first of all, the preparation by the employee (employee) of an application, which indicates the desire to interrupt her leave and immediately (or from a specifically indicated date) begin to perform her job duties. The application must also indicate in what labor mode the employee (employee) returning from maternity leave plans to work.
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The deadline for filing such applications is not established by law (decision of the St. Petersburg City Court dated August 21, 2013 No. 33-11987/13). However, it must be sufficient for the employer to prepare the workplace (for example, it may be necessary to terminate the contract with a temporary employee).
It is best to indicate the deadlines for filing such applications in a local regulatory document that regulates issues of personnel records management.
Having received such a statement, the employer issues an order indicating:
- your consent to interrupt your vacation;
- the date from which the employee is considered to have begun performing his job duties;
- the need to terminate the accrual of UzR benefits and the accrual and subsequent payment of wages.
The employee gets acquainted with this order against his signature.
When an employee starts working part-time or when switching to home work, an additional agreement should be added to the general package of documentation to the employment contract. This additional agreement is concluded for the reason that, according to Art. 72 of the Labor Code of the Russian Federation, there was a change in previously existing working conditions.
Features of early exit from maternity leave up to 3 years
If an employee who previously took leave under UzR before the onset of 3 years, in accordance with Art. 256 of the Labor Code of the Russian Federation decided to go to work early for the whole day, then another person (for example, the child’s father, grandmother, etc.) can take this type of leave to look after her child. In this case, it does not matter at all what degree of relationship this person has and whether he lives with his family. This is indicated, in particular, in paragraph 19 of the resolution of the plenum of the Armed Forces of the Russian Federation dated January 28, 2014 No. 1.
As mentioned above, the employer’s refusal to satisfy the employee’s desire to leave the UzR leave early is unacceptable. Otherwise, infringed on her rights given to her by Art. 256 of the Labor Code of the Russian Federation, an employee can apply to the labor inspectorate with a corresponding complaint, and then, if necessary, to the court (Articles 356 and 392 of the Labor Code of the Russian Federation, Article 22 of the Code of Civil Procedure of the Russian Federation).
The child’s father or other relative, who instead of the mother took UzR leave at his place of work, can also interrupt it at any time and return to work ahead of schedule.
Procedure for leaving maternity leave
If going back to work is planned within the time frame specified in the maternity leave order, then there is no need to bring any additional statements or papers. The employee simply goes to his workplace.
By this time, the employee who temporarily occupied this position must be dismissed.
An employee returning from maternity leave must be given his previous workplace. Moving to other positions or types of work without the consent of such an employee is a violation of labor laws.
When an employer does not want to lose an employee who held a maternity position, he can offer the exiting employee another job. A woman has the right to agree to such a transfer if she is satisfied with the new working conditions.
For example, the company’s management may offer her a higher position, a transfer to an office that is closer to her home or kindergarten, remote work while maintaining the same salary level, etc.
A different situation arises when an employee decides to terminate her maternity leave early. Very often, a woman decides to go to work after the child turns one and a half years old. This is due to the fact that they stop paying child care benefits. (Federal Law No. 81-FZ of May 19, 1995). However, the law does not prohibit interrupting maternity leave at any time after the birth of a child.
How to write an application for early leave from maternity leave?
The form of an application for early leave from maternity leave is not regulated, so it is drawn up in free form. Typically, this document may have the following content:
I notify you of my early return to work full-time from October 31, 2016. In this regard, I ask you to interrupt my maternity leave for a child under 3 years old and stop paying:
- benefits paid until the child is 1.5 years old;
- monthly compensation in the amount of 50 rubles.
Please consider October 28, 2020 to be the last day of vacation.
Early return for part-time work
The law provides for the possibility of an employee working part-time or being given the opportunity to work from home (Part 3 of Article 256 of the Labor Code of the Russian Federation). At the same time, the employee retains the right to receive benefits for up to 1.5 years at the expense of the Social Insurance Fund. This form of employment may be more profitable for the employee.
According to Art. 93 of the Labor Code of the Russian Federation, part-time work can be established on the basis of a part-time working day or part-time working week.
That is, a person can work seven hours instead of eight, or four days instead of five.
In this case, payment is calculated in proportion to the time worked..
That is, receiving 40% of benefits from social insurance funds, and a salary exceeding 60% of average earnings, the employee ultimately receives payment higher than under standard conditions.
In addition, a nursing mother is entitled to breaks to feed her child, which are paid in the amount of average earnings (Article 258 of the Labor Code of the Russian Federation). The mother of the child can exercise this right until the child reaches 1.5 years of age.
When going to work part-time or less than a week, all rights to granting annual paid leave or work experience are retained (Part 5 of Article 93 of the Labor Code).
What documents are needed?
To formalize your exit from maternity leave for up to 1.5 or 3 years, you must complete a number of documents:
- Statement . There is no unified application form for this reason, so it is written in any form. The main thing is to indicate the applicant’s desire to go to work part-time.
applications for early return to duties on a part-time basis - link.
- When applying for part-time work during maternity leave, it is necessary to conclude an additional agreement to the employment contract or to the collective labor agreement. Since there have been significant changes in the “time of work and rest” part, this must be reflected in the relevant agreement. The additional agreement specifies exactly what operating mode is established for the applicant.
Important! For nursing mothers, it is mandatory to take breaks to feed the baby.
- Making an order . There is no established form of the order, so it is issued in any form. The order contains a separate paragraph stating the order of the accounting department for the payment of wages in proportion to the time worked, the payment of child care benefits for children up to 1.5 years old (if it is still due) and the payment of feeding breaks based on average earnings.
Sample order to leave for part-time work -:
Exiting maternity leave early with the dismissal of a temporary replacement employee
When an employee returns from maternity leave, the head of the enterprise will have to dismiss the temporary worker in his position on the basis of clause 2, part 1, art. 77 Labor Code of the Russian Federation. Thus, an employment contract with a temporary employee is terminated on the basis of Part 3 of Art. 79 Labor Code of the Russian Federation. To dismiss this employee, a corresponding order is issued, with which he is familiarized with his signature (Article 84.1 of the Labor Code of the Russian Federation).
An entry is made in the work book of the employee replacing the employee during the maternity leave absence that the dismissal occurred due to the termination of the employment contract due to its expiration (Part 2 of Article 77 of the Labor Code of the Russian Federation).
So, employees on maternity leave under the BiR have the right to terminate it early. Moreover, this may be associated with certain types of problems associated with the need to obtain the employer’s consent, as well as with the return of overpaid benefits.
But UzR vacation can be interrupted at any time before the child reaches 3 years old, and this can be done more than once, periodically returning back on vacation. For early exit from this type of maternity leave, the manager’s consent is not required - the employee only must notify him of the release date and working hours. In the meantime, the employer will have to fire the employee temporarily replacing the maternity leaver.
Procedure for extending parental leave
When going on maternity leave, a woman provides the employer with a full package of documents confirming her position. However, these papers will not be enough to extend parental leave. They will need to be supplemented with the following forms:
- Application for extension of maternity leave to 4.5 years (drawn up in the same form as the request for removal from official duties due to childbirth);
- VKK extract (to receive it, a new mother needs to go to a local clinic and conduct a full diagnosis of the child);
- Birth certificate.
Attention! Having collected these documents, the woman can safely contact management with a request to extend the maternity leave.
