Compensation for unused vacation: before maternity leave, after maternity leave.

Article current as of: May 2020

Dismissing a woman who is on maternity leave is a complex and very responsible process. Naturally, it must be carried out within the framework established by law. In accordance with the resolution of the Labor Code of the Russian Federation, every employer is obliged to provide each employee with maternity leave in the event of the birth of a child.

In some cases, women decide to quit during or after their vacation. In certain cases, an employee is paid compensation upon dismissal after maternity leave. Next we will consider in more detail when payments are due and when they are not.

How to calculate the amount correctly?

Dismissal of an employee on maternity leave does not allow the woman to demand additional payments. In the event of a reduction or liquidation of an enterprise, the employee is entitled to all benefits that are indicated by the provisions of the Labor Code.

Compensation for unused vacation is a guaranteed payment in the event of dismissal. It is important to note that for women on maternity leave, general calculation rules are provided.

Calculation of compensation for the dismissal of a maternity leave at her own request is carried out in the following order:

• the period of pregnancy and maternity leave is included in the length of service; they are used to determine the number of days of unused vacation. In accordance with the general rules, this period is 140 days;
• if a young mother worked on maternity leave and started working part-time, the entire working period will be included in the length of service. To determine average earnings, time worked is also taken into account;
• Average daily earnings are calculated according to general rules (Resolution No. 922). The calculation period must include the 12 months that preceded the month of dismissal;
• when the entire billing period falls on maternity leave, the calculation must include the 12 calendar months that precede the month of maternity leave.

In almost all cases, the final figure is a fraction. At the same time, many people wonder whether it is necessary to round up the number of days of unused vacation? In accordance with the law, rounding is not provided for in this case.

If the billing period has not been fully worked (the woman could be on sick leave or on another vacation), the number of days not fully worked must be used for calculation.

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Legal regulation

A woman’s presence on maternity leave implies the combination of periods of two types: for labor and labor and for caring for a child up to three years of age, regulated by Articles 255 and 256 of the Labor Code of the Russian Federation, respectively. An employee has the right to resign on maternity leave at any time of her own free will, and the employer must have compelling reasons to terminate the contract:

1. Indefinite employment contract. The only basis for termination is the complete liquidation of the enterprise, while a woman on maternity leave is the last to be dismissed at the final stage of the liquidation process.
2. Fixed-term employment contract. Regardless of the expiration date of the contract, it is subject to extension only if you are on maternity leave when you write a corresponding application once a quarter.

Preparation and beginning of motherhood provides legal protection from termination of employment relations on the basis of Article 261 of the Labor Code of the Russian Federation. Dismissal after maternity leave is carried out on a general basis, with the exception of cases where a woman is the sole breadwinner of a large family or a single mother.

During maternity leave, a woman retains her job, subject to an open-ended contract. The performance of duties for the maternity period can be assigned to a temporarily accepted citizen with the basis for terminating the contract - the return of a permanent employee. A maternity leaver has the right to begin work duties at any time by notifying management.

• Early exit from maternity leave: registration rules

Can they be fired after leaving maternity leave, including early? The legislation does not limit the number of exits and continuations of interrupted vacation. In practice, an employee can leave early, work for a certain time and again take care of the child, while maintaining rights and benefits. The end of the maternity period is when the child reaches the age mark of three years.

If a woman quits immediately without going to work

If an employee quits immediately after the certificate of incapacity for work is closed and does not return to work after maternity leave, the calculation of unused vacation days is carried out as follows:

• average earnings are determined taking into account the total amount accrued to the employee for the last year;
• Average daily earnings are calculated using the formula: divide the amount of earnings by 12 and divide the resulting result by 29.4;
• Knowing the duration of vacation in days and the cost of a working day, you can determine the amount of vacation pay that the employee is entitled to.

In accordance with current legislation, the employer must provide the employee with paid leave before going on maternity leave, the duration of which is 28 calendar days. In other words, leave is granted in full and in this case it does not matter whether the billing period for receiving leave has been worked out or not.

This is important to know: What types of vacations exist under the Labor Code and what types of vacations do not exist

When an employee leaves her position immediately after maternity leave, she must return the excess vacation pay for vacation days that were not worked.

Payment terms

If the employee was absent from the workplace that day, the funds must be provided to her no later than the next day the woman applied for payment.

This procedure is determined by Art. 140 Labor Code of the Russian Federation. If the employee does not agree with the settlement amount provided, the employer must pay the undisputed amount on the day of dismissal or on the day the settlement is applied for.

It can be concluded that the current law quite strictly protects the interests of pregnant women and young mothers. Since not every employer is well acquainted with existing legal norms, women should be aware of their own rights.

This way, they will be able to protect them when appropriate circumstances arise. Employers, in turn, should not neglect the established procedures for paying compensation to women on maternity leave, since if their rights are violated, the Labor Inspectorate and even the court may be interested in the issue.

Calculation of vacation compensation upon dismissal after maternity leave

What you need to know about leave after maternity leave? The state guarantees its citizens social protection: benefits and guarantees, including the opportunity to take a break from work and not be left without a livelihood during this period. Maternity leave A woman has the right to regular leave after maternity leave. According to Articles 255 and 256 of the Labor Code of the Russian Federation, having become pregnant, a woman receives the right to one hundred and forty paid calendar days: seventy before childbirth and the same amount after. How to calculate compensation for leave upon dismissal - calculation examples This is strictly prescribed in Article 127 of the Labor Code of the Russian Federation. This document clearly states not only the volume of payments, but also the time frame within which they must be made. The former employee must be paid directly on the day of dismissal.

Protecting mothers' rights

Pregnancy and childbirth for women are often associated with certain inconveniences for employers, so some of them seek to get rid of “problem” employees. However, Chapter 41 of the Labor Code of the Russian Federation protects pregnant women and mothers of small children.

A woman on maternity leave, including maternity leave for a child under 3 years of age, cannot be fired without her consent if she is employed under an open-ended employment contract (Article 261 of the Labor Code of the Russian Federation). It will also be illegal to transfer her to another position or place and send her on a business trip.

If a woman previously had a fixed-term employment contract, the expiration date of which fell during pregnancy, the expectant mother can extend it until the time of birth. To do this, she needs to write a special application and present a certificate confirming pregnancy every three months - it will be issued by a gynecologist at the antenatal clinic. Then the employer has the right to fire the young mother - the postpartum period and maternity leave cannot be a condition for prolonging the contract. A sample employee statement looks like this:

“I ask you to extend the validity of employment contract No. dated (date) in accordance with Article 261 of the Labor Code of the Russian Federation until the end of my pregnancy. A certificate from the antenatal clinic is attached.”

In this case, the end date of the fixed-term contract is not written and is calculated on the basis of a certificate from a gynecologist.

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The employer is not obliged to pay compensation for unused annual additional paid leave established by the collective agreement by the employee. The procedure for calculating the number of days of unused vacation To calculate the number of days of unused vacation, you need to know the employee’s length of service, which gives the right to annual leave, and the number of calendar days of vacation actually used. The number of days of unused vacation per working year is determined by the formula: Number of unused calendar days of vacation per working year = 28 calendars. days : 12 months × number of full months* worked in the working year – Actually used calendar days of vacation *Surpluses amounting to less than half a month are excluded from the calculation, and surpluses amounting to at least half a month are rounded up to a full month (clause 35 of the Rules). Example 1. M.A.

Dismissal after maternity leave: how to calculate compensation for vacation

How to calculate compensation upon dismissal after maternity leave: important nuances For a year and a half, the employee did not show up for work due to child care. After that, she decided to leave the workplace without returning to it.

How to calculate compensation for vacation upon dismissal after maternity leave (maternity leave). if during his period the employee did not fulfill her job duties? What should be considered average earnings? Article 127 of the Labor Code of the Russian Federation states that upon dismissal, the employee must be reimbursed for all vacation days that he did not manage to use. Compensation for unused vacation upon dismissal immediately after maternity leave. The employee was hired on July 9, 2008.

From 08/19/2009 to 01/05/2010 goes on maternity leave and then to care for her first child.

Calculation of compensation after dismissal: example

When dismissing a woman after maternity leave, she should be accrued certain payments (127 Labor Code of the Russian Federation). First of all, she needs to be paid compensation for her unused vacation time. In this case, the fact that the woman was on maternity leave will not matter. The payment calculation will be as follows:

First, you need to determine how much time the young mother spends working this year. For example, if she quits immediately after maternity leave, and before that she worked for less than 6 months, then she will retain the right to 14 days of vacation, for which compensation must be calculated.

After this, the time that the woman was on leave under the BiR is determined. In a normal case, the duration of such leave is 140 days, but if the birth was difficult, this period increases. For 140 days of maternity leave, the employee is entitled to 11.67 days of annual leave.

The next step is to determine the employee’s average earnings. To do this, the total amount of payments to the employee for 12 months is divided by 12 months, and then by 29.4. As a result, we will receive the amount of average daily earnings.

To determine the amount of compensation due, the amount of average daily earnings is multiplied by the number of vacation days for which the woman is entitled to compensation.

If an employee writes a letter of resignation after maternity leave, then the calculation of compensation will be different. You need to make the calculation as usual. Those days that the woman was on vacation will not be included in the calculation. And the time spent by the employee at home will not be included in the calculation.

An important point in this case will be determining the number of days of vacation required. If, for example, an employee had already used her allotted leave before dismissal, then she will not be compensated (

Dismissal after maternity leave and compensation for vacation

For the third working year, the vacation period will include 7 months (from February 1, 2012 to August 1, 2012), which give the right to 16.33 calendar days of vacation [(28 calendar days: 12 months) × 7 months] . Thus, upon dismissal of A.I. Berestova will receive compensation for 45.33 calendar days of vacation (15 calendar days).

When to pay compensation The employer must pay compensation to the employee on the day of dismissal, and if she did not work on that day - no later than the next day after she applies for payment (Article 140 of the Labor Code of the Russian Federation). If a dispute arises about the amount of compensation, the employer is obliged to pay the undisputed amount on the day of dismissal or the day the employee applies for a settlement.

Payments upon dismissal after maternity leave

The period of maternity leave is included in the calculation of vacation experience, although the period of parental leave of up to one and a half (three) years is not included in the vacation experience. We will calculate the vacation period during maternity leave (140 calendar days).

This is important to know: Is salary accrued during vacation?

days or 5 months) 28 calendars. days : 12 months × 5 months = 11.67 calendar days of vacation.

If an employee is on maternity leave, she will not earn anything. But there are exceptions to any rule. Even on maternity leave, an employee can earn her vacation seniority.

For example, if she works part-time. Calculation of an employee's average daily earnings. When calculating compensation for non-vacation leave, it is necessary to calculate the average daily earnings, which depends on how much the billing period has been worked out - completely or not.

If the employee has worked the entire pay period.

After maternity leave: dismissal procedure

Most women workers decide to quit after the end of maternity leave. If such circumstances exist, the procedure is standard:

1. It all starts with registration and submission of applications.
2. The leader issues an order. The employee must familiarize herself with the document.
3. The last stages include calculations, payment of earnings, benefits in connection with unused vacations.

Calculation of compensation for unused vacation upon dismissal after maternity leave

The days of a month not fully worked are determined by calculation. In this case, months not fully worked are calculated separately.

Labor Code of the Russian Federation). What if an employee quits immediately after maternity or child care leave? How to correctly calculate the amount of compensation? Compensation for unused vacation is calculated upon dismissal on the basis of Part 1 of Art. 127 Labor Code. To calculate compensation for unused vacation, you need to know two values: - the number of days of unused vacation; - the employee’s average daily wage.

Legislation on labor leave.

While expecting a baby, an employee is given one of the following types of leave:

• for pregnancy and childbirth;
• newborn care;
• regular labor;
• without saving your earnings.

Art. 115 of the Labor Code of the Russian Federation states that an employee has the right to leave, which must be paid, for the year worked. Its duration is 4 weeks.

For some groups of workers, the rest period is extended. Additional days are provided on the basis of the Collective Agreement or other local acts adopted by the company.

Labor legislation states that an employee can take advantage of the right to paid rest as early as 6 months after employment.

But the Labor Code (Article 260) says that a woman expecting a baby can take leave before issuing a certificate of incapacity for work according to the BiR, regardless of the time worked.

If necessary, the employee can postpone the rest time to dates after the end of the maternity bulletin.

At the same time, compensation for unused vacation for the year is not paid. The legislation states that employees must rest (at least 28 days) during the calendar period for which this is provided.

What payments are due to pregnant women in 2020: working, non-working, students.

Vacation compensation upon dismissal after maternity leave

And wages, together with benefits, should be paid one of the first among all existing debts. After leaving maternity leave, the employee can immediately resign on her own initiative, or on the initiative of the employer, in cases provided for by labor legislation.

Payment upon dismissal must be made on her last day of work. That is, it is understood that after leaving, she should already be at work, and all payments due to her must be given to her on the last day of her work. Situations of dismissal are also possible due to the employee’s refusal to be transferred, if the enterprise has changed its location, or the workshop or department where she worked was transferred to another region.

Cash payments and compensation

A woman has the right to resign on her own initiative or by agreement of the parties both at the end of maternity leave and at the end of leave provided to care for a child up to one and a half or three years of age.

What payments are a maternity leaver entitled to?

Payments will depend on whether the employee began performing her duties after the end of maternity leave, as well as on the grounds for terminating the legal relationship of the parties.

Upon dismissal after maternity leave, an employee is entitled to the following monetary payments:

• child care allowance - it is paid to both working women and the unemployed;
• a one-time child care allowance, if the woman has not yet received it and six months have not passed since the birth of the child, after dismissal it can be received at the father’s place of work or at social security;
• compensation for days of unused vacation.

In the event that, at the end of parental leave, the employee performed her job duties for a certain period of time, upon termination of the legal relationship she must be paid:

• wages for time worked;
• compensation for unused vacation time;
• compensation payments in case of termination of legal relations by agreement of the parties.

Sick leave provided to a woman before and after childbirth is counted towards the length of service required to calculate vacation days. The time of leave to care for a child up to 1.5 or 3 years is not included in the calculation of vacation pay.

How to calculate compensation for unused rest days?

If an employee is dismissed after maternity leave, she must be paid compensation for days of unused rest, subject to availability, and the amount of compensation can be calculated in the same way as for other categories of resigning employees.

Amount of compensation payment = average daily salary * number of unused rest days.

The amount of the average daily salary is calculated in accordance with the provisions of Article 139 of the Labor Code of the Russian Federation, as well as paragraph 6 of the Regulations on the specifics of the procedure for calculating the average salary, approved by Decree of the Government of the Russian Federation No. 922 of December 24, 2007.

For the calculation, the 12 months that preceded the day of dismissal are used, and since the employee during this period did not perform her official duties and did not receive wages, then the 12 months that preceded maternity and child care leave.

Calculations of length of service giving the right to leave by virtue of Article 121 of the Labor Code of the Russian Federation are made taking into account:

• the time during which the employee actually performed her duties;
• annual rest days;
• time of forced absence;
• periods of temporary disability.

The 140 days of sick leave provided to the employee for pregnancy and childbirth (194 days in the case of multiple pregnancies and the birth of two or more children) are taken into account when calculating the number of vacation days she is entitled to.

How to calculate compensation if a woman on maternity leave is described here.

Calculation of leave upon dismissal after parental leave

When applying for a job, an employee concludes, in accordance with the requirements of the legislation of the Russian Federation, an appropriate employment contract. It not only stipulates the basic rights and obligations of the parties, but it is precisely the presence of a documented fact of labor relations, which becomes the guarantor of the manager’s compliance with the norms of the Labor Code and other legal acts in the field of labor.

Particular attention is paid to the rights of working pregnant women and persons burdened with family obligations to young children. In Art. 81 of the Labor Code of the Russian Federation, which regulates the grounds for termination of employment relations, at the initiative of the employer, focuses on the fact that it is impossible to dismiss an employee who is in a position until the end of the vacation, which she has the right to take on the basis of a certificate of incapacity for work, issued in general cases 70 days in advance before birth and 70 days after birth. The only exception to the rule is the complete liquidation of the enterprise.

The duration of such leave may be increased if the pregnancy is multiple or there were complications during childbirth. At the same time, no one can prohibit an employee from resigning of her own free will at any time, up to filing an application while on maternity leave or at its end.

It is important to distinguish between the periods that are given to an employee for legal rest while maintaining her job and position (profession) associated with the birth of a baby:

• prenatal leave, it can only be received by a woman carrying a child;
• postnatal leave is granted to the birth mother or the person who adopted the baby before three months of age;
• leave to care for a newborn baby until he turns three years old, according to Art. 256 of the Labor Code of the Russian Federation, can be used by one of the child’s close relatives or the person who actually replaced them.

In accordance with the guarantees provided for by the Labor Code of the Russian Federation for certain categories of workers, a woman who is going to go on maternity leave has the right to use paid days of annual leave both before the prenatal rest period and after its end, regardless of the insurance period (Article 122). Labor Code of the Russian Federation).

How calculations are made upon dismissal in various situations, depending on whether the days of annual leave were used in advance or not, before going on maternity leave and parental leave for up to three years, we will consider in our material.

Some features of determining average earnings

The following factors should be excluded from the calculation:

• accrual of maternity benefits, sick leave;
• release from duties while wages continue to be paid;
• leave without pay.

A different procedure applies to situations where there was no salary during the reporting period, or if the citizen herself did not perform any duties. The basis for calculations is the standard salary or tariff rate. This is suitable if the remuneration is determined for the pay period, the time before it, before the occurrence of the case when the average salary is maintained.

General rules for calculation when dismissing an employee at his own will

In accordance with labor legislation, an employee in general must notify the manager in writing two weeks in advance of his desire to terminate the employment relationship. By agreement reached between the parties, this period can be changed downwards, or payment can be made on the day the application is submitted. In certain situations, when the decision to terminate the employment relationship is caused by circumstances that do not allow further performance of work duties, the employer may dismiss the employee on the date specified by him.

This is important to know: Letter of assignment of duties during vacation (sample)

When making payments on the last working day, a work book is issued with information about the period of work in this organization, and money due for the time actually worked, including payment of compensation for unused days of paid leave.

The employee has the right to write an application for leave with subsequent dismissal. In this case, if the required rest period exceeds 14 days, you will no longer have to go to work.

All documents related to work activities are issued to him on the last working day, before going on vacation. At the end of postpartum leave, a woman has the right to return to her duties or take out a new leave to care for her baby until he reaches the age of three. Moreover, for the first year and a half, she will be paid a benefit in the amount of 40% of the average monthly salary at the time of going on maternity leave.

For the remaining period, she retains only her job, and she receives purely symbolic compensation in the amount of 50 rubles.

One point to note here:

• the period of leave given to a woman to prepare for childbirth, as well as the recovery period, are included in the length of service calculated for the provision of paid leave;
• The time when an employee cares for a child under three years of age is not included in the length of service giving the right to paid leave.

Taking these points into account, settlements with an employee who decides to terminate the employment relationship occur differently, depending on:

• whether the woman used annual leave before going on maternity leave or after maternity leave;
• whether she wants to quit while on maternity leave or by going back to work (early, after the child turns three years old).

What payments are due upon voluntary dismissal?

If a woman has signed an employment contract, then upon dismissal she can count on payments and benefits for pregnancy and childbirth, which is provided for by law for every woman giving birth. A woman also has the right to a number of compensations, their amount depends on the reasons for leaving, as well as on who initiated the dismissal. A young mother who is caring for a child should count on:

• Salary for the days she managed to work.
• Severance pay, average for one month.
• Payment for all days of unused vacation that the woman did not have time to take off.
• All compensation and bonuses that are specified in collective and labor agreements.

Dismissal of a pensioner at his own request

If a woman decides to stay at home and raise her child until he is one and a half years old, she receives 40% of her basic earnings. Vacation pay must also be paid. Upon dismissal on personal initiative, this payment stops.

Note! If the company is liquidated, a woman on maternity leave should be one of the first to receive her debts and benefits among all company employees.

Payout calculator

Women who are on maternity leave must know the special calculation procedure. If an urgent dismissal occurs, immediately after the certificate of incapacity for work is closed, then personal funds from unused vacation days can be calculated using the following formula:

1. For example, an employee worked for 6 months during the year until she went on maternity leave. Consequently, she is entitled to two weeks of regular vacation.
2. Maternity leave lasts for 140 days, which means a woman is entitled to 11.67 days of leave.
3. The average earnings of an employee can be calculated for the last year, and then the amount of earnings must be divided by 12. Next, everything must be divided by the coefficient that was established in 2018 - 29.4.

Knowing the average cost of one working day and the total duration of vacation, you can calculate the amount of vacation pay.

What payments can a maternity mother expect?

When is payment due?

After the dismissal during maternity leave has already occurred and payments have been calculated, only one question remains open, which is related to the timing of payment.

By law, wages, severance pay, compensation or dismissal benefits are paid on the very last working day. If there is a delay in payment, the boss must pay the subordinate interest for overdue days.

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Termination of employment during maternity leave

Any employee who is actually caring for a child can submit an application for voluntary resignation while on parental leave for up to three years.

As a rule, the employer in such situations does not adhere to the requirement to maintain a period of two weeks before the upcoming dismissal, since this time is intended to be able to transfer cases and find a candidate for the vacant job. In the absence of an employee caring for the baby, these problems are temporarily solved.

We will show what payments the employee will receive in accordance with various situations:

1. The employee used her annual leave days before or after her maternity leave. During the period of leave before and after childbirth, issued in accordance with a certificate of temporary incapacity for work issued by the medical institution where the woman was registered for pregnancy, the insurance period giving the right to leave is generally 140 days or 5 months (without pathologies, at the birth of one child). It turns out that during this period a woman is entitled to 12 days of paid leave, based on: 28 calendar days (minimum duration of annual leave by law): 12 months x 5 months = 11.67 days (rounded in favor of the employee). Upon dismissal, the employee is entitled to compensation for 12 days of vacation. If the vacation was used in advance, these days will be taken into account when recalculating.
2. If an employee has unused days of annual leave before going on maternity leave and before taking parental leave, compensation will be paid for the total number of days of annual leave due.
3. In the case where a woman, while on maternity leave, worked part-time, the number of days of paid leave is calculated by recalculating the total working time for working off shifts per month.

Calculation of leave after maternity leave

If an employee, upon resigning, has not used his allotted vacation, he is paid compensation proportional to the length of the period not taken off.
Compensation for unused vacation upon dismissal after maternity leave is calculated based on the average earnings that the employee had before maternity leave, taking into account all payments: salary, bonuses, allowances. The compensation paid to a resigning employee is calculated based on two variables:

• the number of days of paid rest that the employee has not used;
• his average daily earnings.

The number of days is calculated taking into account the following factors:

• general work experience in organizations;
• the number of rest days used at the time of dismissal;
• the presence in the employee’s work history of periods that, provided the employee retains his job, do not give him length of service for paid rest.

In accordance with Art. 121 of the Labor Code of the Russian Federation, the right to paid rest is given to an employee, including:

• periods of actual work;
• vacation periods;
• sick leave;
• forced downtime.

The same article lists periods that are not included in the length of service for calculating the right to paid leave, including maternity leave (parental leave). Thus, if a woman quits while on maternity leave, he himself does not give her the length of service to receive paid rest and compensation for it. But if by the time she went on maternity leave she had days off, she is entitled to compensation for unused vacation upon dismissal after maternity leave.

Calculation of the duration of leave if a woman did not work on maternity leave

Citizen Ivanova got a job at the company on August 1, 2016, worked for two months and went on sick leave from October 1, 2020 due to pregnancy and childbirth. On February 18, 2020, Ivanova went on maternity leave. On August 18, 2020, Ivanova quit her job without going to work.

The total duration of Ivanova’s work in the company: from August 2016 to August 2020.

The length of service that provides days of paid rest includes:

• actual work period: August and September 2020;
• sick leave period due to pregnancy and childbirth: from October 2016 to February 2020.

The decree does not give the right to leave.

Thus, Ivanova has seven months of vacation time.

The standard duration of annual paid vacation is 28 days in 12 months. For seven months, Ivanova is entitled to a rest duration of: 28 / 12 × 7 = 16.33 days.

If a woman works during maternity leave

Often women prefer to go to work part-time while remaining on official maternity leave. In this case, they continue to receive child care benefits, and additionally, a salary for the half-time work they do. This type of work gives the woman days of paid rest.

For example, if Ivanova went to work half-time six months before her dismissal, in February 2018, these six months worked gave her an additional 14 days of paid leave, which will be subject to compensation upon dismissal.