By law, an employee has the right to leave maternity leave with a child at any time.
If maternity leave cannot be interrupted without the employer’s consent, then this rule does not apply to child care. An employee can leave early either full-time or part-time. In the second case, the vacation is not interrupted, benefits continue to be accrued, and wages are paid for the time worked. The basis for a maternity leaver to go to work is an order from the manager.
Legislation
The main legislative norm regulating the procedure for obtaining maternity leave and interrupting it is the Labor Code of the Russian Federation. In Art. 255 and 256 of the Labor Code of the Russian Federation reflect the rights of the employee and the obligations of the company’s management. The peculiarities of labor relations in these circumstances are determined by intradepartmental provisions, which must not contradict the existing Labor Code of the Russian Federation, otherwise they will be declared invalid.
The Labor Code of the Russian Federation clearly outlines the procedure for obtaining leave under the BiR, incl. what documents a woman must submit before being released from production work, the procedure for calculating benefits, as well as payments.
But there is no clear process for exiting maternity leave provided by law. Therefore, this procedure is performed in accordance with generally accepted rules that do not violate women’s rights.
However, a woman on maternity leave has the right to entrust child care to another family member upon starting work at any time. She must notify the director of the enterprise in writing about making such a decision by sending him a petition.
Order form
To interrupt her maternity leave and arrive early at the workplace, a woman must write a petition to the head of the company 4 days before the start date of work. This period is required to resolve issues with the employee who replaced the employee who was on maternity leave.
Having received such a statement, the manager is obliged to publish the corresponding order, as well as an order to dismiss the employee replacing her. There is no approved form for such an order, therefore, such an order is drawn up in a free style or a similar template is used to recall an employee from vacation.
If a woman on maternity leave begins work on the date indicated in the order for maternity leave, there is no need for management to take additional measures to carry out the employee’s work activities.
If the woman expressed a desire to start work prematurely, having notified the head of the company about this by submitting a petition, then in this case, the boss is obliged to publish an order indicating the start date of work, the basis of which will be the submitted request of the maternity leaver. At the same time, she must be given the same job and position.
Can an employer refuse
The employer cannot refuse to prepare an order, because this would be considered a violation of constitutional rights. Citizens of the Russian Federation are guaranteed the right to work and the choice of place to perform work functions, therefore the employer is obliged to satisfy the application and prepare an appropriate order. Additionally, he will have to terminate the contract with part-time workers, offering them an alternative position in the company.
IMPORTANT! An employee returning from maternity leave has the right to ask for part-time work if the child is under three years old.
When can I end my maternity leave?
The right of an employee to receive maternity leave is regulated by Art. 256 Labor Code of the Russian Federation. She can use it fully or partially. Typically, such leave is arranged by the woman herself, but other family members have the right to leave to support an infant up to 3 years of age, subject to the rights and obligations in accordance with the law.
If a woman goes on long maternity leave, then the management of the enterprise is obliged to preserve her job and vacancy.
Existing legislation provides for the procedure for starting and ending maternity leave. These deadlines must be strictly observed by both the employee and the company administration. At the same time, a maternity leaver, at her own discretion, has the right to begin work under the conditions that were before the leave.
If a woman has used all of her maternity leave, she is required to begin work on the next day after its completion.
If a woman wishes to start working prematurely, interrupting her maternity leave, then she must begin production work from the date indicated in the order for the end of the leave. Moreover, if the administration is unable to provide the woman with her previous job, the director has the right to offer the employee another job only with her consent. Also, she cannot be expelled on the initiative of the administration. The only basis for its deduction is the liquidation of the institution.
The decree on the maintenance of an infant under 3 years old consists of 2 parts:
- Vacation up to 1.5 years, with benefits accrued from the Social Insurance Fund.
- Vacations from 1.5 to 3 years, when compensated accruals are made at the expense of the employer.
In case of premature interruption of leave before the baby is 1.5 years old, the employee’s working day is reduced, with simultaneous accrual of benefits (Article 91 of the Labor Code of the Russian Federation, Article 93 paragraph 2, Article 256 paragraph 3 of the Labor Code of the Russian Federation). At the same time, the reduced operating hours are fixed by an additional agreement to the TD.
Note : If a woman starts working full-time, the accrual of benefits and compensation for a child under 3 years of age stops.
When do you need to place an order?
Being on maternity leave refers to an important period in a mother’s life when she stops working at a company and begins raising a baby. Typically, the duration of such leave is from the 30th week of pregnancy until the baby is 3 years old and consists of this period of 3 parts:
- According to BiR, based on the woman’s request and the submitted bulletin from the clinic.
- For raising an infant up to 1.5 years old at the request of the employee and the infant’s birth certificate.
- For the maintenance of a child up to 3 years old, according to the employee’s request and the child’s birth certificate.
At the end of the specified period, she is obliged to begin working for the company. If a maternity leaver starts work after completing maternity leave, then the order about this event is not published.
However, according to the Labor Code of the Russian Federation, a woman has the right to start working before the end of maternity leave. In this option, she is obliged to notify the director of the company about this by sending him a request 4 days before going to work. The director, having received such a request, is obliged to publish an order for the employee to return to work with a date, providing the previous vacancy. The basis for publishing such an order is the request of the maternity leaver. In this case, the previous leave order is cancelled.
Note : Premature termination of maternity leave is not a duty, but a woman’s right. No one has the right to force her to interrupt her maternity leave so that she can go to work earlier.
It is recommended to watch the video on how to go to work prematurely after interrupting maternity leave.
( Video : “How to arrange early exit from parental leave”)
Does the employer have the right to force you to leave?
A girl’s desire to leave legal maternity leave early is voluntary. The employer does not have the right to force people to go to work earlier than scheduled . In this case, it is also possible to contact the labor safety inspectorate.
If you receive threats from your employer in the form of dismissal, you do not need to act on them and write a statement of your own free will, since in this case the girl will lose the opportunity to receive child care benefits (about whether it is possible to fire a woman who is on maternity leave , find out here).
How to draw up an order for leaving maternity leave in 2021
After receiving an application for early return to work from a woman on maternity leave, the director of the company is obliged to publish a corresponding order that terminates the previous administrative document on leave.
Considering that there is no unified template for such an administrative document, the order is drawn up on a blank sheet of A4 paper or on company letterhead.
To generate an order you need to display:
1) Full name of the enterprise.
2) Place and date of filling out the form.
3) The number assigned to the document and the title, briefly indicating the purpose of the document.
4) Next, after the word “I ORDER”, fill in:
- Date of return to work.
- FULL NAME. employee, indicating the position, structural department, personnel number (if available).
5) Then the basis for publishing the order is filled in, indicating the request, with its details (number and date of registration of the application).
6) The final stage in the formation of the order form is the signature of the director of the company and the signature of the employee who started work ahead of schedule.
conclusions
An employee who is on vacation with a child until he reaches 1.5 or 3 years of age has the right to suspend his vacation and return to work. To do this, simply submit an application to your employer.
The latter prepares an order based on it. Depending on the conditions of early exit, the content of the order differs. The employee has the right to return either full-time or part-time. In the second case, in addition to the order, you need to draw up an additional agreement to the employment contract and updated terms.
What to do in case of refusal?
According to the legislative framework of the Russian Federation, every employer must hire an employee who, at his own request, intends to start working early. If the employer refuses, the employee has the right to write a complaint to the labor safety inspectorate .
You must also provide evidence. This may be a reasoned refusal in writing, or when sending an application by registered mail - a receipt and a copy thereof with a mark. In this case, the truth will be on the applicant’s side, since the employer is violating the rights of parents of young children and violating the law.
The result of such proceedings will be the employee’s reinstatement and the employer’s payment of a fine.
Dismissal of an employee hired on maternity leave
An employee hired during the maternity leave of the main employee must be fired upon her departure. A fixed-term employment contract is usually concluded with such an employee. At the same time, it may provide that the end of the contract term is established based on the date the main employee returns to work. The grounds for dismissal will be as follows: “due to the expiration of the employment contract, clause 2, part 1 of Art. 77 Labor Code of the Russian Federation." If the employer does not want to fire a temporary worker, he can transfer him to another job, but he is not obliged to do this.
A temporary worker or worker must be notified in advance about the employee returning from maternity leave. This must be done in writing at least 3 days before the date of dismissal (79 Labor Code of the Russian Federation). The dismissal is formalized by an order; the employee must be familiarized with it and signed.
Important! The employee must be notified of dismissal due to the return to work of the main employee no later than three days before the planned date of dismissal.
The corresponding record of dismissal must also be made in the employee’s work book.
Thus, an employee has the right to leave maternity leave early; it is important that the organization follows the procedure for such exit, and that the rights of the young mother are not violated. Otherwise, the employer may be held administratively liable for violating labor laws.
Does mom still have benefits?
The legislation provides two options:
- When the employee returns to full-time work, benefits are stopped, even if the child is not yet one and a half years old.
- When working part-time/weekly or at home, the employee is not deprived of benefits until the child reaches one and a half years of age. At the same time, she will also receive wages in accordance with the hours worked.
Attention ! The second option will be the most acceptable for the employee, since she does not stop her maternity leave, is involved in the labor process without losing existing skills, has time for the child and receives legal benefits.
You can find out how to apply for benefits in this material, and find out what the size of payments depends on, the calculation formula and other subtleties of applying for child care benefits, here.
Benefit payment procedure
Depending on the month for which benefits are paid, the rules for their payment are distinguished:
- Payment of benefits for the past month. In this case, the benefit is paid in proportion to the number of days (including all calendar days, including non-working holidays) of that month that the employee actually provided care;
- Payment of benefits for the current month. In this case, it is assumed that the benefit will be paid in advance. In this case, the right to such payment will be terminated in the month following the month of transfer of the employee to full-time work.
