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

Pregnant women are one of the privileged categories of workers, therefore, in some cases, more favorable conditions are determined for them by law than in general. However, does this apply to material compensation for unused annual leave before going on maternity leave? Read more in this article.

Legislation

The relationship between employer and employee is regulated by the Labor Code. According to Art. 115 of the Labor Code of the Russian Federation, the employee is entitled to 28 calendar days of vacation, which is paid by the organization. To do this, you need to work for at least six months.

Pregnant women belong to the category of citizens to whom the state and the management of the enterprise provide favorable conditions. In particular, annual leave can be taken out regardless of how long the employee has worked for the company. Even if she was accepted a month ago, she can apply for leave in the coming days. This right is regulated by Art. 260 Labor Code of the Russian Federation.

Leave is granted to a pregnant woman at any time convenient for her: it can be before the maternity period or after. Compensation for unused annual leave is fully provided only in one case: if the employee leaves the organization immediately after the maternity period.

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Article 115 of the Labor Code of the Russian Federation “Duration of annual basic paid leave”

Article 260 of the Labor Code of the Russian Federation “Guarantees for pregnant women and persons with family responsibilities when sent on business trips, involved in overtime work, night work, weekends and non-working holidays”

Is refusal possible?

As a rule, a pregnant woman can take a vacation period at any time convenient for her, be it before going on maternity leave or after. The employer has the right to refuse only in one case: if during the current year the employee has already used her right to annual paid leave.

Compensation for unused leave before maternity leave

The only possible way to receive compensation for unused vacation is dismissal after leaving maternity leave.

In this case, the employer does not have the right to refuse payment to the employee and will require two applications from her: directly for maternity leave with subsequent dismissal and for payment of compensation for the unspent rest period. 3 days before dismissal, the woman will receive financial compensation.

Is it possible to

According to the law, it is not the employer’s responsibility to compensate employees for unused vacation, which also applies to pregnant women. This leaves two options for receiving a cash payment:

1. Agree with the employer on these payments, however, any decision made by the head of the enterprise cannot be challenged due to the fact that compensation in this case is his right;
2. Leave work after maternity leave.

In the event of subsequent dismissal, the woman receives the following series of monetary payments:

1. Salary for the period worked;
2. Compensation for unspent vacation period;
3. Weekend benefits, if applicable.

The necessary conditions

In order to receive compensation for unused vacation, certain conditions must be met, each of which has its own restrictions and requirements. Let's highlight two main ones:

1. The employee submits an application for maternity leave, simultaneously informing the employer that after this leave she will quit. Then the woman has the right to apply for compensation for unused vacation. In this case, the employer has no right to refuse;
2. The employee submits an application for maternity leave, and also asks the head of the organization to compensate for unused leave, without claiming that after the maternity leave she will leave her workplace. In this case, the employer decides for himself whether to make payments or not - this obligation is not regulated by law.

Download the application for maternity leave

Download the application for compensation for unused vacation

Payment amount

• Three days before dismissal, the employee must be paid compensation for all unused vacation periods, including additional time for certain categories of citizens.
• To calculate compensation for an unused vacation period, the accountant must calculate two important points: the number of days of unused annual leave, the average daily income.
• The average daily income level is calculated using the following formula:
• OT annual/12/29.3, where:

• OT annual is the salary for 12 months;
• 12 - number of months in a year;
• 29.3 is the coefficient for calculating the average monthly number of days in the calendar, regulated by law (Article 139 of the Labor Code of the Russian Federation).

Salary does not include all payments received by an employee. Thus, the following funds are not taken into account:

1. Performing job duties while maintaining salary (business trip);
2. Compensation for sick leave.

If a pregnant woman has accumulated unused vacation days over several years, they are added up.

For the final calculation of compensation, it is necessary to calculate using the following formula:

• Average salary per day * total number of unused vacation days.

Download for viewing and printing:

Article 139 of the Labor Code of the Russian Federation “Calculation of average wages”

Registration procedure

Before going on maternity leave, every employed woman must complete the following algorithm of actions:

1. Register for pregnancy at the antenatal clinic, which is located at the woman’s place of residence;
2. Receive an appropriate sick leave certificate based on an examination conducted by a specialist;
3. Presentation of the received sick leave certificate to the employer himself, and subsequently transfer to the accounting department for calculating maternity leave benefits;
4. Completing and submitting an application requesting maternity leave, as well as the compensation required in this case;
5. At the same time, submitting an application for unused vacation.

In the last paragraph, the employer cannot refuse, since this is contrary to the law. It is the employer's responsibility to provide unused vacation days in addition to maternity leave.

Advice! If an employee wants to quit immediately after taking maternity leave, then she also submits an application for compensation for the unused rest period.

The application must indicate:

1. Days of unused vacation period;
2. End of maternity leave (1.5 or 3 years).

Thus, unused leave for a pregnant woman before going on maternity leave can only be compensated in one case: if she submits a letter of resignation immediately after the maternity period. In other cases, no payments are due unless the employer himself decides to make such payments.

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When regular annual leave after maternity leave is due, legal advice

The day following the end date of maternity leave reflected in the order is the first day the employee returns to work after the end of maternity leave. No additional documents are required. The employee begins work duties performed previously.

Is the next holiday due under Labor Code allowed?

In Art. 260 of the Labor Code of the Russian Federation clearly states that immediately after maternity leave, you can declare your desire to go on another paid leave if the employee did not use it before registering for sick leave. Moreover, the length of service in a given organization does not matter .

Since such a right is enshrined in the Labor Code of the Russian Federation, the employer does not have the right to refuse an employee if she writes a statement. However, this is only true for the case when the day the end of one of the parts of the maternity leave precedes the day the annual rest begins.

If, after maternity leave, the employee returned to work, and after some time decided to go on vacation, then the guarantee from Art. 260 of the Labor Code of the Russian Federation will not apply.

A woman can exercise the right of rest, regardless of the director’s consent, only immediately after maternity leave. Even one working day already violates the necessary condition.

If the employee did not immediately use this right, then she can receive annual rest on a general basis, according to the schedule, or by agreement with the employer if she has sufficient experience.

It is important that the employee is not obliged to go on vacation. This is her right, which she uses only on her own initiative. If she doesn’t want to, then the employer cannot force her.

Guardians, adoptive parents and fathers raising a child without a mother can go on annual leave after caring for a child.

Based on Art. 260 of the Labor Code of the Russian Federation, you can take time off immediately before maternity leave; for this, a statement is written according to the sample.

How to count days?

The employee has the right to all unused days for the period before the start of maternity leave. Plus, a maternity leave period of 140 days also gives the right to annual rest.

If there are no unused days left, then the employer, immediately after the maternity leave, must, upon application, provide an annual duration of at least 28 cal. days. This allows Art. 260 of the Labor Code of the Russian Federation, which clearly states that the issue of provision does not depend on the length of service of the employee.

Thus, the number of vacation days that a woman can claim can be calculated as follows:

1. Determine the number of unused days on the date before the start of maternity leave.
2. Calculate the number of days for sick leave due to pregnancy (caring for a child does not give the right to rest).
3. Add up the calculation results, the sum of days will be the time period that is added to the ended maternity leave.
4. If it turns out to be less than 28, and the woman wants to rest for the full duration, then the employer must ensure this, despite the length of service.

Returning to work during maternity leave

In accordance with the Labor Code, an employee can leave maternity leave before its end. In this case, the employee’s wishes are taken into account. The work environment and the employer's opinion do not matter. The law is on the side of women and gives them the right to choose.

In order for an employee to begin fulfilling her work obligations upon early departure from maternity leave, she must notify the employer by writing a statement. The application is written in free form, indicating the desire to start work and the start date of work.

Based on this statement, the head of the organization issues an order to stop the rest and start work for the returning employee. This is necessary to correct an existing order (change of date). The employee familiarizes herself with this document within three days and confirms it with a signature.

The opinion of the party providing the work does not matter. If such a desire or need exists, this must be reported to the employer in the application. And the subsequent order will have corresponding content.

Before going to work part-time, an additional agreement to the existing employment contract is concluded between the employee and the employer. It must reflect the terms of cooperation: term, duration of the shift, length of the working week, work and rest hours, wages.

Protecting the interests of the mother while working part-time, the law reserved her the right to receive child benefits. If the employee returns from full-time maternity leave, then in this case the statutory payment of child care benefits is terminated.

Another nuance that a woman on maternity leave needs to know.

Regardless of when the employee decided to return to work and what work schedule she chose, the employer is obliged to provide the position from which she went on maternity leave.

References to production needs, changes in management, etc. are unacceptable. Otherwise, the disadvantaged employee may file a complaint with the labor inspectorate.

Also, if a woman is on maternity leave, she does not have the right to be laid off, transferred to another position, or fired.

An employee who will perform work duties only during maternity leave can be hired in her place. In this case, they do not have the right to register the employee on a permanent basis.

When a maternity leave worker returns to work, the replacement employee quits and the job is given to the previous employee.

Returning to work later than the end of maternity leave

There are cases when, for personal or family reasons, an employee is not able to go to work on time. How can this situation be resolved in this case? In this case, the woman can take the next rest period required by law, if it has not yet been used.

The employee communicates her desire to be granted another leave in writing by submitting an application addressed to the company management. After which the head of the organization issues an order, and the mother’s maternity leave is extended for the next period of rest.

If it is impossible to use the next vacation, the employee can apply for time off at her own expense. In this particular case, the employer’s desire is at the forefront. If the issue is resolved positively by management, the maternity leave is extended through rest without pay. This is documented in the same way as in the previous case.

All the previously described rights and opportunities of a mother upon leaving maternity leave apply to anyone who uses maternity leave. Such persons could be a father, grandmother, grandfather, guardian or any other relative.

The law protects the rights of employees who decide to give birth to a child. You just need to know these rights and not be afraid to defend them.

Article 255 of the Labor Code (LC) of the Russian Federation prescribes a clear time frame for the provision of maternity leave. They must be in accordance with the gestational age established in the medical institution. The onset occurs 70 days before the expected birth if a woman is pregnant with one child and 84 days if with two or more.

Regarding the next annual paid leave, the situation here is slightly different. Article 123 of the Labor Code of the Russian Federation declares that rest for each of the organization’s employees is provided strictly in accordance with the schedule, which must be drawn up no later than 2 weeks before the start of the new calendar year.

If a woman knows that she is pregnant, then she can ask to adjust the schedule due to the fact that she wants to go on vacation before or after maternity leave.

It is worth noting: according to Article 124 of the Labor Code of the Russian Federation, in some exceptional cases, annual paid leave can be transferred to the next year (but no more than 1 year). If before maternity leave a woman has the right to two vacations, then she has the right to take both, one after the other.

The legislation does not stipulate that pregnant women are in a special position regarding the provision of regular rest. Only in Art. 260 of the Labor Code of the Russian Federation states that the employee has the right to ask the employer to provide another vacation either before the start of maternity leave or immediately after it, and Art. 125 of the Labor Code of the Russian Federation states that it is prohibited to recall a pregnant employee.

It is worth noting that the lack of length of service does not affect the possibility of granting a pregnant woman annual leave, which means that the employee can not only take the rest she has already earned, but also take it in advance, towards future work activities. At the same time, as stated in Art. 125 of the Labor Code of the Russian Federation, a woman has the right to request both the entire time interval of annual leave and only a part.

How to calculate compensation for vacation upon dismissal after maternity leave

Not every woman whose maternity leave is coming to an end wants to go back to work. This may be due to family circumstances or other reasons. On the day of dismissal of the employee at her own request, she must be paid compensation for unused vacation (Article 127 of the Labor Code of the Russian Federation). And here the question immediately arises of how to calculate correctly.

By the way, let us remind you that compensation is due to all resigning employees, regardless of the grounds for termination of the employment contract (Letter of Rostrud dated July 2, 2009 No. 1917-6-1). Provided, of course, that the employee did not take all the days off before dismissal.

Procedure for calculating compensation

To determine the amount of compensation, you need to multiply the employee’s average daily earnings by the number of unused days.

Average daily earnings are calculated for the 12 calendar months preceding dismissal. That is, in the same order in which average earnings are determined when calculating vacation pay (Article 139 of the Labor Code of the Russian Federation).

Source: https://vselgoty.ru/otpusk-posle-dekretnogo-otpuska/

Rules for calculating leave after maternity leave using an example - formulas for determining vacation pay after leaving maternity leave

• Every year, an enterprise operating on an official basis is obliged to provide employees with time to rest - annual paid leave.
• If an employee has been absent for a long period of time due to being on maternity leave, then the calculation of vacation pay for the next vacation has a number of features.
• Below are the necessary formulas and examples of calculations.
• Often, employees whose maternity leave is coming to an end turn to the employer to arrange annual rest time immediately after returning to work - the procedure for registering leave after maternity leave.

Employees have the right to another rest after returning to work, if before the maternity leave they did not take advantage of a similar right under Article 260 of the Labor Code of the Russian Federation.

When taking paid leave immediately after maternity leave, vacation pay is calculated in the standard way. The exact technology for performing this action is specified in Article 139 of the Labor Code of the Russian Federation.

When calculating vacation pay, which should be credited to the account of an employee who has returned from maternity leave, it is necessary to correctly determine the following indicators :

• number of vacation days;
• billing period;
• the amount of average daily earnings;
• vacation pay.

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How to calculate the days after leaving maternity leave?

According to the standards established by this Legislation of the Russian Federation, after maternity leave, a woman has the right to immediately receive annual leave .

According to Article 260 of the Labor Code of the Russian Federation, this category of employees is entitled to a paid rest period, the duration of which cannot be less than 28 days. In some cases, this period may be increased, but it cannot be reduced under any circumstances.

In addition, when calculating the days of allotted leave, days unused before maternity leave, accrued to her before she went on sick leave for pregnancy and childbirth, can be taken into account.

Also, days off are due for 140 days during which the woman was on maternity leave. The period of child care does not give the right to another vacation, since it is not included in the vacation period.

1. Calculation of the number of vacation days unused before maternity leave is calculated according to the rules set out here.
2. Determining the number of days allotted for sick leave lasting 140 days - 11.65 days of regular leave are allotted.
3. Addition of the above amounts.

The duration of maternity leave is 140 days or 4 months 20 days, which is rounded up to 5 full months.

With an annual duration of 28 days, each month is allocated 2.33 days (28/12), therefore, during maternity leave for pregnancy, a woman is entitled to 2.33 * 5 = 11.65 days .

You can round up to 12 days at the request of the employer.

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What billing period should I use?

When calculating the amount of vacation compensation for a woman who returned from maternity leave and immediately took paid leave, special attention is paid to determining the billing period.

According to the rules of the Labor Code of the Russian Federation, the billing period must be taken as 12 months preceding the annual vacation time . An employee who was recently on maternity leave did not work for 140-194 days, provided for maternity leave, and until the child was 3 years old.

The exact duration of maternity leave depends on specific circumstances - the nature of the birth, multiple pregnancies, etc.

If a woman immediately went to work after sick leave , then she has no excluded periods, and the billing period will be 12 calendar months before the month of registration of the next vacation.

If a woman goes to work after caring for a child

Source: https://rabotnika.ru/raschet-otpuska-posle-dekreta/

Dismissal after maternity leave: how to calculate compensation for vacation

The employee was on maternity leave for up to 1.5 years. She decided to quit without going to work. How to calculate monetary compensation if the employee did not actually work during the billing period? What should be taken as average earnings?

Cash compensation is paid to the employee upon dismissal for all unused vacations in accordance with Art. 127 Labor Code of the Russian Federation. Based on clause 28 of Rule No. 169[1], upon dismissal of an employee, compensation for unused vacation is calculated in proportion to the time he worked in the institution.

Vacation days for which compensation must be paid are calculated in proportion to the months worked in accordance with clause 35 of Rule No. 169, starting from the date of hire, with the days worked being:

• less than half a month - discarded;
• more than half a month is counted as a full month.

Therefore, to determine the number of vacation days not used by an employee that are subject to compensation upon his dismissal, the employer needs to determine:

• total length of service in the institution;
• the presence of periods excluded from the length of service giving the right to leave, their duration in calendar days;
• the number of vacation days due to an employee upon dismissal;
• the number of vacation days used by the employee at the time of dismissal.

The length of service giving the right to leave is calculated as the difference between the employee’s total length of service in the institution and the periods not included in the leave length of service.

Article 121 of the Labor Code of the Russian Federation establishes that the length of service that gives the right to annual basic paid leave includes:

• actual work time;
• the time when the employee did not actually work, but in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, he retained his place of work (position), including the time of the annual paid leave, non-working holidays, weekends and other rest days provided to the employee;
• time of forced absence due to illegal dismissal or suspension from work and subsequent reinstatement to the previous job;
• the period of suspension from work of an employee who has not undergone a mandatory medical examination (examination) through no fault of his own;
• the time of unpaid leave provided at the request of the employee, not exceeding 14 calendar days during the working year.

The length of service giving the right to annual paid leave does not include the time:

• absence of an employee from work without good reason, including due to his removal from work in cases provided for in Art. 76 Labor Code of the Russian Federation;
• leave to care for a child until he or she reaches the legal age.

Based on Art.

139 of the Labor Code of the Russian Federation, the average salary of an employee is calculated based on the salary actually accrued to him and the time actually worked by him for the 12 calendar months preceding the period during which the employee retained his average salary. To calculate the average salary, all types of payments provided for by the remuneration system and applied by the relevant employer are taken into account, regardless of their sources. The procedure for calculating average wages is approved by Regulation No. 922[2].

Clause 5 of Regulation No. 922 defines periods, as well as amounts accrued during this time, that are excluded from the calculation, for example, when an employee:

• received average earnings in accordance with the legislation of the Russian Federation, with the exception of breaks for feeding the child;
• received benefits for temporary disability or maternity benefits;
• was released from work with full or partial retention of wages;
• was on leave without pay (parental leave until the child reaches the age specified by law).

In connection with this, Regulation No. 922 established a special procedure for calculating average wages in cases where the employee did not actually have accrued wages or actually worked days for the billing period:

• for a period exceeding the billing period, or if this period consisted of time excluded from the billing period in accordance with clause 5 of Regulation No. 922. Average earnings are determined based on the amount of wages actually accrued for the previous period, equal to the billing period (clause 6 of Regulation No. 922);
• for the billing period and before the start of the billing period. Average earnings are determined based on the amount of wages actually accrued for the days actually worked in the month of occurrence of the event that is associated with maintaining average earnings (clause 7 of Regulation No. 922);
• for the billing period, before the start of the billing period and before the occurrence of an event that is associated with maintaining average earnings. Average earnings are calculated based on the tariff rate and salary (official salary) established for the employee (clause 8 of Regulation No. 922).

According to clause 10 of Regulation No. 922, when paying compensation for unused vacation, the average daily earnings are used, which is calculated by dividing the amount of wages actually accrued for the billing period by 12 and by the average monthly number of calendar days (29.4).

Compensation for unused vacation is issued to the employee on the day of dismissal or the next day after applying for payment in accordance with Art. 140 Labor Code of the Russian Federation.

Thus, if the employee did not have actually accrued wages and actually worked days for the billing period and before the billing period, the average earnings are calculated based on the wages accrued for the actually worked days in the month of occurrence of the event that is associated with maintaining the average earnings (clause

7 of Order No. 922), that is, for the calculation, the actually accrued wages and the time worked up to the day of registration of maternity benefits are used, since the period during which the actually worked period and, accordingly, the accrued wages can be taken for calculation is legislatively is not limited.

The law establishes that the billing period is taken into account from the date of hiring.

Example

Source: https://hr-portal.ru/article/uvolnenie-posle-dekreta-kak-rasschitat-kompensaciyu-za-otpusk

Five questions about annual leave that a woman on maternity leave will ask

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In July, the annual holiday season is in full swing. What if you plan to start maternity leave during this period? Such a coincidence always causes misunderstanding. In this article we will look at the issues that concern employees on the eve of maternity leave and young mothers.

Can an employee take annual leave on the eve of maternity leave if she has not worked for six months?

On the eve of maternity leave, an employee has the right to go on annual leave before the end of six months of continuous work. And the employer is obliged to provide it at the request of the woman (part three of Article 122 of the Labor Code of the Russian Federation).

An employee can receive annual paid leave both before and after maternity leave, or even after the end of parental leave. This right does not depend on length of service in the organization.

The employer does not have the right to refuse this to the expectant mother.

Annual leave can be added to maternity leave only at the request of the woman. In the first year of work and before the end of the six-month period, the employer will provide her with her first vacation in advance.

Can a maternity leave take annual leave in advance?

The employer provides employees with annual leave while maintaining their place of work or position and average earnings (Article 114 of the Labor Code of the Russian Federation).

An employee receives annual paid leave for the working year, not the calendar year (clause 1 of the Rules approved by the People's Commissar of the USSR on April 30, 1930 No. 169).

You can go on vacation for the second and subsequent years at any time of the working year in accordance with the order of annual vacations from the employer (Article 122 of the Labor Code of the Russian Federation).

Maria got a job on July 26, 2015. In July 2016, she took annual basic paid leave of 28 calendar days for the period from July 26, 2015 to July 25, 2016. In September 2016, Maria will take maternity leave. She has the right before him to take annual leave of 28 calendar days for the period from July 26, 2016 to July 25, 2017.

Expert advice

Part of the annual paid leave exceeding 28 calendar days, upon written application of the employee, can be replaced by monetary compensation. However, it is impossible to replace basic and additional paid leave for pregnant women with monetary compensation (Article 126 of the Labor Code of the Russian Federation). The exception is the payment of compensation for unused vacation upon dismissal of an employee.

The law prohibits paying compensation for unused annual leave before maternity leave. And provide the employee with annual paid leave at any time convenient for her.

Is it possible to take maternity leave during the annual leave period?

It is impossible to be on two vacations at the same time (clause 20 of the resolution of the Plenum of the Supreme Court of the Russian Federation of January 28, 2014 No. 1). Maternity leave is granted on the basis of a certificate of incapacity for work and the woman’s application.

If the employee decides to use annual leave immediately after maternity leave, do not rush to issue an order in advance. In case of complications, the woman will receive a new certificate of incapacity for work. You will have to issue an order to reschedule your vacation.

If the start of maternity leave falls while the employee is on annual leave, she has the right to interrupt the main leave and write an application for maternity leave.

If the certificate of incapacity for work was issued during the period when the employee was on annual leave, then it should be extended by the number of days of maternity leave. Another option is to transfer the rest days at the request of the employee to another period (part one of Article 124 of the Labor Code of the Russian Federation).

An order to interrupt annual leave is issued in free form, even if the organization continues to use unified forms approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1.

An employee has the right to go on maternity leave at the end of the annual leave. She has the right to take maternity leave later than the date indicated on the certificate of incapacity for work.

To do this, in addition to the certificate of incapacity for work, you also need to receive an application from the employee (Article 255 of the Labor Code of the Russian Federation).

If the employee decides to go on another leave at the end of her maternity leave, explain to her that during this period she cannot be given maternity leave or paid benefits. It is more profitable for a maternity leave to get another leave when the child reaches one and a half years old. Afterwards, the woman will be able to go on maternity leave again for up to three years (table below).

Comparative characteristics of holidays

Comparison criteriaMaternity leaveParental leaveAnnual basic paid leave

Reason for granting	Certificate of incapacity for work and personal statement	Statement from the employee actually caring for the child	Vacation schedule or personal statement (in case of deviation from the schedule)
Duration (as a general rule)	140 calendar days: 70 before birth and 70 after birth	Three years	28 calendar days
Reasons for increasing duration	Multiple pregnancy; complicated childbirth, birth of two or more children	No	Disability, public service, etc.
Non-working holidays	Included in vacation days	Included in vacation days	Not included in vacation days
Division into parts	No	The duration and frequency of periods are not limited	One part at least 14 days
Extension or transfer to another year	No	No	Disability, performance of government duties, etc.
Review from vacation	No	No	With the consent of the employee. Exception: – workers under 18 years of age; – pregnant women; – workers in harmful and dangerous conditions
Replacement with monetary compensation	No	No	Part of vacation over 28 calendar days
Combination with work	No	On a part-time basis	No
Payment order	100% of average earnings	40% of average earnings, but not less than the minimum amount for up to one and a half years	Average daily earnings multiplied by the number of vacation days
Due date	10 days after receiving the application	Monthly	3 days before start

How many days of annual leave will the employee earn during maternity leave?

The length of service that gives the right to annual basic paid leave does not include the period of parental leave until the child reaches the age of three years (part two of Article 121 of the Labor Code of the Russian Federation).

This rule does not apply to maternity leave. Days of regular annual leave are accumulated in the same way as if the woman were working.

Therefore, for 140 days of maternity leave, the employee will earn 11.67 calendar days of leave.

Each full month of work entitles you to 2.33 calendar days of annual basic leave, if the duration of annual leave is 28 days (28 days: 12 months.

) (letter of Rostrud dated July 26, 2006 No. 1133-6). Months are considered full when an employee has worked half or more days (clause 35 of the Rules approved by the People's Commissar of the USSR on April 30, 1930 No. 169).

When calculating vacation days, we round the final result.

The duration of maternity leave in general is 140 days or 5 months (140 days : 30 days = 4 months 20 days). The employee will earn the right to 11.67 calendar days of vacation (28 days: 12 months × 5 months).

The duration of Olga V.’s annual leave as a disabled person is 30 calendar days. Olga V.’s maternity leave due to complications amounted to 156 calendar days (70 before childbirth and 86 after) or 5 months 6 days. During this period, she acquired the right to annual leave of 12.5 calendar days (30 days: 12 months × 5 months)

Should a maternity leave pay back the money for the leave provided in advance?

It is impossible to withhold vacation pay paid in advance from a woman on maternity leave upon her dismissal. The employer does not have the right to recover any debt from maternity benefits (part four of article 138 of the Labor Code of the Russian Federation, part

1 tbsp. 101 of the Law of October 2, 2007 No. 229-FZ). Deduction can only be made from wages (part four of article 138 of the Labor Code of the Russian Federation, part 1 of article 101 of the Law of October 2, 2007 No. 229-FZ). But often it is absent or not enough to pay off the debt.

The amount of all deductions for each salary payment cannot exceed 20 percent (part one of Article 138 of the Labor Code of the Russian Federation).

The legislation does not provide for the possibility of collecting the amount of debt in court from an employee who used vacation in advance (part four of Article 137 of the Labor Code of the Russian Federation, ruling of the Supreme Court of the Russian Federation dated March 14, 2014).

No. 19-КГ13-18). An employee can voluntarily return overpaid vacation pay, although she has the right to refuse.

Normative base

DocumentHelp you

Article 255 of the Labor Code of the Russian Federation	Clarify the duration of maternity leave
Chapter 19 of the Labor Code of the Russian Federation	Find out the order in which vacations are provided, find out the possibility of replacing them with monetary compensation

1. Before maternity leave, an employee has the right to go on annual leave if the beginning of the working year for which it is provided has already arrived. 2. The time of maternity leave is fully included in the length of service, which gives the right to annual paid leave. 3. The employer does not have the right to withhold overpaid vacation pay upon dismissal of a maternity leaver.

• Zvezdaza is the correct answer
• Wrong
• Right!
• What is the duration of maternity leave:

84 calendar days: 34 days before birth, 50 after;

200 calendar days: 100 days before childbirth, 100 after;

140 calendar days: 70 days before childbirth, 70 after.

Source: https://e.kdelo.ru/476830

Compensation for leave before maternity leave: how to get it?

Compensation for unused leave before maternity leave is a payment due to pregnant women and transferred by the employer only in one case. Future mothers are wondering whether they can count on such a payment, and in what cases this is possible.

Note that the Labor Code of the Russian Federation (Article 115) states that all employees have the right to count on 28 days of paid vacation. To obtain it, you need to work for the company for at least six months.

But what to do in a situation where a pregnant woman did not use her vacation and was going on maternity leave?

What the law says

According to the law, pregnant women are classified as privileged employees who are entitled to certain benefits from the state and the employer.

At the request of the expectant mother, annual leave can be scheduled at any time. Even if a woman’s work experience is only thirty days, she has the right to ask her manager for official leave at any time.

This rule is spelled out in the Labor Code of the Russian Federation (Article 260).

The expectant mother receives leave at any time - before or after maternity leave. As for compensation, it is paid 100 percent only if the woman left the company immediately after maternity leave.

Probability of refusal and methods of receiving payments

As noted, the expectant mother has the right to take leave at will - before or at the end of maternity leave. The boss can refuse a request only in a situation where the woman has previously exercised her right and taken off her available vacation days.

According to the law, the only way to receive compensation for unspent vacation is a full settlement with the employer after leaving maternity days. In such circumstances, the employer is obliged to transfer the expected amount to the woman.

She will be required to make two statements. The first is written for maternity leave and dismissal immediately upon its completion. The second document is drawn up for payment of compensation for unspent vacation time.

72 hours before dismissal, the applicant receives full cash payment.

Available options

By law, the employer does not have to compensate for the unused portion of the vacation. This also applies to female employees who are pregnant. From this there are two available options:

1. Discuss the issue of transferring funds with the employer. You need to understand that any management decision can be challenged in the future, because compensation is a right, not an obligation of the employer.
2. Dismissal from work after completion of maternity leave, without going back to work.

If a woman chooses the second option, in case of leaving she receives the following payments:

• Salary for the period of time worked since the last payment.
• Compensation for previously unspent vacation.
• Weekend allowance (if any).

After transferring the above payments, the employer fully fulfills his obligations to the pregnant woman.

Conditions and amount of payments

To receive compensation payments for unspent vacation, a number of conditions must be met. Each of them implies the fulfillment of certain conditions and requirements. To receive compensation you must do the following:

1. Fill out an application for maternity leave and at the same time inform your boss about your desire to leave work immediately after leaving. If this condition is met, the woman has the right to fill out and submit an application for compensation for unspent vacation. Under such circumstances, the employer cannot refuse the employee.
2. The woman applies for maternity leave and discusses with management the possibility of paying compensation for unspent vacation days. In such circumstances, the right to pay or refuse to transfer funds is in the hands of the management of the enterprise. As noted, the Labor Code of the Russian Federation and other laws do not indicate the obligation to pay monetary compensation.

If the issue is resolved and the employer is forced to transfer the money, he does this three days before the employee’s dismissal. The calculation takes into account the entire unworked period, as well as additional days.

During the calculation process, the accounting employee must take into account two aspects:

1. the number of days that the woman has not used before;
2. the average daily profit of a expectant mother.

The average daily profit is determined as follows. First, a woman’s total salary for the year is divided into 12 months. Next, the resulting number must be divided by 29.3. The last figure is regulated at the legislative level and is stated in the Labor Code of the Russian Federation (Article 139). We are talking about the calculation coefficient for the average monthly number of days in a month (according to the calendar).

The following aspects are not taken into account in the calculation:

• fulfillment of labor obligations while maintaining wages (for example, travel allowance);
• compensation payments for sick leave.

If a pregnant woman has not used all or part of her available leave over the past few years, the remaining days are combined. The result obtained is taken into account when calculating the final figure. The following formula is used to obtain the total payout amount. A woman's average salary per working day is multiplied by the number of unused vacation days.

Subtleties of design

To receive compensation, a pregnant woman going on maternity leave should not rush into going on vacation. Before receiving the right to rest, she must take the following steps:

1. Registration at the hospital (antenatal clinic). The doctor must confirm the fact of pregnancy and register the woman. You need to contact a medical institution located at the place of residence of the expectant mother.
2. Obtaining a certificate of pregnancy. The document is issued after examination by a doctor in the hospital.
3. Showing the paper to the employer to discuss future leave, and subsequently transferring the certificate of incapacity for work to the accounting department. Accounting employees perform the necessary work to calculate the amount of compensation.
4. Drawing up and submitting an application for maternity leave. The request to pay the due amount is also indicated here.
5. Filling out and submitting an application for compensation for unspent vacation.

The manager does not have the right to refuse to pay money, because in this case he violates the requirements of the law. If a woman plans to quit immediately after maternity leave, she needs to fill out an application requesting payment of compensation for the unspent period.

The application must include the following points: the days of remaining (previously unspent vacation) and the end date of the maternity leave (18 or 24 months).

Results

With this in mind, a simple conclusion can be drawn. The unused vacation period of a future mother before maternity leave can only be compensated if the woman is fired immediately after leaving her vacation.

Otherwise, payment is not obligatory, but the expectant mother can negotiate with the employer and obtain payment from him as agreed by the parties. In practice, the second situation occurs in rare cases.

Similar

Law enforcement practice and legislation of the Russian Federation changes quite quickly and the information in the articles may not have time to be updated. The latest and most relevant legal information, taking into account the individual nuances of your problem, can be obtained by calling toll-free 24/7 or by filling out the form below.

Source: https://law-fm.ru/lgoty/kompensatsiya-za-neispolzovannyj-otpusk-pered-dekretnym-otpuskom/