Good health and financial interest often motivate a pregnant employee to continue working. Can a woman go on maternity leave later than expected and how will this affect the amount of benefits?
Today there is no official name for “maternity leave”. The Labor Code introduced the term “maternity leave”, and all women’s rights are specified in Law No. 255-FZ.
Every officially employed employee can go on vacation:
- at 30 weeks of pregnancy (when carrying 1 child);
- at 28 weeks (if a multiple pregnancy is diagnosed);
- at 27 weeks (for women living in contaminated regions).
It is important to take into account that the calculation of the timing of leaving the workplace is based on obstetric calculations. The exact day of the start of the maternity leave is determined by the gynecologist. It is calculated depending on the duration of pregnancy and is carried out from the day when the woman was registered in the gynecology department.
Duration of maternity leave
If a woman intends to go on maternity leave later than expected, the amount of the benefit will be reduced.
For example, if a woman went on vacation later than expected and worked 20 additional days before giving birth, they are not included in the calculation of benefits. Average daily earnings (600 rubles) are multiplied by 120 days. The resulting amount is 72,000 rubles. Thus, the benefit is significantly reduced in size.
It is the woman who decides whether to work or not after maternity leave. From a financial point of view, if her salary exceeds the monthly maternity benefit, it makes sense for her to remain in her position. And you, as an employer, must remember that the calculation of benefits will not include the days that the employee worked.
Interim solution
Starting this year, a new version of Article 8 of the Law of May 19, 1995 No. 81-FZ “On state benefits for citizens with children” is in effect. It stipulates that from January 1, maternity benefits should be calculated taking into account the length of a woman’s continuous work experience.
However, on January 12, 2005, the Social Security Fund issued letter No. 02-18/07-81. It says that currently the legislation does not establish how exactly length of service is taken into account when calculating benefits. And therefore, until the relevant documents are adopted, the payment can be calculated, as before, in the amount of 100 percent of average earnings.
There is also a maximum benefit amount within which the Social Insurance Fund will reimburse the company for expenses. From January 1, it is 12,480 rubles for a full calendar month instead of 11,700 rubles in 2004 (Clause 2, Article 8 of Law No. 202-FZ of December 29, 2004 “On the Social Insurance Fund Budget for 2005”).
We count the allowance
Until now, the procedure for calculating maternity benefits is regulated by two “Soviet era” regulations:
Council of Ministers of the USSR and the All-Russian Central Council of Trade Unions “On benefits for state social insurance” dated February 23, 1984 No. 191;
However, these documents must be applied only to the extent that does not contradict current Russian legislation.
The terms of maternity leave are prescribed in Article 255 of the Labor Code. Usually this is 140 days: 70 days before the expected date of birth and 70 days after. Leave is calculated cumulatively and is provided to the employee completely regardless of the number of days actually used by her before giving birth. A sick leave certificate is issued for the entire duration of such leave. It is issued to a woman on the day she goes on maternity leave.
Maternity benefits are calculated from the employee’s actual earnings, on which social insurance contributions are calculated. It is issued after the woman presents a sick leave certificate for the entire period for which she was discharged.
Article 8 of the Law of December 8, 2003 No. 166-FZ “On the Social Insurance Fund Budget for 2004” was extended for 2005. It establishes that maternity benefits are calculated from the average earnings of a woman at her main place of work for the last 12 calendar months preceding the month of maternity leave. Average earnings are calculated in the manner specified in Article 139 of the Labor Code. Moreover, in the case of a salary increase in the billing period, such a change is taken into account from the date of its actual increase.
If an employee actually worked for less than three months in the last calendar year before maternity leave, maternity benefits are paid in a limited amount. Namely, not exceeding the minimum wage for a full calendar month. In accordance with the Law of December 29, 2004 No. 198-FZ, from January 1, 2005, the minimum wage is 720 rubles per month. Moreover, if a regional coefficient is applied to wages in a region, it must also be taken into account when calculating benefits.
Advice
If your company decides to increase her salary before an employee goes on maternity leave, be careful. After all, the benefit that social insurance is obliged to reimburse the enterprise depends on the size of the salary. As practice shows, FSS inspectors are very suspicious of increasing a worker’s salary shortly before maternity leave. And if they decide that the benefit was paid unreasonably, they will not count its amount towards the Unified Social Tax. Subparagraph 3 of paragraph 1 of Article 11 of the Law of July 16, 1999 No. 165-FZ allows auditors to do this.
Such disputes often end in court. Therefore, in order to convince the arbitrators that you are right, stock up on a document confirming the qualifications of the maternity leaver. The judges accept the argument that the salary was increased in order to retain a valuable specialist (Resolution of the Federal Antimonopoly Service of the North-Western District dated August 19, 2004 No. A21-12236/03-C1).
Good afternoon, dear readers. Today we’ll talk about whether it’s possible to go on maternity leave later than expected.
Today you will learn:
- Generally accepted deadlines for processing maternity leave;
- Is it possible and how to go on maternity leave later than expected?
- List of documents for calculating maternity leave.
What is maternity leave
So, maternity leave combines two different types of leave. This is maternity leave and up to three years. Let's talk about the first one.
Maternity leave is intended to solve two problems:
- Allow you to prepare for the birth of a child;
- To have the opportunity to constantly be with the newborn in the first months of his life.
The most common (generally accepted) period of maternity leave: 70 days before and 70 days after childbirth (140 calendar days in total). But there are always exceptions.
Is your co-worker having twins? She is given 194 days. Moreover, if twins are known in advance, then vacation is provided for 84 days before and 110 after the end of childbirth. If twins were discovered only in the delivery room, then the vacation will simply extend for 54 days. If the mother had a difficult birth, 16 days will be added to the vacation.
We count the vacation date
Having registered with the antenatal clinic, the expectant mother and her gynecologist calculate 40 weeks of pregnancy to determine the date of birth of the baby.
At the 19th week, an ultrasound examination is performed. Based on its results, you can find out the gender of the unborn child, consider the number of children, and more accurately determine the timing of pregnancy. And also determine the specific date for receiving sick leave for pregnancy and childbirth, which is mandatory for receiving leave.
When the expectant mother's pregnancy is progressing normally, she goes on vacation at 30 weeks. If the ultrasound detects twins (or maybe triplets), the expectant mother will go on vacation at 28 weeks. If your area is disadvantaged, the expectant mother is entitled to leave at 27 weeks.
Sometimes unexpected situations happen, such as premature birth. Then sick leave is issued from the date of birth of the child for 156 days and leave must be arranged urgently.
Another exceptional case: your employee decided to adopt a newborn baby. In this situation, she is entitled (and, accordingly, vacation) for 70 days.
Is it possible to go on maternity leave later than expected?
In addition to the health of the unborn baby, at this moment the expectant mother faces an equally important question. The issue of material security. After all, you and I understand that no benefit can be compared in size to wages.
Therefore, very often an employee wants to “push back” her maternity leave. And if the expectant mother is a highly qualified employee, you are also interested in reducing the time she is absent from the company.
So, a “maternity leaver” can continue to work (on completely legal grounds) even after 30 weeks of pregnancy. However, this does not mean that maternity leave can be postponed.
In this situation, vacation is reduced by the number of officially worked days. The employee will receive her regular salary for the time worked. But the duration of sick leave and the amount of benefits will decrease in proportion to the time worked (the employee must notify the antenatal clinic about her decision in order to reduce the period of sick leave on working days).
But the wishes of the expectant mother and the capabilities of her body do not always coincide. If, after all, the mother was unable to work (for health reasons, for example), her gynecologist has the right to reinstate sick leave from 30 weeks retroactively.
To avoid such pitfalls, many employers take a different route. Maternity leave is issued from the due date of 30 weeks. And those days that the employee devoted to work are simply issued as a bonus (by agreement with the “maternity leave”).
During this time, the employee does not report time and remains at the workplace as long as her status as an expectant mother allows. Thus, there is no violation from a legal point of view. And there will be no risks due to health conditions either.
Documents for maternity leave
Let me remind you that we are now talking about the first part of maternity leave, namely maternity leave. It is issued upon presentation of a sick leave certificate issued by the antenatal clinic (only for officially employed employees).
So, a list of all the required documents to calculate vacation for your employee:
- Sick leave (140 days in the standard case);
- Certificate of registration in the early stages of pregnancy (if available);
- Application for vacation written in person!
- Information about a bank card or account (for transferring benefits);
- Certificate of income for the previous 2 years (if the employee has been working in your company recently, otherwise this information is in your accounting department).
Based on these documents, personnel issue a leave order, which is paid by calculating sick leave benefits.
We calculate the amount of benefits
The amount of sick leave payment for pregnancy and childbirth is 100% of the average daily earnings (regardless of the employee’s insurance coverage) multiplied by the number of days of sick leave (in general, 140 days).
However, there are minimum and maximum benefit limits. In 2019 it is 51,918.80 rubles. and 301,095.96 rubles. accordingly (do not forget to multiply the resulting amount by the regional coefficient).
We also remember that from January 1st it was increased to 11,280 rubles.
As a result, our calculation formula will look like this:
SP=D/730*140, Where:
- SP – benefit amount;
- D– income for the two previous years;
- 730 – number of days (2017 and 2018);
- 140 – standard period of sick leave.
This is an ideal calculation option. There are exceptions in life. For example, if during the previous two years a woman was on sick leave, on maternity leave or maternity leave, then this time is excluded from the calculation period. However, in the last two cases this time for calculation is allowed to be replaced by previous years.
If the employee decides to “stay”, then the formula for calculating the benefit will be as follows:
SP=D/730*(140-RD), Where:
RD – number of working days.
And one more very important nuance: if your employee “didn’t have time to work at all” (less than 6 months of experience), then the benefit is calculated based on the minimum wage.
Well, we have examined in detail the option of going on maternity leave later than the due date. We hope the article was useful to you. Now you can definitely answer all the questions about “shortened” maternity leave.