Pregnant women have the right to be transferred to light work upon pregnancy. In what cases can a pregnant employee exercise this right and what documents are needed for this?
The need to transfer a pregnant employee.
Light work involves reducing production and maintenance standards, as well as transferring to another job, the conditions of which exclude the impact of harmful and unfavorable factors on health. This is determined by a medical report (Part 1 of Article 254 of the Labor Code of the Russian Federation).
What professions provide the opportunity to transfer to easier work? They are defined in the “Hygienic Recommendations for the Rational Employment of Pregnant Women” (approved by the State Committee for Sanitary and Epidemiological Surveillance of the Russian Federation and the Ministry of Health of the Russian Federation on December 21, 23, 1993). Another regulatory document for translation is section 4 of the Sanitary Rules and Standards “Hygienic requirements for working conditions for women” (SanPiN 2.2.0.555-96, approved by Resolution of the State Committee for Sanitary and Epidemiological Supervision of the Russian Federation No. 32 of October 28, 1996).
If the activity of a pregnant woman in an organization jeopardizes her health and the health of her baby, it must provide for conditions for transfer to light work.
What stresses can be considered harmful for a pregnant woman?
These include:
Lifting objects and loads above shoulder girdle level;
- lifting objects from the floor;
- forced loads on the muscles of the legs and abdominals when performing normal work (if the worker’s position is squatting, bending, kneeling, resting her stomach or chest on work equipment, etc.);
- actions with a torso tilt of more than 15 degrees;
- use of a foot pedal to control the equipment;
- work on a conveyor with a constant mode;
- work that involves nervous and emotional stress.
The permissible weight loads for pregnant women are:
Lifting weights no more than 2.5 kg up to two times per hour.
- When constantly lifting heavy objects during the working day, the weight of the load cannot exceed 1.25 kg.
- When moving cargo over a distance of no more than 5 m, the total weight of cargo, calculated for one hour of shift, should not exceed more than 60 kg. Lifting from the floor is contraindicated.
Working conditions under which a woman has the right to light work:
The working posture of a pregnant employee is limited.
- Walking at work is more than 2 km per shift.
- Work involves getting your clothes or shoes wet.
- Working in a draft.
- Working with sudden changes in pressure associated with external influences (flight attendants, summer crew, pressure chamber workers).
- Work in unlit areas or in rooms without windows.
- The temperature at work exceeds +35 degrees.
- Work at a computer, computer – more than 3 hours per shift.
What are the grounds for transferring to light work?
If the conditions in which a woman works are unfavorable for her health, she should contact her doctor at the antenatal clinic. He is obliged to issue her a medical report, where he makes a recommendation to transfer her to light work.
The employee should submit a medical report to the employer, and also write an application for transfer to easier work. Without a medical certificate, the employee has no right to expect a reduction in production standards or transfer to another job.
The transfer of a worker to light work is a temporary phenomenon and lasts until the end of pregnancy. During the transfer, she retains the average earnings from her previous job.
Application for transfer to another job of a pregnant employee. Sample.
To the Director of Kvart LLC
Ilchenko I.G.
From a plasterer-painter
Krivenko O.P.
Statement.
I ask you to transfer me to another job without exposure to unfavorable occupational factors based on a medical report.
Appendix: certificate from antenatal clinic No. 26 dated 04/04/2013.
04/05/2013 signature Krivenko O.P.
Starting from the date of the medical report and until the problem is officially resolved, the pregnant employee is released from work while maintaining the average earnings for these days. The average salary is paid by the employer. If there is no work for her, she may be released from work until her maternity leave.
If a woman has a child under 1.5 years of age and she is unable to work at her previous job, she can transfer upon application to another job with earnings no lower than the average earnings at the previous job when the child reaches the age of 1.5 years.
How to apply for a transfer to light work?
After a positive decision by management to provide the employee with easier work, an additional agreement to the employment contract is concluded with her. Based on this additional agreement, the manager issues an order to transfer the employee to another job. Since the transfer to easier work is temporary, no entries are made in the work book on this topic.
What jobs should pregnant women not be involved in?
These include the following works:
Overtime;
- on weekends and holidays;
- work in the evening;
- business trips.
Responsibility for violation of the law.
If the employer does not provide you with any benefits, the employee can file a complaint with the State Labor Inspectorate. If during the inspection the fact of violation is confirmed, the labor inspectorate has the right to bring the employer to administrative liability.
The fine for organizations is 30-50 thousand. rubles, in addition, officials will also be punished - 1-5 thousand rubles. the inspection may also issue a verdict on suspension of activities for up to 90 days.
If the violation is repeated, the manager or other official may be disqualified for a period of 1-3 years.
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The Labor Code does not clearly and precisely regulate light work for pregnant women. Disputes arise between employees and employers, since there is no specific legislative formulation. Judicial practice is ambiguous - on claims of women in this situation based on violation of their rights, decisions are often made in favor of the enterprise.
What does light labor mean for pregnant women?
Changes in work, which are established by the Labor Code of the Russian Federation, consist of reducing the workload or transferring to another position (Article 254). The average (calculated using a special algorithm) salary remains the same. Load refers to production and maintenance standards. Examples: the number of lessons for a teacher, the number of pensioners served for a postman.
How to define light work for pregnant women that is not standardized - secretary, accountant, designer? The law requires a transfer to “work that excludes exposure to adverse production factors.” It is advisable to be guided by specialized regulations:
- “Hygienic recommendations for rational employment of pregnant women”, Ministry of Health of the Russian Federation dated December 23, 1993.
- “SanPiN 2.2.0.555-96. 2.2. Hygienic requirements for working conditions for women. Sanitary rules and regulations”, § 4;
- “SanPiN 2.2.2/2.4.1340-03 Hygienic requirements for personal electronic computers and organization of work”, clause 13.2.
In these documents, light labor during pregnancy provides for restrictions on lifting heavy objects, time spent in one position, and walking. The number of hours at the computer is regulated - no more than 3. Industry regulations provide for changes in positions and responsibilities: flight attendants, conductors, nurses in X-ray rooms, laboratories.
Conditions for providing other work
Transfer to light work for pregnant women The Labor Code makes it dependent on two documents: a certificate from the antenatal clinic, and a statement from the employee. The absence of one of them may lead to the employer's refusal, supported by the arbitrators. City Court of Dzerzhinsk in case No. 2-2790 dated June 10, 2015, based on Art. 254 of the Labor Code rejected the claim of the employee who brought a medical report, but did not submit a written appeal.
Any document from a gynecologist will not be suitable to justify the transfer; ordinary confirmation of pregnancy does not provide benefits. The provided certificate of transfer to light work for a pregnant woman (resubmission after 3 months) must contain specific instructions on what factors harm the employee for health reasons. There is no unified form; doctors compose it freely. Therefore, the employer’s refusal, based on the appearance of the document, if it suddenly follows, is illegal.
The transfer is formalized by order (T-5) and by drawing up an additional agreement to the employment contract. The contract specifies the period (from the medical certificate) and the basis.
Written application for light work during pregnancy - sample
If there is no temporary or permanent opportunity to transfer the employee, then she is released from work with payment for missed days according to average earnings.
Light work for pregnant women - refusal of the employee
Women's incorrect interpretation of Article 254 of the Labor Code on payment leads to the erroneous opinion that refusal of an offered position entails paid stay at home. But the Labor Code directly states that it is retained until another job is provided. At the same time, the employer is obliged, for medical reasons, to remove the employee from his position if it is contraindicated for him. Wages are not calculated (Article 76).
Since the Labor Code of the Russian Federation does not regulate light work for pregnant women, in order to avoid legal disputes, it is better for organizations to carry out workplace certification. Official confirmation that the employee is not exposed to harmful effects is an argument in favor of the employer.
Half-holiday
Art. obliges to reduce working hours upon application. 93 TK. In this case, the schedule for performing duties is established at the request of the woman. Employees often mistakenly believe that a short day refers to easier working conditions and require full average earnings. The Labor Code separates light work for pregnant women and how many hours worked, and establishes that wages are calculated in proportion to the hours worked.
Conclusion: based on the employee’s application and medical report, it is possible to simultaneously provide another position and reduce the working day, maintaining the average salary and paying only for the time of presence at the enterprise.
Often pregnant employees are transferred to light work at their request. They sign an additional agreement to the employment contract and set a salary equal to the average earnings for their previous job. Read the article on how to properly fill out documents and calculate payments.
Based on a medical report and an application from a pregnant employee, the employer is obliged (Part 1 of Article 254 of the Labor Code of the Russian Federation):
-reduce its production (service) standards;
- or transfer her to another job that excludes the impact of unfavorable production factors, while maintaining the average earnings for her previous job.
It is not always possible to immediately transfer a pregnant employee to another job. In this case, the employer will have to:
-free her from work;
- pay her the average salary for all working days missed due to release.
This procedure is established in part 2 of article 254 of the Labor Code and paragraph 22 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 No. 1.
How to properly apply for release from work
If it is impossible to provide a pregnant employee with light work or work that excludes exposure to harmful or hazardous production factors, the employer must issue an order to release her from work.During the period of release from work, the employee cannot receive wages (Part 3 of Article 76 of the Labor Code of the Russian Federation). She is paid for missed working days in the amount of average earnings for her previous job (Part 2 of Article 254 of the Labor Code of the Russian Federation).
Example 1
Registration of temporary release of a pregnant employee from workEmployee of PJSC "Ocean" E.M. Akulova, a test engineer of the 3rd category, on December 22, 2014, submitted to the employer a medical report and an application for transfer to light work due to pregnancy. While searching for a suitable job, the employee was released from work with payment of average earnings. The employee's release from work must be documented.
Solution
The employer formalized the release from work by order. There is no unified form for such an order; it can be drawn up in any form (sample 1 below).
Sample 1 Order on release from work
In the time sheet according to the unified form No. T-12 or according to the form developed by the company, the period of release from work will be marked with the letter code “NO” or the number 34 (sample 2 below).
Sample 2 Fragment of a time sheet in December 2014
How to properly process a transfer to light work
Transfer to light work is permitted only by agreement of the parties to the employment contract. The employer sends the pregnant employee a written offer to transfer to light work. The employee must be familiarized with it against signature. If the employee agrees with the transfer to a new position, she expresses her consent by making a note on the transfer proposal or by making a separate statement (sample 3 below).Sample 3 Proposal for transfer to light work
Since, when transferring to another position, the terms of the employment contract determined by the parties change, the changes are formalized by agreement in writing (Article 72 of the Labor Code of the Russian Federation).
Such a transfer will entail:
Temporary change in the employee’s labor function;
Change of his place of work (structural unit);
Changes in wages.
New salary for an easy job
The additional agreement to the employment contract does not need to indicate the specific amount of the employee’s new salary. The Labor Code determines its lower limit - the average earnings for the previous job.
The salary calculated on the basis of the average earnings for the previous job may be more in one month, and less than the earnings calculated on the basis of the employee’s new salary in another month.
Every month, as long as light work lasts, the accountant will have to make a comparison. To do this, it is more convenient to take the daily average earnings for the previous job and the salary for the new job.
We’ll show you with an example how to transfer a pregnant employee to light work.
Example 2
Entries in the additional agreement to the employment contract on transfer to light labor
Let's continue with example 1. Employee of PJSC "Ocean" E.M. Akulova, a test engineer of the 3rd category, on December 22, 2014, submitted to the employer a medical report and an application for transfer to light work due to pregnancy.
While searching for a suitable job, the employee was released from work and paid an average salary.
On January 12, 2015, the employee, with her consent, was transferred to light work in the certification department as a specialist. The salary for the previous position is 27,800 rubles. per month, and for a new position - 26,500 rubles. per month.
It is necessary to document the transfer to light work.
The employer needs to enter into an additional agreement with the employee to the employment contract (see sample 4).
Sample 4 Fragment of an additional agreement to an employment contract
Based on the additional agreement, the employer issues an order for temporary transfer. He can use the unified form No. T-5 or a independently developed form.
Using the unified form No. T-5 is not entirely convenient; it contains lines for indicating the tariff rate (salary) for the new position in rubles and kopecks. And in the case of transfer to light work, the amount of average earnings retained will be different in each month depending on the number of working days. We will draw up an order in any form (sample 5 below).
Sample 5 Order on transfer to light labor
A pregnant employee needs to be informed:
With an order for temporary transfer against signature;
Job description for the new position;
Other local regulations related to work in a new position.
In the time sheet according to the unified form No. T-12 or the form developed by the company, the period of transfer to light labor will be marked with the letter code “I” or digital 01 (sample 6 below).
Sample 6 Fragment of a time sheet in January 2015
An entry about transfer to light labor must be made in section III “Hiring and transfers to another job” of the employee’s personal card in form No. T-2 (sample 7 below). The employee must be familiarized with the recording against signature.
Sample 7 Section III of the personal card “Hiring and transfers to another job”
The salary after transfer to light work was higher than before
If the salary for the work performed turns out to be higher than the salary for the previous position, the employer must be prepared to prove to inspectors from the Federal Social Insurance Fund of the Russian Federation that the pregnant employee has the special education, qualifications or work experience necessary for the higher-paid position. Otherwise, they may regard such a transfer before maternity leave as an artificially inflated payment in the pay period in order to increase the amount of the benefit, and try to refuse the company to reimburse the maternity benefit.
transfer to light work due to pregnancy
TRANSFER TO EASY WORK DURING PREGNANCY
Often pregnant employees are transferred to light work at their request. They sign an additional agreement to the employment contract and set a salary equal to the average earnings for their previous job. How to properly prepare documents and calculate payments?
Based on a medical report and an application from a pregnant employee, the employer is obliged (Part 1 of Article 254 of the Labor Code of the Russian Federation):
— or reduce its production (service) standards;
- or transfer her to another job that excludes the impact of unfavorable production factors, while maintaining the average earnings for her previous job.
It is not always possible to immediately transfer a pregnant employee to another job. In this case, the employer will have to:
- release her from work;
- pay her the average salary for all working days missed due to release.
This procedure is established in part 2 of article 254 of the Labor Code and paragraph 22 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 No. 1.
HOW TO PROPERLY APPLY FOR RELEASE FROM WORK
If it is impossible to provide a pregnant employee with work that excludes exposure to harmful or dangerous production factors, the employer must issue an order to release her from work.
During the period of release from work, the employee cannot receive wages (Part 3 of Article 76 of the Labor Code of the Russian Federation). She is paid for missed working days in the amount of average earnings for her previous job (Part 2 of Article 254 of the Labor Code of the Russian Federation).
Section 4 of the Sanitary Rules and Standards “Hygienic Requirements for Working Conditions for Women” SanPiN 2.2.0.555-96, approved by Resolution of the State Committee for Sanitary and Epidemiological Supervision of Russia dated October 28, 1996 No. 32, defines:
- work from which pregnant workers must be exempted;
- criteria for their optimal workload;
- requirements for technological operations, equipment and workplaces where the labor of pregnant employees can be used.
The employer formalizes release from work by order. There is no unified form for such an order; it can be drawn up in any form.
In the time sheet according to the unified form No. T-12 or according to the form developed by the company, the period of release from work will be marked with the letter code “NO” or the number 34 (sample 2 below).
Unified form No. T-12 was approved by Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1
HOW TO CORRECTLY APPLY A TRANSFER TO LIGHT WORK
Transfer to light work is permitted only by agreement of the parties to the employment contract. The employer sends the pregnant employee a written offer to transfer to light work. The employee must be familiarized with it against signature.
If the employee agrees with the transfer to a new position, she expresses her consent by making a note on the transfer proposal or by making a separate statement.
PROPOSAL FOR TRANSFER TO LIGHT WORK
Since, when transferring to another position, the terms of the employment contract determined by the parties change, the changes are formalized by agreement in writing (Article 72 of the Labor Code of the Russian Federation).
Such a transfer will entail:
— temporary change in the employee’s labor function;
— change of his place of work (structural unit);
- change in wages.
New salary for an easy job
The additional agreement to the employment contract does not need to indicate the specific amount of the employee’s new salary. Article 254 of the Labor Code of the Russian Federation determines its lower limit - the average earnings from the previous job.
The salary calculated on the basis of the average earnings for the previous job may be more in one month, and less than the earnings calculated on the basis of the employee’s new salary in another month.
Every month, as long as light work lasts, the accountant will have to make a comparison. To do this, it is more convenient to take the daily average earnings for the previous job and the salary for the new job.
We’ll show you with an example how to transfer a pregnant employee to light work.
Based on the additional agreement, the employer issues an order for temporary transfer. He can use the unified form No. T-5 or a independently developed form.
Using the unified form No. T-5 is not entirely convenient; it contains lines for indicating the tariff rate (salary) for the new position in rubles and kopecks. And in the case of a transfer to light work, the amount of average earnings retained will be different in each month depending on the number of working days).
A pregnant employee needs to be informed:
- with an order for temporary transfer against signature;
- job description for the new position;
- other local regulations related to work in a new position.
In the work time sheet according to the unified form No. T-12 or the form developed by the company, the period of transfer to light labor will be marked with the letter code “I” or the numeric 01.
The salary after transfer to light work was higher than before
If the salary for the work performed turns out to be higher than the salary for the previous position, the employer must be prepared to prove to inspectors from the Federal Social Insurance Fund of the Russian Federation that the pregnant employee has the special education, qualifications or work experience necessary for the higher-paid position. Otherwise, they may regard such a transfer before maternity leave as an artificially inflated payment in the pay period in order to increase the amount of the benefit, and try to refuse the company to reimburse the maternity benefit.
There is no need to make an entry about the transfer of a pregnant employee to light work in her work book. Only information about permanent transfers is entered (Part 4 of Article 66 of the Labor Code of the Russian Federation).
AN EMPLOYEE GOES ON MATERNITY LEAVE
On the last day before maternity leave, the transfer of a pregnant employee to light work ends, as the additional agreement expires.
No additional documents are required to complete the transfer and the employee’s return to work in her previous position.
HOW TO CALCULATE AVERAGE EARNINGS
The average salary retained by a pregnant employee is calculated in accordance with Article 139 of the Labor Code and the Regulations on the specifics of the procedure for calculating the average salary, approved by Decree of the Government of the Russian Federation dated December 24, 2007 No. 922.
The calculation of the average salary of a worker is made from the salary actually accrued to her and the time actually worked for the 12 calendar months preceding the period during which her average salary will be retained (parts 2 and 3 of article 139 of the Labor Code of the Russian Federation, clauses 2 and 4 of the Regulations on average earnings).
When determining average earnings, average daily earnings are used (clause 9 of the Regulations on Average Earnings). It is calculated by dividing the amount of wages actually accrued for days worked in the pay period by the number of days actually worked during this period.
Average earnings are determined by multiplying the average daily earnings by the number of calendar (working) days in the paid period (clause 9 of the Regulations on
31th of December).
Personal income tax and insurance premiums
If, however, a worker transferred to light work is paid a salary based on the average earnings for her previous job, it should be taken into account that such a payment is subject to:
- Personal income tax. The company withholds tax at the time of payment of income (clause 4 of article 226 of the Tax Code of the Russian Federation);
— insurance contributions to the Pension Fund of the Russian Federation, the Federal Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund (Clause 1, Article 7 of the Federal Law of July 24, 2009 No. 212-FZ, Clauses 1 and 2 of Article 20.1 of the Federal Law of July 24, 2009 No. 125-FZ).
Before the transfer, a pregnant employee can be employed in the types of work named in subparagraphs 1-18 of part 1 of Article 30 of the Federal Law of December 28, 2013 No. 400-FZ “On Insurance Pensions.”
If an employer transfers a pregnant employee, based on a medical report, to a job that excludes exposure to adverse production factors, such work is equivalent to the work preceding the transfer (clause 12 of the Rules approved by Decree of the Government of the Russian Federation of July 11, 2002 No. 516).
In this case, the average earnings retained by the employee and other payments in her favor during the period of release from work or transfer to light work must be assessed at additional rates (clause 12 of the letter of the Pension Fund of December 30, 2013 No. NP-30-26/20622 and clause 7 of the letter of the Ministry of Labor of Russia dated 06/05/2013 No. 17-3/10/2-3105).
How to take into account accruals for the period of release from work and transfer to light work in the next calculation of average earnings.
The time an employee is released from work while maintaining average earnings is not taken into account in subsequent calculations in accordance with the Labor Code (subparagraph “a”, paragraph 5 of the Regulations on Average Earnings). The time worked by the employee during the period of transfer to light work and paid in an amount not lower than the average earnings for her previous job will in the future be taken into account when calculating the average earnings for other cases of its calculation, as well as accruals for this time.
When calculating average earnings for the purposes of calculating benefits, both the time of release from work and the time of transfer to light work will be taken into account, as well as payments accrued for this period, since they are subject to insurance contributions on the basis of Part 1 of Article 7 of Federal Law No. 212 of July 24, 2009 -FZ.
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Having received a medical report, pregnant employees apply to their employers to transfer to another job that excludes exposure to adverse production factors, while maintaining their average earnings. Very often, management refuses to meet the expectant mother and puts all sorts of obstacles in her defense of her right to favorable working conditions. The sample application that we bring to your attention is compiled taking into account the excuses that employers come up with for a pregnant woman in order to stall for time in resolving her issue.
“I ask you, in accordance with Art. 254 of the Labor Code of the Russian Federation and Sanitary Rules and Norms SANPiN 2.2.0.555−96 “Hygienic requirements for working conditions for women” (approved by Resolution of the State Committee for Sanitary and Epidemiological Supervision of the Russian Federation dated October 28, 1996 No. 32) and the medical report attached by me to transfer me to another job while maintaining the average salary according to previous job.
Before providing the appropriate work, I ask that you release me from work while maintaining the average earnings for all working days missed as a result at the expense of the employer.
I also ask you to take into account that the employer must offer me a job that meets the requirements of sanitary standards. And if the certification of workplaces did not reveal the harmfulness or danger of the workplace, but my workplace does not meet the requirements described in SANPiN for the workplace of a pregnant woman, then it is the requirements of SANPiN that apply. And therefore Art. 73 of the Labor Code of the Russian Federation does not apply in my case if I refuse the job offered to me.
Article 259 of the Labor Code of the Russian Federation guarantees me a ban on being sent on business trips, engaging in overtime work, night work, weekends and non-working holidays.
And in accordance with Art. 93 of the Labor Code of the Russian Federation, part-time working hours can be established only in the case of an agreement between the employee and the employer, or the employer is obliged to establish a part-time working day (shift) or a part-time working week at the request of a pregnant woman.
I ask you to consider my application and provide me with a decision on it within the time limits established by local regulations that determine the procedure for the passage and consideration of documents in the organization.
If the employer refuses to comply with the requirements of labor legislation, then I will be forced not to go to work. And in order to protect my legal rights, I will go to court, where I will use the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, to recognize the days of my absence as not absenteeism, so that I can be paid for forced absenteeism due to the employer’s failure to comply with labor legislation and moral damages, Art. 237 of the Labor Code of the Russian Federation."
Yes, the text of this statement provokes a conflict, but it is applicable precisely to a situation where a conflict is already present, and precisely for those employers whom I would call inadequate, whose goal is to get rid of a pregnant woman.
In other situations, you should use only individual paragraphs of this sample application. And in the text you should make a link that you are forced to contact your employer, because... you are obliged by your condition and the fact that you now need to think not only about yourself, but also about your future child. And that at the same time you do not want to harm the employer and are even ready to compromise, that is, even if the law is not strictly observed, but the decision will be beneficial for both you and the employer.