ST 254 of the Labor Code of the Russian Federation.
Pregnant women in accordance with the medical report and at their request
production rates, service rates are reduced, or these women are transferred to another
work that excludes the impact of adverse production factors, while maintaining
average salary from previous job.
Until the pregnant woman is given other work that excludes exposure
adverse production factors, she is subject to release from work with
maintaining the average earnings for all missed working days as a result of this at the expense of
employer.
When passing a mandatory dispensary examination in medical organizations
reserved for pregnant women average earnings at the place of work.
Women with children under the age of one and a half years, in case of impossibility to fulfill
of the previous job are transferred upon their application to another job with remuneration according to the work performed
work, but not lower than the average earnings in the previous job until the child reaches the age of one and a half years.
Commentary on Art. 254 of the Labor Code of the Russian Federation
1. In order to ensure pregnant women the right to work in conditions that meet their physiological characteristics and state of health, the legislation establishes a number of measures aimed at creating conditions for hygienically rational employment of pregnant workers, i.e. the optimal value of the workload (physical, neuro-emotional) and the optimal conditions of the working environment, which in practically healthy women should not cause deviations in the body during pregnancy and should not adversely affect the course of childbirth, the postpartum period, lactation, the condition of the fetus, on the physical and mental development and morbidity of born children.
2. The commented article establishes the following ways to facilitate working conditions for pregnant women:
a) lower production and service standards;
b) transfer to another job, excluding the impact of adverse factors of production;
c) maintaining average earnings while reducing production rates and service rates when transferring to another job;
d) release from work while maintaining average earnings until the issue of providing another job is resolved;
e) maintaining average earnings while undergoing mandatory dispensary care in medical organizations.
For women with children under the age of one and a half years, the following are provided:
a) transfer to another job, if the performance of the previous job is prohibited in order to protect the health of the woman and the child;
b) transfer to another job, if the performance of the previous job is impossible for other reasons;
c) payment not lower than the average salary for the previous job at the time of the transfer.
When implementing these measures, point 4 should be taken into account Sanitary regulations and norms SanPiN 2.2.0.555-96 "Hygienic requirements for working conditions for women", approved. Decree State Committee Sanitary and Epidemiological Supervision of the Russian Federation of October 28, 1996 N 32, which establishes special requirements for working conditions for women during pregnancy.
3. The reduction in production rates and service rates for pregnant women is carried out on the basis of a medical report, which establishes the optimal amount for a woman to reduce production rates and service rates (the recommended amount is on average up to 40% of the constant rate).
The reduction in production rates is carried out at the request of a woman. In the absence of a statement, the production rates do not decrease, but it is advisable to explain to a pregnant woman her rights.
4. In a number of cases, a ban has been established on the work of pregnant women from the moment of medical confirmation of pregnancy in certain conditions and in certain industries. Since in these cases the right to transfer is associated with the very fact of pregnancy, special medical opinions on the need for transfer are not required. Such cases include:
work in plant growing and animal husbandry (clause 2.2 of the Decree of the Supreme Council of the RSFSR of November 1, 1990 N 298 / 3-1 "On urgent measures to improve the situation of women, the family, the protection of motherhood and childhood in the countryside");
work in radiotherapy departments (clause 1.4 Model Instruction on labor protection for personnel of radiation therapy departments, approved. Order of the Ministry of Health of the Russian Federation of January 28, 2002 N 18);
work in x-ray departments (clause 2.4 of the Standard instruction on labor protection for personnel x-ray departments, approved Order of the Ministry of Health of the Russian Federation of January 28, 2002 N 19);
work in departments of radionuclide diagnostics (clause 2.4 of the Standard instruction on labor protection for personnel of departments of radionuclide diagnostics, approved by Order of the Ministry of Health of the Russian Federation of January 28, 2002 N 20);
any work with pesticides and agrochemicals (clause 2.8 of the Sanitary Rules and Norms SanPiN 1.2.2584-10 "Hygienic requirements for the safety of testing, storage, transportation, sale, use, neutralization and disposal of pesticides and agrochemicals", approved by the Decree of the Chief State sanitary doctor RF dated March 2, 2010 N 17);
work related to radiomagnetic radiation for the repair and maintenance of radio devices (clause 9.4 of the Sanitary Rules for the maintenance and repair of radio devices of civil aviation aircraft, approved by the Decree of the State Committee for Sanitary and Epidemiological Surveillance of the USSR of November 12, 1991 N 6031-91) ;
work with sources of ionizing radiation (clause 8.3 of the Sanitary Rules for working with sources of ionizing radiation during the maintenance and repair of aircraft at enterprises and factories of civil aviation, approved by the Decree of the State Committee for Sanitary and Epidemiological Surveillance of the USSR of November 11, 1991 N 6030-91) ;
work related to the use personal computers(clause 13.2 of the Sanitary and Epidemiological Rules and Regulations "Hygienic requirements for personal electronic computers and organization of work. SanPiN 2.2.2 / 2.4.1340-03", approved by the Decree of the Chief State Sanitary Doctor of the Russian Federation of June 3, 2003 N 118);
work in contact with harmful factors of the production environment in the organization dry cleaning products (clause 7.7 of the Hygienic Requirements for Dry Cleaning Organizations of Products, approved by the Decree of the Chief State Sanitary Doctor of the Russian Federation of April 27, 2009 N 26);
work with the use of methanol (clause 3.15 of the Sanitary and Hygienic Requirements for the organization and conduct of work with methanol, approved by the Decree of the Chief State Sanitary Doctor of the Russian Federation of July 12, 2011 N 99).
In accordance with Art. 298 of the Labor Code of the Russian Federation, pregnant women cannot be employed on a rotational basis.
In all these cases, the pregnant woman must be provided with another job that meets the requirements of health protection.
A pregnant woman must also be transferred in other cases if the work performed is contraindicated for her on the basis of a medical opinion. In this case, the medical report indicates the period in which such a transfer is required, as well as acceptable (or unacceptable) working conditions.
5. If it is impossible to reduce the production and service standards, as well as if it is impossible to use the work of a pregnant woman in her previous job, she should be transferred to another job, in the performance of which the impact of adverse production factors is excluded. Work provided to a pregnant woman must comply with the requirements for working conditions for women during pregnancy, enshrined in the Hygienic Requirements for Working Conditions for Women.
6. Until a pregnant woman is provided with another job suitable for working conditions, she is released from her previous job from the day specified in the medical report. If the provision suitable job impossible, a pregnant woman is released from work for the entire duration of her pregnancy.
7. In the event of a reduction in production rates, service rates, when transferring to another job, as well as in case of release from work, a pregnant woman retains the average earnings from her previous job for the entire time of reducing the rates of output, service, transfer or release from work.
For the procedure for calculating average earnings, see Art. 139 of the Labor Code of the Russian Federation and commentary to it.
8. Clinical examinations are subject to all pregnant women starting from the earliest stages of pregnancy (up to 12 weeks) and puerperas. Identification of pregnant women is carried out when women contact the antenatal clinic and during preventive examinations. During the period of mandatory dispensary observation, a pregnant woman retains average earnings (see Article 185 of the Labor Code of the Russian Federation and commentary thereto).
9. When transferring, in accordance with the medical report of a pregnant woman, upon her application, from a job that gives the right to early appointment of an old-age labor pension in accordance with Art. Art. 27 and 28 of the Federal Law of December 17, 2001 N 173-FZ "On labor pensions in the Russian Federation", for work that excludes the impact of adverse production harmful factors, such work is equated with the work preceding the translation.
In the same manner, periods are calculated when a pregnant woman did not work until the issue of her employment was resolved in accordance with a medical report (paragraph 12 of Decree of the Government of the Russian Federation of July 11, 2002 N 516 "On approval of the Rules for calculating periods of work, giving the right to early appointment of an old-age labor pension in accordance with Articles 27 and 28 federal law"On state pensions in Russian Federation").
10. The impossibility of performing the previous work by women with children under the age of one and a half years may be due to medical contraindications in connection with breastfeeding, as well as the inability to provide proper care for the child due to the regime or other working conditions.
11. Women who are breastfeeding are prohibited by sanitary norms and rules from performing certain work that adversely affects the level of mother's lactation and the health of the child. Such work includes any work with pesticides and agrochemicals, poisonous deratization agents, pest control and repellent agents, radiomagnetic and ionizing radiation.
12. The impossibility of performing the previous work by women with children under the age of one and a half years may also be associated with the traveling nature of the work, the remoteness of the workplace from the place of residence of the woman, the early start or late end of work shifts, the impossibility of providing part-time work, the impossibility of providing breaks for feeding a child and other unfavorable working conditions for maternal care of a child.
13. For the period of transfer of a pregnant woman or a woman with a child under the age of one and a half years, to another job, she retains all the benefits and advantages that she had in her previous job. Payment is made according to the work performed, but not lower than the average earnings for the previous job.
Pregnant women, in accordance with a medical report and upon their application, have reduced production rates, service rates, or these women are transferred to another job that excludes the impact of adverse production factors, while maintaining their average earnings from their previous job.
Until a pregnant woman is provided with another job that excludes the impact of adverse production factors, she is subject to release from work with the preservation of the average earnings for all missed working days as a result of this at the expense of the employer.
When undergoing a mandatory dispensary examination in medical institutions, pregnant women retain their average earnings at the place of work.
COMMENT 1.
To resolve the issue of reducing production rates, service rates or transferring a pregnant woman to another job that excludes the impact of adverse production factors, it is necessary to have a medical report and a statement from the pregnant woman.
The decision on whether the production rates, service rates will be reduced or the pregnant woman will be transferred to another job is made by the employer, taking into account the medical opinion and the requirements applicable to the work of pregnant women. 2.
The main goal of the development and application of the mentioned Hygienic Recommendations is to help create conditions for a hygienically rational employment of pregnant workers, i.e. the optimal value of the workload (physical, neuro-emotional) and optimal conditions of the working environment, which in practically healthy women should not cause deviations in body during pregnancy and not adversely affect the course of childbirth, the postpartum period, lactation, the state of the fetus, the physical and mental development and morbidity of children born.
The mentioned hygienic recommendations establish the optimal values of physical activity for the work of women during pregnancy, professiographic criteria for optimal workload, hygienic criteria for optimal working environment conditions, and hygienic criteria for organizing the workplace. Applications contain lists of potentially dangerous chemical substances in terms of the impact on reproductive function and industrial aerosols, predominantly fibrogenic and mixed type of action.
The organization of the labor process at the workplace must comply with the Hygienic Recommendations for the rational employment of pregnant women, which is provided for by SanPiN 2.2.0.555-96 “Hygienic requirements for working conditions for women”, approved. Decree of the State Committee for Sanitary and Epidemiological Supervision of Russia dated October 28, 1996 No. 32.
According to the Hygienic Requirements for Working Conditions for Women, it is established that all female workers from the day they are diagnosed with pregnancy should be taken under careful dispensary observation with mandatory employment in the early stages for work that is not related to the impact of harmful production factors for the entire period of pregnancy and lactation.
Permanent jobs at production facilities must have sanitary and hygienic passports with general and quantitative characteristics of the factors of the production environment and the labor process.
Requirements for working conditions for women during pregnancy are contained in Sec. 4 SanPiN 2.2.0.555-96. This section establishes the requirements for technological operations, equipment, production environment, as well as the permissible values of physical activity for pregnant women, indicators of permissible workload for women during pregnancy, requirements for the organization of the workplace and hygienic indicators of optimal conditions for the production environment. 3.
There are also restrictions on the admission of pregnant women to certain types works.
In the List of medical contraindications for employees of nuclear facilities, approved. Decree of the Government of the Russian Federation of March 1, 1997 No. 233 “On the list of medical contraindications and the list of positions to which these contraindications apply, as well as on the requirements for conducting medical examinations and psychophysiological examinations of employees of nuclear facilities”, pregnancy and lactation period are included.
Rules for labor protection in animal husbandry, approved. Order of the Ministry of Agriculture of Russia dated February 10, 2003 No. 49 provides that pregnant and lactating women are not allowed to work in the care of animals suffering from contagious diseases.
Sanitary rules for the storage, transportation and use of pesticides (toxic chemicals) in agriculture, approved The Chief State Sanitary Doctor of the USSR dated September 20, 1973 No. 1123-73 (the issue of their use is regulated by the Decree of the Ministry of Health of Russia dated November 13, 1996 No. 1), it was established that pregnant and breastfeeding women are not allowed to work with pesticides.
Lactating and pregnant women are not allowed to work with dangerous goods and disinfectant solutions at disinfection and washing points (SP 2.5.1250-03 “Sanitary rules for organizing freight traffic on railway transport”, approved. Chief State Sanitary Doctor of the Russian Federation on March 24, 2003).
A pregnant woman is subject to transfer to work not related to sources of ionizing radiation for the period of pregnancy and breastfeeding from the date of informing the administration about the fact of pregnancy (SP 2.6.1.1310-03 “Hygienic requirements for the arrangement, equipment and operation of radon laboratories, radon therapy departments”, approved by the Chief State Sanitary Doctor of the Russian Federation on April 24, 2003).
Pregnant women are not allowed to work as an operator of copiers and duplicating machines(SanPiN 2.2.2.1332-03 “Hygienic requirements for the organization of work on copiers”, approved by the Chief State Sanitary Doctor of the Russian Federation on May 28, 2003).
In accordance with SP 2.2.1289-03 “Hygienic requirements for dry cleaning organizations household products”, approved. Chief State Sanitary Doctor of the Russian Federation April 17, 2003, pregnant women are not allowed to work in contact with harmful factors of the working environment.
According to SanPiN 2.2.2 / 2.4.1340-03 “Hygienic requirements for personal electronic computers and organization of work”, women from the time of pregnancy are transferred to work not related to the use of a PC, or the time of working with a PC is limited for them (no more three hours per shift) subject to compliance with the hygiene requirements established by these Sanitary Rules.
Since the labor of pregnant women working in countryside, in crop production and animal husbandry, is prohibited from the moment pregnancy is detected, the administration is obliged to release the woman from such work (while maintaining the average salary at the new place of work) on the basis of a certificate of pregnancy. A special medical opinion on the need to provide more than easy work in this case, it is not required (paragraph 6 of the Resolution of the Plenum of the Supreme Council of the RSFSR of December 25, 1990 No. 6 “On Certain Issues Arising in the Application by Courts of Legislation Regulating the Labor of Women”).
Article 298 of the Labor Code of the Russian Federation prohibits the involvement of pregnant women in work performed on a rotational basis.
About the ban on sending to business trips, attraction to overtime work, work at night, weekends and non-working holidays pregnant women, see Art. 259 of the Labor Code of the Russian Federation and commentary to it. 4.
In the event of a reduction in production and service standards for pregnant women, as well as in the event of their transfer to another job that excludes the impact of adverse production factors, they are guaranteed the preservation of their average earnings from their previous job.
The employer is obliged to establish a part-time (shift) or part-time work week at the request of a pregnant woman (see Article 93 of the Labor Code of the Russian Federation and commentary thereto). In this case, the remuneration of the pregnant woman will be made in proportion to the hours worked. 5.
The Code does not establish within what period the employer must make a decision to reduce production rates, service rates or transfer pregnant women to another job that excludes the impact of adverse production factors.
However, until a pregnant woman is provided with another job that excludes the impact of adverse production factors, she is subject to release from work with the preservation of the average earnings for all missed working days as a result of this at the expense of the employer.
Thus, from the date of writing the relevant application and providing a medical report, a woman has the right not to perform work that does not exclude the impact of adverse production factors.
A woman's refusal to perform such work cannot serve as a basis for applying disciplinary measures against her (paragraph 4 of the resolution of the Plenum of the Supreme Council of the RSFSR of December 25, 1990 No. 6).
The provisions of parts 1 and 2 of the commented article are imperative for the employer, and failure to comply with the legal requirements of a pregnant woman may result in liability for violation of labor laws. 6.
An employer's refusal to provide a woman with easier work (reduction of production rates, service standards) or in providing another job that excludes the impact of adverse production factors may be appealed to the court. 7.
The Code guarantees the preservation of women's average earnings at the place of work also when they undergo a mandatory dispensary examination in medical institutions. This right can be exercised by a woman in the case of providing a document from a medical institution confirming the fact of passing a mandatory dispensary examination.
On the calculation of average earnings, see Art. 139 of the Labor Code of the Russian Federation.
In accordance with paragraph 7 of Art. 255 of the Tax Code of the Russian Federation, the costs of paying for the time associated with the passage of medical examinations are classified as labor costs. 8.
Women with children under the age of one and a half years, if it is impossible to perform their previous work, they are transferred, upon their application, to another job with wages for the work performed, but not lower than the average earnings for the previous job until the child reaches the age of one and a half years.
The impossibility of performing the previous work may depend both on reasons related to the protection of the health of the mother and child, and on factors whose influence on the possibility of performing the previous work and on the quality of its performance is assessed by the woman herself (the former intensity of labor is impossible due to the child's need for increased attention, previous work is associated with psycho-emotional stress, which can negatively affect the mother's condition in this period, the inability to perform work during this period, the nature of which requires special attention, etc.).
The transfer of a woman to another job is carried out at her request.
-
Section III. EMPLOYMENT CONTRACT
- Chapter 10. GENERAL PROVISIONS
- Chapter 11. CONCLUSION OF AN EMPLOYMENT CONTRACT
- Chapter 12. AMENDMENT OF AN EMPLOYMENT CONTRACT
- Chapter 13. TERMINATION OF AN EMPLOYMENT CONTRACT
- Chapter 14. PROTECTION OF THE PERSONAL DATA OF THE EMPLOYEE
-
Section IV. WORK TIME
- Chapter 15. GENERAL PROVISIONS
- Chapter 16. WORKING HOURS
-
Section V. REST
- Chapter 17. GENERAL PROVISIONS
- Chapter 18 WEEKENDS AND NON-WORKING HOLIDAYS
- Chapter 19
-
Section VI. PAYMENT AND REGULATION OF LABOR
- Chapter 20. GENERAL PROVISIONS
- Chapter 21. WAGES
- Chapter 22
-
Section VII. WARRANTY AND REFUND
- Chapter 23. GENERAL PROVISIONS
- Chapter 24
- Chapter 25
- Chapter 27
- Chapter 28. OTHER GUARANTEES AND COMPENSATIONS
-
Section VIII. WORK REGULATION. WORK DISCIPLINE
- Chapter 29. GENERAL PROVISIONS
- Chapter 30. DISCIPLINE OF LABOR
- SECTION IX. EMPLOYEE QUALIFICATION, PROFESSIONAL STANDARD, TRAINING AND ADDITIONAL PROFESSIONAL EDUCATION OF EMPLOYEES (as amended by Federal Law No. 122-FZ of May 2, 2015)
- Chapter 31. GENERAL PROVISIONS
- Chapter 32
-
Section X. LABOR SAFETY
- Chapter 33. GENERAL PROVISIONS
- Chapter 34. LABOR PROTECTION REQUIREMENTS
- Chapter 35. ORGANIZATION OF LABOR PROTECTION
- Chapter 36
-
Section XI. MATERIAL RESPONSIBILITY OF THE PARTIES TO THE EMPLOYMENT CONTRACT
- Chapter 37. GENERAL PROVISIONS
- Chapter 38
- Chapter 39
-
Section XII. FEATURES OF LABOR REGULATION OF CERTAIN CATEGORIES OF EMPLOYEES
- Chapter 40. GENERAL PROVISIONS
- Chapter 41
- Chapter 42
- Chapter 43
- Chapter 44
- Chapter 45
- Chapter 46
- Chapter 47
- Chapter 48
- Chapter 48.1. PECULIARITIES OF LABOR REGULATION OF PERSONS WORKING FOR EMPLOYERS - SMALL BUSINESS ENTITIES, RELATED TO MICRO-ENTERPRISES (introduced by Federal Law of 03.07.2016 N 348-FZ)
- Chapter 49
- Chapter 49.1. FEATURES OF REGULATION OF THE LABOR OF REMOTE WORKERS (introduced by the Federal Law of 05.04.2013 N 60-FZ)
- Chapter 50
- Chapter 50.1. PECULIARITIES OF LABOR REGULATION OF EMPLOYEES WHO ARE FOREIGN CITIZENS OR STATELESS PERSONS (introduced by Federal Law No. 409-FZ of December 1, 2014)
- Chapter 51
- Chapter 51.1. PECULIARITIES OF LABOR REGULATION OF EMPLOYEES EMPLOYED IN UNDERGROUND WORKS (introduced by Federal Law No. 353-FZ of November 30, 2011)
- Chapter 52
- CHAPTER 52.1. PECULIARITIES OF REGULATION OF THE LABOR OF SCIENTIFIC WORKERS, HEADS OF SCIENTIFIC ORGANIZATIONS AND THEIR DEPUTIES (introduced by Federal Law No. 443-FZ of December 22, 2014)
- Chapter 53.1. PECULIARITIES OF REGULATION OF THE LABOR OF EMPLOYEES SENT TEMPORARYLY BY THE EMPLOYER TO OTHER INDIVIDUALS OR LEGAL ENTITIES UNDER THE LABOR AGREEMENT FOR EMPLOYEES (STAFF) (introduced by Federal Law No. 116-FZ of 05.05.2014)
- Chapter 54
- Chapter 54.1. PECULIARITIES OF LABOR REGULATION OF ATHLETES AND COACHES (introduced by Federal Law No. 13-FZ of February 28, 2008)
- Chapter 55
- Section XIII. PROTECTION OF LABOR RIGHTS AND FREEDOM. REVIEW AND RESOLUTION OF LABOR DISPUTES. RESPONSIBILITY FOR VIOLATION OF LABOR LEGISLATION AND OTHER ACTS CONTAINING LABOR LAW NORMS (as amended by Federal Law No. 90-FZ of June 30, 2006)
- Chapter 56. GENERAL PROVISIONS
- Chapter 57
- Chapter 58
- Chapter 59
- Chapter 60. REVIEW AND RESOLUTION OF INDIVIDUAL LABOR DISPUTES
- Chapter 61. CONSIDERATION AND RESOLUTION OF COLLECTIVE LABOR DISPUTES
- Chapter 62. RESPONSIBILITY FOR VIOLATION OF LABOR LEGISLATION AND OTHER ACTS CONTAINING LABOR LAW
Article 254 of the Labor Code of the Russian Federation. Transfer to another job of pregnant women and women with children under the age of one and a half years
//=ShareLine::widget()?>Pregnant women, in accordance with a medical report and upon their application, have reduced production rates, service rates, or these women are transferred to another job that excludes the impact of adverse production factors, while maintaining their average earnings from their previous job.
Until a pregnant woman is provided with another job that excludes the impact of adverse production factors, she is subject to release from work with the preservation of the average earnings for all missed working days as a result of this at the expense of the employer.
When undergoing a mandatory dispensary examination in medical organizations, pregnant women retain their average earnings at their place of work.
(as amended by Federal Law No. 317-FZ of November 25, 2013)
Women with children under the age of one and a half years, if it is impossible to perform their previous work, they are transferred, upon their application, to another job with wages for the work performed, but not lower than the average earnings for the previous job until the child reaches the age of one and a half years.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
The right of a pregnant woman to be examined during working hours
According to Article 254 of the Labor Code of the Russian Federation, visiting a doctor during pregnancy is allowed directly in work time. Pregnant women undergo a mandatory medical examination:
- visit an obstetrician-gynecologist once every two weeks (at least 10 times during the entire pregnancy);
- general practitioner (at least 2 times);
- ophthalmologist, laura, dentist (at the initial visit).
- Some employers believe that a pregnant woman should make up the hours missed due to a doctor's appointment.
- Others require mandatory documentary evidence of a good reason for absence (medical certificate).
- Others believe that a woman is abusing her right to be absent from work due to an examination, and uses this time for personal needs. And at the same time they believe that they have the right to impose a penalty on it.
The Plenum of the Supreme Court of the Russian Federation, in Resolution No. 1 dated January 28, 2014, clarified a number of issues regulating the specifics of the work of women, persons with family responsibilities and minors. The explanations are given taking into account the practice and questions that arise in the courts when considering labor disputes on similar topics. The clarifications of the Plenum of the Supreme Court of the Russian Federation will ensure the unity of the application of labor legislation by the courts and put an end to long-standing disputes between employees and employers.
1. If the employer did not know about the employee’s pregnancy and filed a dismissal in a situation where, according to the law, termination of the contract with pregnant women is prohibited, then the subsequent request from the employee to reinstate at work is subject to satisfaction
Reason: Clause 25 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 No. 1
2. The employment contract, the end of which took place during the period of the employee's pregnancy, in general, must be extended until the end of the pregnancy. At the same time, in the case of the birth of a child, the need for dismissal is indicated not within a week after the child’s birthday, but on the last day of maternity leave
Reason: Clause 27 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 No. 1
3. Testing for employment is not established for pregnant women, women with children under the age of 1.5 years, as well as persons under 18 years of age. This rule also applies to other persons raising children under the age of 1.5 years without a mother.
If a test was established for such employees, then termination employment contract with them according to the results of the test illegally
Reason: Clause 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 No. 1
Guarantees at the conclusion of an employment contract
In Art. Art. Articles 64 and 70 of the Labor Code stipulate the guarantees provided to pregnant women at the conclusion of an employment contract. Yes, it is forbidden:
- refuse to hire a woman for reasons related to her pregnancy (part 3 of article 64 of the Labor Code of the Russian Federation);
- install probation when hiring for pregnant women (Article 70 of the Labor Code of the Russian Federation).
Labor Relations
So, the employment contract with the employee is concluded. Consider what guarantees and benefits rely under labor relations pregnant employees.
part-time work
Pregnant women may be assigned a part-time work regime.
In fact, the modes of operation can be as follows:
- part-time (shift). When a part-time work day (shift) is established for an employee, the number of hours of work per day (per shift) accepted for this category of employees is reduced;
- part-time work week. When an employee is found to have incomplete working week the number of working days is reduced in comparison with the working week established for this category of workers. At the same time, the length of the working day (shift) remains normal;
- combination of part-time work modes. Labor legislation allows a combination of a part-time work week with part-time work. At the same time, the number of hours of work per day (per shift) established for this category of workers is reduced, while the number of working days per week is also reduced.
Pregnant women can apply to the employer with a request to establish a part-time (shift) or part-time working week both at the time of employment and subsequently. The employer is obliged to satisfy such a request (part 1 of article 93 of the Labor Code of the Russian Federation). Part-time work can be established both without time limit, and for any period convenient for employees.
Special working conditions for pregnant women
With regard to pregnant women, the Labor Code establishes a number of rules prohibiting their involvement:
- to work at night and to overtime work (part 5 of article 96, part 5 of article 99 and part 1 of article 259 of the Labor Code of the Russian Federation);
- work on weekends and non-working holidays (part 1 of article 259 of the Labor Code of the Russian Federation);
- work on a rotational basis (Article 298 of the Labor Code of the Russian Federation).
If a woman is pregnant, the employer does not have the right to send her on business trips (part 1 of article 259 of the Labor Code of the Russian Federation).
Transfer to light work
Pregnant employees, on the basis of a medical report and at their request, should have reduced production rates, service rates, or they should be transferred to another job that excludes the impact of adverse production factors (part 1 of article 254 of the Labor Code of the Russian Federation).
Guaranteed average earnings
The Labor Code establishes several cases in which a pregnant employee retains average earnings:
- the period during which a pregnant woman performs lighter work. This time is paid based on the average earnings of an employee in her previous job (part 1 of article 254 and article 139 of the Labor Code of the Russian Federation);
- the period during which the employee is released from work due to her harmful effects until she is provided with suitable work. The working days missed as a result of this are paid based on the average earnings from the previous job (part 2 of article 254 of the Labor Code of the Russian Federation);
- the period of her passing a mandatory dispensary examination in a medical institution (part 3 of article 254 of the Labor Code of the Russian Federation).
Note. Do I need to confirm the passage of a dispensary examination? The Labor Code does not impose on a woman the obligation to submit to the employer any documents confirming the passage of a dispensary examination. Nevertheless, it is advisable in writing (referring to the norm of part 3 of article 254 of the Labor Code of the Russian Federation) to the employee to warn about her absence from the workplace for this reason, so that it would not be regarded as absenteeism and during this time average earnings were saved.
Granting maternity leave
Maternity leave is a special type of leave. It is provided on the basis of an application and a certificate of incapacity for work (part 1 of article 255 of the Labor Code of the Russian Federation). For calendar days of maternity leave, the employer assigns an appropriate allowance. The period a woman is on maternity leave is taken into account when calculating the length of service giving the right to annual paid leave (part 1 of article 121 of the Labor Code of the Russian Federation).
Guarantees when granting the next vacation
By general rule the right to use leave for the first year of work arises for the employee after six months of his continuous work with this employer (part 2 of article 122 of the Labor Code of the Russian Federation). However, for certain categories of workers Labor Code there is an exception to the general rule. So, regardless of the length of service with this employer (even before the expiration of six months from the start of continuous work in the organization), paid leave at the request of the employee must be granted:
- women before maternity leave or immediately after it, or at the end of parental leave (part 3 of article 122 and article 260 of the Labor Code of the Russian Federation). The employee determines the date of her annual paid leave on her own. Usually, annual leave goes on maternity leave. In addition, it is prohibited to recall a pregnant employee from the annual basic and additional holidays(part 3 of article 125 of the Labor Code of the Russian Federation) and replace these holidays or parts thereof monetary compensation(part 3 of article 126 of the Labor Code of the Russian Federation);
- husband while his wife is on maternity leave (part 4 of article 123 of the Labor Code of the Russian Federation).
At the same time, the annual paid vacation for this category of persons is provided at a time convenient for them, regardless of the vacation schedule drawn up. The minimum duration of the annual basic paid leave is currently 28 calendar days (part 1 of article 115 of the Labor Code of the Russian Federation).
Prohibition on dismissal at the initiative of the employer
The Labor Code prohibits the dismissal of pregnant women at the initiative of the employer (with the exception of cases of liquidation of the organization or termination of activities individual entrepreneur) (part 1 of article 261 of the Labor Code of the Russian Federation).
However, there are options for terminating an employment relationship with a pregnant employee. For example, if a pregnant employee works under a fixed-term employment contract.
Dismissal is not allowed if...
During the period of validity of a fixed-term employment contract, a pregnant employee will write an application to extend the validity of the employment contract until the end of pregnancy and submit an appropriate medical certificate, the employer is obliged to satisfy the request of the woman (part 2 of article 261 of the Labor Code of the Russian Federation). At the same time, at the request of the employer, the employee must submit a medical certificate confirming pregnancy, but not more than once every three months. A change in the terms of the term of the employment contract must be fixed in an additional agreement.
Please note: the moment of concluding a fixed-term employment contract (before or after the onset of pregnancy) does not matter for extending the term of this contract.
If a woman actually continues to work after the end of her pregnancy, then the employer has the right to terminate the employment contract with her due to its expiration within a week from the day when the employer knew or should have known about the end of the pregnancy.
On a note. The actual end of pregnancy should be understood as the birth of a child, as well as artificial termination (abortion) or miscarriage (miscarriage) of pregnancy.
Maternity leave and benefits. During the term of the employment contract, a pregnant employee can take maternity leave. In this case, she must be paid the appropriate allowance in full for all calendar days of maternity leave (Article 255 of the Labor Code of the Russian Federation)
Dismissal is possible if (part 3 of article 261 of the Labor Code of the Russian Federation) ...
- a fixed-term employment contract was concluded with her for the duration of the performance of the duties of an absent employee. In this case, the dismissal of a pregnant employee is allowed due to the expiration of the employment contract (clause 2, part 1, article 77 of the Labor Code of the Russian Federation);
- the organization does not have work that a pregnant employee can perform, or she refused the proposed work options (clause 8, part 1, article 77 of the Labor Code of the Russian Federation).
What kind of work should an employer offer a woman?
According to part 3 of Art. 261 of the Labor Code of the Russian Federation:
- not only that job or vacant position, which corresponds to her qualifications, but also to a lower position or a lower-paid job;
- all available vacancies that meet health requirements;
- vacancies and jobs available to the employer in the area. Vacancies and work available in another locality must be offered in cases where this is provided for by the collective agreement, agreements or employment contract.
If the woman agrees to the transfer, some conditions, such as the place of work, position or term of the employment contract, are changed by concluding an additional agreement to the employment contract.
Commentary on Article 254
1. In accordance with Art. 23 of the Fundamentals of the Legislation of the Russian Federation on the Protection of the Health of Citizens dated July 22, 1993 (as amended on December 29, 2006), the state provides pregnant women with the right to work in conditions that meet their physiological characteristics and state of health. To this end, the labor legislation of the Russian Federation establishes a number of measures aimed at creating conditions for hygienically rational employment of pregnant workers, i.e., the optimal value of the workload (physical, neuro-emotional) and optimal conditions of the working environment, which should not cause deviations in practically healthy women in the body during pregnancy and not adversely affect the course of childbirth, the postpartum period, lactation, the state of the fetus, the physical and mental development and morbidity of children born.
3. Article 254 of the Labor Code establishes the following ways to facilitate working conditions for pregnant women:
Decreased production and service standards;
Transfer to another job, excluding the impact of adverse production factors;
Maintaining average earnings while reducing production rates and service rates or transferring to another job;
Exemption from work with the preservation of average earnings until the issue of providing another job is resolved;
Maintaining average earnings while undergoing mandatory dispensary care in medical institutions.
For women with children under the age of one and a half years, it is provided:
Transfer to another job, if the performance of the previous job is prohibited in order to protect the health of the woman and child;
Transfer to another job if the performance of the previous job is impossible for other reasons;
Pay is not lower than the average salary at the previous job at the time of translation.
When implementing these measures, one should take into account clause 4 of the Sanitary Rules and Norms of SPiN 2.2.0.555-96 "Hygienic requirements for working conditions for women", approved by the Decree of the State Committee for Sanitary and Epidemiological Supervision of Russia of October 28, 1996 N 32, which establishes special requirements for working conditions for women in period of pregnancy.
4. The reduction of production rates and service rates for pregnant women is carried out on the basis of a medical report. The medical report establishes the optimal amount for a woman to reduce production rates and service rates, the recommended amount is on average up to 40% of the constant rate.
The reduction in production rates is carried out at the request of a woman. In the absence of a statement, the production rates do not decrease, but it is advisable to explain to a pregnant woman her rights.
5. In a number of cases, a ban has been established on the work of pregnant women from the moment of medical confirmation of pregnancy in certain conditions and in certain industries. Since in these cases the right to transfer is associated with the very fact of pregnancy, special medical opinions on the need for transfer are not required. Such cases include:
Work in crop and livestock production (see clause 2.2 of the Decree of the Supreme Council of the RSFSR "On urgent measures to improve the situation of women, the family, the protection of motherhood and childhood in the countryside" dated November 1, 1990 (as amended on August 24, 1995) (Air Force of the RSFSR. 1990. N 24. Art. 287; SZ RF. 1995. N 35. Art. 3504));
Work in radiation therapy departments (see clause 1.4 of the Standard Instruction on Occupational Safety for the Personnel of Radiation Therapy Departments, approved by Order of the Ministry of Health of Russia dated January 28, 2002 N 18) (BNA. 2002. N 16);
Work in x-ray departments (see clause 2.4 of the Standard instructions for labor protection for personnel of x-ray departments, approved by Order of the Ministry of Health of Russia dated January 28, 2002 N 19) (BNA. 2002. N 18);
Work in the departments of radionuclide diagnostics (see clause 2.4 of the Standard instruction on labor protection for personnel of departments of radionuclide diagnostics, approved by Order of the Ministry of Health of Russia dated January 28, 2002 N 20) (BNA. 2002. N 18);
Any work with pesticides and agrochemicals (see clause 19.8 of the Sanitary Rules and Norms SPiN 1.2.1077-01 "Hygienic requirements for the storage, use and transportation of pesticides and agrochemicals", approved by the Decree of the Chief State Sanitary Doctor of the Russian Federation of November 8, 2001 N 34) (BNA. 2002. N 4);
Working with poisonous deratization agents (rodenticides) (see clause 6.2 of the Sanitary Rules and Norms SPiN 3.5.3.554-96 "Deratization. Organization and implementation of deratization measures", approved by the Decree of the State Committee for Sanitary and Epidemiological Supervision of Russia dated October 21, 1996);
Works related to radiomagnetic radiation for the repair and maintenance of radio engineering devices (see clause 9.4 of the Sanitary Rules for the maintenance and repair of radio engineering devices of civil aviation aircraft, approved by Decree of the USSR State Committee for Sanitary and Epidemiological Supervision of November 12, 1991 N 6031-91);
Work with sources of ionizing radiation (see clause 8.3 of the Sanitary Rules for working with sources of ionizing radiation during the maintenance and repair of aircraft at enterprises and factories of civil aviation, approved by the Decree of the USSR State Committee for Sanitary and Epidemiological Supervision of November 11, 1991 N 6030-91);
Works related to the use of a PC (see clause 13.2 of the Sanitary and Epidemiological Rules and Regulations "Hygienic requirements for personal electronic computers and organization of work. SPiN 2.2.2 / 2.4.1340-03, approved by the Decree of the Chief State Sanitary Doctor of the Russian Federation dated June 3, 2003) ( Russian newspaper. 2003. June 21).
In accordance with Art. 298 of the Labor Code, pregnant women cannot be employed on a rotational basis.
In all these cases, the pregnant woman must be provided with another job that meets the requirements of health protection.
In addition, a pregnant woman must be transferred to another job in cases where the work performed is contraindicated for her on the basis of a medical opinion. In this case, the medical report indicates the period for which such a transfer is required, as well as acceptable (or unacceptable) working conditions.
6. If it is impossible to reduce the production and service standards, as well as if it is impossible to use the work of a pregnant woman in her previous job, she should be transferred to a job in which the impact of adverse production factors is excluded. Work provided to a pregnant woman must comply with the requirements for working conditions for women during pregnancy, enshrined in the Hygiene Requirements.
Technological processes and equipment intended for the work of pregnant women should not be a source of increased levels of physical, chemical, biological and psychophysiological factors. When choosing technological operations for their work, it is necessary to provide for such values of physical activity that are acceptable for pregnant women: the mass of the load moved and lifted when alternating with other work (up to two times per hour) should not exceed 2.5 kg; cargo lifted and moved constantly during the shift - 1.25 kg; the total mass of cargo moved during each hour work shift at a distance of up to 5 m from the working surface, should not exceed 60 kg; moving cargo from the floor is prohibited; the total mass of cargo moved during an 8-hour work shift from the working surface should not exceed 480 kg.
Pregnant women should not perform production operations related to lifting objects of labor above the level of the shoulder girdle, lifting objects of labor from the floor, the predominance of static tension in the muscles of the legs and abdominals, forced working posture (squatting, kneeling, bending over, resting the stomach and chest in equipment and objects of labor), torso inclination of more than 15 degrees. C. For pregnant women, work on equipment using a foot control pedal, on a conveyor with a forced rhythm of work, accompanied by neuro-emotional stress, should be excluded.
Technological operations suitable for pregnant women include light assembly, sorting, packaging.
For pregnant women, activities related to getting clothes and shoes wet, work in a draft are excluded. Pregnant women are not allowed to work in windowless and lampless rooms, that is, without natural light.
For women during pregnancy, it is prohibited to work in conditions of sudden changes in barometric pressure (flight crew, flight attendants, pressure chamber personnel, etc.).
The work of pregnant women should be fully mechanized, the working posture should be free, walking per shift should not exceed 2 km, the pace of movements should be free. The duration of repetitive operations should not exceed 100 seconds, the number of work operations during a shift should not exceed 10; the duration of concentrated observation - no more than 25% of the total time of the working shift, the size of the object of visual discrimination - more than 5 mm.
For pregnant women, morning shifts are preferred.
For pregnant women, stationary workplaces should be equipped to enable them to perform labor operations in a free mode and in a position that allows a change of position at will. Permanent work sitting, standing, moving (walking) is excluded.
The workplace of a pregnant woman is equipped with a special swivel chair with height-adjustable backrest, headrest, lumbar cushion, armrests and seat. The back of a chair is regulated on a tilt angle depending on term of pregnancy and the mode of work and rest. The seat and back should be covered with a semi-soft, non-slip material that is easy to sanitize. The main parameters of the working chair are specified in GOST 21.889-76.
7. Until a pregnant woman is provided with another job suitable for working conditions, she is released from her previous job from the day specified in the medical report. If it is not possible to provide suitable work, the pregnant woman is released from work for the entire duration of her pregnancy.
8. In the event of a reduction in production rates, service rates, when transferring to another job, as well as in case of release from work, a pregnant woman retains the average earnings from her previous job for the entire time of reducing the rates of output, service, transfer or release from work.
For the procedure for calculating average earnings, see Art. 139 of the Labor Code and commentary to it.
9. Clinical examinations are subject to all pregnant women starting from the earliest stages of pregnancy (up to 12 weeks) and puerperas. Identification of pregnant women is carried out when women contact the antenatal clinic and during preventive examinations.
In the normal course of pregnancy, a healthy woman is recommended to visit a consultation with all the analyzes and conclusions of doctors 7-10 days after the first visit, and then visit a doctor in the first half of pregnancy - once a month, after 20 weeks of pregnancy - 2 times a month, after 32 weeks - 3 - 4 times a month. During pregnancy, a woman should visit a consultation about 14 - 15 times. In case of a woman’s illness or a pathological course of pregnancy that does not require hospitalization, the frequency of examinations is determined by the doctor on an individual basis.
On the procedure for maintaining average earnings during the passage of mandatory dispensary observation of a pregnant woman, see Art. 185 of the Labor Code and commentary to it.
10. When transferring, in accordance with the medical report of a pregnant woman, upon her application, from a job that gives the right to early appointment of an old-age labor pension in accordance with Art. Art. 27 and 28 of the Federal Law "On Labor Pensions in the Russian Federation", for work that excludes the impact of adverse production harmful factors, such work is equated to work preceding the transfer.
In the same manner, periods are calculated when a pregnant woman did not work until the issue of her employment was resolved in accordance with a medical report (see clause 12 of Decree of the Government of the Russian Federation of July 11, 2002 N 516 (as amended on May 2, 2006 No. ) "On approval of the Rules for calculating periods of work giving the right to early appointment of an old-age labor pension in accordance with Articles 27 and 28 of the Federal Law "On State Pensions in the Russian Federation" (SZ RF. 2002. N 28. Art. 2872; 2006. N 19. Art. 2088)).
11. The impossibility of performing the previous work by women with children under the age of one and a half years may be due to medical contraindications in connection with breastfeeding, as well as the inability to provide proper care for the child due to the regime or other working conditions.
12. Women who are breastfeeding are prohibited by sanitary norms and rules from performing certain work that adversely affects the level of mother's lactation and the health of the child. Such work includes any work with pesticides, agrochemicals, poisonous deratization agents, pest control and repellent agents, radiomagnetic and ionizing radiation (see paragraph 4 of the commentary to this article).
13. The impossibility of performing the previous work by women with children under the age of one and a half years may also be associated with the traveling nature of the work, the remoteness of the workplace from the place of residence of the woman, the early start or late end of work shifts, the impossibility of providing part-time work, the impossibility of providing breaks for feeding a child and other unfavorable working conditions for maternal care of a child.
14. If, when considering a claim of a pregnant woman for provision, in accordance with a medical report, of easier work that excludes the impact of adverse production factors, or a claim of a woman with a child under the age of one and a half years, for the provision of another job due to the impossibility of performing the previous job, the court recognizes the stated requirements justified, he has the right to make a decision to transfer the plaintiff to another job, indicating the period for which the terms of the employment contract are changed.
15. For the period of transfer of a pregnant woman or a woman with a child under the age of one and a half years, to another job, she retains all the benefits and advantages that she had in her previous job. Payment is made according to the work performed, but not lower than the average earnings for the previous job.
