Currently, the problem of improving the socio-demographic situation is urgent for Russia, therefore labor legislation provides for pregnant women a number of additional guarantees and benefits in terms of regulating their labor. Basically, these guarantees are enshrined in the Labor Code Russian Federation, which contains a separate chapter providing for the specifics of regulating the labor of women and persons with family obligations. In addition, certain issues may be regulated by other regulations, for example, requirements for the organization of working conditions: sanitary rules and regulations.

Additional guarantees for pregnant women are provided already at the stage of concluding an employment contract. In accordance with the state 64 Labor Code of the Russian Federation (hereinafter - the Code) it is prohibited to refuse to conclude an employment contract for reasons related to pregnancy. According to Art. 70 of the Code of the Russian Federation does not establish a test for pregnant women when hiring. In addition, in accordance with Article 145 of the Criminal Code of the Russian Federation, an employer may be held criminally liable for an unreasonable refusal to hire or unjustified dismissal of a woman on the grounds of her pregnancy.

Taking into account the peculiarities of the female body, the Labor Code limits the use of women’s labor in certain jobs. According to Art. 253 of the Code limits the use of women’s labor in heavy work and work with harmful and (or) dangerous working conditions, as well as in underground work, with the exception of non-physical work or work on sanitary and household services. It is prohibited to employ women in jobs involving lifting and manually moving heavy loads that exceed the maximum permissible standards for them. Lists of industries, jobs and positions with harmful and (or) dangerous working conditions in which the use of women’s labor is limited, and maximum permissible load standards for women when lifting and moving heavy objects manually, approved in the manner established by the Government of the Russian Federation, taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor relationships. In addition, additional requirements are imposed on the types and conditions of work, issues of the procedure for exercising certain labor rights of pregnant women, due to the need to preserve the health of the mother and her unborn child.

The restriction and prohibition of women’s work in the above-mentioned jobs is not discrimination against them, as it is caused by the state’s concern for women who need increased social and legal protection compared to men.

So, in accordance with Art. 93 of the Code of the Russian Federation, 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. Articles 96, 99, 259 of the Code prohibit sending pregnant women on business trips, engaging them in overtime work, that is, working outside the established working hours for an employee, working at night (from 10 p.m. to 6 a.m.), as well as working on weekends and non-working holidays. In addition, pregnant women cannot be involved in work performed on a rotational basis (Article 298 of the Code).

Taking into account the working conditions and medical indications of a woman in connection with pregnancy, there may be a need to change working conditions. Article 254 regulates the transfer of pregnant women to another job. This norm stipulates that pregnant women, in accordance with a medical report and at their request, have production standards and service standards reduced, or these women are transferred to another job that excludes the impact of adverse production factors, while maintaining the average earnings for their previous job. Until a pregnant woman is provided with another job that excludes the impact of unfavorable production factors, she is subject to release from work with preservation of average earnings for all working days missed as a result at the expense of the employer. When undergoing mandatory dispensary examination in medical institutions, pregnant women retain average earnings at the place of work.

Certain benefits are provided for pregnant women and when providing annual paid leave. If, as a general rule, the right to use leave for the first year of work arises for an employee after six months of continuous work with this employer (Article 122 of the Code), then a woman, upon her application, leave can be granted before the expiration of the specified period - before maternity leave or immediately after him. In addition, it is not allowed to recall pregnant women from leave and replace annual paid leave and annual additional paid leave with monetary compensation.

In accordance with Art. 255 of the Code, women, upon their application and on the basis of a certificate of incapacity for work issued in the prescribed manner, are granted maternity leave with a duration of 70 (in the case of multiple pregnancy- 84) calendar days before birth and 70 (in the case of complicated births - 86, for the birth of two or more children - 110) calendar days after birth with payment of state social insurance benefits in the amount established by federal laws. Maternity leave is calculated cumulatively and is provided to a woman completely regardless of the number of days she actually used before giving birth.

Finally, additional guarantees are provided for pregnant women upon termination of an employment contract. According to Art. 261 of the Code, termination of an employment contract at the initiative of the employer, that is, on the grounds provided for in Art. 81 of the Code, pregnant women are not allowed, except in cases of liquidation of an organization or termination of activities by an individual entrepreneur.

If a fixed-term employment contract expires during a woman’s pregnancy, the employer is obliged, upon her written application and upon provision of a medical certificate confirming the state of pregnancy, to extend the term of the employment contract until the end of pregnancy. A woman whose employment contract was extended until the end of her pregnancy is obliged, at the request of the employer, but not more than once every three months, to provide a medical certificate confirming the state of pregnancy. If, in this case, the woman actually continues to work after the end of pregnancy, then the employer has the right to terminate the employment contract with her due to the expiration of its validity period within a week from the day the employer learned or should have learned about the end of the pregnancy.

It is permissible to dismiss a woman due to the expiration of the employment contract during her pregnancy, if the employment contract was concluded for the duration of the duties of the absent employee and it is impossible, with the written consent of the woman, to transfer her to another job available to the employer before the end of her pregnancy (either a vacant position or a job corresponding to the woman’s qualifications, or vacant lower position or lower paid work) that a woman can perform taking into account her state of health. At the same time, the employer is obliged to offer her all the vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other locations if this is provided for in the collective agreement, agreements, or employment contract.

Thus, the state, while protecting the institutions of motherhood and childhood, specifically regulates the work of pregnant women, both by establishing certain prohibitions and restrictions, and by establishing guarantees and benefits.

Peculiarities of labor of pregnant women (Soboleva E.A.)

Date of article posting: 09/13/2014

Many institutions are faced with the fact that either their employees find themselves in " interesting position", or such women are trying to find a job. In the article we will look at the features of concluding, changing and terminating an employment contract with women who are pregnant. In addition, let us remind you what labor guarantees are provided to them.

We are hiring

First, let us recall that the features of concluding an employment contract are enshrined in Chapter. 11 “Conclusion of an employment contract” of the Labor Code of the Russian Federation. According to Part 3 of Art. 64 of the Labor Code of the Russian Federation, an employer does not have the right to refuse to hire a pregnant woman. It is prohibited to refuse to conclude an employment contract in general due to discriminatory circumstances, including women for reasons related to pregnancy (parts 2 and 3 of Article 64 of the Labor Code of the Russian Federation, paragraph 10 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”).
Article 65 of the Labor Code of the Russian Federation establishes a list of documents that the applicant must submit to the employer when applying for a job. Please note that a certificate of absence of pregnancy during employment is not included in the list of documents required for employment. This article stipulates that it is prohibited to require from a person applying for a job documents other than those provided for by the Labor Code, other federal laws, decrees of the President of the Russian Federation and decrees of the Government of the Russian Federation. That is, the employer’s requirement to provide a certificate of absence of pregnancy does not comply with current legislation.
Thus, it follows from the Labor Code that pregnancy cannot be a reason for refusal to hire. In addition, according to Art. 145 of the Criminal Code of the Russian Federation for an unreasonable refusal to hire a pregnant woman provides for liability in the form of:
- a fine of up to 200 thousand rubles. or in the amount of wages or other income of the convicted person for a period of up to 18 months;
- compulsory work for up to 360 hours.

Establishing a probationary period

According to Art. 70 of the Labor Code of the Russian Federation, as a general rule, when concluding an employment contract, by agreement of the parties, it may provide for a condition on testing the employee in order to verify his compliance with the assigned work. The same article establishes a list of categories of persons for whom testing for employment is not established, in particular, they include pregnant women.
If the employer hired a woman and set her a probationary period, during which he came to the conclusion that the employee was not suitable for him, he will not be able to fire her if she is pregnant. This conclusion follows from the Labor Code: in accordance with clause 4, part 1, art. 77 of the Labor Code of the Russian Federation, the dismissal of an employee due to unsatisfactory test results refers to dismissal at the initiative of the employer. However, Art. 261 of the Labor Code of the Russian Federation prohibits the termination of an employment contract at the initiative of the employer with pregnant women, with the exception of cases of liquidation of the organization or termination of activities by an individual entrepreneur. Thus, the dismissal will be unlawful and if the employee goes to court, the latter will be on her side and demand that she be reinstated.
Contains similar conclusions judicial practice: Appeal rulings of the Kaliningrad Regional Court dated November 13, 2013 N 33-4891/13, Moscow City Court dated July 12, 2012 N 11-10803, Sverdlovsk Regional Court ruling dated September 6, 2012 N 33-11173/2012.

Working hours

According to general rules, normal working hours cannot exceed 40 hours per week (Article 91 of the Labor Code of the Russian Federation). However, according to Art. 93 of the Labor Code of the Russian Federation, 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 in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation. It must be remembered that part-time work does not entail for employees any restrictions on the duration of the annual basic paid leave, calculation length of service and other labor rights.
How to install incomplete working hours at the request of a pregnant woman? You need to do the following:
- the pregnant woman must submit an application for establishing part-time work and documents confirming her status (medical report);
- the employer must include a condition on the working hours in the employment contract if an agreement on the duration of working hours was reached when registering the employment relationship. If part-time working hours are established during the employee’s work, then it is necessary to conclude an additional agreement on changing the working hours in connection with the change in the duration of working hours;
- the employer issues an order in any form or in the unified form T-1, if part-time working hours are established upon hiring, and in any form, if the duration of working hours and its regime change after the conclusion of the employment contract.
Let us note that when part-time work is established, the employee’s payment is made in proportion to the time he worked or depending on the amount of work he performed (Part 2 of Article 93 of the Labor Code of the Russian Federation).

Transfer of pregnant women to another job

Article 254 of the Labor Code of the Russian Federation stipulates that pregnant women, in accordance with a medical report and at their request, have production standards and service standards reduced, or these women are transferred to another job that excludes the impact of adverse production factors, while maintaining the average earnings for their previous job. At the same time, before a pregnant woman is provided with another job that excludes the impact of unfavorable production factors, she is subject to release from work with the preservation of average earnings for all working days missed as a result at the expense of the employer. The Plenum of the Armed Forces of the Russian Federation drew attention to this in Resolution No. 1 of January 28, 2014 “On the application of legislation regulating the work of women, persons with family responsibilities and minors.”
Thus, if a woman has submitted a medical report on the need to transfer her to another job due to pregnancy and has written a statement about this, then the employer is obliged to enter into an additional agreement with her to change the terms of the employment contract and issue an order for the transfer (Form T-5).
When transferring to another job, it is necessary to take into account that the terms of remuneration must comply with the norm of Part 1 of Art. 254 of the Labor Code of the Russian Federation, which provides for minimum wage guarantees for a pregnant woman during her transfer.
So, when transferring a woman to another job, remember:
- if the salary for the new position is higher than the average salary for the previous job, then the additional agreement and order indicate the salary amount provided for the new position;
- if the salary for the new position is lower than the average salary for the previous job, then the additional agreement and order indicate the salary amount equal to the average salary;
- if the salary for the new position is equal to the average salary for the previous job, then the additional agreement and order indicate the salary for the work performed.

Dispensary examination of a pregnant woman

Part 3 Art. 254 of the Labor Code of the Russian Federation provides that when undergoing a mandatory medical examination in medical institutions, pregnant women retain the average earnings at their place of work. However, the Labor Code does not establish what document the employee must submit to the employer in order to exercise this right. In our opinion, it is enough for a pregnant woman to present any document from a medical institution that would confirm the fact that she has undergone a mandatory medical examination.

Annual paid leave

Article 260 of the Labor Code of the Russian Federation provides that annual paid leave is provided at the request of a woman before or immediately after maternity leave or at the end of maternity leave. At the same time, the length of service with this employer does not matter, that is, even before the expiration of six months of continuous work, the employer is obliged to provide the woman, at her request, with paid leave before maternity leave or immediately after it (Article 122 of the Labor Code of the Russian Federation, paragraph 20 of the Resolution Plenum of the Armed Forces of the Russian Federation dated January 28, 2014 N 1).
Rostrud officials, in Letter No. 659-6-0 dated March 18, 2008, emphasized that in order to be granted annual paid leave, a woman must submit an application, attaching the appropriate document confirming her pregnancy, and the employer is obliged to provide such leave. That is, the refusal in this case to provide the woman with leave at her request on the basis of Art. 260 of the Labor Code of the Russian Federation is a violation of labor legislation, liability for which is established by Art. 5.27 Code of Administrative Offenses of the Russian Federation. Moreover, a woman can exercise this right even if, according to the approved vacation schedule, annual paid leave falls on a different period of time.
In addition to annual paid leave, Art. 255 of the Labor Code of the Russian Federation provides that women, upon their application and on the basis of a certificate of incapacity for work issued in the prescribed manner, are granted maternity leave lasting 70 (in the case of multiple pregnancy - 84) calendar days before childbirth and 70 (in the case of complicated childbirth - 86, with birth of two or more children - 110) calendar days after birth with payment of state social insurance benefits in the amount established by federal laws. Maternity leave is calculated cumulatively and is provided to a woman completely regardless of the number of days actually used by her before giving birth.

Termination of an employment contract with a pregnant woman

In accordance with Art. 261 of the Labor Code of the Russian Federation, termination of an employment contract at the initiative of an employer with a pregnant woman is not allowed, except in cases of liquidation of the organization or termination of activities by an individual entrepreneur.
We note that the Plenum of the Armed Forces of the Russian Federation in paragraph 24 of Resolution No. 1 of January 28, 2014 drew attention to the following: in the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, the employment contract with a pregnant woman of this unit is terminated according to the rules provided for cases of liquidation of an organization (Part 4 of Article 81 of the Labor Code of the Russian Federation), unless otherwise provided by the collective agreement, agreement, or employment contract.
What else does an employer need to know in case of termination of an employment contract with a pregnant employee?
1. If, when considering a dispute in court about the dismissal of a pregnant woman at the initiative of the employer, the organization is liquidated, then the court will recognize the dismissal as illegal and change the wording of the grounds for dismissal to dismissal in connection with the liquidation of the organization and the date of dismissal to the date of making an entry on the liquidation of the legal entity in the Unified State Register legal entities, and in case of termination of the activities of a branch, representative office or other separate structural unit of the organization - as of the date state registration changes in the constituent documents of the organization (clause 3 of article 23, clause 3 of article 52, clause 8 of article 63 of the Civil Code of the Russian Federation).
2. If the employer did not know about the woman’s pregnancy at the time of her dismissal, then this fact is not a basis for refusing to satisfy the claim for reinstatement at work (clause 25 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated January 28, 2014 N 1).

Pay attention! A pregnant woman, whose employment contract was terminated at the initiative of the employer, is subject to reinstatement even if, by the time her claim for reinstatement is considered in court, the pregnancy has not continued (clause 25 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated January 28, 2014 N 1 ).

The guarantee provided for in Part 1 of Art. 261 of the Labor Code of the Russian Federation, also applies to persons for whom special regulation is provided. Such persons include women - heads of organizations (Chapter 43 of the Labor Code of the Russian Federation), athletes and coaches (Chapter 54.1 of the Labor Code of the Russian Federation), women serving in state civil and municipal service, etc. (clause 26 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated January 28. 2014 N 1).

Termination of a fixed-term employment contract

In Art. 261 of the Labor Code of the Russian Federation states that if a fixed-term employment contract expires during a woman’s pregnancy, the employer is obliged, upon her written application and upon presentation of a medical certificate confirming the state of pregnancy, to extend the term of the employment contract until the end of pregnancy. A woman whose employment contract has been extended until the end of her pregnancy is obliged, at the request of the employer, but not more than once every three months, to submit a medical certificate confirming the state of pregnancy.

Pay attention! A fixed-term employment contract is extended until the end of a woman’s pregnancy, regardless of the reason for the end of pregnancy (birth of a child, spontaneous miscarriage, abortion for medical reasons, etc.) (clause 27 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated January 28, 2014 N 1).

It is permissible to dismiss a woman due to the expiration of an employment contract during her pregnancy, if the employment contract was concluded for the duration of the duties of an absent employee and it is impossible, with the written consent of the woman, to transfer her to another job available to the employer before the end of her pregnancy (as a vacant position or a job corresponding to the woman’s qualifications, and a vacant lower-level position or lower-paid job), which a woman can perform taking into account her state of health. The employer is obliged to offer her all the vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.
In the event of the birth of a child, the dismissal of a woman due to the end of a fixed-term employment contract is carried out on the day the maternity leave ends. In other cases, a woman can be fired within a week from the day the employer learned or should have learned about the end of the pregnancy.

Other guarantees provided for pregnant employees

In addition to the above-mentioned features of the work of a pregnant woman, the employer must remember the following:
- it is prohibited to send such workers on business trips, to engage them in overtime work, night work, weekends and non-working holidays (Article 259 of the Labor Code of the Russian Federation);
- pregnant women cannot be involved in work performed on a rotational basis (Article 298 of the Labor Code of the Russian Federation);
- recall of pregnant women from vacation is not allowed (Article 125 of the Labor Code of the Russian Federation);
- it is not allowed to replace the annual basic paid leave and annual additional paid leave for pregnant women with monetary compensation (Article 126 of the Labor Code of the Russian Federation).
It is prohibited to employ women in jobs involving lifting and manually moving heavy loads that exceed the maximum permissible standards for them. Lists of industries, jobs and positions with harmful and (or) dangerous working conditions in which the use of women’s labor is limited, and maximum permissible load standards for women when lifting and moving heavy objects manually are approved in the manner established by the Government of the Russian Federation, taking into account the opinion of the Russian Tripartite Commission on regulation of social and labor relations (Article 253 of the Labor Code of the Russian Federation). Currently, the Decree of the Government of the Russian Federation of February 25, 2000 N 162 “On approval of the List of heavy work and work with harmful or dangerous working conditions, during which the use of women’s labor is prohibited,” is in force.
To summarize: employees in an “interesting position” are a special category of workers for whom certain working conditions must be created and who are under special protection of the state.

Despite their special situation, women who are expecting a baby and continue to work must comply with generally established rules, because no one has canceled their duties, which they are endowed with due to the work they perform. Consequently, like all working citizens, they must treat the employer’s property with care, comply with internal rules and discipline, and conscientiously fulfill their labor duties under the employment contract. But nevertheless, certain benefits are established for this category of persons and labor guarantees are increased.

What is maternity leave?

Surely you know that a pregnant woman at 30 weeks (in case of multiple pregnancy - at 28 weeks) goes into maternity leave. However, the concept of “maternity leave” is not entirely accurate from a legal point of view. It would be more correct to say that expectant mothers are granted maternity leave.

• In a singleton pregnancy, its duration reaches 70 calendar days before birth and 70 days after a normal birth, 84 days after a complicated birth.
• In case of multiple pregnancy - 84 calendar days before birth and 110 days when two or more children are born at the same time (twins, triplets, etc.).

IMPORTANT!

Maternity leave is granted to a woman in full, regardless of the number of days actually used by her before giving birth. This means that if you stopped working five days before the birth of your baby, then after the birth, 65 unused prenatal days will be added to your vacation.

In this case, state social insurance benefits are paid in the amount established by federal laws.

Parental leave – how to get it?

At the request of a woman, she is granted maternity leave until the child reaches the age of 3 years. During this entire time, she receives state benefits.

Parental leave can be divided into 2 parts:

1. The first 1.5 years of a child’s life, when a woman or another family member (father, grandmother, grandfather or other relatives who actually care for the child) receive monthly allowance at the expense of the Foundation social insurance and compensation payment at the expense of the employer.
2. For children from 1.5 to 3 years old, the mother is awarded compensation in the amount of 50 rubles at the place of work.

What rights do you have during maternity leave?

• Parental leave is counted towards the total and continuous work experience, as well as into the work experience in the specialty.
• If there is an application, a woman on maternity leave can work part-time or at home while maintaining the right to receive state social insurance benefits. The woman retains her place of work and position.
• Before maternity leave, or immediately after it, or at the end of parental leave, a woman, at her request, is granted annual paid leave, regardless of her length of service with a given employer, i.e. at this job.

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Getting a job during pregnancy

If a woman is already pregnant, but is planning to get a job new job, then certain rules also apply here. First of all, unreasonable refusal to conclude a contract is prohibited. Hiring is always carried out on the principle of selecting personnel based on business qualities. Therefore, the employer must clearly communicate, and if you request, provide a written explanation as to why you are not suitable for the job or why you cannot hold a particular position. Either the reason is your lack of qualifications or lack of certain business qualities, or the presence of some medical contraindications, or you do not meet any other requirements for this job. But refusing to sign an employment contract to a woman for reasons related to pregnancy is strictly prohibited.

Of course, employers do not really like situations when a pregnant woman gets a job with them, because they understand that they will soon be left without an employee for a certain period of time, but they do not have the right to refuse citing this circumstance. Otherwise, you can always appeal their actions in court, since this is a restriction of your rights or the establishment of direct or indirect advantages when concluding a contract.

If they do conclude an agreement with you, then remember that for pregnant women and women with children under one and a half years old, no probationary period should be established when hiring, when the employee’s suitability for the assigned work is checked.

Working conditions for a pregnant woman

If you are expecting a baby or are already a mother, you need to know about certain benefits that are directly related to your job.

1. For pregnant women, upon their application and according to a medical report, production standards should be reduced. If for some reason this is not possible, then there is another option: these women can be transferred to another job - one where they would not be exposed to any adverse production factors. At the same time, the average earnings for the previous job are maintained. But until such work is provided, women must be released from work in unfavorable conditions while maintaining their average earnings for all working days missed due to this at the expense of the employer. Labor legislation also provides that, on the initiative of a pregnant woman or the mother of a child under one and a half years old, a transfer to another, easier job in the same organization or at the same enterprise can be carried out. The offered job may not even correspond to the woman’s specialty, position and qualifications, while the salary must not be lower than the average earnings for her previous job.

2. The work of pregnant women in heavy work and work with harmful or dangerous working conditions, in underground work is limited, and sometimes even prohibited. Work involving manual lifting and moving heavy objects is not permitted. Pregnant women and mothers with children under 3 years of age should not be involved in work performed on a rotational basis - work outside the permanent place of residence of such workers, when they cannot return to their home every day.

3. Women expecting the birth of a baby are not allowed to work at night - from 10 pm to 6 am. The involvement of young mothers with children under 3 years of age in the above work is not prohibited by law, but they can begin it only with their written consent and in the absence of medical contraindications. But at the same time, a woman should be aware of her right to refuse such work. The same applies to involvement in overtime work - work performed at the initiative of the employer outside the established working hours.

4. An employer does not have the right to send a pregnant woman on business trips.

5. A working woman who has a child under the age of one and a half years should be provided, in addition to a lunch break, with additional breaks for feeding the baby at least every three hours; their duration is at least 30 minutes each. If a woman has two or more children who have not reached the specified age, then the breaks should not be less than 1 hour. If a young mother works far from home and cannot constantly be away from her child, then she has the right to write a statement with a request to add feeding breaks to her lunch break or, in summary, move them either to the beginning of the working day or to the end of it with the corresponding abbreviation. Such feeding breaks are included in working hours and are subject to payment in the amount of average earnings.

6. By agreement between the employer and the employee who is expecting the birth of a baby or already has a child under the age of 14 years, upon hiring or subsequently, a part-time working day or part-time working week may be established. In this case, remuneration is made in proportion to the time worked or depending on the amount of work performed. Such part-time work, as a general rule, does not entail any restrictions on the duration of the annual basic paid leave, calculation of length of service and similar labor rights.

Providing annual leave

In a normal situation, the right to use vacation for the first year of work becomes available to a person after 6 months of continuous work with a given employer. But pregnant women belong to a preferential category of citizens. Therefore, if you have recently started a job and the required six-month period has not expired, such leave can still be granted to you before or immediately after maternity leave. In addition, it is not allowed to replace annual basic paid leave with monetary compensation.

A woman with two or more children under the age of 14, a disabled child under 18, a single mother with a child under 14 may be granted additional annual leave without pay at a time convenient for them for up to 14 calendar days. This kind of leave, at the request of the woman herself, can be added to the annual paid leave or used separately at any other time, in full or in parts. However, it must be taken into account that vacation must be taken in the current working year, since transferring it to the next working year is not allowed: simply put, it “burns out”.

Issues regarding dismissal of a pregnant woman

Certain legal guarantees also exist in terms of dismissal of a woman in an “interesting position” or a young mother. Thus, termination of an employment contract at the initiative of an employer with pregnant women is not allowed, except in cases of liquidation of an organization or termination of activities by an individual entrepreneur. In the event that a fixed-term contract was concluded (i.e. a contract for a certain period) and the expiration of this period coincided with the employee’s pregnancy, the employer is obliged, upon the written application of the expectant mother and upon provision of a medical certificate confirming her position, to extend the term of the employment contract before the baby is born. If a woman actually continues to work after the end of pregnancy, then the employer is no longer tied hand and foot: he receives the right to either conclude an agreement with her for new term on the same or different conditions, or terminate the employment contract due to its expiration within a week from the day the employer learned of the birth of the child and, accordingly, the end of the nine-month wait. But here it is necessary to make a reservation: the dismissal of a pregnant woman due to the expiration of the contract is allowed in only one case - if such an employment contract was concluded only for the duration of the duties of the absent employee and there is no written consent of the woman to transfer her before the end of pregnancy to another job available to the employer (to vacant position, including a lower position or lower paid job) which expectant mother able to perform taking into account his position and health.

Termination of an employment contract with mothers with children under 3 years of age at the initiative of the employer is not permitted, except for the cases specified in labor legislation. Let's look at them in more detail.

Firstly, the employment contract can be terminated upon liquidation of the organization: it no longer exists, so there is nowhere to work.

Secondly, the unlawful actions of the employee herself can provoke a situation where there is a high probability of her dismissal. These factors are:

• absenteeism (absence from the workplace without good reason for more than 4 hours in a row during the working day);
• gross violation of labor duties;
• repeated failure to perform work without good reason or neglect of official duties;
• appearing at the workplace under the influence of alcohol or drugs;
• disclosure of secrets protected by law, which became known to a woman due to her work;
• violation of labor protection requirements, if serious consequences subsequently arise (accident, accident).

Guilty actions of the employee, such as theft at the place of work, embezzlement, intentional damage or destruction of property, provision of false documents when applying for a job, etc., which causes a loss of confidence in her on the part of the employer, also entail termination of the contract outside depending on the presence of children. A woman performing educational functions (preschool worker) educational institution, a teacher at school, a teacher at a technical school or university) and at the same time has committed some immoral act, no one will keep her at work either.

In conclusion, I would like to say that you can and should use your legal rights (without, of course, abusing them), be able to defend your interests - and then everything will be fine with you.

The legal regulation of the labor of this category of women in the Labor Code of the Russian Federation has not undergone significant changes. The content of only certain norms relating to hiring, sending on business trips, establishing a work regime and dismissal from work has been transformed, taking into account the changes occurring in the world of work in connection with economic reform. In accordance with Part 5 of Art. 64 of the Labor Code of the Russian Federation, at the request of any person who is denied employment, including at the request of a pregnant woman, the employer is obliged to provide the reason for the refusal in writing. Refusal to conclude an employment contract can be appealed in court. In addition, in the event of an unreasonable refusal to hire a pregnant woman official, who is entrusted with the responsibility of hiring, may be subject to criminal liability.

An employment contract with pregnant women in order to protect their health cannot be concluded only in cases specified in the legislation. For example, pregnant women cannot be hired to perform work on a rotational basis.

Pregnancy and lactation, miscarriage and fetal anomalies in the analysis of women planning childbearing are general contraindications for admission to contact with harmful, dangerous substances and production factors, as well as for employment.

Pregnant women may be denied part-time employment if, upon consideration of this issue, it is revealed that additional work may entail consequences that will affect their health.

A hiring test, allowed by agreement of the parties in order to check the suitability of workers for the work assigned, is not established for pregnant women (Article 70 of the Labor Code of the Russian Federation).

In order to protect their health, pregnant women are still prohibited from being sent on business trips, involved in overtime work, work at night, on weekends and non-working holidays (Part 1 of Article 259 of the Labor Code of the Russian Federation). Consequently, the refusal of these women to perform the listed work cannot be considered as a violation of labor discipline.

When deciding on the release of pregnant women from night work, it is necessary to take into account that these categories of women cannot be involved in night work and in cases where night time accounts for only part of the working time, for example, in evening shifts ending after 22 hours.

The Labor Code of the Russian Federation also preserves the norm allowing a pregnant woman to work part-time if necessary. So, according to Part 1 of Art. 93 of the Labor Code of the Russian Federation, at the request of a pregnant woman, the employer is obliged to establish a part-time working day or part-time working week with payment in proportion to the time worked or depending on output.

Traditionally, pregnant women, if they had an appropriate medical certificate, had their working conditions made easier: production standards and service standards were reduced, or they were transferred to another job that eliminated the impact of unfavorable production factors while maintaining average earnings. Unfortunately, in the harsh reality of our lives, pregnant women are forced to go on business trips, work extra hours, etc. in order to stay in the labor market. Thus, risking not only your own, but also the health of the unborn child.

Until the issue of providing a pregnant woman with another job, easier and excluding the impact of adverse production factors, was decided, she was subject to release from work while maintaining the average earnings for all working days missed as a result at the expense of the organization (Article 164 of the Labor Code of the Russian Federation). A similar norm is also enshrined in Part 1 and Part 2 of Art. 254 Labor Code of the Russian Federation. When applying it, as before the adoption of the Labor Code of the Russian Federation. When applying it, as before the adoption of the Labor Code of the Russian Federation, it is necessary to be guided by the Hygienic recommendations for the rational employment of pregnant women, approved by the State Committee for Sanitary and Epidemiological Surveillance of Russia and the Ministry of Health of Russia on December 21-23, 1993.

Pregnant women, in accordance with a medical report, should be given differentiated production rates with a reduction on average of up to 40% of the constant rate. Pregnant women should be exempt from performing work that exceeds the optimal workload criteria. Should be released if the requirements for technological operations, equipment, and workplaces where the labor of pregnant women will be used are not met. In particular, it is stipulated that pregnant women should not perform operations related to lifting objects above the level of the shoulder girdle, lifting objects from the floor, with a predominance of static tension in the muscles of the legs and abdominals, forced working posture (squatting, kneeling, bending , with a torso tilt of more than 15 degrees, etc.). For pregnant women, operations on a conveyor belt with a forced rhythm of work, accompanied by nervous and emotional stress, should be excluded.

Pregnant women should not work under conditions of exposure to infrared radiation, vibration, ultrasound, ionizing radiation, under conditions of sudden changes in barometric pressure, exposure to industrial aerosols, potentially hazardous chemicals, without natural light, etc.

The optimal weight of the load when lifting and moving heavy objects when alternating with other work (up to 2 times per hour) should not exceed 2.5 kg; when lifting and moving heavy objects constantly during a work shift – 1.25 kg. The total mass of loads moved during each hour of a work shift at a distance of up to 5 meters from the working surface should not exceed 60 kg. Technological operations to be performed by women during pregnancy are selected from those available at a given enterprise, provided that they meet the professional criteria for optimal workload: labor must be completely mechanized, the working posture must be free. Walking per shift – up to 2 km. The pace of movement is free, etc.

To ensure the timely transfer of pregnant women to easier work that excludes exposure to adverse production factors, employers are recommended, taking into account the opinion of the relevant elected trade union body, in agreement with the sanitary inspection authorities, to establish in accordance with medical requirements workplace and determine the type of work to which pregnant women can be transferred, or which can be performed by them at home, as well as create special workshops (sites) for the use of their labor or create production and workshops on a shared basis for these purposes. The creation of such workshops did not remain a good wish.

Example. Since 1991, the Magnitogorsk Iron and Steel Works has operated a light labor area for pregnant women - the “Health” workshop, in which, after a short training, women produce the necessary equipment for the plant. sewing products. The duration of their working hours is 6 hours with mandatory breaks for taking procedures prescribed by the doctor, psychological relief and rest.

The need to create specialized areas for the rational employment of pregnant women in agricultural organizations. Special workshops and areas should be located only in rooms with natural light and natural air exchange. The height of the room must be at least 3 meters. The floor should be warm and non-slippery, etc. Corresponding requirements are also imposed on the organization of workplaces, technological processes, equipment of rest rooms and premises for gymnastics, sanitary and hygienic and consumer services.

An employer's refusal to transfer a pregnant woman to another job that excludes exposure to unfavorable production factors can be appealed by her in court. If the court finds the refusal unfounded, a decision may be made obliging the employer to transfer the applicant to another job. Moreover, for all working days. The pregnant woman must be paid wages based on average earnings at the expense of the employer if she is missed from the moment of submitting the medical report until the execution of the court decision.

When pregnant women and women with children under 1.5 years of age are transferred to another job, they retain some of the benefits that they enjoyed before the transfer, for example; the time spent performing the specified work is included in the length of service for a pension due to special working conditions in cases where the work before the transfer gave the right to such a pension. If a pregnant woman receiving therapeutic and preventive nutrition, in accordance with a medical report, is transferred to another job in order to eliminate contact with products harmful to health before maternity leave, then therapeutic and preventive nutrition is given to her before pregnancy leave and childbirth and during this vacation.

The Labor Code of the Russian Federation has also reproduced the norm on preserving average earnings for pregnant women in cases where they undergo a mandatory medical examination in medical institutions during working hours (Part 3 of Article 254 of the Labor Code of the Russian Federation).

The duration of maternity leave and the procedure for its provision also remained unchanged. In particular, in accordance with Art. 255 of the Labor Code of the Russian Federation, working women, upon their application and in accordance with a medical report, are granted maternity leave of 70 (in the case of multiple pregnancies - 84) calendar days before childbirth and 70 (in the case of complicated childbirth - 86, for the birth of two or more children – 110) calendar days after childbirth with payment of state social insurance benefits in the amount established by law. Maternity benefits for working women are paid during the entire maternity leave in the amount of average earnings. However maximum size maternity benefits for a full calendar month cannot exceed 11,700 rubles.

Maternity leave is calculated cumulatively and is provided to the woman in full, regardless of the number of days actually used before giving birth.

The duration of maternity leave for certain categories of women has been increased. Women who were exposed to radiation as a result of the Chernobyl disaster, permanently residing (working) in the territory of the residence zone with the right to resettlement, as well as women permanently residing (working) in the resettlement zone before their resettlement to other areas, prenatal leave is provided for a duration of 90 calendar days with the implementation of recreational activities outside the territory of radioactive contamination.

The same duration of prenatal leave is provided to women permanently residing in settlements exposed to radioactive contamination as a result of the accident in 1957 at the Mayak production association and the discharge of radioactive waste into the Techa River, where the average annual effective equivalent radiation dose is currently over 1 m 3 V (additionally above the level of natural radiation background for a given area).

The duration of maternity leave can also be increased in accordance with the legislative acts of the constituent entities of the Russian Federation. Maternity leave is granted on the basis of a sick leave certificate issued by the relevant medical institution. A certificate of incapacity for work is issued from 30 weeks of pregnancy at a time for a duration of 140 calendar days (70 days before childbirth and 70 calendar days after childbirth).

In case of complicated births, including non-resident births, a certificate of incapacity for work is issued for an additional 16 calendar days of medical treatment. preventive institution where the birth took place. In these cases, the total duration of prenatal and postnatal leave is 156 calendar days. In case of multiple pregnancy, a certificate of incapacity for work for pregnancy and childbirth is issued from 28 weeks of pregnancy. At the same time, the total duration of prenatal and postnatal leave is 194 days.

For childbirth that occurs before 30 weeks of pregnancy and the birth of a live child, a certificate of incapacity for pregnancy and childbirth is issued by the medical institution where the birth took place for 156 calendar days, and in the case of birth dead child or his death - within the first 7 days after birth - for 86 calendar days (see clause 8.1-8.3 of the Instructions on the procedure for issuing documents certifying temporary disability of citizens, approved by order of the Ministry of Health and Medical Industry of Russia dated October 19, 1994 No. 206 and the resolution of the Social Fund insurance 10.19.94 No. 21.

Maternity leave is counted towards the total continuous experience work and, in particular, length of service giving the right to annual leave (Article 121 of the Labor Code of the Russian Federation).

Guarantees are also reserved for women when establishing the priority for granting annual paid leave. According to Art. 260 of the Labor Code of the Russian Federation, before maternity leave or immediately after it, or at the end of parental leave, a woman, at her request, is granted annual paid leave, regardless of her length of service in the organization. In accordance with established practice, in cases where a woman has not used leave for the past year, and maternity leave covers part of the next year of work, at her request, both unused amounts must be added to maternity leave or parental leave. annual leave. If annual maternity leave coincides, annual leave, at the request of the woman, is granted after the end of postpartum leave or is postponed to another date.

The Labor Code of the Russian Federation does not contain the norm contained in Part 3 of Art. 171 of the Labor Code of the Russian Federation, which provides that pregnant women registered in medical institutions in early dates pregnancy (up to 12 weeks), a lump sum benefit is paid. However, this does not mean that such benefits will not be paid. The legislator established that when pregnant women go on maternity leave, if the above conditions are met, such a benefit will be paid in the amount of 300 rubles.

The guarantees provided to pregnant women upon termination of their employment contract have undergone some changes. Thus, termination of an employment contract at the initiative of the employer with pregnant women, with whom the employment contract was concluded for an indefinite period, is, as before, not allowed, except in cases of liquidation of the organization (Part 1 of Article 261 of the Labor Code of the Russian Federation). As for women with whom a fixed-term employment contract was concluded, and if the term of such a contract expired during pregnancy, then in accordance with Part 2 of Art. 261 of the Labor Code of the Russian Federation, employers are obliged, at the request of these women, to renew employment contracts with them until they become entitled to maternity leave, and not to employ them, as was provided for in previous legislation (Part 2 of Article 170 of the Labor Code of the Russian Federation).

When the courts consider the claims of women whose employment contract was terminated at the initiative of the employer during pregnancy, they are reinstated by the court at work, regardless of whether the employer was aware of the pregnancy and whether it remained during the consideration of the case.

When pregnant women are dismissed in the event of liquidation of the organization, assistance to them in finding suitable work and employment is carried out by the authorities civil service employment of the population in accordance with current legislation. Employment of women whose employment contract expired during pregnancy, the term of the employment contract is extended upon their application until the right to maternity leave becomes available. This norm gives additional guarantee to women during pregnancy. In connection with this provision, the employer cannot fire a woman solely on the grounds that the term of the employment contract has expired.

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Currently, along with solving political and economic problems, a radical change in the position of man in the system of social moral relations is required. First of all, this concerns the family as a person’s natural habitat. The family is the basic unit of society, which should be provided with the widest possible protection and assistance, both during its formation and in the process of raising children.

The Constitution of the Republic of Kazakhstan enshrines the fundamental rights and freedoms of citizens. The provisions of the Labor Code of the Republic of Kazakhstan, as well as other regulations in this area, contain a fairly broad system of labor benefits for women and people with family responsibilities. The prohibition of discrimination, including in the sphere of labor, is a generally recognized principle of law and is enshrined in international normative legal acts, such as the Universal Declaration of Human Rights, the European Social Charter, etc. Articles of the Labor Code of the Republic of Kazakhstan are also devoted to the prohibition of discrimination.

However, since almost everything family worries traditionally fall on the shoulders of women, most of these benefits are addressed exclusively to them. The physiological characteristics of a woman and her reproductive function cannot but leave an imprint on the scope of her rights in the process of carrying out labor activities. Related to this are restrictions on performing heavy work, lifting heavy objects, and other benefits and incentives provided by our labor and social legislation.

Peculiarities of labor regulation for pregnant women and women with children under three years of age

A significant proportion of workers in production are women, the number of whom, depending on the industry or nature of work, ranges from 30 to 70% of the number of workers, and in some industries even more. Attaching special significance to the role of women in society, the legislator provides additional guarantees of women's rights and consolidates their implementation through social programs and by-laws.

The Declaration of the Rights of the Child, proclaimed by UN General Assembly Resolution No. 1386 of November 20, 1959, states that the child, due to his physical and mental immaturity, needs special protection and care, including adequate legal protection both before and after birth.

Protecting the health of the mother during pregnancy is the most important way to legally protect the interests of the child before his birth.

Special labor protection for women begins from the moment they are hired, since Article 186 of the Labor Code of the Republic of Kazakhstan limits the possibility of using women’s labor in heavy work and work with harmful and dangerous working conditions, with the exception of non-physical work or work on sanitary and household services

So, according to Art. 186 of the Labor Code prohibits the use of women in heavy work, work with harmful (especially harmful) and (or) dangerous working conditions.

1. It is prohibited to employ women in heavy work, work with harmful (especially harmful) and (or) dangerous working conditions.

2. It is prohibited for women to lift and move by hand weights that exceed the limits established for them.

3. The list of jobs in which the use of women’s labor is prohibited, the maximum standards for lifting and manually moving heavy objects by women are determined by the authorized state body for labor in consultation with the authorized state body in the field of health care.

The list of jobs in which the use of women’s labor is prohibited, the maximum standards for lifting and manually moving heavy objects by women are determined by the Ministry of Labor and Social Protection of the Population of the Republic of Kazakhstan in agreement with the Ministry of Health of the Republic of Kazakhstan. The exception is work performed by women holding leadership positions and not performing physical work; women engaged in sanitary and household services (for example, doctors, paramedical and junior medical personnel, barmaids, etc.).

It is prohibited to employ women in jobs involving lifting and manually moving heavy loads that exceed the established carrying limits permissible for them. They boil down to the following: the weight of the load lifted and moved up to two times per hour should not exceed 10 kg, and if this work is carried out constantly during the shift - 7 kg. The weight of the cargo being lifted and moved also includes the weight of the container and packaging.

When assessing the severity and harmfulness of working conditions for women, the contraindications recognized in professional hygiene, which are associated with physical stress, lifting and carrying heavy objects, are taken into account; unfavorable climate and meteorological conditions; exposure to high and low temperatures, pressure, radiation; with forced abnormal body position; With increased danger injuries, concussions; with the specific effects of poisons and chemicals, etc.

Thus, the legislation provides for two restrictions on the use of women’s labor:

Firstly, a complete prohibition of labor in hard work, in work with harmful and dangerous working conditions;

Secondly, limiting the weight of the loads that they can move while performing other work.

Hiring

Hiring is carried out by the employer by agreement with the woman by concluding an employment contract. The legislation establishes a certain procedure and legal guarantees when hiring pregnant women and women with minor children.

It is prohibited to deny women an employment contract and reduce their wages for reasons related to pregnancy or the presence of children under the age of three, and for single mothers - with the presence of a child under the age of fourteen (a disabled child - up to eighteen). Article 25 of the Labor Code of the Republic of Kazakhstan Guarantees of equal rights and opportunities when concluding an employment contract:

2. Pregnancy, the presence of children under three years of age, minority, disability cannot limit the right to conclude an employment contract, except for the cases provided for by this Code.

At the request of the category of persons specified in paragraph one of this paragraph, the employer is obliged to provide the reason for the refusal in writing.

3. When establishing the fact of violation of equality of rights and opportunities when concluding an employment contract, the employer bears responsibility established by the laws of the Republic of Kazakhstan.

According to the Labor Code of the Republic of Kazakhstan, direct or indirect restriction of rights or the establishment of advantages depending on gender, race and other characteristics is not allowed.

However, differences, exceptions, preferences and restrictions in hiring that are determined by the requirements inherent in a given business or type of work or are conditioned by the special protection of the state for persons in need of increased social and legal protection are not discrimination against persons with family responsibilities.

If a job is refused, the employer is obliged to provide the reason for the refusal in writing at the request of the person applying. If, in practice, the rights of pregnant women or mothers are violated when hiring, the employer’s actions can be appealed to the labor inspectorate or to court. Although, unfortunately, this norm provides practically no (real) guarantees for workers. In practice, there are almost no cases where the administration, when refusing to hire women, informs them in writing of the reasons for the refusal with reference to pregnancy and their motherhood.

Persons guilty of violating labor legislation and other regulatory legal acts containing labor law norms, and therefore committing discrimination in the sphere of labor, are subject to disciplinary, administrative and criminal liability in the manner prescribed by law.

Disciplinary liability of a representative of a legal entity for discrimination occurs under the Labor Code of the Republic of Kazakhstan. If the facts of violations are confirmed, the employer is obliged to apply disciplinary action to the head of the organization or his deputies, up to and including dismissal.

The financial liability of the employer (individual or legal entity) arises according to the Civil Code of the Republic of Kazakhstan. According to the Labor Code of the Republic of Kazakhstan, the employer is obliged to compensate the employee for the earnings he did not receive in all cases of illegal deprivation of his opportunity to work (for example, in the case of illegal refusal to hire). Moral damage is compensated by agreement of the parties, in case of a dispute - by the court.

Administrative liability for discrimination in the world of work arises according to the rules of Art. 87 Code of Administrative Offenses of the Republic of Kazakhstan.

Working time and rest time. Breaks

The socially useful activities of people are varied; the most general and acceptable measure of the amount of labor expended for all its types is working time. The amount and standard of working time are determined by the level of development of society, political and economic factors. The law makes this measure generally binding

Article 187. Features of the work and rest regime for women and other persons with family responsibilities

1. The employer does not have the right to involve pregnant women in night work, work on weekends and holidays, overtime, send them on business trips, or recall them from paid annual leave.

2. The employer does not have the right to engage in night work, overtime work, as well as send on business trips and work performed on a rotational basis, without written consent:

1. women with children under the age of seven, and other persons raising children under the age of seven without a mother;

2. workers caring for sick family members or raising disabled children, if, based on a medical report, children under three years of age, disabled children or sick family members need constant care.

Women's work at night - from 22 to 6 am - is allowed only in those sectors of the country's economy where it is caused by a special need and is permitted as a temporary measure. Women with children under three years of age are allowed to work on weekends and holidays only if such work is not prohibited for them for medical reasons, and they have been informed in writing of their right to refuse this work. These guarantees are also provided to employees who have children with disabilities or people with disabilities from childhood until they reach the age of 18, apply to fathers raising children without a mother, to guardians (trustees) of minors, as well as to employees caring for sick members of their families in in accordance with the medical report. Pregnant women are generally not allowed to work on weekends and non-working holidays. The refusal of a pregnant woman or a person with family responsibilities to work at night (including cases when only part of the work shift occurs at night) is not considered a violation of labor discipline.

For women and other persons with family responsibilities, additional guarantees regarding working hours have been established.

Thus, Article 189 of the Labor Code allows the employer to provide part-time working hours upon the written application of a pregnant woman, a woman with a child (children) under the age of three, a father, an adoptive parent raising children under the age of three without a mother, and also an employee caring for a sick family member in accordance with a medical report.

It is not allowed to use summarized recording of working hours for pregnant women if the length of the working day (work shift) exceeds eight hours.

Part-time work is introduced in the interests of those individuals who, for whatever reason, cannot be employed full-time. The employer is obliged to establish part-time work at the request of a pregnant woman, one of the parents with a child under 14 years of age (a disabled child under 18 years of age), as well as a person caring for a sick family member in accordance with a medical report. Part-time work (part-time or part-time work week) can be established by agreement between the employer and a woman with children when hiring her, if due to the need to care for children she cannot work full time. In these cases, remuneration is made in proportion to the time worked or depending on output.

Part-time working time can be established by agreement of the parties either without a time limit or for any period convenient for the employee: until the child reaches a certain age, for a period academic year etc.

The order (instruction) on hiring women with children for part-time work specifies the duration of work, the duration of working hours and its schedule during the working day or week, the need for vocational training or retraining and other conditions.

Working hours established for part-time work may include:

Reducing the duration of daily work (shift) by a certain number of working hours on all days of the working week;

Reducing the number of working days per week while maintaining the normal duration of daily work (shift);

Reducing the duration of daily work (shift) by a certain number of working hours while simultaneously reducing the number of working days per week.

When establishing part-time work schedules, the length of the working day (shift) should not be less than 4 hours and the working week - less than 20-24 hours, respectively, for a five- and six-day week.

Depending on specific production conditions, a different working time may be established.

A break for rest and food is provided to women working part-time if the length of the working day (shift) exceeds 4 hours. A break is not included in working hours.

Part-time work does not entail any restrictions on the duration of annual leave, calculation of length of service and other labor rights.

Additional leave for irregular working hours for women with children and working part-time may be provided if the employment contract provides for work on a part-time basis, but with a full working day.

For women working part-time in industries, workshops, professions and positions with hazardous working conditions, only those days on which the employee was actually employed during the work period, which gives the right to additional leave on these grounds, are counted. harmful conditions labor of at least half the working day established for employees of a given production, workshop, profession or position.

When establishing a labor standard, the legislator at the same time allows for some exceptions when it is possible to attract an employee to work outside this standard. This includes overtime and irregular working hours. In accordance with Art. 88 of the Labor Code of the Republic of Kazakhstan, overtime is work performed by an employee at the initiative of the employer outside the established working hours, daily work (shift), as well as work in excess of the normal number of working hours during the accounting period.

As a general rule, overtime work is prohibited. The exception is special, unforeseen cases. Their list is contained in Art. 88 Labor Code of the Republic of Kazakhstan. By allowing overtime work as an exception, the legislator limits its limit for the employee (4 hours for two days in a row or 120 hours per year), allows it only taking into account the opinion of the elected trade union body and prohibits the involvement of pregnant women in this work. Involving women with children under three years of age in overtime work is permitted with their written consent and provided that such work is not prohibited for them for health reasons in accordance with a medical report. At the same time, they must be informed in writing of their right to refuse such work.

Often, labor functions are performed by employees outside their place of permanent work. This entails the employee leaving home for a more or less long period, and sometimes staying on the road for many days, changing climatic zones, changing the usual work and rest schedule, diet, etc., which adversely affects, for example, the health of a pregnant woman . For mothers with infants, such a departure is generally impossible. In accordance with Art. 187 of the Labor Code of the Republic of Kazakhstan prohibits sending pregnant women on business trips. Referral of women with children under three years of age is allowed only with their written consent and provided that this is not prohibited to them medical recommendations.

Breaks during the day are divided into general and special. Special breaks include rest breaks, warming breaks, and nursing breaks. They are provided during the entire period of actual breastfeeding of the child. If necessary, this fact is certified by a medical institution that has the right to issue certificates of incapacity for work for the provision of maternity leave, and by a children's clinic.

For the purpose of protecting motherhood and childhood, Art. 188 of the Labor Code establishes that nursing mothers are provided with breaks to feed their children. In addition to breaks for rest and meals, intra-shift and special breaks, women with children under the age of one and a half years, fathers (adoptive parents) raising children under the age of one and a half years without a mother are provided with additional breaks for feeding the child (children) not less than every three hours of operation for the following duration:

1) having one child - each break is at least thirty minutes;

2) having two or more children - each break is at least one hour.

Moreover, breaks for feeding the child (children) are included in working hours, and during the breaks, women (fathers, adoptive parents, adoptive parents) retain their average wage.

Breastfeeding breaks are provided to both breastfeeding mothers and women with children under the age of one and a half years who are on artificial feeding. Such breaks are provided at least every 3 hours of continuous work, lasting at least 30 minutes each.

If a working woman has two or more children under the age of one and a half years, the duration of the feeding break should be at least one hour.

If, for health reasons, the child needs to be fed more often than every 3 hours, then, according to established practice, in accordance with the medical opinion, the woman is given additional breaks to feed him.

At the request of the woman, breaks for feeding can be added to the break for rest and nutrition, or in aggregate form they can be transferred to both the beginning and the end of the working day (work shift), i.e. An employee can start work an hour later and leave an hour earlier.

Breaks for feeding a child (children) are included in working hours and are subject to payment in the amount of average monthly earnings.

Women with children under the age of one and a half years, if it is impossible to perform their previous work (if, for example, the work is associated with exposure to harmful factors that prevent breastfeeding child) are transferred at their request to another job while maintaining the average earnings from the previous job until the child reaches the age of one and a half years.

Thus, according to Art. 187 of the Labor Code, the legislation provides for a complete prohibition of engaging pregnant women and women with children under three years of age for night and overtime work, work in public holidays, holidays and weekends, sending them on business trips. Based on the fact that the involvement of pregnant women and mothers with children under three years of age in work at night, overtime, work on public holidays and public holidays, work on weekends, and sending them on business trips is not allowed, their refusal to do such work cannot be considered a violation of labor discipline.

Since the law does not link the prohibition of night work for a pregnant woman, mother with children under three years of age, with the performance of this work during the entire working day, refusal to work at night cannot be considered a violation of labor discipline even in the case when Night time accounts for only part of the working day.

In cases where one of the conditions of work for which a woman is hired is traveling with the payment of an allowance for it, for the period of pregnancy, as well as until the child reaches the age of three years, the employer is obliged to provide her with work on a permanent basis. Refusal to leave for work from your place of permanent residence cannot be considered a violation of labor discipline.

The legislation establishes restrictions and involvement in night work, overtime work, work on public holidays and public holidays, work on weekends and sending on business trips to women with children under the age of fourteen years (disabled children - up to eighteen years), allowing it only with their consent.

Transfer to another job

If the establishment necessary conditions If an employment contract occurs by agreement of the parties, then changing them also requires consent, and transfers cannot be made without agreement with the employee. The law establishes an exception to this rule - temporary transfer due to production needs (Article 43 of the Labor Code of the Republic of Kazakhstan).

The meaning of translation for women serves as a means of labor protection (when required for health reasons, pregnancy, breastfeeding and in the presence of a child under the age of one and a half years).

Temporary transfer is possible for medical reasons, which indicate the period of transfer. It is mandatory for the employer. So, if a pregnant woman cannot be transferred to a job that is easier for her, one that excludes exposure to harmful factors while maintaining average earnings, she should be released from work altogether, but with the same wages for all missed working days.

For example, work recommended for women during pregnancy can include light assembly, sorting, and packaging operations, taking into account the hygienic criteria of the labor process, production area and workplace organization.

Since the work of pregnant women working in rural areas is prohibited from the moment pregnancy is detected, the employer is obliged to release the woman from such work (while maintaining average earnings) on the basis of a pregnancy certificate. No special medical report is required.

A woman’s desire to move to another job at her place of residence during pregnancy or before the child reaches the age of 1 year is a valid reason for terminating the employment contract.

The listed guarantees are aimed at ensuring the stability of labor relations for women during pregnancy and caring for a child under 1 year of age.

Thus, the employer, on the basis of a medical report, is obliged to transfer a pregnant woman to another job that excludes exposure to harmful and (or) hazardous production factors, while maintaining the average salary.

Article 191. Temporary transfer of pregnant women to another job

The employer, on the basis of a medical report, is obliged to transfer the pregnant woman to another job that excludes exposure to harmful and (or) hazardous production factors, while maintaining the average salary.

Pregnant women are subject to reduced production standards and service standards, or they are transferred to easier work that eliminates exposure to unfavorable factors, only during the period of pregnancy when the need for such a transfer arises.

The need for such a transfer and the type of lighter work is determined by a certificate from a medical institution. Lighter work is determined depending on specific working conditions on the basis of a medical report, which must indicate the type of lighter work.

If a transfer to an easier job is impossible due to production conditions or does not correspond to the interests of the pregnant woman, she is allowed to remain at her previous job. In such cases, the pregnant woman, in accordance with the doctor’s recommendation, has her working conditions simplified (part-time work is introduced, the work schedule is changed, the intensity of the work process is changed, the standard of service is reduced, the weight of the weights lifted is reduced, etc.) while maintaining the same average earnings. In each individual case, the issue of transferring a pregnant woman to easier work should be decided depending on her state of health, the course of pregnancy, working conditions and taking into account the specific characteristics of each production.

A doctor’s opinion on the need to transfer a pregnant woman to an easier job is mandatory for the employer.

Women with children under the age of one and a half years are, if necessary, transferred to work that is compatible with feeding and caring for the child (even if it is not easier).

The impossibility of performing the previous work is established in every specific case depending on working conditions. For example, when a previous job requires participation in night shifts or when it is impossible to leave during working hours to feed a child (women are turbine operators at power plants, women are conductors of long-distance carriages, etc.).

An employer's refusal to transfer a pregnant woman to an easier job, as well as a woman with children under the age of one and a half years, to transfer to another job if it is impossible to perform the previous job, can be appealed in court after a preliminary consideration of this dispute in the labor dispute commission . Women who are not members of a trade union have the right to choose to go to a labor dispute commission or to court. Reducing production standards, service standards and transfers of pregnant women and women with children under 1.5 years of age exists as a specific obligation of the employer. It arises after the conclusion of an employment contract and already exists as an element of a specific legal relationship. After the pregnancy period has passed or the child reaches 1.5 years old, i.e. legal fact serving as the basis for using this legal benefit, the employee has the right and obligation to perform all necessary operations in accordance with her profession or work in her previous area of ​​work.

Reducing production standards, service standards and transferring pregnant women to other jobs is carried out in order to preserve pregnancy and ensure the normal development of the child (fetus). Reductions in standards and transfers are made at the request of the woman and according to a medical report. However, in practice, doctors, as a rule, giving such conclusions and ill-imagining the types and nature of work in a particular area, do not determine the type of specific work to which the employee could be transferred. The literature has long been talking about the need to develop special lists of light jobs to which women can be transferred during pregnancy and lactation, by industry.

Termination of employment relationship

An important protective norm for women is the limitation of termination of an employment contract at the initiative of the employer. Article 185. Limitation of termination of an employment contract at the initiative of the employer

1. Termination of an employment contract at the initiative of the employer with pregnant women, women with children under the age of three, single mothers raising a child under the age of fourteen (a disabled child under eighteen), other persons raising this category of children without a mother , is not allowed, except for the cases provided for in subparagraphs 1), 3) - 18) of paragraph 1 of Article 54 of this Code.

2. If, on the day of expiration of the employment contract, a woman provides a medical report on pregnancy for a period of twelve weeks or more, the employer is obliged, upon her written application, to extend the term of the employment contract until the end of maternity leave until the child reaches the age of three years.

Thus, termination of an employment contract at the initiative of the employer with pregnant women, women with children under three years of age, single mothers raising a child under fourteen years of age (a disabled child under eighteen years of age), other persons raising this category of children without a mother , is not allowed, except in cases of liquidation of the organization or termination of activities by an individual entrepreneur. During liquidation, all employees are dismissed. Liquidation should not be confused with reorganization, which means a change in profile, structure and does not entail the dismissal of employees. Dismissal of pregnant women and women with children during the liquidation of an organization is allowed only with subsequent mandatory employment either in another organization of the same system, or through local authorities for the use of labor resources in another system. That is, if the organization itself could not find them a job, then they are provided with assistance by the employment service. Also, the ministries (departments) to which the liquidated organization is subordinate can carry out compulsory employment upon dismissal of this category of women.

The responsibility for employing the above-mentioned workers rests with the employer even in the event of their dismissal at the end of a fixed-term employment contract.

In accordance with paragraph 2 of Art. 185 of the Labor Code of the Republic of Kazakhstan, in the event of expiration of a pregnant woman’s fixed-term employment contract, the employer is obliged, at her request, to extend this period until she becomes entitled to maternity leave.

It is permissible to dismiss a woman due to the expiration of an employment contract during her pregnancy, if the employment contract was concluded for the duration of the duties of an absent employee and it is impossible, with the written consent of the woman, to transfer her to another job available to the employer before the end of her pregnancy (as a vacant position or a job corresponding to the woman’s qualifications, and a vacant lower-level position or lower-paid job), which a woman can perform taking into account her state of health. In this case, the employer is obliged to offer her all the vacancies that he has in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for in the collective agreement, agreement, or employment contract.

Legislation defines mothers raising disabled children as those mothers who are constantly involved in raising, caring for and examining disabled children kept at home, or when such children regularly attend special schools and take them home every day.

Days off from work are not provided to those mothers whose disabled children are constantly in boarding homes, including in cases where such children are taken home for the weekend.

Legislation, taking into account the specifics of the legal regulation of women's labor, provides additional benefits and guarantees to female workers from employers who primarily employ their labor. In particular, employers:

Organize (on their own initiative, as well as in cases provided for by law or collective agreement) nurseries and kindergartens, feeding rooms infants and personal hygiene of women;

Jobs and types of work are determined in accordance with medical recommendations (including at home, this is another benefit for persons with family responsibilities.

Homeworkers are considered to be persons who have entered into an employment contract to perform work at home using materials and using tools and mechanisms provided by the employer or purchased by the homeworker at his own expense. IN recent years home work is becoming increasingly widespread, to which pregnant women can be transferred if necessary.

When organizing nurseries and kindergartens, rooms for feeding infants and personal hygiene for women, and creating special units for the use of women's labor, the requirements for ensuring healthy and safe working conditions must be observed. Providing workers with sanitary facilities, devices and means is one of the important factors in creating healthy working conditions in production, which has a positive effect on human performance during the work process. To do this, at the design stage of new and reconstruction of existing enterprises, the required number of sanitary facilities, devices and facilities must be provided in the design and estimate documentation. The number of dressing rooms, washrooms, toilets and showers, personal hygiene rooms, rooms for eating, rest, heating and other purposes is established by intersectoral regulatory legal acts (documents) on labor protection. These include SNiPs, SanPiNs, standards, and technical specifications. At existing enterprises, in the absence or insufficient satisfaction of workers with sanitary facilities, devices and means, these issues are resolved by implementing labor protection measures provided for in the collective agreement (agreement) at the expense of the employer.

Practice shows that employers who employ women widely use the norms of the Labor Code of the Republic of Kazakhstan, providing in collective agreements a list of jobs to which pregnant women can be transferred, the possibility of easing working conditions when leaving a pregnant woman at her previous job (exemption from performing certain operations, provision additional breaks for relaxation, etc.) .

Persons involved in raising children without a mother are subject to all the benefits provided by law to women in connection with motherhood - restrictions on night work, overtime work, involvement in work on weekends and business trips, provision of vacations, establishment of preferential treatment.

Additional benefits and guarantees established by collective agreements and agreements for working women and mothers are also provided to employees raising children without a mother.

Providing benefits and labor guarantees to persons raising children without a mother is the responsibility of the employer and does not depend on his discretion.

Relatives of a child raising him without a mother include grandparents, aunts, etc. The degree of relationship does not matter. The father of the child is the person indicated as such on the child's birth certificate. The procedure for establishing paternity and making a record of the child’s father is regulated by the Law on Marriage and Family of the Republic of Kazakhstan.

The adoptive parent who has adopted the child for upbringing is equal to the father. Guardianship and trusteeship are established for the upbringing of minor children who, due to the death of their parents, deprivation of them parental rights, illness or for other reasons were left without parental care, as well as to protect the personal and property rights and interests of these children.

A guardian is a person who, in accordance with the established procedure, is entrusted with guardianship of young children (under 14 years of age).

A guardian is a person who, in accordance with the established procedure, provides guardianship over minors aged 14 to 18 years. The status of a guardian (trustee) is confirmed by a certificate issued in the manner established by the Law on Marriage and Family.

Thus, when resolving labor disputes of persons raising children without a mother, it is necessary to take into account that, by virtue of the current labor legislation, fathers raising children without a mother (in the event of her death, deprivation of parental rights, long stay in a medical institution and in other cases absence of maternal care for children), as well as guardians (trustees) of minors are subject to benefits provided to women in connection with maternity (limitation of night work, overtime work, involvement in work on weekends and business trips, provision of additional leaves, establishment of preferential labor regimes and other benefits established by law).