Question about breaks for feeding provided to an employee with one child under 1.5 years old. We see the norm in the Labor Code of the Russian Federation that after every 3 hours of work at least a 30-minute break is provided, and it is included in working hours and is paid according to average earnings. Our accounting department believes that such a calculation will complicate their work and suggests that this break be considered optional. The question is: if an employee writes a statement that she herself refuses to provide such a break, is the company’s consent acceptable in this case? How to apply correctly? What are the risks, for example, the size of fines if the inspectors do not agree?
Answer
Both to start providing feeding breaks and to stop providing them, an employee application is required.
Breastfeeding breaks are not automatically provided to all employees with children under the age of one and a half years.
In order to be able to feed the baby during the working day, a working mother (or father) writes an application asking for breaks for feeding and indicates the preferred time for such breaks. The employer is obliged to satisfy this request (Part 1 of Article 258 of the Labor Code of the Russian Federation). He issues an order to provide breaks, indicating their schedule.
An employee who is given breaks to feed a child has the right (Part 3 of Article 258 of the Labor Code of the Russian Federation):
— change the time of their provision;
- join them for lunch;
— move to the beginning or end of the work shift;
- refuse to use them.
He will also express his desire in a written statement addressed to the manager. The manager is obliged in these cases to meet the employee’s request halfway. He will issue an order to change the schedule of breaks or cancel their provision.
So, if your employee is not yet exercising her right to breastfeeding breaks, you are not required to provide them until she applies for them.
Who can count on a break to feed the baby?
The provisions of Art. 258 of the Labor Code, workers who have a child under 1.5 years of age are guaranteed the right to breaks for feeding, regardless of work schedule, with a total working day of more than 3 hours.
The Resolution of the Plenum of the Supreme Court of the Russian Federation “On the application of legislation regulating the work of women...” dated February 28, 2014 No. 1 (hereinafter referred to as the Resolution of the Supreme Court on the labor of women) explains that if it is impossible to combine the position held with child care (for example, due to the traveling nature of the work , if there are night shifts in the schedule), including feeding, the employer is obliged to offer the employee a more suitable vacancy.
The regime of breaks for feeding a child during a full working day and the rules for its registration
The above article of the Labor Code specifies the duration and frequency of breaks for feeding: at least half an hour every 3 hours of working time. According to the Supreme Court Resolution on Women's Labor, breaks for feeding are included in the number of working hours, and the wording of Art. 258 of the Labor Code implies that the break begins automatically.
It is important to remember that this rule applies to women with one child. The presence of two or more children under 1.5 years of age increases the duration of the break at least twice (Part 2 of Article 258 of the Labor Code).
There are often situations when an employee works far from home, and therefore the specified time is simply not enough to fully use it for its intended purpose. Especially for such cases, the Labor Code has provided for the possibility of adding feeding breaks to the lunch hour, as well as an early end or later start of the working day.
So, if the work week is 40 hours (8 hours a day), and the day begins at 8:00, then the first break will be at 11:00, the second at 15:00, excluding lunch breaks. When adding a break to lunch, the employee can afford to either return from it an hour later, or leave an hour earlier, or stay for a 2-hour lunch.
Registration of a feeding break does not require additions to the employment contract. The Labor Code directly states that to provide them, only an application from the employee is sufficient, and then it is required only if the break entails a reorganization of the work process (increasing the lunch break, changing the start or end time of work).
Feeding breaks for part-time work - rules for calculation and registration
The right of an employed woman to work part-time during the period of maternity leave until the child is 1.5 years old is enshrined in Art. 256 TK. According to the provisions of Art. 93 of the Code, the part-time working regime is established by agreement between the employee and the employer. Going to work may not be daily. The contract can also provide for a shorter working day.
Calculation of the standard for providing breaks for feeding in part-time working conditions is based on general rule. For example, if a working day lasts 5 hours and starts at 8:00, a break is provided once after 3 hours of work, that is, at 11:00.
Important: in such a situation, it is advisable to stipulate the condition for providing a break for feeding in an additional agreement to the employment contract, which is mandatory when establishing part-time work. In particular, it is possible to use wording like “an employee has the right to breaks for feeding when the working day is more than 3 hours, the break time is from 11:00 to 11:30.”
Don't know your rights?
How are breaks for feeding a child paid?
In order to determine the amount of payment for feeding breaks , you need to do the following:
- Calculate average daily earnings. The Labor Code of the Russian Federation and the Supreme Court Resolution on the labor of women establish that payment for the period of a feeding break is subject to calculation in the amount of the average salary. The establishment of the average wage in this case is determined in accordance with Art. 139 Labor Code, clause 4 of the Regulations on the specifics of the procedure for calculating average wages, approved. by Decree of the Government of the Russian Federation dated December 24, 2007 No. 922 (hereinafter referred to as the Regulations on the average salary), based on data on income for calendar year, preceding the month in which the employer began providing feeding breaks. At the same time, time of illness, vacation at one’s own expense, days off to care for disabled children, downtime due to the fault of the organization, and many others are excluded from the calculation period. etc.
Important: it should be remembered that before maternity leave, the woman was most likely on maternity leave due to pregnancy and childbirth. In this case, it is necessary to be guided by clause 5 of the Regulations on the average salary, according to which it is permissible to take the period preceding maternity leave as the basis for calculation.
Calculation period: from February 2018 to February 2019 (12 months).
The amount of earnings for the entire period amounted to 180,000 rubles.
Calculation formula:
Сз (1д) = Зп (year) / 12: 29.3,
where Сз (1д) - average earnings for one working day, salary (year) = amount of accrued wages for the entire calendar period, 12 - number of months in calendar period, 29.3 - the average number of days in a month (this value is taken by default, according to clause 10 of the Regulations on the average salary).
Thus, in the end we get:
180,000 / 12 / 29.3 = 511.95 (rub.)
- Determine the share of average earnings attributable to feeding breaks. For example, if the working day is 8 hours, and there are two breaks for feeding, the total duration of which is 1 hour, the break share is 1/8 of the working time, or 0.125.
- Calculate the average earnings during the break. For the calculation, let’s take the data given above in the example, where the average daily earnings were 511.95 rubles, and the share of such earnings that came from feeding breaks was 0.125.
We calculate:
511.95 × 0.125 = 63.99 (rub.)
That is, in the above case, payment for breaks for feeding a child for 1 working day is 63.99 rubles.
As you can see, calculating payment for a feeding break is not particularly difficult. The employer only needs to remember that the provision of breaks for feeding the child and the payment of remuneration are provided for by the norms of labor legislation, violation of which entails administrative liability under Art. 5.27 Code of Administrative Offenses of the Russian Federation.
I work in the Far North and have a child aged 10 months. The working day is 7 hours. I work four hours before the lunch break and three hours after it. Am I allowed or not to take breaks to feed my baby? What documents should I provide for this?
child on artificial feeding, the employer requires a certificate from the pediatrician that I am breastfeeding the baby. After providing such a certificate, he promises to provide one feeding break before lunch. Since after the lunch break I work for three hours and at the end of the working day I will be given a break of 30 minutes, I am not entitled to another break.
The employer is wrong on all counts. Additional breaks for breastfeeding are provided to all working women with children under the age of one and a half years. This guarantee for working women is established in Article 258 Labor Code RF and in no way depends on the method of feeding the baby. The requirement to provide a certificate from a pediatrician about the method of feeding is illegal, although it is possible that a document from a doctor will be needed, but more on that later.
Part 1 art. 258 of the Labor Code of the Russian Federation establishes that additional breaks for feeding the child are established at least every three hours, lasting at least 30 minutes each. Before changes were made to the article in question, additional breaks were provided at least every 3 hours of continuous work for the mother. It is possible that the employer missed the changes made and therefore does not want to provide a second break. Bring his attention to these changes.
The duration of the working day is 7 hours, breaks are provided every 3 hours, using a simple mathematical operation we find that during the working day the employer is obliged to provide 2 breaks for feeding the child.
In what cases are breaks for feeding a child increased?
- If there are two or more children under the age of one and a half years, the duration of the feeding break is set at least one hour.
- Depending on the child’s health, remoteness of the feeding place and other circumstances, subject to a medical report.
At the request of the employee, breaks for feeding are added to the break for rest and food, or in aggregate form are transferred both to the beginning and to the end of the working day (work shift) with a corresponding reduction. Therefore, you need to write a statement indicating how you want to manage your breaks. No additional documents are required.
If the employer does not provide additional breaks for feeding the child in the quantity and duration established by law, you can appeal his actions.
Sample application for postponing breaks for feeding a child in a summarized form
Women often work and care for children at the same time. If the children are still small, the mother arranges a feeding break. Find out how to do it right.
Concept
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A lactation break is a period given to working women for the purpose of feeding a child. It is added to working hours and is paid.
Regulatory framework
A guarantee giving an employee with a baby under 1.5 years of age the right to take a break to feed them is established by the Labor Code of the Russian Federation ().
Additionally, this point can be resolved at the employer level in a collective agreement and local act.
To whom are they provided?
The legislator names a list of persons who can take advantage of breaks to feed the baby.
Working women
First of all, a break for feeding a child is given to the mother of one or more children under the age of 1.5 years. An employee has the right to work full or part time. The benefit applies to part-time workers.
The only time limitation is that the duration of the work must be three hours or more. Otherwise, the woman is not entitled to a break.
To my father
A break is provided to the father if he is raising a child without a mother. Adoptive parents and guardians of children also have the right to take advantage of this guarantee.
For military personnel
The Labor Code does not apply to military personnel. They are subject to legislation on the status of military personnel () and a presidential decree on the passage of military service ().
Based on the provisions of paragraph 9 of Article 10 of Federal Law No. 76, military personnel can enjoy guarantees and compensation from regulations on labor protection, motherhood and childhood. Hence, they are given special intervals to feed their children.
An employer's right or obligation?
The Labor Code establishes the employer’s obligation to arrange additional breaks for an employee who has a child under 1.5 years old. However, it does not directly say that you need to write a statement.
It should be noted that this guarantee does not apply to mothers raising children under 3 years of age.
To implement this guarantee, the employer must be aware that the mother has such a right. In order to maintain the average salary for the employee and take into account the break during working hours, an order will be required.
Duration
The duration of breaks depends on how many one-and-a-half-year-old children the employee has:
- If she has one baby, then after a three-hour period of working time, the mother can leave for 30 minutes to feed the baby.
- Employees raising two or more children under the age of 1.5 years, have the right to take an hour break every 3 hours.
For clarity, let's make a table with information showing how working time is reduced due to breaks:
| Working time including breaks, h | Duration of breaks during the day | Duration of work without breaks, h |
| 8 | one baby - break 1 hour (twice 30 minutes each) two children or more - break 2 hours (twice 1 hour each) |
7 |
| 7 | one baby – break 1 hour (twice 30 minutes each) two children or more - 1 hour break |
6 |
| 6 | two children or more – break 1 hour |
5,5 |
| 5 | one child – break 30 minutes two children – break 1 hour |
4,5 |
| 4 | one child – break 30 minutes two children – break 1 hour |
3,5 |
| More than three | one child – break 30 minutes | 3 |
Breastfeeding breaks in 2020
An employee does not have the right to refuse special time for feeding children.
How to apply?
If the employee works full time, she should write a statement.
Employees who are on maternity leave and at the same time working part-time also write a statement. In this situation, in addition to the order, amendments to the employment contract are drawn up, which indicate how long the breaks will last and at what time they will be provided.
Where to go?
The employee should inform the employer that she has one or more children under 1.5 years of age. Then she writes a statement, which is transferred to the personnel department.
How to write an application?
The application for a break is written in free form.
It is advisable to indicate how the right to breaks will be used:
- every 3 hours for 30 minutes;
- add to lunch break;
- set at the beginning or end of the day.
A sample application can be downloaded here:
Order
In all cases, the employer signs an order to provide breaks for feeding children.
A sample order can be downloaded here:
Payment
The break for feeding the baby is paid by the employer and is counted towards the mother's working time.
How are they paid?
The amount of payment for periods used to feed children is set based on average earnings.
Calculation of average earnings
Average earnings are calculated based on information about the employee’s income for the calendar year.
It must precede the month in which the employer began allowing nursing breaks.
Before the maternity leave, the employee was on maternity leave due to pregnancy and childbirth, so the calculation can be based on the time preceding the maternity leave.
From the time taken as the basis for the calculation, weekends for the purpose of caring for disabled children, vacations, illness, downtime due to the fault of the employer, etc. are subtracted.
Average earnings to pay for breaks are calculated monthly. That is, the estimated time changes every month - 12 months. It always comes before the month in which time will be given for feeding the babies.
Examples
Billing period: from March 2017 to March 2020 (12 months). The annual salary is 190,000 rubles.
Calculation formula:
Average (1 day) = 3 (1 year) / 12 months / 29.3
- Av.z. (1 d) – average income for 1 day;
- Z (1 year) – the amount of salary received by the employee for 1 year;
- 12 – number of months;
- 29.3 – average number of days in a month.
As a result we get:
190,000 / 12 / 29.3 = 540.38 rubles
We calculate the amount of average earnings for a break to feed a baby. For example, a working day is 8 hours. During this period, the employee took advantage of two breaks totaling one hour. The break share is 1/8 or 0.125 of working time.
Now we calculate the average earnings during feeding: 540.38 * 0.125 = 67.55 rubles
According to the legislation of the Russian Federation, pregnant women and mothers of children are protected in labor terms. They have the opportunity to do light work. Also, the regulations stipulate a break for breastfeeding.
The procedure for exercising the right is provided for women who combine work and child care. At the same time, a working mother has long been no longer someone special to anyone.
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To provide the opportunity to care for the baby, providing one of the basic needs, an application for breaks to feed the child is submitted. It is sent to the employer, after which a corresponding order is issued.
Regulatory framework
The Labor Code of the Russian Federation (part four, section 12, chapter 41) contains an article reflecting benefits for women with infants. The norms are reflected in Article 258.
Working mothers supporting children under 1.5 years of age have the right to an additional lunch break to feed the baby. It is provided at least every three hours. The break lasts for half an hour. If there are two or more children, then the woman is given an hour break.
If a woman expresses her desire, the feeding break can be combined with the main lunch. They can also be moved together to the beginning and end working day. Then the shift or workday is reduced for a certain time.
Breaks must be counted by the employer as working time. They are paid in accordance with the average salary of the employee.
How to apply
Based on the current law, women with infants and older children not exceeding one and a half years old can count on feeding breaks. They should not replace the lunch time allocated for rest for the employee herself.
The period during which a woman feeds her baby is included in working hours. In fact, the woman receives a reduced working day on a legal basis.
When determining entitlement to breaks, the nature of the work is not taken into account. Employees working at their main place or part-time, working full-time or short-time, have a similar opportunity for additional rest.
An important point is to determine the total working time for this category of workers. It should not be less than three hours a day. If a woman works less, then she is not allowed a break for feeding.
If the employee writes a statement, then the break can be combined with a lunch break, provided in accordance with the Labor Code of the Russian Federation. It is also possible to move it to the evening in order to leave work earlier, or to the morning for a later arrival.
Break arrangements are available for women:
- whose children are breastfed;
- having babies fed with artificial formula;
- those who have adopted children;
- having custody of the child.
A single father of a child under 1.5 years old can also take advantage of the right.
To secure the possibility of receiving additional rest, an order must be drawn up. It is issued by the employer based on an application from the woman.
An example document is given below:
ORDER No. 23
on payment of average earnings
Moscow 05/13/2015
Based on the statement of A.Yu. Umnova, drawn up on May 10, 2015, on the provision of breaks to feed the child, as well as in accordance with Article 258 of the Labor Code
I ORDER:
- Provide employee A.Yu. Smart breaks for feeding the child, the duration of which is one hour, daily from May 14, 2015. At the request of the employee, they join the main break for rest and food from 13.00 to 14.00.
- Pay for feeding breaks in accordance with average earnings based on current labor legislation.
- Control over the implementation of the order is carried out by the chief accountant I.I. Nikitina.
Applying for breaks to feed a child
In order to explain the essence of the breaks provided, it is necessary to consider specific examples.
To the seller of the clothing store A.A. Yuryeva is given the right to breaks to feed the baby for 30 minutes every 3 hours. A woman’s working day begins at 10.00 and ends at 19.00.
This issue can be resolved as follows:
- The first break will be provided from 13.00 to 13.30. This is due to the fact that three hours have passed since arriving at work.
- The second break is possible at 16.30. At 17.00 a woman must be at her workplace.
- There will be no third break. After all, according to the law, it must begin at 20.00. But since the woman works until 19.00, she will leave work at this time.
Some workers use the right to add feeding breaks to lunch breaks. They can also move this period to the beginning or end of the day. To implement this possibility, an application for breaks to feed the child is drawn up.
The paper is prepared randomly. According to the document, a woman’s working day is being reduced.
You can use the example below as a guide:
General Director
Albino LLC
Barabanshchikov A.P.
sales consultant
A.Yu. Umnova
statement.
I ask you to provide the opportunity to add breaks for feeding the child (together) at the beginning of the working day with its subsequent reduction.
A copy of Yu.L.’s birth certificate is attached to the application. Umnova No. 324578, issued by OZAGS No. 26. Moscow 07/24/2015.
05/30/2016 _________________ /A.Yu. Umnova/
If an employee has submitted an application to postpone the break to the beginning of the workday, she can use the extra hour, starting work not at 10.00, but at 11.00.
Full and short day
Based on the Resolution of the Supreme Court of the Russian Federation, women nursing children have the same number of working hours as other employees. At the same time, the Labor Code provides for their start automatically.
It is worth noting that the norm is assumed not only for one child. If there are two or more children, then the break should be doubled.
When working full time away from home, the employee may not be able to come home and make full use of the allocated time. In this regard, the Labor Code provides for the possibility of combining feeding breaks with lunch time. Also, a woman may leave work earlier or later taking into account this period.
With a 40-hour work week and the working day starting at 8.00, the first break is provided at 11.00, and the second at 15.00. This does not take into account lunch breaks. If you combine them with lunch, a woman can leave an hour earlier or arrive an hour later.
When taking a break, additional agreements to the main employment contract are not provided. It is only important to draw up a statement if the break makes adjustments to the work process.
Based on Article 256 of the Labor Code of the Russian Federation, a woman raising a child under one and a half years of age has the right to part-time work. In this case (in accordance with Article 93), an agreement is concluded between the employer and the employee. At the same time, you can’t go to work every day. In addition, the contract may provide for a reduction in working hours.
To determine the possibility of feeding breaks, similar standards are used. If the working day lasts five hours and work starts at 9.00, the first break is given at 12.00.
Calculation and payment of average earnings
To determine the amount of remuneration for a worker who uses feeding breaks, it is necessary to carry out some calculations.
First, it is important to determine your average daily earnings. The periods during which a woman feeds her baby are paid according to the average value. At the same time, the legislative calculation is reflected in Article 139 of the Labor Code of the Russian Federation.
To carry out the calculation, it is important to know the woman’s income for the working year preceding the month when the woman was given the opportunity to take breaks.
Exclude from of this period need to:
- time spent on sick leave;
- leave granted without pay;
- days off set aside for caring for a disabled child;
- downtime due to the fault of the institution.
Most often, women receive the right to breastfeeding when returning from maternity leave. Then you need to focus on paragraph 5 of the Regulations on average wages. Based on it, the calculation is made based on the period before maternity leave.
To clarify the point, consider the following example. The calculation is based on the period from January 2020 to January 2020. At this time, the woman’s earnings amounted to 190,000 rubles.
To carry out the calculation, the formula is used:
Sz (1d) = Salary (year) / 12 / 29.3
In it:
When calculated, the amount equal to 511 rubles 95 kopecks is obtained.
Next, the average earnings attributable to feeding breaks are calculated. With an eight-hour working day, you get two breaks of 30 minutes each. Thus, an hour is 1/8 of the total working time or 0.125.
It is necessary to calculate the average earnings during the break. To do this, you need to multiply the average daily earnings by the share allocated for feeding. The resulting value is 63 rubles 99 kopecks. This amount is credited to the mother per day for breaks.
It is important to comply with labor laws when providing breaks and making payments. If you do not do this, then the employer can be brought to administrative liability on the basis of Article 5.27 of the Code of Administrative Offenses of the Russian Federation.
Display in accounting
It is important to know how breaks for feeding should be introduced in.
First, it is important to get acquainted with the classification of letters and numbers with which breaks are displayed. There are certain meanings that are prescribed by Decree of the State Statistics Committee of the Russian Federation dated January 5, 2004 N 1. However, the employer can also use its own symbols (KR) by formalizing them in the order.
To enter data in the 1C program, a directory with classification is opened and a new element is created based on the order document.
Payment is made in accordance with the woman's average daily earnings. occurs in full similarly with any other average earnings. Income tax is taken into account when determining labor costs. Insurance premiums and deductions in case of injury are also deducted from the amount.
In the program, you need to open the list of documents “Payment based on average earnings” and create a new one.
No change required. Also, the employer does not need to prepare an additional agreement. The main difference between this period is the calculation based on average earnings.
The accountant will need to draw up a payment document for each day of the working month in accordance with average earnings. To facilitate administration, special processing can be used.
Misunderstandings often arise when calculating average earnings when an employee goes on vacation. Based on the fifth paragraph of the above provision, at the time of determining the average salary for vacation, it is necessary from all working year exclude periods where average earnings are maintained.
However, amounts accrued when feeding breaks are provided are an exception. They must be taken into account when calculating vacation.
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