Your rights: Rights of pregnant women and working parents. Will parental leave be included in the length of service?

The norms of the Labor Code help Russian women to successfully combine career, family and motherhood. They give the mother the right to care for her child for quite a long time and not worry about possible loss of her job. And if the position does not go away from the employee, then everything is not so rosy with the length of service.

What is included in the length of service according to the Labor Code of the Russian Federation?

According to the code, length of service is all periods of a person’s work, and breaks in the performance of work functions, when the worker was regularly accrued and paid in full. insurance premiums(pension, medical insurance, accident at work).

Some interruptions in the employee’s working life are also counted during the insurance period:

1. Days of incapacity for work.
2. Months when the person lawfully received social unemployment benefits.
3. Service in the army, Internal Troops and Ministry of Internal Affairs.
4. Leave or a longer period of care for a newborn child (one and a half years in total) or for a close unhealthy relative, at least 80 years old.
5. Employment in public or elected positions
6. Time of unfounded conviction.

All breaks are included in the total duration of work only if they were preceded by days of employment.

Study time will be counted in working years only when a working student received an education in absentia, without excommunication from work or on assignment from an employer, and in the meantime his average income was left untouched.

Continuous work experience according to the labor code

Until 2018, it was important to respect and count an employee's continuous working period. The procedure for calculating sickness benefits depended on this. Now such a link does not exist; when calculating benefits, the law no longer takes into account whether the duration of work at the enterprise was interrupted.

Today, continuity is important only in a professional sense and in some companies, where they encourage continuous work without changing places and make the amount of additional payments for length of service inextricably dependent on this.

If a mother works in a specialty for which early retirement is provided or this is important when calculating bonuses for working conditions, then it will be useful for her to know that her work experience during maternity leave will be counted as continuous.

In addition, even the time worked when a person did not work for objective and valid reasons will be considered continuous, unless the break was more than:

30 days after payment in the order of transfer from the previous place, this entire period of service is not interrupted;
21 days of service is considered continuous for those who left on their own initiative without specifying other valid reasons;
unlimited, when one of the spouses plans to go to work in a remote location or region for their half, requiring relocation, then the insurance period will also be considered continuous.

Pregnant women should not worry about the continuity of their work in their specialty, even if she herself is fired, including at her own request. The professional period of her work will be considered continuous until her child reaches the age of 14 years, and sometimes even 16, if the medical commission recognizes him as disabled.

Is maternity leave included in the length of service?

The burning question of whether the length of service is interrupted and whether leave for parental care for young offspring is included in the general insurance period traditionally concerns all women. This is especially true for those who are going to go on such a vacation for the very first time.

While the employee is forced to be on maternity leave, the days of incapacity for work before childbirth (70 days) and after (70 days), as well as all added days of sick leave, if any, are included in her length of service. Further leave for necessary care of a newborn will only be partially credited.

Is maternity leave up to 3 years included in the insurance period?

The concept of insured work duration is inextricably linked with the payment of social contributions. To assign pension benefits and calculate other benefits, the continuity of the period is not important, but every working citizen must accumulate the required number of working years by the required age.

The Labor Code of the Russian Federation gives our woman the opportunity to calmly take long-awaited leave to care for a child up to 3 years old, but, ultimately, only a year and a half will be included in the calculation of the pension, which, according to the code, must be paid.

Up to 1.5 years

Wondering if it's advisable to rush to a job you love ahead of schedule, a woman must clearly understand whether maternity leave is included in the insurance period.
For the first three years, the place of work and position are retained; the insurance period accumulates only for one and a half years. There is, however, an exception to the described rule: it is possible to exercise the right to include compulsory child care leave in the insurance duration of work on average four times (the total duration of such periods should not exceed six years).

total work experience;
insurance experience or general insurance experience;
work experience in the specialty or special insurance experience;
continuous work experience.

Currently, the insurance period is of greatest importance, so we will dwell on it in more detail.

Total work experience
The total length of service was important for the assignment of a pension under the old pension legislation. Now it continues to be used when assigning pensions to those citizens who purchased it earlier, i.e. during the period of previous legislation. Currently, the main law that regulates these issues is the Federal Law “On Labor Pensions in the Russian Federation” dated December 17, 2001 No. 173-FZ (hereinafter referred to as the Federal Law “On Labor Pensions”).

General insurance experience
The total insurance period is needed to determine whether a person has earned the right to an old-age pension. Moreover, it is needed both for assigning a pension on a general basis, and for early reasons. General grounds are reaching the age of 60 years for men and 55 years for women. For general purposes, you need at least five years of insurance experience. Early grounds are the assignment of pensions in connection with harmful working conditions, as well as when working in a number of professions (for example, doctors, teachers, professional rescuers, etc.). For each reason, a special insurance period of a certain duration is required, which will be discussed below.

Maternity leave is included in the total insurance period on the basis of subclause. 2 p 1 tbsp. 11 Federal Law “On Labor Pensions”. And although this subparagraph literally states that the insurance period, along with periods of work and (or) other activities, includes “the period of receiving state social insurance benefits during a period of temporary disability,” and pregnancy and childbirth and temporary disability are different events in a person’s life, Maternity leave is still included based on the practice of the Pension Fund of the Russian Federation.

Parental leave is included in the total insurance period, but not all, and it is not always possible to include leave to care for all children. This follows from paragraph. 3 p. 1 art. 11 of the Federal Law “On Labor Pensions”, which talks about the period of care of one of the parents for each child until he reaches the age of one and a half years, but not more than three years in total. Firstly, we are talking only about parents, and not about other relatives who are actually caring for them. Secondly, this period will be counted towards the length of service for only one of them, and if part of the leave was used by the child’s mother, and part by the father, then each of them should be credited with their own part of the leave. Thirdly, not all of the leave is counted; it is limited to the maximum limit - until the child reaches one and a half years old. If the employee cared for several children, then a total of no more than three years will be counted.

Work experience in specialty
Work experience in a specialty or special insurance experience is provided for in Art. 27 and 28 of the Federal Law “On Labor Pensions,” which establish various early grounds for assigning labor pensions.

Maternity leave is included in the special insurance period based on clarification from the Ministry of Labor and social development of the Russian Federation and the Pension Fund of the Russian Federation. It is contained in the joint letter of these bodies dated November 4, 2002 No. 7392-YuL/LC-25-25/10067 (not a normative legal act).

The Ministry of Labor and the Pension Fund of the Russian Federation explained that Art. 27 and 28 of the Federal Law “On Labor Pensions” are implemented through resolutions of the Government of the Russian Federation and other by-laws. The Government of the Russian Federation, by its Resolution No. 516 dated July 11, 2002, approved the “Rules for calculating periods of work giving the right to early assignment of an old-age pension in accordance with Art. 27 and 28 Federal Law “On labor pensions in Russian Federation" According to clause 5 of these “Rules...”, the length of service that gives the right to early assignment of an old-age labor pension for workers who are constantly employed full-time in this work includes periods of receiving state social insurance benefits during the period temporary disability, as well as periods of annual paid leave, including additional ones.

Strictly speaking, maternity leave does not refer to either temporary disability or annual paid leave. The Ministry of Labor and the Pension Fund of the Russian Federation made one assumption in their letter in favor of workers, based on the fact that maternity leave is granted on the basis of a temporary disability certificate. Therefore, they explained that “the period a woman is on maternity leave should be considered as the period of receiving maternity benefits during a period of temporary disability and include it in the length of service that gives the right to early assignment of an old-age pension in accordance with Art. 27 and 28 Federal Law “On Labor Pensions in the Russian Federation”.

The Supreme Court of the Russian Federation also came to the conclusion that the period of maternity leave was included in the special insurance period (see paragraph 26 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 11, 2012 No. 30).

Parental leave is included in the special insurance period, but only if it took place before October 6, 1992 (i.e. before the entry into force of the Law of the Russian Federation of September 25, 1992 No. 3543-1, with the adoption of which the named vacation is no longer included in the special length of service in the case of a pension on preferential terms). This explanation was given by the Supreme Court of the Russian Federation in paragraph 15 of the Resolution of the Plenum of December 20, 2005 No. 25 “On some issues that arose in the courts when considering cases related to the exercise by citizens of the right to labor pensions” (Rossiyskaya Gazeta. 2005. No. 294. December 29) and in paragraph 27 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 11, 2012 No. 30. If this condition is met, then parental leave must be included in the length of service in the specialty, regardless of the time the woman applied for a pension, regardless of the time when the right to early assignment of an old-age pension arose, as well as regardless of the end of the vacation, if it began before October 6, 1992.

Continuous work experience
Continuous work experience (hereinafter referred to as “NTS”) was important for determining the amount of temporary disability benefits until January 1, 2007. From January 1, 2007, according to Art. 7 Federal Law “On compulsory social insurance in case of temporary disability and in connection with maternity” dated December 29, 2006 No. 255-FZ NTS no longer matters for determining the amount of the specified benefit. The insurance period is important, which includes periods of work and other activities, calculation and confirmation rules insurance period for sick pay are approved by the Government of the Russian Federation.

NTS will continue to be applied when determining eligibility various types surcharges and allowances for wages. The latter can be established both by departmental regulations, and by the employer himself in a local regulation, or by the parties to the social partnership in a collective agreement. For example, by order of the Federal Penitentiary Service of Russia, the “Instructions on the procedure, conditions and amounts of incentive payments applied to civilian personnel of the penal system” were approved. The instructions provide for the procedure for calculating the NTS for the purpose of assigning a percentage increase to wages to employees. According to clause 14.1 of this instruction, employees’ NTS counts the time spent caring for a child until he or she reaches the age of 3 years.

Does a mother of 3 children have the right to retire at 50?

How much work experience does a mother of 3 children need to have to retire?

1. Pension provision for citizens in the Russian Federation from January 1, 2015 is regulated by Federal Law No. 400-FZ of December 28, 2013 “On Insurance Pensions” (hereinafter referred to as Law No. 400-FZ).

In accordance with clause 2, part 1, art. 12 of Law N 400-FZ into the insurance period on a par with the periods of work and (or) other activities that are provided for in Art. 11 of Law N 400-FZ, the period of receiving compulsory social insurance benefits during the period of temporary disability is counted.

During the period when a woman is on maternity leave provided for in Art. 255 of the Labor Code of the Russian Federation, she is paid state social insurance benefits on the basis of a certificate of incapacity for work issued in the event of temporary incapacity for work.

Thus, maternity leave is included in the insurance period as the period of receiving compulsory social insurance benefits during the period of temporary disability.

In addition, the insurance period includes the period of care of one of the parents for each child until he reaches the age of one and a half years, but not more than six years in total (Clause 3, Part 1, Article 12 of Law No. 400-FZ).

The current legislation does not provide for the inclusion of parental leave from one and a half to three years in the insurance period.

It should be noted, based on Part 8 of Art. 3 of Law N 400-FZ, when calculating the length of service in order to determine the right to an insurance pension, periods of work and (or) other activities that took place before the entry into force of Law N 400-FZ and were counted towards the length of service when assigning a pension in accordance with legislation in force during the period of performance of work (activity), may be included in the specified length of service using the rules for calculating the relevant length of service provided for by the specified legislation (including taking into account the preferential procedure for calculating length of service), at the choice of the insured person. Until January 1, 2002, the RSFSR Law of November 20, 1990 N 340-1 “On State Pensions in the RSFSR” (hereinafter referred to as Law N 340-1) was in force. According to paragraph "c" of Art. 92 of Law N 340-1, the total length of service included periods of care of a non-working mother for each child under the age of three and 70 days before his birth, but not more than 9 years in total.

Based on the above, we believe that if parental leave for a child under three years of age lasted before January 1, 2002, the entire three-year period should be included in the insurance period (see, for example, the decision of the Kazan District Court of the Tyumen Region dated March 21, 2016 to case No. 2-135/2016).

2. The current pension legislation provides that, subject to a number of conditions, a woman who has given birth to three children, upon reaching 50 years of age, has the right to an early old-age insurance pension.

So, according to Art. 32 of Law N 400-FZ, an old-age insurance pension is assigned before reaching the age established by Art. 8 of Law N 400-FZ, women: who raised a disabled child from childhood until he reaches the age of 8 years (clause 1, part 1, article 32 of Law N 400-FZ) or who gave birth to two or more children and worked for at least 12 calendar years in the regions of the Far North or at least 17 calendar years in equivalent areas (clause 2, part 1, article 32 of Law N 400-FZ), if they have the necessary insurance experience * (1).

In the situation under consideration, a woman who gave birth to three children is not raising a disabled child, and also did not carry out activities in the Far North or equivalent areas, accordingly, the right to early assignment of an old-age insurance pension upon reaching 50 years of age she hasn't.

3. According to Parts 1, 2 of Art. 8 of Law N 400-FZ, women who have reached the age of 55 years have the right to an old-age insurance pension if they have at least 15 years of insurance experience, as well as an individual pension coefficient * (2) of at least 30.

Since in this situation the mother of three children does not have the right to an early old-age insurance pension, she will be able to retire when she reaches the age of 55. A prerequisite in this case will be the presence of at least 15 years of insurance experience.

In the absence of the required insurance period, she will be assigned a social old-age pension in accordance with Federal Law dated December 15, 2001 N 166-FZ “On State Pension Provision in the Russian Federation.”

Thus, to assign an old-age insurance pension to a mother of three children, she must have at least 15 years of insurance experience.

*(1) Insurance experience is the total duration of periods of work and (or) other activities for which insurance premiums were accrued and paid in Pension fund RF, as well as other periods counted in the insurance period (clause 2 of article 3 of Law No. 400-FZ).

*(2) Individual pension coefficient - a parameter reflecting in relative units the pension rights of the insured person to an insurance pension, formed taking into account the insurance contributions accrued and paid to the Pension Fund of the Russian Federation for the insurance pension, intended for its financing, the duration of the insurance period, as well as refusal to receive an insurance pension for a certain period.

Prepared answer:

Expert of the Legal Consulting Service GARANT

Vasiliev Alexander

Information legal support GARANT