How not to pay for nursing breaks. When are breastfeeding breaks given?
Question about the 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 every 3 hours of work, at least 30 minutes of a break are provided, while it is included in working hours and paid according to average earnings. Our accounting department believes that such a calculation will complicate their work, suggests that this break is not mandatory. The question is: if the employee writes a statement that she herself refuses to provide such a break, is the consent of the company acceptable in this case? How to arrange? What are the risks, for example, the amount of fines, if the inspectors do not agree?
Answer
And in order to start providing breaks for feeding, and to finish providing them, a statement from the employee is necessary.
Nursing breaks are not automatically granted 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 in it 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 for the provision of breaks with an indication of their schedule.
An employee who is provided with breaks for feeding a child has the right (part 3 of article 258 of the Labor Code of the Russian Federation):
- change the time of their provision;
- add them to dinner;
- 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 head. The manager is obliged in these cases to meet the request of the employee. He will issue an order to change the schedule of breaks or to cancel their provision.
Thus, if your employee does not yet use her right to breastfeeding breaks, you are not required to provide them until she applies for it.
Please help me understand the following situation: we have an employee who wants to interrupt her parental leave and work full time. The child has not yet reached the age of 1.5 years, therefore we are obliged to provide the employee with breaks to feed the child. But she doesn't need them, because. 1) she feeds the baby with infant formula; 2) her work involves a percentage of sales and it is simply unprofitable for her to be paid according to average earnings. Is it possible, at the request of the employee, not to provide these breaks?
Answer
Answer to the question:
No, you can't do that. Even if the employee writes a statement stating that breaks are not provided and the employer fulfills her request, his actions will be regarded as a violation of the Labor Code.
Article 258 of the Labor Code does not deal with the desire of the employee to provide such breaks. The employee does not apply to the employer with an application for breaks, but with a statement about the time of their use during the working day. Therefore, even if an employee writes a statement with a request not to provide her with such a break, then the fulfillment of the employee’s wishes by the employer is a violation of the requirements of the Labor Code and entails fines under Article 5.27 of the Code of Administrative Offenses of the Russian Federation.
Any working woman who has a child under one and a half years old has the right to provide breaks for feeding a child (Article 258 of the Labor Code of the Russian Federation). In this case, the type of feeding does not matter. It also does not matter whether she is the main employee or works part-time (part two of article 287 of the Labor Code of the Russian Federation). The employer must provide breaks for feeding the child, even for those who work at home, on a sliding or flexible schedule (Articles 100, 102, part four of Article 310 of the Labor Code of the Russian Federation). As for the duration of the break, every three hours of work an employee has the right to a break of at least 30 minutes (part one, article 258 of the Labor Code of the Russian Federation).
A woman can choose how she will use her breaks to feed her baby. She has the right to add them to the lunch break or summarize and transfer them to the beginning or end of the working day, shift (part three of article 258 of the Labor Code of the Russian Federation). To do this, she must write an appropriate application, and the employer must issue an order. However, these documents alone are not enough. Since the provision of breaks for feeding a child changes the employee’s work schedule, it is imperative to conclude an additional agreement with her to the employment contract (sample below) (Article 72 of the Labor Code of the Russian Federation).
Ivan Shklovets,
Deputy Head of the Federal Service for Labor and Employment
With respect and wishes for comfortable work, Tatyana Kozlova,
Expert Systems Personnel
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The Labor Code of the Russian Federation, working women with children under the age of one and a half years, are provided, in addition to a break for rest and food, additional breaks for feeding the child (children) at least every 3 hours, 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 break for feeding is set at least one hour.
At the request of the woman, breaks for feeding the child (children) are added to the break for rest and food, or in a summarized form are transferred both to the beginning and to the end of the working day (work shift) with a corresponding reduction in it (her).
A literal interpretation of these norms allows us to conclude that the breaks for feeding are provided to the named workers unconditionally, that is, they cannot be refused. It also follows from the law that for the very fact of providing breaks, a woman does not need to apply to the employer with a corresponding application - these breaks are provided by virtue of a direct indication of this in the law.
Thus, the rule on the provision of breaks for feeding should be considered binding on both the employer and the employee. These breaks can be moved to another time during the day, but they cannot be completely abandoned.
If a woman wants to add breastfeeding breaks to the lunch break or move them to the beginning or end of the working day, she submits an appropriate application to the employer. The choice of a woman is mandatory for the employer (paragraph 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 N 1).
The said guarantee according to Art. 264 of the Labor Code of the Russian Federation is also provided to fathers raising children under one and a half years old without a mother, as well as guardians of such children.
By virtue of the fourth part of Art. 258 of the Labor Code of the Russian Federation, breaks for feeding the child (children) are included in working hours. Therefore, the length of the working day includes both the time of actual work and the time of all breaks for feeding. It is important to remember this when establishing part-time work: it should be less than the norm along with such breaks.
Example
An employee who is on leave to care for a child under 1.5 years old is given a part-time 7-hour working day. In such a situation, she should actually work 6 hours and use 2 breaks to feed her baby for 30 minutes each.
Breaks for feeding a child (children) are subject to payment in the amount of average earnings (part four of article 258 of the Labor Code of the Russian Federation). The calculation of the average earnings for all cases of its preservation in accordance with the Labor Code of the Russian Federation, and hence for paying for the time of the said breaks, is carried out according to the rules of Art. 139 of the Labor Code of the Russian Federation, as well as the Regulations on the peculiarities of the procedure for calculating the average wage, approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922.
Normative legal acts do not oblige the employer to issue an order for the provision of breaks for feeding. However, in order to calculate average earnings, an accountant needs to have a basis and know the exact duration of breaks during the working day. Therefore, in practice, such an order is drawn up in a free form.
Since breaks for feeding are included in working hours, they are recorded in the time sheet along with the rest of the hours of work. For the convenience of calculating average earnings, they additionally reflect the total duration of breaks during each working day using a symbol specially introduced for these purposes (for example, "KR").
Example
An employee, while on parental leave, works part-time, 7 hours a day, 4 days a week. During each working day, she is given 2 breaks for feeding the baby for 30 minutes.
A fragment of the time sheet in the form N T-12 will look like this.
Smirnova T.A. accountant | ||||||||||||||||||
At the request of a woman (children), they join a break for rest and meals, or in a summarized form are transferred both to the beginning and to the end of the working day (work shift) with a corresponding reduction in it (her). Breaks for feeding the child (children) are included in working hours and are payable in the amount of average earnings.< 1. В Конвенции N 103 МОТ «Относительно охраны материнства» (1952 г.) в ст. 5 указано, что, если женщина кормит своего ребенка грудью, она имеет право прерывать работу для этой цели на 1 или несколько перерывов в день, продолжительность которых устанавливается законодательством страны. Перерывы в работе для кормления ребенка считаются рабочими часами и оплачиваются как таковые в тех случаях, когда это регулируется законодательством или в соответствии с ним.
Nursing breaks
In cases where this issue is regulated by collective agreements, the provision is determined by the relevant agreement. 2. The provision of a special working time regime for a woman may be formalized by an agreement between the woman and the employer, which may establish the procedure and time for providing breaks for feeding the child. An organization in which breastfeeding women work is obliged to equip places for feeding children.
3. The employer, together with the relevant trade union body, may establish longer breaks for feeding children for women with children under the age of 1.5, taking into account the distance from the place of work of the mother to the place of feeding the child, the actual duration of feeding, the state of health of children. With an 8-, 7- and 6-hour working day with a lunch break, a woman is given 2 breaks to feed her child.
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Attention
When joining 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. Download the application form Registration of a break for feeding does not require additions to the employment contract. The Labor Code directly states that only an employee’s statement is sufficient to provide them, and then it is required only if the break entails a reorganization of the work process (an increase in lunch break, a change in the start or end time of work).
Feeding breaks during part-time work - rules for calculating and registration 256 TK. According to the provision of Art. 93 of the code, the regime for part-time work is established by agreement between the employee and the employer.
Nursing breaks
Download a sample of filling out an application for breaks for feeding a child Download an application form for breaks for feeding a child If an employee writes an application, then the break can be combined with the lunch provided in accordance with the Labor Code of the Russian Federation. It is also possible to transfer it to the evening to leave work earlier, or to the morning for a later arrival. Breaks are available for women:
- whose children are breastfed;
- having babies eating artificial mixture;
- adopting children;
- in charge of the child.
The right can also be used by a single father of a child under 1.5 years old.
To consolidate the possibility of obtaining additional rest, an order is required. It is issued by the employer on the basis of an application from a woman.
Article 258 of the Labor Code of the Russian Federation. breaks for breastfeeding
Commentary on Article 258 1. As follows from the content of Part 1 of Art. 258, additional breaks for feeding a child are provided not only to mothers who breastfeed their children, but also to all women who have children under the age of 1.5 years, including those who have adopted a child or established guardianship over him. This ensures equally favorable conditions for feeding children of this age. At the same time, the commented article does not establish the number of breaks provided and the specific duration of each of them, since the frequency and duration of these breaks depend on the health status of the children being fed and their number, the duration of the work shift, work schedule and other factors.
Typically, the duration of the break for feeding the baby is 30 minutes.
If the employee is a breastfeeding mother
Termination of an employment contract with a woman who has children and works part-time is carried out on the grounds and in the manner provided for by the current labor legislation; 3) the regimes of work and rest for women with children and working part-time are established by the administration in agreement with the trade union body and taking into account the wishes of the woman. The working regimes established when working with part-time work may include: reduction of the duration of daily work (shift) by a certain number of working hours on all days of the working week; reduction in 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 reducing the number of working days per week.
Article 258. Breaks for feeding a child
Additional leave for an irregular working day for women with children and working part-time may be granted if the employment contract provides for work on the terms of a different working week, but full-time. The duration of this leave is established by the administration in agreement with the trade union body, taking into account the degree of labor intensity and employment outside of school hours; 7) for women working part-time in industries, workshops, professions and positions with harmful working conditions, only those days in which the employee was actually employed in harmful working conditions are counted in the work experience that gives the right to additional leave on these grounds. less than half of the working day established for workers of a given production, shop, profession or position.
Labor Code PART FOUR of the Labor Code of the Russian Federation. PART FOURSection XII of the Labor Code of the Russian Federation. FEATURES OF LABOR REGULATION OF CERTAIN CATEGORIES OF EMPLOYEES Chapter 41 of the Labor Code of the Russian Federation. PECULIARITIES OF REGULATION OF THE LABOR OF WOMEN, PERSONS WITH FAMILY RESPONSIBILITIES Article 258.
Breaks for feeding a child Working women with children under the age of one and a half years are provided, in addition to a break for rest and food, additional breaks for feeding a child (children) at least every three hours, 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 break for feeding is set at least one hour.
Breaks for feeding a child up to 15 years
According to the legislation of the Russian Federation, pregnant women and mothers of children are protected in terms of labor. They have the possibility of light work. Also, in the regulatory legal acts, a break for feeding an infant is prescribed. The procedure for exercising the right is provided for women who combine work and caring for a baby.
Important
At the same time, a working mother has long been no one special for anyone. To provide the opportunity to care for the baby, providing one of the basic needs, an application is made for breaks for feeding the child. It is sent to the employer, after which an appropriate 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.
Breaks for feeding a child up to 1 5 years in
They should not replace the lunch time allotted for the rest of the employee herself. The period in which a woman feeds a baby is included in working hours. In fact, a woman receives a reduced working day legally. When determining the right to breaks, the nature of the work is not taken into account. Employees working at the main place or part-time, working full-time or reduced-time, have a similar opportunity for additional rest. An important point is the determination of the total labor 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 entitled to a break for feeding.
Info
Sample application for additional breaks for breastfeeding Full and reduced day Based on the Resolution of the Supreme Court of the Russian Federation, women who breastfeed have the same number of working hours as other employees. At the same time, the Labor Code provides for their start in automatic mode. It is worth noting that the norm is supposed 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, an employee may not be able to come home and make full use of the allotted time. In this regard, the Labor Code provides for the possibility of combining nursing breaks with lunch time.
Also, a woman may leave work earlier or later, taking into account this period.
We talked about how to comply with the safeguards for pregnant employees and women on parental leave*. Today we will talk about those who combine motherhood with work. Let us tell you, in particular, in which case it makes sense for a woman with a child under three years of age to establish a test during employment. How to arrange and pay for breaks for feeding a child. What restrictions should be observed for mothers with children under the age of three.
Is it possible to install a woman with a child under the age of three?
Tell me, please, is it legal to establish a probationary period in an employment contract with a woman who has a child under three years old? Does the employer have the right to dismiss such an employee, citing the failure to pass the probationary period?
If a woman has a child under the age of one and a half years, then setting her a probationary period when applying for a job is illegal (Article 70 of the Labor Code of the Russian Federation). If, at the time of employment, her child is one and a half years old, then you have the right, when concluding an employment contract, to provide in it (by agreement of the parties) a test condition. After all, according to Article 70 of the Labor Code, it is not prohibited to establish a test in relation to a woman who has a child from one and a half to three years old (in order to verify her compliance with the assigned work). The probation period cannot exceed three months, and for heads of organizations, chief accountants and their deputies, heads of branches, representative offices and other separate divisions - six months.
However, the following must be kept in mind. If the probationary period has not passed, it is impossible to dismiss an employee with a child under the age of three on this basis ** (part four of article 261 of the Labor Code of the Russian Federation). It turns out that it makes sense to set a test for a young mother if the child reaches the specified age before the end of his term. Since only in this case, on the basis of Article 71 of the Labor Code, with an unsatisfactory test result, will you have the right to terminate it.
How to arrange a break for feeding a child?
The employee has a small child (one year old). She recently went to work. Is it true that breastfeeding mothers should be given one hour to feed their baby. If yes, how to arrange it?
Indeed, a working woman with a child under the age of one and a half years should be provided (in addition to the generally established break for rest and food) additional breaks for feeding the child. Such breaks, as follows from Article 258 of the Labor Code, must be issued at least every three hours for a duration of at least 30 minutes each *** (sample order on the provision of additional breaks for feeding a child).
At the request of the woman, breaks for feeding a child can be added to the lunch break or transferred in a summarized form both to the beginning and to the end of the working day with a corresponding reduction.
How to calculate salary if a woman has a break for feeding a child?
At the end of the maternity leave, the woman wants to go to work part-time. In the application, she wrote that she would work six hours plus one hour for feeding (instead of eight hours according to the schedule). Can you tell me how to calculate her salary in this mode of work?
Please note that, in accordance with Article 258 of the Labor Code, breaks for feeding a child are included in working hours, but they are payable not as regular working hours, but in the amount of average earnings ****. The calculation of average earnings is carried out in accordance with Article 139 of the Labor Code and the Regulations on the peculiarities of the procedure for calculating average wages*****.
Thus, in the case of part-time work, you must accrue to the woman a salary from her salary in proportion to the time worked (Article 93 of the Labor Code of the Russian Federation) plus pay breaks for feeding the child in the amount of average earnings (Article 258 of the Labor Code of the Russian Federation).
Example
A woman with a child under one and a half years old went to work at CJSC Vostok on a part-time basis (6 hours a day plus 1 hour for feeding the child). Her official salary is 20,000 rubles. per month. For October 2009 (this month the employee worked completely), the accountant accrued her salary for the hours worked. To do this, she first calculated the daily earnings of an employee: 20,000 rubles. : 22 days : : 8 hours x 6 hours = 681.82 rubles. Salary amounted to 15,000.04 rubles. (681.82 rubles x 22 days).
Then she calculated the payment for the period attributable to feeding the child. To do this, she determined the average daily earnings of an employee in the manner established by Decree of the Government of the Russian Federation of December 24, 2007 No. 922. It amounted to 600 rubles. Then the total number of hours spent on breaks in feeding the child was translated into working days. In October 2009 - 22 working days. Consequently, the employee used 22 hours to feed the child. In terms of working days - 2.75 days. (22 hours : 8 hours, where 8 hours is the length of the working day). The amount of payment for breaks for feeding the child amounted to 1650 rubles. (600 rubles x 2.75 days). In total, for October, the woman was credited 16,650.04 rubles. (15,000.04 + 1650).
How to calculate the average earnings during idle time if the woman was on parental leave?
The organization does not work for six months, employees are paid downtime in the amount of 2/3 of the average earnings. One employee is on parental leave. From November 17, 2009, she must return to work. Tell me how to pay her 2/3 of the average earnings, if she had no earnings for the previous 12 months.
Since the employee in the situation under consideration was on parental leave (this time is excluded from the billing period in accordance with clause 5 of Regulation No. 922), the average earnings for downtime payment should be determined based on the amount of wages actually accrued for the previous period, equal to the calculated one (clause 6 of Regulation No. 922).
For example, if we assume that from March 25, 2008 to August 11, 2008, the employee was on maternity leave, and from August 12, 2008 to November 16, 2009 - on parental leave, then to calculate the average earnings * ***** you should use the amounts that were accrued in the previous 12 calendar months of the billing period. Namely, from November 1, 2007 to October 31, 2008. The fact is that during the billing period from November 1, 2008 to October 31, 2009, she was on parental leave and received benefits. And this time and the amounts accrued during this time, as mentioned above, are completely excluded from the billing period. When calculating average earnings, a calendar month is the period from the 1st to the 30th (31st) day of the corresponding month inclusive (in February - to the 28th (29th) day inclusive) (Article 139 of the Labor Code of the Russian Federation).
If a woman did not have actually accrued wages or actually worked days even before the start of the billing period, the average earnings should be determined based on the amount of wages actually accrued for the days actually worked by the employee in the month she went to work. That is, before the downtime with which the payment is associated (in the event that she is declared idle from the first day she starts work, then based on the tariff rate and salary established by her) (clauses 7, 8 of Regulation No. 922).
From the Labor Code of the Russian Federation
Guarantees and benefits provided to women in connection with motherhood (restriction of night work and overtime work, involvement in work on weekends and non-working holidays, assignment on business trips, provision of additional leaves, establishment of preferential working conditions and other guarantees and benefits established laws and other normative legal acts) apply to fathers raising children without a mother, as well as to guardians (custodians) of minors.
Article 264
Can a young mother be held liable for refusing to travel?
An employee who works for the company as a lawyer went to work part-time (four hours a day) when the child was one year old. In accordance with the job description, she is obliged to participate in lawsuits in another city. However, now she refuses to travel. There is no other lawyer in the company. What to do? Can she be held accountable for this?
No you can not. The fact is that the trip of an employee (by order of the employer) to perform an official assignment outside the place of permanent work is recognized in accordance with Article 166 of the Labor Code as a business trip. And a woman with a child under the age of three can be sent on a business trip only with her consent and provided that this is not prohibited to her in accordance with a medical report (Article 259 of the Labor Code of the Russian Federation).
