Question: According to Part 2 of Art. 11.1 of the Federal Law of December 29, 2006 No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity” (hereinafter referred to as Law No. 255-FZ), the right to a monthly child care benefit is retained when a person is in maternity leave, works part-time and continues to care for the child. According to paragraph 2 of Art. 431 Tax Code of the Russian Federation, Part 2, Art. 4.6 of Law No. 255-FZ, the amount of insurance premiums is reduced by the costs incurred for the payment of insurance coverage. According to clause 5, part 1, art. 1.4 of Law No. 255-FZ, monthly child care benefits are classified as types of insurance coverage.
According to the Ruling of the Armed Forces of the Russian Federation dated July 18, 2017 No. 307-KG17-1728, a reduction in working hours of less than 5 minutes a day cannot be regarded as a measure necessary to continue caring for a child, resulting in loss of earnings. In the situation under consideration, child care benefits are no longer compensation for lost earnings, but take on the character of additional material incentives for the employee. The court confirmed the legality of the refusal to reimburse expenses for the payment of benefits.
In the Resolution of the Arbitration Court of the Ural District dated August 14, 2017 No. F09-2710/17 in case No. A50P-505/2016, a similar conclusion was made when the working day was shortened daily by 12 minutes. And in the Determination of the Supreme Arbitration Court of the Russian Federation dated 04/11/2013 No. VAS-4041/13 it is stated that the Labor Code of the Russian Federation does not establish by what time the length of the working day (shift) should be reduced so that the specified mode can be classified as a part-time mode. The court confirmed the legality of payment of benefits when working hours were reduced to 39 hours per week instead of 40 (12 minutes per day). From the Decree of the Constitutional Court of the Russian Federation dated February 28, 2017 No. 329-O, it follows that the Federal Social Insurance Fund of the Russian Federation and the courts do not refuse to reimburse the costs of paying benefits when the working day is reduced to 6 hours a day instead of 8. How long should the working day be reduced when working? on a part-time basis, so that the Federal Social Insurance Fund of the Russian Federation does not refuse to reimburse the costs of paying child care benefits?
Answer: The Department for the Organization of Insurance Payments of the Social Insurance Fund of the Russian Federation, having considered the appeal regarding the assignment and payment of monthly child care benefits to persons on parental leave while working part-time, reports.
In accordance with Article 256 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), upon application of a woman, she is granted leave to care for a child until he or she reaches the age of three years. The procedure and timing of payment of state social insurance benefits during the period of the specified leave are determined by federal laws.
The procedure for providing monthly child care benefits to citizens subject to compulsory social insurance in case of temporary disability and in connection with maternity is determined by Federal Law No. 255-FZ of December 29, 2006 “On compulsory social insurance in case of temporary disability and in connection with maternity” (hereinafter referred to as Law No. 255-FZ) and Federal Law No. 81-FZ of May 19, 1995 “On state benefits for citizens with children” (hereinafter referred to as Law No. 81-FZ).
In accordance with Article 13 of Law No. 81-FZ, mothers (fathers, other relatives, guardians) who are subject to compulsory social insurance in case of temporary disability and in connection with maternity, who actually care for the child and are on maternity leave.
According to Article 63 of the Family Code of the Russian Federation, the responsibility for caring for a newborn child rests primarily with the parents.
From the moment a child is born, parents have equal rights and bear equal responsibilities in relation to their children (parental rights), and are also responsible for the upbringing and development of their children. They are obliged to take care of the health, physical, mental, spiritual and moral development of their children.
If a parent caring for a young child works, in accordance with the Labor Code of the Russian Federation, he is given the right to interrupt his work activity while caring for the child and take leave to care for the child until he reaches the age of three years (Article 256 of the Labor Code of the Russian Federation).
During the period of such leave until the child reaches the age of one and a half years, in accordance with Article 11.1 of Law No. 255-FZ, citizens who actually care for the child are paid a monthly child care allowance.
Law No. 81-FZ establishes that monthly child care benefits are provided to both working and non-working citizens. This benefit is provided to working citizens in order to partially compensate for lost earnings due to interruption or reduction in work activity. For non-working parents, this benefit is also compensation for the inability to find a job and start working during the period of caring for a child of up to 1.5 years.
That is, the monthly allowance is paid to the parent who actually cares for the child and cannot engage in work.
At the same time, Article 256 of the Labor Code of the Russian Federation provides that while on parental leave, persons actually caring for a child can work part-time or at home while maintaining the right to receive compulsory social insurance benefits.
This guarantee is provided for parents who can actually work and simultaneously care for a child (for example, when placing a child in a nursery group of a preschool institution for several hours a day). At the same time, most of the time of a person on parental leave and working part-time should be devoted to caring for this child, and not to work.
Since, as stated earlier, the right to a monthly child care allowance belongs to the persons actually caring for the child, the retention of the employee's right to a child care allowance in the case of part-time work presupposes that he has sufficient free time. from work time to provide such care, as well as the fact that the other parent or other relative does not actually care for the child.
It should be noted that the maximum working time for an employee who wants to go to work and continues to be on parental leave is not regulated by the legislation on compulsory social insurance.
Such time, in accordance with Article 93 of the Labor Code of the Russian Federation, is established by agreement of the parties to the employment contract in each specific case.
It should be noted that in accordance with the Labor Code of the Russian Federation, working hours are calculated in hours (per week).
Thus, according to Article 91 of the Labor Code of the Russian Federation, the normal working time cannot exceed 40 hours per week.
The standard working time for certain calendar periods of time is calculated according to the calculated schedule of a five-day work week with two days off on Saturday and Sunday, based on the duration of daily work (shift):
with a 40-hour work week - 8 hours;
if the working week is less than 40 hours - the number of hours obtained by dividing the established working week by five days.
The standard working time calculated in this manner applies to all modes of work and rest, including part-time work (in accordance with the Procedure for calculating the standard working time for certain calendar periods of time (month, quarter, year) depending on the established duration of working time per week, approved by order of the Ministry of Health and Social Development of Russia dated August 13, 2009 No. 588n).
Thus, when establishing part-time working time for an employee, it should be assumed that it should be set in hours.
At the same time, a reduction in working hours by 5, 10, 30, 60 minutes a day cannot be regarded as a measure that allows one to continue caring for a child, resulting in a loss of earnings. In this situation, child care benefits are no longer compensation for lost earnings, but take on the character of additional material incentives for the employee, which indicates an abuse of right (a similar position is set out in the ruling of the Supreme Court of the Russian Federation dated July 18, 2017 No. 307-KG17-1728).
Thus, the current legislation does not provide for any restrictions on the duration of part-time work for an insured person who is on parental leave and works part-time, but the right to a monthly allowance for child care up to one and a half years is retained for him only on the condition that this person himself provides care for the child and at the same time he has enough time to provide this care.
Document overview
While on parental leave, persons can work part-time or at home while maintaining the right to receive OSS benefits.
This guarantee is provided for parents who can actually work and simultaneously care for a child (for example, when placing a child in a nursery group of a preschool institution for several hours a day).
At the same time, most of the time of a person on parental leave and working part-time should be devoted to caring for this child, and not to work.
When establishing part-time working time for an employee, it should be assumed that it must be determined in hours.
Reducing working hours by 5, 10, 30, 60 minutes a day cannot be regarded as a measure to continue caring for a child, resulting in loss of earnings. In this situation, the benefit is no longer compensation for lost earnings, but takes on the character of an additional material incentive, which indicates an abuse of right. A similar position is set out in the ruling of the Supreme Court of the Russian Federation dated July 18, 2017 N 307-KG17-1728.
Thus, current legislation does not provide for any restrictions on the duration of part-time work for an insured person on parental leave and working part-time.
The right to a monthly allowance is reserved for a person only on the condition that he himself takes care of the child and at the same time he has enough time to do this.
Good afternoon Please answer this question: I am on parental leave to care for a child up to 3 years old, while we are registered in an area with a preferential status for Chernobyl, i.e. I receive child care benefits and will continue to receive them for up to 3 years. Now I’m pregnant with my second child, and according to the law, if I go on sick leave for maternity leave, the father can take parental leave. The question is: can he work part-time and be on parental leave at the same time? How then should his salary and child care benefits be calculated? Thank you
- Question: No. 1137 dated: 2014-11-05.
On the merits of the question asked, we report the following.
According to Part 1, 2 Art. 39 of the Constitution of the Russian Federation, the state guarantees everyone social security by age, in case of illness, disability, loss of a breadwinner, for raising children and in other cases established by law.
Federal Law No. 81-FZ of May 19, 1995 “On state benefits for citizens with children” (hereinafter referred to as Law No. 81) establishes a unified system of state benefits for citizens with children in connection with their birth and upbringing, which ensures guaranteed state material support for motherhood, fatherhood and childhood; types of state-guaranteed benefits for citizens with children, as well as the circle of persons entitled to receive them.
This law establishes a monthly child care allowance, which is paid from the date of granting parental leave until the child reaches the age of one and a half years.
In accordance with Part 2 of Article 256 of the Labor Code of the Russian Federation dated December 30, 2001 No. 197-FZ (hereinafter referred to as the Labor Code of the Russian Federation), parental leave until the child reaches the age of three years can be used in full or in parts, including , the father of the child who is actually caring for the child.
At the same time, the right to a monthly child care allowance is retained if the person on parental leave works part-time.
According to paragraphs. “a” clause 45 of Order of the Ministry of Health and Social Development of the Russian Federation dated December 23, 2009 No. 1012n “On approval of the Procedure and conditions for the appointment and payment of state benefits to citizens with children” (hereinafter referred to as Order No. 1012n) monthly care allowance for the child is assigned and paid at the applicant’s place of work.
In accordance with the Labor Code of the Russian Federation, Article 13 of the Federal Law of December 29, 2006 No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity”, paragraph 54 of Order No. 1012n for registration of parental leave and exercising his right to receive benefits, the child’s father must provide the following documents at his place of work: an application for parental leave; application for benefits; birth certificate of the child who will be cared for and a copy thereof; a certificate from the place of work (service) of the child’s mother stating that she does not use leave and does not receive benefits (if the child’s mother works), or a certificate from the social security authorities at the mother’s place of residence stating that she has not received a monthly child care benefit (if the mother the child does not work or is studying full-time in educational institutions).
Payment of a monthly child care allowance to a working father is made at the expense of the Social Insurance Fund of the Russian Federation from any employer of the recipient's choice (Article 4 of Law No. 81-FZ, Part 2 of Article 13 of Law No. 255-FZ).
The benefit is paid from the day the father is granted parental leave until the day the child turns 1.5 years old (Part 1, Article 11.1 of Law No. 255-FZ).
An application, certificates and a copy of the birth certificate are the grounds for issuing an order to grant parental leave until the child reaches the age of 3 years.
The vacation order is drawn up according to the unified form No. T-6, approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1.
The employee familiarizes himself with this order against signature, after which information about the granted leave is entered in Section VIII of the employee’s personal card No. T-2.
According to Art. 17.2. Federal Law No. 81-FZ of May 19, 1995 “On State Benefits for Citizens with Children,” a monthly child care allowance is assigned if the application is made no later than six months from the day the child reaches the age of one and a half years.
Consequently, in order to apply for parental leave and exercise his right to receive benefits, the father must provide documents at his place of work that are provided for by the Labor Code of the Russian Federation, Art. 13 of Law 255-FZ and clause 54 of the Procedure and conditions for the appointment and payment of state benefits to citizens with children, approved by order of the Ministry of Health and Social Development of the Russian Federation dated December 23, 2009. No. 1012.
Thus, the child’s father, who is actually caring for the child, has the right to parental leave and payment of a monthly benefit until he turns one and a half years old, if the child’s mother does not work.
In case of refusal to assign and pay a monthly benefit, you have the right to appeal it to the court.
Attention! The information provided in the article is current at the time of publication.
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Part-time working hours established for an employee on parental leave should not be more than 60% of the normal duration of his working hours. Otherwise, you are not required to pay childcare benefits for children under 1.5 years of age.
This conclusion was reached by the regional branch of the Social Insurance Fund (SIF) for the Republic of Udmurtia on the basis of emerging judicial practice, about which a corresponding announcement was published on the official website of the insurer on October 27, 2017:
However, social security benefits cannot be an additional material incentive for an employee, since the purpose of its payment is only to partially compensate the employee for the earnings that she loses during maternity leave. Working women are paid this benefit in the amount of 40% of average earnings. Accordingly, combining maternity leave of up to 1.5 years with part-time work, she has the right to receive in the form of wages no more than the remaining 60% of average earnings without losing the right to receive benefits from the Social Insurance Fund.
In practice, a situation often arises when the duration of a normal work shift formally reduced- sometimes just for a few minutes. Thanks to this, a woman actually has the opportunity to receive on maternity leave:
- and a full salary for almost all working hours worked;
- and in the amount of an additional 40% of average earnings.
Thus, in essence, in such a situation, child care benefits become an additional material incentive for the employee, which contradicts the purposes of its payment.
Attention
Based on this, the FSS branch for the Udmurt Republic states that part-time work of an employee on parental leave until the child reaches 1.5 years of age, cannot exceed 60% of his normal working hours.
For example:
- if we are talking about a shortened working day with a traditional working week of 40 hours with an 8-hour working day, then a woman on maternity leave can work no more than 5 hours a day(40 hours / 5 days × 60% = 4.8 hours);
- if we are talking about providing a part-time work week, then a woman is supposed to work no more than 3 days a week(5 days × 60% = 3 business days).
If these conditions are met, the woman will legally be entitled to a monthly benefit for up to 1.5 years from the Social Insurance Fund in full, and wages from the employer for the time actually worked.
2019-07-16
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