Considering the type of works, some companies temporarily attract additional workers as a result of increased workload. It is about seasonal and temporary work, the relevance of which can grow in the summer. What to do, if such a worker wants to go on leave or get sick?
Temporary and seasonal workers are the same workers as everyone else
First of all, the employer should remember that temporary and seasonal workers are the same employees as all the others, so the labor relations with them are built in a generally established manner, taking into account the general norms of labor legislation.
It should be recalled that seasonal works are considered to be carried out due to natural and climatic conditions, but during a certain period (season) not exceeding six months, and temporary workers and employees are considered to be workers and employees who are recruited for a term up to two months, and to replace the temporarily absent workers, on which their place of work (position) is stored, - up to four months.
It should be also remembered that the list of seasonal work is established by the List of seasonal work, which was approved by the resolution of the Cabinet of Ministers of Ukraine dated 28.03.1997, No. 278 (hereinafter - List No. 278). Otherwise, the work will not be considered seasonal. This opinion is specifically shared by the Ministry of Labor in its letter dated 26.06.2006 No. 413/020/99-06.
Procedure for granting leave
On the basis of Part 9 of Art. 6 of the Law of Ukraine “On Leave” dated 15.11.1996, No. 504/96-ВР (hereinafter - Law No. 504) leave is granted to seasonal as well as temporary workers in proportion to the time worked by them.
Legally established duration of the main leave for a full year worked is 24 calendar days, and for some categories of employees, defined in Art. 6 of Law No. 504, as well as other laws, established the duration of more than 24 calendar days of annual main leave.
A collective agreement, agreement and labor contract may establish another period of annual leave, but not less than the statutory limit.
A seasonal (temporary) employee may be granted a full-time leave before the expiration of the term of the employment contract in the cases listed in Part 7 of Art. 10 of the Law No. 504.
The legislation does not also provide for restrictions for seasonal workers to provide other types of leaves in accordance with Art. 4 of the Law No. 504: additional leave in connection with education, creative, social and vacation without salary saving, etc.
At the request of the employee, unused vacation can be provided after the expiration of the term of the employment contract. In the case when the time of leave totally or partially exceeds the term of the employment contract, the validity of the employment contract is extended until the end of the leave (Part 2 Art. 3 of the Law No. 504).
If a seasonal worker has not used all the days of his/her annual leave, as well as additional leave for children, after the expiration of the term agreement, monetary compensation for all unused days is to be paid to him/her (Article 24 of the Law No. 504).
The average wage for payment of leave time or compensation for unused leave is to be calculated in accordance with the Procedure for calculating the average wage, approved by the CMU Resolution 08.02.1995, No. 100).
Temporary incapacity
Temporary and seasonal workers are insured persons, so they have the right to material security in case of occurrence of insurance cases, in particular, their sick leaves certificates are paid due to illness or injury, as well as in connection with pregnancy and childbirth.
However, insured persons who work in seasonal and temporary work, temporary disability benefits due to illness or injury not related to an accident at work are provided for no more than 75 calendar days during a calendar year (Art. 22 of the Law of Ukraine “On Compulsory State Social Insurance” dated 23.09.1999, No. 1105-ХІV (hereinafter - Law No. 1105).
This also applies to cases of temporary incapacity for care in the case of caring for a sick child under the age of 14 (para. 3 of sec. 3 of Art. 22 of Law No. 1105).
The average wage for the calculation of payments to seasonal and temporary workers under the sick leaves certificates is calculated according to the general rules in accordance with the Procedure for calculating the average wage (income, cash security) for the calculation of payments for compulsory state social insurance, approved by the decision of the Cabinet of Ministers of Ukraine of 26.09.2001, No. 1266 (hereinafter - Procedure No.1266).
According to para. 25 of the Procedure No. 1266, the calculation period for which the average wage is calculated for the appointment of a pregnancy and maternity benefit, temporary incapacity benefit, and the payment of the first five days of temporary disability at the expense of the employer, is 12 calendar months of stay in labor relations (from the first to the first day of month) under the last main place of work of the insured person, preceding the month in which the insured event occurred.
Since the duration of seasonal work does not exceed six calendar months, and temporary - two/four calendar months, during the calculation of the average salary for temporary and seasonal workers, the calculation period is used:
- actually worked calendar months (from the first to the first day), since the insured person was in labor relations less than 12 calendar months after the last main place of work (para.26 of the Procedure No. 1266);
- actually worked time (calendar days) before the occurrence of an insured event, when the insured person was in labor relations less than the calendar month after the last main place of work (para. 27 of the Procedure No. 1266).
If a temporary or seasonal worker fell ill on the first day of work, the average wage is determined on the basis of the tariff rate (fixed official salary) or its part established on the day of the occurrence of the insured event (para. 28 of the Procedure No. 1266).
Also, when calculating the sick leaves and maternity benefits for a temporary or seasonal worker, it should be taken into account the restrictions established by Art. 19 of the Law No. 1105 for cases where during a period of 12 months prior to the occurrence of an insured accident the period of insurance is less than six months.
