Providing leave: how to avoid mistakes. Non-vacation leave - subtleties of legislation on this matter If many vacation days have accumulated

Will the vacations accumulated over several years “burn out”, and is it possible to receive compensation for them? Yesterday, Dmitry Pozorov, a member of the board of the Russian Lawyers Association, answered these and other frequently asked questions at the RIA Novosti agency.

The uproar began after Russia ratified the International Labor Organization (ILO) convention two weeks ago. Despite numerous speeches by experts, an opinion has emerged in society that because of it, Russian labor legislation could radically change and people could lose some of their rights. However, the lawyer said unequivocally: it won’t get worse. In fact Labor Code, adopted in 2001, was drawn up taking into account the requirements of this convention, which is more than 50 years old, and fears that our laws will now be rewritten are groundless.

Perhaps the main question that concerns many people is whether the vacations accumulated over several years will be burned out. After all, there is a clause in the convention that you should take a vacation within 18 months after the end of the year for which it was taken. As Dmitry Pozorov explained, this does not mean that if the vacation is not spent on time, it will be lost. Another thing is that accumulating vacations over several years is essentially illegal. No, there is no direct ban on accumulating vacation time in the law. It says that a person must take at least two weeks in a row a year off, and he can postpone the remaining days to a later date. But at the same time, the law and the ILO convention guarantee the right to rest. And if an employee does not go on vacation for three years, even at will- This gross violation labor legislation. And the labor inspectorate, inspecting such an enterprise, will certainly apply administrative sanctions in accordance with the Code of Administrative Offences. So it’s better not to save up 100 days of vacation, but to take it off in a timely manner. If it turns out that they already exist, then, of course, they will not go anywhere, but it is better to agree with the employer on how best to use them, and do so. You can receive compensation for them only upon dismissal. There is no talk of the option for people to take the money and “close” their previous vacations in this way. It is illegal. And there is not a word about this in the convention - otherwise employers may begin to abuse this clause.

True, there is one nuance in our Labor Code, Article 124. It says that “in exceptional cases, when granting leave to an employee in the current working year may adversely affect the normal course of work of the organization, individual entrepreneur, it is allowed, with the consent of the employee, to transfer the vacation to the next working year. In this case, the leave must be used no later than 12 months after the end of the working year for which it is provided." And this point, according to Dmitry Pozorov, may be a contradiction with the provisions of the convention. And after it comes into force, the agreement of the employee and employer's request for a full transfer of vacation may become invalid.

As for dividing the vacation into parts, here, according to the lawyer, there are no special restrictions, except that one of the parts of the vacation should not be less than two weeks in a row and it does not matter whether it is the first half of the vacation, the second, or you divide it into three parts. The main thing is that during the year a person can rest for two weeks in a row.

In a situation where a person gets sick while on vacation, the employer is required by law to extend his vacation by the number of “sick days.” Another thing is that vacation does not have to continue immediately after sick leave. The manager and employee can agree on his removal.

When dividing annual paid leave into parts, the employer often forgets to coordinate this with the employee. In addition, the procedure for providing such parts is often violated.

When providing employees with annual paid leave, the employer often makes serious mistakes, for which he may be held administratively liable based on the results of inspections. state inspection labor. Let's look at the most common mistakes that arise when labor laws are misinterpreted.

Error one

This position of the company is a fairly common misconception. And it is connected with the fact that the employer incorrectly interprets the mandatory norm of the Labor Code, which states that employees are granted annual leave (Article 114 of the Labor Code of the Russian Federation), that is, employees do not take leave at their own discretion, but are given leave without fail, regardless of their wishes.

Refusal to use vacation is not a reason for endlessly postponing vacation. On the contrary, the employer must act strictly in accordance with the requirements of the Labor Code according to the following algorithm:

• plan the provision of vacations to employees in the next calendar year, establishing their priority in the vacation schedule (Article 123 of the Labor Code of the Russian Federation);
• familiarize employees with the vacation schedule against signature (Part 2 of Article 22 of the Labor Code of the Russian Federation);
• no later than two weeks before the start of the vacation, notify the employee about this against signature (Part 3 of Article 123 of the Labor Code of the Russian Federation);
• issue an order to grant vacation to the employee during the period established by the vacation schedule, because the schedule itself is mandatory for both the employer and the employee (Part 2 of Article 123 of the Labor Code of the Russian Federation);
• from the day the vacation begins, by order, put a mark on the working time sheet (code “OT” or “09” - if the employee is on annual main paid leave, and code “OD” or “10” for annual additional paid leave).

Error two

The right to use vacation for the first year of work arises for the employee after six months of his continuous operation in this company (Part 2 of Article 122 of the Labor Code of the Russian Federation). This rule is fully consistent with the provisions of ILO Convention No. 132 (paragraphs 1, 2 of Article 5 of ILO Convention No. 132 of June 24, 1970), according to which the minimum period of work to obtain the right to annual paid leave should not exceed six months.

However, some companies mistakenly believe that the law, while giving the employee this right, does not at the same time directly oblige the employer to provide leave during this particular period. Here, employers are let down by a lack of legal literacy, in particular, ignorance of the fact that subjective rights and legal obligations correspond to each other within the framework of a certain legal relationship, that is, the presence of rights by an employee gives rise to obligations by the employer.

In addition, many people lose sight of the fact that after six months the employee has the right to full leave (main and additional, extended main leave), and not part of it in proportion to the time worked. The table below shows examples of determining the length of leave available to an employee after six months in the first year of employment.

After six months in the first year of work, the employee has the right to receive all types of vacations provided for in his employment contract. As for additional leave for irregular working hours, then, according to Rostrud (letter of Rostrud dated May 24, 2012 No. PG/3841-6-1), its provision in proportion to the time worked in the working year is not provided for by law.

The only exception is additional leave for harmful and (or) dangerous working conditions. It is provided in proportion to the time worked. But this procedure is provided not only after six months in the first year of work, but also in all subsequent years of work, because the work experience, which gives the right to annual additional paid leave for work with harmful and (or) dangerous working conditions, includes only the actual work in appropriate conditions, time (Part 3 of Article 121 of the Labor Code of the Russian Federation).

Error three

By agreement between the employee and the employer, annual paid leave can be divided into parts (Part 1 of Article 125 of the Labor Code of the Russian Federation). However, not everyone correctly understands how this agreement is achieved. In organizations and enterprises, this practice is widespread when employees receive wishes for a vacation schedule, and then the approved schedule (with vacations divided into parts) is communicated to the employees for signature. With this “technology” the main requirement of the law is not met - a bilateral agreement on dividing the vacation into parts is not reached before the vacation schedule is approved.

One solution to this issue may be for the employee to contact the employer in the form of a written application and obtain a corresponding resolution. Only a positive resolution from the manager on the employee’s application allows part of the vacation to be included in the vacation schedule, and not its continuous period.

Error four

Currently, many employees are asking for vacation in installments. It is taken into account that at least one of the parts of this leave must be at least 14 calendar days (Part 1 of Article 125 of the Labor Code of the Russian Federation). Employers often try to provide the remaining part only on weekends (Saturdays and Sundays), and employees, on the contrary, only receive it on weekdays.

We must not forget that an employee must take a break from work during vacation. Therefore, 28 days of main leave include 20 working days (160 hours with an 8-hour working day and a 40-hour working week) and 8 days off (that is, 4 full weeks), since vacation is measured in calendar days and not in working days.

Thus, the employee's remaining vacation days must include both workdays and weekends. But they can be provided in any combination, because the law does not prohibit this.

Example

The employee is entitled to vacation in the amount of 28 calendar days. He took 14 days off at once. The remaining days can be divided into parts, and four days of vacation must necessarily fall on weekends (Saturday and Sunday), and ten days on working days.

Error five

At the written request of the employee, if possible, unused vacations may be provided to him with subsequent dismissal (except for cases of dismissal for guilty actions) (Part 2 of Article 127 of the Labor Code of the Russian Federation). At the same time, Rostrud emphasizes (letter of Rostrud dated December 24, 2007 No. 5277-6-1) that providing an employee with unused vacation followed by dismissal is the right of the employer, and not his responsibility.

If leave is granted with subsequent dismissal upon termination of the employment contract at the initiative of the employee, then the employee has the right to withdraw his resignation letter before the start date of the leave, unless another employee is invited to take his place by way of transfer (Part 4 of Article 127 of the Labor Code of the Russian Federation).

Despite the fact that the day of dismissal is considered the last day of vacation, all settlements with the employee are made before he goes on vacation, since after its expiration the parties will no longer be bound by obligations.

Please note that the last day of work is not the day of his dismissal (the last day of vacation), but the day preceding the first day of vacation (Articles 84.1, 136, 140 of the Labor Code of the Russian Federation; definition of the Constitutional Court of the Russian Federation dated January 25, 2007 No. 131-О-О) . Therefore, in fact labor Relations with the employee are terminated from the moment the vacation begins, which means work book and other work-related documents that the employer is required to provide to the employee must be given to the employee before going on vacation.

Rostrud also noted that during illness during the period of vacation followed by dismissal, the employee is paid temporary disability benefits, however, unlike general rules(Article 124 of the Labor Code of the Russian Federation), leave is not extended by the number of days of illness.

By expressing a desire to receive leave followed by dismissal, the employee thereby expressed a desire to terminate the employment relationship with the employer (if dismissed at his own request) or agreed with the legality of their termination (if dismissed for other reasons). As for the extension of annual paid leave, the employer also does not have the right to do this, because from the moment the leave begins, the employer has no obligations to the employee who received leave with subsequent dismissal (Part 1 of Article 124 of the Labor Code of the Russian Federation).

Upon dismissal due to the expiration of the employment contract, leave with subsequent dismissal may be granted even when the vacation time completely or partially extends beyond the term of this contract. In this case, the day of dismissal is also considered the last day of vacation (Part 3 of Article 127 of the Labor Code of the Russian Federation).

Providing vacation in the first year of work after six months

One of the questions on which HR specialists have not yet come to a consensus is this: does unused vacation expire or not in 2019? There are different points of view on this matter. Which one is correct can be found out only after carefully studying the regulatory documents.

Rest in a storehouse

As in previous periods, in 2019, any employee can use all the rest days that he has accumulated while working for the company. If desired, last year's vacation can be added to the current one. This conclusion follows from the provisions of Art. 124 Labor Code of the Russian Federation.

In other words, if an employee has 10 calendar days left unused from last year, they switch to this year. Therefore, when going on vacation, an employee first takes last year’s part off, and only then the current one. In fact, it is not necessary to take vacation separately for the past and present periods. In practice, rest days are usually provided at the same time.

Situations where an employee has unused vacation for several years at once are unacceptable. It cannot be that the employee has 5 days of rest left for 2013, 2 days for 2014 and another 15 days for 2015. If such an error is detected, the HR specialist must make appropriate adjustments to the personal file and then assume that the employee did not use 22 days of vacation for 2015.

To count the quantity unused days of vacation for which compensation is due, use the formula: (Duration of full annual leave/ 12) X Number of full months worked – Number of vacation days used

Take into account every year in which the employee did not take vacation or only partially took it off. After all, he had the right to rest annually (Article 114 of the Labor Code of the Russian Federation). Wherein we're talking about not about the calendar, but about the working year. That is unused count vacation days for every 12 working months, starting from the day of employment (clause 1 of the Rules on regular and additional vacations, approved by the People's Commissar of the USSR dated April 30, 1930 No. 169; hereinafter referred to as the Rules).

Do not include in such vacation experience:

• time when the employee was absent from work without good reasons(including in cases provided for in Article 76 of the Labor Code of the Russian Federation);
• parental leave until the child reaches three years of age;
• leaves without pay for a total duration of more than 14 calendar days.

This procedure follows from paragraph 2 of paragraph 28 of the Rules approved by the CNT of the USSR on April 30, 1930 No. 169, and Article 121 of the Labor Code of the Russian Federation.

How to show it in graphics

According to general practice, unused vacation days can be provided to an employee in two ways:

1. in accordance with the schedule - in this case they must be added to the total number of days of rest entered in column 5;
2. based on the employee’s application in agreement with the employer.

In the latter case, the employee will have to write a statement, the form of which will practically not differ from the standard one. There is no need to specify for what period rest days are provided.

Application for unused vacation: sample

Possible problems when filling out the application

Although it is not difficult to create this document, most employees still make mistakes in it. To eliminate such unpleasant situations, personnel officers are advised to have finished sample applications for unused leave taken in accordance with the requirements listed above. Each employee planning to go on vacation will have to carefully read the rules for drawing up this document and scrupulously follow them.

Are unused vacations beneficial to the employer?

Every company has irreplaceable employees who almost never go on vacation. For a number of reasons, they do not have time to take off their allotted days, and unused vacations accumulate. It turns out that this state of affairs does not suit many employers. There are several reasons for this:

• During checks labor inspection Its specialists will probably ask why the company’s employees do not exercise their right to annual vacation. Failure to comply with the requirements of the Labor Code of the Russian Federation for the employer is fraught with the issuance of orders and the accrual of fines. Also see "".
• In the event of dismissal of an employee who has not taken leave for a long time, the amount of compensation due to him will be quite large. This may have a negative impact on the company's spending budget.
• An employee who has accumulated a large amount of vacation arrears may suddenly decide to exercise his right to vacation and insist that he wants to take some time off immediately. In this case, the company may not have time to fulfill all legal requirements, namely: timely notify the employee about the start of the vacation and pay him the due amount.

If, due to production needs or other reasons, this year it was not possible to take all the days that you are entitled to, then this balance is called unused vacation. For subordinates, forgetful managers or workaholics, unused vacation days tend to accumulate and increase.

Occurrences:

• forgot to register by ;
• called back from vacation, but the balance was not provided;
• the employee himself does not want to rest, hoping to “earn extra money.”

Is it possible to take vacations from previous years?

If the number of unused vacations has accumulated over a period of more than two years, the enterprise falls under administrative liability.

Does it disappear

Does vacation from previous years expire if not used? No, they don't burn. Who benefits? It is not profitable for an enterprise to accumulate vacations for employees. Not only because of the threat of administrative liability.

Several more arguments can be made in favor of timely provision of rest days: an employee who is going to rest, as a rule, prepares a replacement for himself if his responsibilities at the enterprise are unique.

Usually, there are no difficulties with personnel represented in the staffing table by several units.. For example, one out of ten installers leaves, since each of these ten people takes an annual vacation, and most of the year the team works with a reduced staff.

But in a situation where the only head of the installation section at the enterprise takes leave, his responsibilities should be delegated to a deputy, if there is no such thing - to the installation foreman or the head of a related department:

• often missed vacation the employee is simply afraid that in his absence shortcomings in his work will be revealed, or the new person will perform his duties better, so he works without a break, choosing one or two days off. It is beneficial for the head of the enterprise to carry out short-term rotations to ensure the integrity of the employees;
• the employee is responsible and performs his functions professionally, but doesn’t want to be caught. If the director of the organization is sufficiently far-sighted, in case of sudden illness or emergency, he should ensure the uninterrupted operation of each area of ​​​​work, and insist on the preparation of a deputy;
• vacation days not taken off will be required provide at a time convenient for the employee(relating to recalled employees);
• an enterprise with a strict budget of income and expenses is interested in adhering to the vacation schedule. The dismissal of a leading specialist with a decent salary can significantly affect the monthly wage fund of a department or enterprise with a small number of employees, if compensation is paid to him for several years.

It is really beneficial to accumulate rest days:

• temporary workers. A woman who has difficulty finding a job while on maternity leave will have to quit in two years. Her desire to make the most of a successful job is understandable;
• employees expecting a promotion or receiving a salary increase. Vacation pay is calculated taking into account earnings for Last year. It's better if in billing period If more income comes in, then vacation pay will be more significant. How is it calculated average earnings for annual leave.

The administration and personnel service of the enterprise can take different positions in relation to such employees, but it is important to see the real reasons and act based on their own interests.

How to drive away a workaholic?

The organization must have a properly documented vacation schedule for each year. If the schedule contains a column for the employee to familiarize himself with it, where he signed, then management only needs to prepare an order, calculate and pay vacation pay.

It is possible to extend the length of service at the enterprise during unused vacations and dismiss them no later than the last day of vacation.

It is advisable to apply this legislative norm if the search new job(with moving, for example) may take longer or if it has expired.

A particularly sophisticated method can be considered legal in all respects, but troublesome for the employer and risky for the worker. If you quit the company and immediately try to get a job in your own position, you can receive compensation.

Part of the vacation can be replaced with monetary compensation for an employee who continues to work only if two conditions are met:

• if the employee is not a minor or pregnant(), if the additional leave is related to dangerous or harmful conditions labor, or provided to “Chernobyl victims”;
• if the duration of vacation over 28 days is compensated.

To receive rest days in return monetary compensation you should write a statement addressed to the director in any form. Based on this, the manager will issue an order for replacement, the employee will be familiarized with the order against signature and the amount due for payment will be calculated. The HR specialist will note the replacement in the personal card (form T-2, section 8) and in the vacation schedule.

Annual paid leave is not easy social guarantee, enshrined by the state constitutionally. This is an opportunity to fully restore strength, engage in your favorite hobby, and spend time with your family without any loss to your home budget. Employees and employers who respect each other ensure respect for the right to rest on mutually beneficial terms without mutual additional problems.

Useful video

You will learn about what compensation is provided for unused vacation in the following video:

The right of citizens to rest is enshrined in the Constitution of the Russian Federation; it also applies to employees of enterprises, which is expressly stated in the Labor Code. Despite this, employees are not always able to take a well-deserved vacation. People refuse to rest of their own free will, trying to prove their indispensability in the workplace. Sometimes working without vacations is an expression of staff loyalty to a manager who is having difficulties, and sometimes the result of blackmail by the employer.

When agreeing to work without vacation, employees often do not know whether unused vacation from 2020 expires or whether they can use the accumulated free days later or receive monetary compensation in return.

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The issue, taking into account unused vacation, became especially acute after 2010, when Russia signed international convention on organizing the work of citizens. According to international rules, the opportunity for unused rest days is retained by the employee only for 21 months.

If a person missed the compensation deadlines, then all vacation days that were not used will be lost forever.

You should familiarize yourself in advance with the legislation and practice of decision-making at the employer level and judicial disputes in 2020 in Russia in order to understand under what conditions you can take off unused vacation days or receive compensation for them.

What it is

The very concept of “unused vacation” arises from the basic right given to each employee, according to Chapter 19 of the Labor Code. An employee has the right to take leave if he has worked for the company for more than six months. The right can be granted earlier, by agreement with the employer, or in the presence of exceptional circumstances, which are enshrined in law.

According to the law, there are several types of vacations:

• , lasting 28 calendar days;
• additional paid;
• additional without salary.

Any form of order must have a manager’s visa, after which it is registered in the accounting register.

There is no unified form of the log, so it is formed depending on the data, the entry of which will be convenient for the employer for planning and accounting for staff vacations.

When registering transfers of unused days, recall of an employee from another vacation, etc., the journal must reflect the basis for allowing deviation from the planned schedule. In case of transfer of unrealized vacation, it is the employee’s statement.

How to transfer

Labor legislation insists on an annual rest period for workers, and the absence of rest periods for two consecutive years is expressly prohibited.

In this case, the transfer of vacation or part of it is legally permissible:

• at the initiative of an employee or due to production necessity;
• with mutual consent of the employer and employee;
• if the transfer deadline falls within the next 12 months beyond the deadline fixed in the schedule.

The employer may not release the employee from work during the planned period, but only with the latter’s consent. If the vacation is included in the approved schedule, the employee has the right to leave work, despite management’s request for a postponement. However, this right is used by employees quite rarely, since it expresses a lack of loyalty to the entire team.

Among the common reasons why managers initiate rescheduling of employee vacations:

• the indispensability of the employee when performing work that suddenly appears;
• introduction of new technologies or equipment at the enterprise that require the presence of an employee;
• inability to cancel business trip an employee falling during his vacation period;
• the need to entrust an employee with the affairs of an employee who is sick;
• a surprise inspection at the enterprise or department to which the employee belongs.

There is also a limitation when splitting vacations. According to it, one part of the vacation should not be less than 14 days. This rule ensures that employees have a minimum duration of leave and prevents employers from manipulating staff leave.

To transfer vacation to the next period at the initiative of an employee, only four grounds are allowed:

• if his vacation coincides with a period of temporary incapacity for work;
• if there are exceptional personal circumstances;
• if the employee was not warned about the need to go on vacation on time, established by law(two weeks before the start of the vacation);
• if vacation pay was not accrued on time.

Since the law does not specify personal reasons that allow employees to postpone basic vacations, the possibility of transferring on this basis is left to the discretion of the enterprise management. To add days off to the next vacation period, the employee must submit an application.

Employee statement

None special requirements There is no need to comply with this when writing an application. Usually it is drawn up on a regular sheet.

• the addressee, who can be the immediate manager or the director of the enterprise, indicating his position, full name, name of the company;
• Full name and position of the applicant;
• a request to transfer vacation days, indicating their number;
• the reason for the transfer;
• employee signature.

If the transfer is carried out for personal reasons, and management does not object, a general wording is sufficient. When a transfer is required for reasons that violate the employee’s rights, it is better to describe the situation in detail and complete the application in duplicate. One of the applications that remains with the employee should receive an acceptance mark.

Compensation

To motivate employees to rest, the Labor Code limits the possibilities of monetary compensation for vacations.

According to the law, the required 28 days of vacation can only be used:

• it is impossible to receive money instead in the current working year;
• compensation is allowed only if the vacation was postponed and the number of days in total exceeded 28 (the days making up the difference are the only ones that the employee can be compensated for during the next year);
• after two years, they can only count on compensation if they are fired.

Upon dismissal

For those who decide to leave the company, there are several options for using vacation days that were not used during the period of work.

Opportunities and conditions:

• if at the time of dismissal there is unfulfilled vacation for the current year, you can use it to reduce the days intended for working under the law (depending on the number of days of vacation, you can reduce it to two working weeks);
• vacation for the current year can be obtained not in days, but in money;
• if the number of days of current vacation at the time of dismissal is more than 14, then the difference can only be compensated;
• past vacations that have not been used for more than two years will be compensated in cash.

The choice of option depends only on the employee. The employer does not have the right to impose a method of disposing of unused vacation days.

Therefore, if it is not intended to reduce the working time due to vacation, in order to compensate for unused days at the time of dismissal, the employee only needs to monitor the work of the accounting department. Severance pay should be calculated taking into account unrealized vacations without additional efforts on the part of the employee.

Going on maternity leave

Their rights are broader than those of other employees:

• during pregnancy it is almost impossible to fire a woman;
• a woman cannot be denied leave before and after maternity leave, regardless of her length of service at the enterprise;
• It is prohibited to recall pregnant women from vacation;
• Pregnant women are protected from employers’ encroachments on basic and maternity leave.

In addition, the employer does not have the right to refuse to provide the husband with leave at a convenient time if it coincides with the wife’s maternity leave.

When going on maternity leave, a woman can supplement it with those days that were not used during previous vacations:

• Due to these days, you can go on sick leave earlier for pregnancy and childbirth;
• you can postpone them to the end of the maternity leave, lengthening it;
• monetary compensation for refusal of the main and maternity leave not allowed.

Depending on which period of maternity leave the unused vacation is included in, vacation pay is calculated.

Thus, in 2020, an employer cannot prevent an employee from taking legal leave. The employee may be given the opportunity for additional rest or compensation. Upon dismissal, employers are required to pay in full for all vacation days to which the employee was entitled during the period of work, but was unable to take advantage of it.

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