Article 121 of the Labor Code of the Russian Federation should be classified as applied, since it contains rules for calculating length of service, giving the employee the right to receive leave.
Based on the provisions of Art. 121 of the Labor Code of the Russian Federation, the right to leave is based on the employee’s continuous work experience with a specific employer, starting from the first day of work. Labor Code of the Russian Federation
dated December 30, 2001 N 197-FZ
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Important factors for determining length of service
There are several important factors that must be taken into account when determining the length of leave:
- Understand the difference between a working year and a calendar year.
- The calendar year is constant and runs from January 1st to December 31st.
- A working year means twelve months of continuous work for the same employer. For each employee it is individual and may change as certain periods are excluded from the length of service. Therefore, the beginning of the working year is considered to be the first day of work for a particular employer. Subsequent working years begin on the day following the end of the previous working year.
- Correctly determine the periods included in the length of service and giving employees the right to annual paid leave.
- Keep in mind that vacation experience is lost when you change jobs. To qualify for leave, an employee must have continuous service with the same employer .
- Keep in mind that work experience acquired from a previous employer is not counted . After an employee’s dismissal from the company, all necessary calculations are made, including payment of compensation for vacation that was not used by him.
What periods are included in the vacation period?
According to the law, there are several types of periods that must be included in the vacation period. Each of them should be considered in detail.
Actual work under the employment contract
The period of actual work of an employee under an employment contract implies the performance of his job duties while at a permanent workplace, as well as on business trips.
There is an exception to the rule that you need to know about: the vacation period cannot include the work time of a citizen who works in a company on the basis of a civil law contract. This is due to the fact that there is no labor relationship between the parties who entered into such an agreement. Therefore, there is no legal basis for providing employees with paid leave.
There are situations where an employee initially worked under a civil contract, and subsequently entered into an employment contract with the employer. Thus, the length of service required to provide paid leave will begin to count from the first day of work in the company.
After six months of continuous work, the employee has the right to vacation.
Trial period
During the probationary period, the employee is subject to the provisions of labor legislation and other regulatory legal acts, which contain all the norms of labor law. In this regard, the probationary period is taken into account when granting paid leave.
Periods with retention of position and workplace in the event of actual non-fulfillment of work.
In accordance with current legislation and other regulatory legal acts, the position held and place of work is retained by the citizen during the following periods:
- Basic and/or additional paid leave provided annually;
- Holidays;
- Weekend;
- Additional days of rest provided by the employer.
Article 112 of the Labor Code of the Russian Federation specifies the following holidays, which must be taken into account when calculating an employee’s vacation experience: January 1, 2, 3, 4, 5, 6 and 8 (New Year holidays), January 7 (Christmas), February 23 (Defender’s Day Fatherland), March 8 (International Women's Day), May 1 (Spring and Labor Festival), May 9 (Victory Day), June 12 (Russia Day), and November 4 (National Unity Day).
The total vacation period includes time:
- An employee's stay on study leave,
- Passing an independent qualification assessment (as directed by the employer), as well as obtaining additional education to facilitate career advancement.
Long leave for a teaching staff member
After a 10-year continuous working period, employees of the teaching sector are granted the right to a long vacation, which can last up to one year. This information is specified in Article 335 of the Labor Code of the Russian Federation.
A long vacation included in the length of service gives the right to the basic paid vacation provided to employees annually.
There are no regulations regulating the procedure for granting teachers long leaves. In this case, one should take into account, approved by order of the Ministry of Education and Science of the Russian Federation dated May 31, 2016 No. 644, the regulation on the procedure and conditions for granting long leave - up to 1 year.
Leave without pay granted at the request of an employee
Letter No. 854-6-1 of Rostrud dated June 14, 2012 explains that the total duration of unpaid leave should be no more than 14 calendar days during the working year. If an employee has a total duration of such vacations for the working year of 19 calendar days, then when calculating the length of service, calendar days starting from the 15th are not taken into account.
In accordance with Part 2 of Article 121 of the Labor Code of the Russian Federation, if any periods were not included in the length of service for vacation, then the end of the working year is shifted by exactly as many calendar days as were excluded from the length of service for vacation.
A disabled employee is entitled to 60 days of leave without pay. If the employer grants him leave without pay for more than 14 days, will the working period of the main leave shift in this case?
In this case, if a disabled person is provided with 60 calendar days of unpaid leave during the year, then 14 of them are included in the length of service giving the right to annual basic paid leave, and 46 are not.
Inter-shift period at the enterprise
Article 299 of the Labor Code of the Russian Federation states that a shift is a period that includes the performance of work at the site, as well as rest between shifts. Part 1 of Article 297 of the Labor Code of the Russian Federation defines the rotation method - a special form of conducting the labor process outside the places of permanent residence of employees. There is a regime that determines rest days for rotation workers.
Part 1 of Article 121 of the Labor Code of the Russian Federation states that the length of service considered when assigning leave includes the time when the employee did not actually work, but the position he held was retained. Consequently, the working period that grants the right to leave must include the inter-shift period.
Rest days provided by the employer for overtime work
Article 99 of the Labor Code of the Russian Federation gives the following definition of overtime work: any work performed by an employee on the initiative of the employer outside working hours established by law. At the same time, the duration of overtime work is limited by law - no more than four hours over a continuous two-day period. Annually - no more than 120 hours for each employee.
Guided by Article 152 of the Labor Code of the Russian Federation, an employee has the right, instead of increased pay for overtime work, to receive additional time for rest. In total, it should not be less than the time spent on overtime work. This echoes Article 121 of the Labor Code of the Russian Federation, according to which the vacation period may include days of rest provided to the employee on an individual basis, including for overtime work.
Maternity leave
Based on an application and a medical report, women are granted maternity leave, which is entirely included in the leave period. Depending on the presence of complications and the number of children born, its duration can range from 120 to 194 calendar days .
Is it taken into account when calculating pensions?
The pension is calculated taking into account the period while the employee was on maternity leave and contributed funds to the insurance portion. If the maternity leave was used before 2002, the information must be recorded depending on what is written in the work book. Since this period, an individual accounting system has been introduced. You can confirm your work activity using other documentation.
Similar rules apply to persons who hold a position that makes it possible to receive pension payments earlier than the general rule. Special conditions apply in this situation.
These specialties include those who work in conditions equivalent to those in the north. In addition, a person can work in an area where there is an increased level of radiation. He has the right to claim preferential pensions.
If a woman does not return to work when the baby turns 1.5 years old, further time is considered as leave without pay. She is due a payment from the Social Insurance Fund. It amounts to 60 rubles. Payment is made every month. At this time, contributions to the Social Insurance Fund are not paid. Therefore, when calculating pension benefits, the period of maternity leave from one and a half years to the child’s third birthday is not taken into account. The main requirement for including maternity leave in the length of service is the contribution of funds to the insurance fund.
What periods are excluded from the vacation period?
The length of service that entitles employees to annual paid leave excludes the following periods:
- the time when the employee was absent from work without good reason;
- time of maternity leave;
- time of unpaid leave that was granted to the employee at his request and if their total duration exceeds 14 calendar days during the working year.
These provisions are regulated by Article 121 of the Labor Code of the Russian Federation.
Missing work without good reason
The work experience for leave cannot include the time during which the employee was absent from the workplace without good reason.
Article 76 of the Labor Code of the Russian Federation provides for such cases as failure to undergo training or knowledge testing in the field of labor protection, appearing at the workplace while drunk, and others.
Due to the fact that the Labor Code of the Russian Federation does not contain a clear definition of valid reasons, the employer must independently find out whether a particular reason is disrespectful. For the sake of simplification, it is recommended to indicate a list of valid reasons in local regulatory documentation.
The basis for exclusion from the length of service of this period are documents that confirm the actual absence of the employee without good reason.
It could be:
- Certificate of absence from work,
- Time sheet,
- Order of suspension from work and other documentation.
Periods of parental leave before reaching 3 years of age
An order to grant parental leave is the basis for excluding this period from the length of service. According to Part 3 of Article 256 of the Labor Code of the Russian Federation, the employee retains the right to part-time work. In this regard, a controversial situation may arise in which she is on maternity leave, but at the same time continues to work.
The vacation period includes the period of part-time work during parental leave. This operating mode does not have any impact on the duration of paid leave granted annually.
In order to determine whether the employee should be granted another vacation after leaving maternity leave, it is necessary to accurately establish the boundaries of the working year, as well as determine whether there were unused vacation days during the current and previous working years.
Temporary suspension of a citizen from work in accordance with the order of the employer or authorized bodies.
This is typical for situations in which an employee:
- Does not take a course of professional training and knowledge testing on labor protection;
- Comes to the workplace under the influence of alcohol or drugs;
- Refuses to undergo a medical examination.
In each of the listed cases, the employer is obliged to prevent the subordinate from performing official duties.
Accrual of points
Since the beginning of 2015, an important factor that affects the amount of benefits is accumulated points. In accordance with the law, these points are called the individual pension coefficient. These points are kept in the pension authorities and in the personal account of the retired person.
From 2021, 1 IPC is equal to 81.49 rubles.
However, it is worth remembering that for each subsequent child the number of points increases. We will consider the calculation of points in more detail in Table 1.
| For which child is it charged? | Number of points for 1.5 years of maternity leave |
| First | 2,7 |
| Second | 5,4 |
| Third | 8,1 |
| Fourth | 8,1 |
Video about calculating the size of a future pension:
Difficult and controversial situations
Opinions regarding some periods are controversial, so it is difficult to make decisions about their inclusion or non-inclusion in the overall length of service.
Vacation followed by dismissal from the company
Many employers have differing opinions about the leave after which an employee is dismissed.
Thus, having familiarized yourself with the Determination of the Constitutional Court of the Russian Federation dated January 25, 2007 No. 131-О-О, you can understand that the period of this type of leave is not counted as length of service, despite the fact that the document does not contain direct information about this.
There are several reasons in favor of this decision:
- The employee’s last day of work in the organization is not the day of dismissal, but the day preceding the first day of vacation;
- The employment relationship with the employee is effectively terminated (a work book is issued and payment is made);
- The position and workplace are not retained by the employee.
However, Article 121 of the Labor Code of the Russian Federation states that the vacation period may include a period during which a citizen did not actually perform work. There is no information in it that vacation followed by dismissal is an exception.
Medical examination period
There are several categories of workers who must undergo medical examinations. This period is included in the vacation period. In addition, it includes the period of suspension from work for an employee who, for reasons beyond his control, was unable to undergo a medical examination.
It is important to note that there is a difference between a medical examination provided for by law, which is paid for by the employer, and an examination solely at the initiative of the employee. Completing it on your own may result in subsequent dismissal for absenteeism.
Forced absenteeism in case of illegal dismissal from work
There are cases when an employee is fired, after which he is reinstated in the workplace through the courts. Due to the fault of the employer, forced absenteeism occurs , which is equal to the period of actual work and must be included in the vacation period. In this case, it is necessary to determine the exact boundaries of the working year of the employee who has returned to work.
As a clear example, the following situation can be cited: on August 15, 2021, the employee’s next working year began, and on November 5, 2021, he was fired from the company. Subsequently, through judicial proceedings, the employee was reinstated in his position and resumed his professional duties on February 5, 2019. Therefore, the period that began on November 5, 2021 and ended on February 5, 2021 is forced absenteeism. Until the employee's separation from the company, his or her working year lasted from August 15, 2021 to August 14, 2021. Due to illegal dismissal, his boundaries will not shift, since the leave is regular and is provided according to the established schedule. A citizen has the right to demand leave that he did not use after being reinstated at work.
Documents for maternity leave
Expert opinion
Nikishina Anastasia Yurievna
General Director of the law firm Pravo Consult. More details
The Russian Federation has an indicative form of law, therefore, in the absence of an official request from a citizen (application) for the provision of a service, it will not be provided to him.
Algorithm for processing documents and obtaining leave:
- Collection of necessary documents.
- Writing an application.
Documentation:
- a medical report from a doctor from the residential complex, which indicates the date of application and registration;
- a sick leave certificate issued by a gynecologist, it must contain information about the date of birth;
- if a woman worked at several enterprises - a certificate from each of them indicating the amount of wages;
After all the papers have been collected, a statement is written, which should contain a request for leave for a certain number of days.
Expert opinion
Nikishina Anastasia Yurievna
General Director of the law firm Pravo Consult. More details
Since maternity payments are state assistance, therefore, in order to receive benefits, it is extremely important not only to collect all the documents, but also to make sure that they are completed correctly.
