Study leave under Article 173 of the Labor Code (nuances)

Employees who combine work with study are provided with study leaves by law to pass exams, defend a dissertation, or simply pass an intermediate session. Moreover, unlike annual paid leave, educational leave is granted regardless of how long this employee has worked in a particular organization - a day or six months. Almost every organization has student employees, and questions arise periodically in this regard. In this article we will tell you what an employer should know about study leave.

When and how study leave can be granted

The Labor Code of the Russian Federation points out several points that must be taken into account when applying for leave in connection with training (hereinafter referred to as OSO):

• OCO can only be taken at the main place of work;
• the university must have state accreditation, which is confirmed by a separate certificate from the educational institution or the inclusion of the necessary data in the challenge certificate;
• the employee receives higher professional education (hereinafter referred to as HPE) for the first time; the exception is the case when a new higher education qualification is obtained at the initiative of the employer;
• To receive the OCO, the employee must provide a certificate of summons from the university and ask for leave in writing by writing a corresponding application.

To apply for study leave, the employee must write an application. We will consider further how to properly prepare the document.

Tax question

The employer is required to withhold personal income tax from the amount of paid study leave. In addition, insurance premiums must be calculated and paid from the accrued amount. Rates and tariffs are determined in accordance with generally accepted procedures. The provisions are enshrined in paragraph 1 of Art. 420 of the Tax Code of the Russian Federation and in the Letter of the Ministry of Finance dated July 24, 2007 No. 03-04-06-01/260.

Transfer insurance premiums to the Federal Tax Service and the Social Insurance Fund no later than the 15th day of the month following the month of accrual. Transfer personal income tax to the budget no later than the last day of the month in which the amounts were accrued (clause 6 of Article 226 of the Tax Code of the Russian Federation). Reflect the accrued amount in the 2-NDFL certificate under income code 2012.

Sample application

Application for study leave: sample

The application must include all information that will affect the provision, registration and payment of study leave.

A sample application for study leave can be downloaded here.

A properly agreed upon application will be the basis for both the leave order and the associated settlements with the employer.

How to fill out an order for leave, read the article “Order for annual paid leave - sample and form” .

The order form is also suitable for registration of study leave.

Other conditions under the CCA may be included in the employment or collective agreement. As a rule, these are “mitigating” conditions. According to the Labor Code of the Russian Federation, the employer is obliged to provide CCA only in the specified cases, and under an agreement with the employee, leave can be provided in other situations. For example, you can apply for a vacation even if the educational institution does not have state accreditation.

Design principles

Please follow the following order:

1. Receive a free-form application from your subordinate regarding the provision of OU.
2. Ask to confirm the application with the appropriate document - a summons certificate. The summons certificate form was approved by Order of the Ministry of Education and Science of the Russian Federation dated December 19, 2013 No. 1368 (as amended on May 26, 2015).
3. Based on the application, issue an order. It is recommended to use the unified order form No. T-6 or prepare an order in any form. In section B of the T-6 order form, indicate:
   type of vacation pay;
4. number of paid days;
5. total duration of training (days);
6. start and end dates.
7. The employee's absence days are reflected in the time sheet. Moreover, use the codes provided for designating study leaves - “OU”.
8. Along with the report card, submit a completed order for study leave to the accounting department; payment and processing are carried out by accountants.
9. Don’t forget to make the appropriate note on the employee’s personal card.

Sample application

Sample order

How long is study leave and how is it paid in 2021?

Payment for study leave according to the Labor Code provides for differences depending on the form of training and on the purpose for which the compulsory education is provided.

NOTE! The Law “On Education in the Russian Federation” dated December 29, 2012 No. 273-FZ established various types of higher education, including education according to bachelor’s, specialist’s and master’s standards. The subject of consideration in Art. 173 of the Labor Code of the Russian Federation are specifically these types. However, there may be others according to other standards.

The main nuances of the duration and payment of CCA in accordance with Art. 173 of the Labor Code of the Russian Federation are presented in the table:

Is study leave paid for distance learning in a master's program if you already have a bachelor's degree? The answer to this question can be found in ConsultantPlus. If you do not have access to the K+ system, get a trial online access for free.

CCA compensation is always calculated based on average earnings. In accounting, the costs of paying for educational leave are reflected in the cost accounts:

• Dt 20 (25,26,44...) Kt 70 - payment for study leave has been accrued;
• Dt 20 (25,26,44...) Kt 69 - insurance premiums have been charged;
• Dt 70 Kt 68 - personal income tax accrued from vacation.

Read about the procedure for paying personal income tax on vacation pay here.

According to Art. 173 of the Labor Code of the Russian Federation, if desired, an employee studying part-time or part-time can be provided with a working week shortened by 7 hours. Such provision is permitted:

• for a period of up to 10 months before the final certification;
• with payment of 50% of average earnings for the freed time.

D. N. Konkova, inspector of the Ministry of Labor and Social Protection, explained how graduate students are paid for their study leave. Get trial access to ConsultantPlus and read the official’s opinion for free.

Rules and features of working out for training

IMPORTANT! A sample order for referral to training from ConsultantPlus is available here

Payment for training is a kind of investment by the employer. That is, the manager expects to receive bonuses from this operation in the future. This is not at all a manifestation of the employer’s altruism.

However, it is easy to imagine a situation in which a manager invests, but receives nothing due to an ungrateful employee. An employee, after completing training, may well quit and get a job at another company with his professional baggage updated at someone else’s expense. How to prevent this? The employer may specify in the contract the obligation to work for training. That is, an employee who has improved his qualifications at the expense of the company cannot just leave. He undertakes to serve a certain period of time. The possibility of setting such a condition is stipulated in Articles 197 and 199 of the Labor Code.

If an employee refuses compulsory service, he is obliged to reimburse the employer’s expenses for paying for educational services.

This rule is spelled out in Articles 207 and 249 of the Labor Code of the Russian Federation. To protect his interests, the manager must correctly formalize the agreement with the employee.

Legal registration of mining

The manager cannot oblige an employee to work off his expenses based solely on an order to send the employee for training. To do this, you will need to indicate the processing condition in one of the following documents:

• Employment contract.
• Additional agreement.
• Student agreement.

The document must include the following information:

• Specialty or area of ​​study.
• Terms and cost of educational services.
• Obligation to work or compensate employer expenses.

The working period is determined on an individual basis. It can range from several months to several years. It all depends on the agreements between the manager and the employee. Typically, the period is determined based on the following factors:

• Cost of educational services.
• The values ​​of the acquired knowledge.
• Duration of training.

The terms must be fixed in the agreement between the parties.

Features of collecting expenses from an employee upon dismissal

You can recover expenses from an employee for previously provided educational services only if he resigns for an unexcused reason. This rule is stipulated by Articles 207 and 249 of the Labor Code of the Russian Federation. However, the law does not specify the reasons that can be considered valid or disrespectful. These nuances are determined on the basis of existing judicial practice. For example, valid reasons for dismissal are:

• Staff reduction.
• The employee has received a medical certificate according to which he cannot continue to work in his previous position, but the employer cannot provide a suitable position.
• Conscription of an employee for military service.

An unjustified reason in this context is the employee’s unauthorized initiative or his guilty actions.

Is the employer obligated to pay expenses related to study?

In addition to the time spent on the study process, the employee also bears other expenses:

• for educational materials and manuals;
• for travel to and from the place of study;
• for rental housing for the period of the session (defense), if the place of study is in another city, etc.

According to the standards of the Labor Code of the Russian Federation, the employer undertakes to pay only travel expenses to the university and back:

• 1 time per year;
• for correspondence students;
• subject to successful studies.

NOTE! What is meant by “successful study” is not specifically explained. Therefore, if a student successfully passes intermediate exams (certifications) and continues his studies, his studies can be considered successful.

Payment by the employer of other expenses is not mandatory. Additional compensation may be provided for in contracts with employees.

Should study leave be provided and paid if an employee receives a second higher education? Find out the answer to your question in ConsultantPlus by getting trial access to the system for free.

What the law says

Problem: a student has the right to work in his free time from studying. However, studies do not adapt to the needs of the student and can change their intensity (especially during the session). At the same time, the employer expects all employees to comply with the work schedule. How can a student combine work and study?

The Labor Code of the Russian Federation states that the employer is obliged to release the employee from work for the period of passing the session and final certification. To exercise this right, the student must be educated at an educational institution with state accreditation.

If a student needs to take a study leave, he or she can safely leave. At the same time, his job is preserved. As for maintaining wages during study leave, this is always at the discretion of the employer.

In some cases, a student at an unaccredited university may be able to receive legal student leave. For example, if this is specified in the collective/employment agreement

Certain nuances regarding the provision and payment of vacation

1. The CCA is given in calendar days without extension for holidays. Holidays are paid as regular calendar days.
2. In case of incapacity for work during the period of compulsory medical insurance, it is not extended, and sick leave during this period is not paid. If the compulsory medical insurance is over, but the incapacity for work is not, those days of sick leave when the employee was supposed to work are paid.

Find out about sick pay for regular leave in this article..

1. The employer cannot:

• refuse the CCA;
• transfer CCA;
• replace it with monetary compensation.

1. The CCA does not cancel the right to basic leave. It is permissible to add OSO to the main leave (Article 177 of the Labor Code).
2. The OSO should not coincide in time with any other vacation. If the employee is on another vacation, it will have to be interrupted (rescheduled) in order to issue an OCO.

How to correctly transfer another vacation, read the material “Application for transfer of vacation - form and sample” .

Employee training at the expense of the employer according to the Labor Code of the Russian Federation

Article 196 of the Labor Code states that the decision to pay for an employee’s professional training is made by the employer. The head also has the right to independently determine the conditions and procedure for study. All adopted rules must be recorded in the collective agreement and other internal acts.

Is it necessary to withhold personal income tax when an organization pays the cost of training an employee?

In most cases, employee training is a right, but not an obligation, of the employer. However, there are exceptions specified in Part 4 of Article 196 of the Labor Code. The employer must organize professional training for certain categories of employees:

• Medical employees (Article 79 of Federal Law No. 323).
• Civilian workers (Articles 48 and 62 of Federal Law No. 72).
• Notaries and their assistants (Article 30 of the Fundamentals of the Law “On Notaries”).
• Auditors (Article 11 of Federal Law No. 307).

The employer is obliged to organize training even if this is considered a condition for the employee’s continued employment.

If the leave was obtained fraudulently

If the employee did not notify the employer that he was receiving a second degree, and thus received paid student leave, which in fact he should not have received, then the funds paid to him for this period may be recovered by the employer.

However, in order to recover, it is necessary to establish the fact of deception on the part of the employee in court, and then return the money.

You will learn how to calculate child care benefits in our original material. Read about the legality of deductions from your wages in our article. What amount of compensation can you expect in case of late payment of wages? The link has all the information you need!

Providing unpaid days off

The Labor Code of the Russian Federation provides for situations where the obligation to provide study leave remains, but the need to pay money for it disappears.
Such cases are prescribed in Articles 173-174 of the Code and depend on the type of training and the basis for registering a break in work. The provision of unpaid days off is provided only for education acquired by profession.

Formal study leave is not paid:

• when passing control exams in university preparation courses, regardless of the form of study;
• when passing entrance examinations to a secondary or higher institution;
• during full-time study by profession to prepare for intermediate examination sessions, state tests and final works.

Holidays count

Study leave is targeted, it is intended for passing exams, passing intermediate and final certification. The specifics of its accounting and payment are contained in paragraph 14 of Decree of the Government of the Russian Federation dated December 24, 2007 No. 922. When determining average earnings for payment of additional educational leaves, all calendar days (including non-working holidays) falling during the period of such leaves are subject to payment.

In practice, this means that study leave from the beginning of January must be paid for all calendar days, and not for working days.

EXAMPLEManager Kuznetsova K.A. from January 2 to January 16, 2021 (14 calendar days) I was on study leave, and from January 17 to January 31 (10 working days) I was working. Let’s assume that the salary for 2015 was 150,000 rubles, there were no vacations or sick leave. To calculate study leave, remember the rule: we calculate the average daily earnings as for the next vacation (clause 10), but do not throw out holidays. Amount for study leave: 150000: 12/29.3 × 14 = 5972.70 rubles. Amount for working days: 12500: 15 × 10 = 8333.33 rubles. Total: 5972.70 + 8333.33 = 14306.03 rubles.

For summer sessions, one holiday, June 12, is included in the number of paid study leave days.

Read in the taker

How to calculate study leave correctly and without errors