Right to vacation: can they be denied?

Every employee has the right to annual paid leave. The legislation provides the opportunity for rest to all employees after six months of continuous work with one employer. This right is granted by Article 122 of the Labor Code of the Russian Federation.

In accordance with the Labor Code, regular leave is granted on the basis of a schedule. In practice, situations may arise when several employees decide to go on vacation at the same time, and this can disrupt the functioning of the company.

The vacation schedule is drawn up annually and approved by the employer, taking into account the opinion of the elected body of the primary trade union organization no later than two weeks before the start of the calendar year. The vacation schedule is mandatory for both the employer and employees. This norm is reflected in the Resolution of the Supreme Court of the Russian Federation dated August 1, 2021 No. 18-AD17-15.

Despite the fact that the schedule is mandatory for both the employee and the employer, you cannot go on vacation without permission. Before starting your vacation, certain documents must be completed. No later than two weeks before the start of the vacation, the employer is obliged to notify the employee about this against his signature (Part 3 of Article 123 of the Labor Code of the Russian Federation).

After this, an order for the provision of leave is issued, which the employee must familiarize himself with. Only after completing the above documents can the employee use his vacation. If the documents are not completed, then absence from work may be considered absenteeism with subsequent dismissal. Thus, in the Ruling of the Constitutional Court of the Russian Federation dated September 29, 2015 No. 1833-O, the arbitrators referred to the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation,” which states that unauthorized departure on vacation (main, additional) refers to such a gross violation by an employee of work duties as absenteeism.

An exception

Article 123 of the Labor Code establishes an exception when granting leave, which is that certain categories of employees have the right to regular leave outside the schedule. So, for example, at the request of the husband, he can be granted annual leave while his wife is on maternity leave, regardless of the time of his continuous work with one employer.

In accordance with subparagraph 1 of paragraph 1 of Article 23 of the Federal Law of July 20, 2012 No. 125-FZ “On the Donation of Blood and Its Components,” Russians awarded the badge “Honorary Donor of Russia” or “Honorary Donor of the USSR” have the right to receive an annual paid leave at a convenient time of year for them in accordance with labor legislation (letter of the Ministry of Health of Russia dated December 3, 2015 No. 14-4/3100707-5572 “On the provision of annual paid leave to persons awarded the “Honorary Donor of Russia” badge”).

Participants in the liquidation of the consequences of the disaster at the Chernobyl nuclear power plant are guaranteed the provision of regular annual paid leave at a time convenient for them (Law of the Russian Federation of May 15, 1991 No. 1244-1 “On the social protection of citizens exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant”).

There are other categories of workers who have a preferential right to leave. It is worth noting that a company can provide vacation to an employee outside the vacation schedule, but for this, such an opportunity must be enshrined in a local regulatory act (paragraph 4, part 1, article 124 of the Labor Code of the Russian Federation).

What should an employee do if the employer does not give annual rest?

In such cases, it is necessary to apply to various authorities for the restoration of your violated right to rest; simply not going to work at the time prescribed by the vacation schedule is undesirable, because this fact can be classified by the employer as absenteeism, for which you can lose your job altogether.

According to Art. 352 of the Labor Code of the Russian Federation, an application for protection can be sent to the labor inspectorate, trade union or court. If there is a labor dispute commission at the enterprise, the employee has the right to apply there (Article 382 of the Labor Code of the Russian Federation). Also, if you are not allowed to go on vacation, no one forbids you from sending an appeal to the prosecutor’s office.

Documents confirming the fact of being in an employment relationship with this employer must be attached to the application. Such confirmation is an extract from the work record book; a copy of the employment order and the employment contract will also not be superfluous. Next, you need to confirm your right to leave for a specific period. To do this, you must attach a copy of the vacation schedule.

After contacting the appropriate authority, you must wait for the complaint to be considered . As a rule, such requests are satisfied with a subsequent order to the employer to fulfill the obligation to provide leave.

Off schedule

Please note that the employee does not have the right to refuse to be granted another vacation. He may refuse leave legally if payment for the time of annual paid leave was not made in a timely manner or the employee received notice of the start time of the holiday later than two weeks. In these cases, the employer, upon a written application from the employee, is obliged to postpone the annual paid leave to another period agreed with the employee (Article 124 of the Labor Code of the Russian Federation).

In practice, there are cases when an employee may not go on vacation, but postpone it to another period. A transfer or extension is possible in the following cases: if the employee’s temporary incapacity for work occurs during the vacation period or if the employee performs government duties during the annual paid vacation, if labor legislation provides for this exemption from work.

It is also possible that vacation may be postponed due to an employee being called. Due to production needs, you can recall an employee from vacation or postpone the vacation to the next working year, if its provision in the current working year may adversely affect the work of the company as a whole (Articles 124, 125 of the Labor Code of the Russian Federation).

In this case, a review is allowed only with the consent of a specialist. The part of the vacation unused in this regard must be provided at the employee’s choice at a time convenient for him during the current working year or added to the vacation for the next working year (Article 125 of the Labor Code of the Russian Federation).

Does the boss have the right not to provide vacation without pay?

Leave without pay is regulated by Art. 128 Labor Code of the Russian Federation . It is provided at the request of the employee for one reason or another. The validity of these reasons is assessed by the employer, by agreement with whom the duration of the leave is determined.

Attention! Article 128 of the Labor Code of the Russian Federation reserves for the employer only the right to provide unpaid leave.

However, there are a number of cases when the employer is obliged to provide such leave, such cases are enshrined in the above article (participants of the Second World War; persons who have reached retirement age but continue to work; disabled people; cases of the birth of a child, marriage, etc.), in other cases it remains just rely on the benevolence of the leadership.

We make changes to the vacation schedule and personal card

After issuing an order to recall an employee from vacation, changes must be made to the vacation schedule. Since it does not contain a special column for entering information about the employee’s recall from vacation, you can enter information in column 10 “Note”. It should indicate that the employee was recalled from vacation with his consent, indicate the date on which the employee began work in connection with the recall from vacation, and the reason for the recall.

Next, in column 8 “Bases (document)” it is necessary to reflect the details of the order for recall from vacation. In column 9 “Date of proposed vacation” - the date to which the employee’s vacation is transferred if it falls within the current calendar year. If the date to which the vacation is transferred falls on the next calendar year, then nothing needs to be indicated in the schedule.

Information about recall from vacation must also be entered into the employee’s personal card - Form No. T-2 in the “Vacation” section.

In columns 4 and 6 you need to cross out the incorrect dates and number of days with one line and enter the correct information, and in column 7 indicate the details of the order on the basis of which the changes occurred.

The employee’s personal card should reflect the number of vacation days actually used. This is necessary in order to subsequently correctly calculate the number of unused vacation days.

Employer's liability for failure to provide

Due to the fact that the law provides the employee with the right to rest at least once a year, violation of this right may result in administrative liability for the employer.

So, according to Art. 5.27 of the Code of Administrative Offenses of the Russian Federation for violation of labor legislation, a legal entity may be fined in the amount of 30,000 to 50,000 rubles, but if the employer has not corrected itself and committed a similar violation again, the amount of the fine increases from 50,000 to 70,000 rubles.

Reference! An individual entrepreneur or an official will also be punished with a fine of 1,000 to 5,000 rubles, for a repeated violation - from 10,000 to 20,000 rubles, or disqualification for a period of 1 to 3 years (for officials).

Are you going on vacation? Before doing this, we recommend that you study the materials of our specialists about the types of vacations, duration and rules for their registration, as well as about dismissal during vacation and the procedure for calculating benefits.

Grounds for refusal of leave

If a person does not have benefits, the boss may refuse to provide him with annual leave at a specific time. Even if the schedule is approved. The main reasons for refusal are:

The employee decided to rest at a different time than was written in the schedule. He came with this proposal to his boss, who refused him.
A difficult production situation arose at the enterprise. It requires workers to be on site.
The employee asks to divide the rest into three parts.

REFERENCE: if vacation days have not been used, then the time not taken off is transferred to the next year. But the employer cannot refuse to give leave for more than two years in a row. This is a direct violation of the law! Even if his employee agrees to work without rest.

General information

A number of articles from the Labor Code of the Russian Federation are devoted to issues regarding vacations. This regulatory document guarantees the possibility of going on vacation within a strictly established period. First of all, we should consider the basic concepts.

According to the Labor Code of the Russian Federation, vacation is a temporary period for which a citizen is released from work duties for the purpose of rest. There are several types that differ depending on their intended purpose and other aspects.

The main ones include:

Paid annually. Provided once a year (Article 122 of the Labor Code of the Russian Federation). Compensated by the employer based on the employee’s average monthly salary. Duration – from 28 calendar days.
Additional. Provided to employees of harmful and dangerous industries or enterprises with difficult working conditions and irregular schedules. Paid by the employer. The duration is set individually.
Without saving salary. Provided at the request of the employee under certain circumstances. There is no maximum term limit.
Maternity leave. Suitable for women during pregnancy. Lasts from 140 days or longer. Paid by the employer based on the average salary.
For child care. Provided after maternity leave for up to three years of age.

Advice! To find out whether leave can be denied, you first need to determine what type of temporary cessation of work activity we are talking about. Based on the procedure for provision established by law, you can later find out whether the boss’s action is justified.

Reasons for refusal

The law does not provide clear criteria for determining whether an employee going on vacation will negatively affect the work of an organization or entrepreneur. The employer decides this at his own discretion and agrees on this position with the employee

An example of a possible reason for postponing vacation is a situation where an organization has two employees doing the same job, for example, a lawyer. Let's say that the time has come for one of them to go on vacation, but shortly before that, the second employee went on sick leave. In such a situation, if you let the first employee go on vacation, the organization will be left without legal support. If you can’t do without a lawyer, then the manager can ask the employee to postpone the vacation until the second specialist returns from sick leave.

Also, an organization may urgently need all employees to work when receiving a large order from an enterprise producing some product.

In such a situation, the manager may have reason to believe that if one of the employees working in the production sector of the enterprise goes on vacation, then it will not be possible to complete the order within the time period agreed with the customers. He may ask to postpone all vacations falling during this period.

How to get maternity leave if you don’t work - the complete instructions in our material will help you. Calculating your sick leave is not an easy procedure. You will learn how to do this correctly in the material at the link.

Do you want your sick leave to be paid even though you are no longer working? Read the article you need.

How is annual leave granted?

At the end of the calendar year, the employer draws up a schedule. At the same time, the wishes of employees are taken into account. But vacations often overlap each other, since many citizens like to relax in the summer. Therefore, the law establishes lists of beneficiaries who have priority when allocating days of rest paid by the employer.

Category of workers	Articles of the Labor Code and Federal Law
adoptive parents	122
employees before and after leave under BiR	122, 260
husband of a woman who is on leave under the BiR	N76 – Federal Law, Art. eleven
persons with disabilities	N5 – Federal Law, art. 14, 16
part-time workers, if their main job provides them with rest during the summer period	286
donors (honorary)	N125-ФЗ, art. 23-1.1
families with many children (mother or father)	262.1
father or mother raising a child with a disability	262.2

After their wishes, vacation is distributed among the remaining employees according to the schedule. Afterwards it is approved by the head of the enterprise and the personnel department.

Features of providing rest for study

In addition to annual and unpaid leave, the issue of providing educational leave is often raised. This category is provided for citizens combining work and study. Study leave is primarily paid based on the employee's average salary. But simply receiving an education is not enough to qualify. Conditions must be met:

The education received is the first in the corresponding level. It is understood that if an employee has completed higher education (specialist), then he is entitled to educational leave when receiving a master's degree, graduate student, etc.
Provided only for studying at one of the educational institutions, if there are several of them. The choice of educational institution is made by the employee.
Study leave can only be taken at the main place of work if the employee also works part-time.
The educational organization in which the employee receives his education must have state accreditation.
The application for provision is accompanied by a certificate of summons from the educational institution.
The duration should not exceed the established limits. It is possible to issue longer ones by agreement with the employer.

The provision of study leave is guaranteed by the Labor Code of the Russian Federation as well as annual ones, therefore, if study leave is denied without reason, then such actions can be appealed.

Zinovieva Natalya Igorevna

Lawyer at the Legal Defense Board. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and other regulatory documents to regulatory authorities.

Replacement of rest with monetary compensation: in what cases is it legal?

The law allows in some cases to replace part of the vacation with monetary compensation. This is only possible if the employee, in addition to the annual main leave, also has the right to an additional or extended part.