What is the penalty for failure to provide leave to an employee?

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.

Procedure for granting leave

The legal basis for regulating the relationship between employee and employer is the Labor Code of the Russian Federation, letters and orders of the Ministry of Labor of the Russian Federation.
The State Labor Inspectorate (SIT) checks compliance of the parties to labor relations with the law, and fines for its violation on the basis of the Code of Administrative Offenses of the Russian Federation. Before we find out what sanctions the State Tax Inspectorate can impose on a company for failure to provide leave, let’s figure out who gets the right to go on leave and when.

An employee can apply for rest in the form of vacation after six months of continuous work in the company. If the manager does not mind, then leave can be obtained earlier (Article 122 of the Labor Code of the Russian Federation).

In the future, vacation is provided in accordance with the vacation schedule - the company annually forms it in December for the next calendar year.

You will find a form and sample of filling out the schedule in this article.

The vacation schedule is approved by order of the manager and is given against signature for review by each worker. From this moment on, the schedule is a mandatory document for both the employee and his management. Its absence is a reason for a fine from the State Tax Inspectorate.

ATTENTION! A number of employees have the right to demand vacation days at any time:

• minors (Article 267 of the Labor Code of the Russian Federation);
• women before and immediately after maternity leave, as well as immediately after parental leave (Article 260 of the Labor Code of the Russian Federation);
• men - during their wife’s maternity leave (Article 123 of the Labor Code of the Russian Federation);
• Chernobyl victims (clause 5 of article 14 of the law of the Russian Federation of May 15, 1991 No. 1244-1) and some other workers.

For each year of work, the employee is entitled to leave of at least 28 calendar days (Article 115 of the Labor Code of the Russian Federation).

Find out more about calculating length of service for annual leave here.

The vacation period can be divided, but one of the parts must be at least 14 days.

ConsultantPlus experts explained what sanctions an employer can face for non-compliance with the vacation schedule. If you do not have access to the system, get trial online access and upgrade to the Ready Solution for free.

A number of categories of employees may qualify for additional days of rest - find out about this in the publication “Annual paid leave under the Labor Code (nuances)”.

Who must sign the leave application - the immediate supervisor or the director?

Before going on vacation in situations where its approval by the employer is necessary, the employee must verify the authority of the person who approved the vacation. Typically, the head of the organization has such authority.

Note! There are often situations when employees, having received only the consent of the immediate supervisor and his signature on the application, were brought to disciplinary liability for unauthorized departure on leave, which was recognized by the court as lawful (decisions of the Don City Court of the Tula Region dated October 16, 2013 No. 2-1061/2013, Leninsky District Court of Novorossiysk dated August 27, 2013 in case No. 2-566/2013).

Thus, if the boss does not sign the vacation application, this fact is not decisive. We described above how to act when the director does not sign a leave application.

For information about who signs a leave application for the manager himself, read our article “Application for leave for the general director of an LLC - sample.”

In what cases can an employee go on vacation be postponed?

Annual leave can be extended (or postponed by agreement between the employer and employee) in the following situations:

• the worker is sick;
• the worker performs state duties - if they require release from the main job;
• the employer forgot to notify the subordinate 2 weeks in advance about the upcoming start of the vacation;
• the employer did not pay vacation pay on time (3 working days);
• in other situations provided for by federal legislation and local regulations (Article 136 of the Labor Code of the Russian Federation).

For more information about shifting vacation days due to illness, read the publication “How to arrange a transfer of vacation due to sick leave.”

If an employee’s going on vacation negatively affects the organization’s business activities, then it is permissible to transfer the vacation period to the next working year.

Can a director not allow you to go on vacation as scheduled due to production needs and other vacation issues - on our forum.

The transfer of vacation leave at the request of the employee is documented based on the employee’s application and the order of the manager. If the change in vacation dates is due to production needs, then the personnel service or accounting department must have the employee’s written consent to the change. For the convenience of both parties to the labor relationship and to minimize disputes, do not forget to indicate the new period of the employee’s vacation in the manager’s order to postpone the vacation.

An employee must be allowed to go on vacation no later than 12 months after the end of the working year for which he is entitled to go on vacation (Article 124 of the Labor Code of the Russian Federation). Transferring vacation is an exceptional measure and should not be practiced constantly; the employer may receive a fine for shifting vacation from year to year.

Special cases

When working without a TD or under a contract, many questions often arise regarding paid leave.

Unofficial employment

From the date of actual performance of labor duties, the employer is obliged to draw up an employment agreement with a subordinate within 3 working days.

If these actions were not completed, then the employer will face material, administrative and criminal liability for gross violation of labor laws. Citizens working without a TD are not provided with paid annual leave.

Important: In this case, the worker’s insurance record and the fact of working without vacation will have to be proven in the courts.

Work under a contract

Citizens working under a contract cannot also exercise the right to vacation (Part 8, Article 11 of the Labor Code of the Russian Federation). This agreement is of a civil nature, which does not provide for annual paid vacation.

Conclusion

The right to rest is the legal right of all working citizens. Failure to comply with this right may result in serious consequences for the director.

Thus, timely provision of rest to employees will help rationally and effectively use the labor potential of the enterprise. It will also protect personnel from excessive overload and preserve their ability to work for a long time. Otherwise, you already know what to do if you are not given annual paid leave as scheduled.

Tags: Vacation, labor inspection

Fine for failure to provide leave for more than two years

The Labor Code of the Russian Federation prohibits not providing annual paid leave to an employee for 2 years in a row, and prohibits minor workers and those engaged in activities with hazardous working conditions from providing leave in principle (Article 124 of the Labor Code of the Russian Federation).

Administrative liability is established for these violations:

The statute of limitations for violation is 1 year.

If a company breaks the law and does not send workers on vacation, then at the end of the calendar year, vacation days do not disappear anywhere, but remain the organization’s debt to the employee.

Example

For 4 years from the moment of employment of programmer Igor Valentinovich Vasilchenko, Sigma LLC did not provide him with leave, citing the fact that Vasilchenko is a valuable employee and is constantly needed by the company. Therefore, the programmer has the right to 4 × 28 days = 112 calendar days of vacation (Igor Valentinovich does not belong to the category of beneficiaries entitled to additional days). If Vasilchenko decides to resign from Sigma LLC, then the company will have to pay monetary compensation for the programmer’s unused vacation, and not for 1 year, but for all 4 - 28 days for each.

Unused vacation days for previous years of work are provided to the employee in the current calendar year:

• or as part of the vacation schedule;
• or by agreement between the employee and his management (the worker writes an application for leave, indicating the number of unused days of rest, and the employer endorses the application and issues an order for leave).

During a calendar year, an employee can use several vacations (letter of the Ministry of Finance of the Russian Federation dated May 13, 2010 No. 03-03-06/4/55).

Accounting must calculate vacation pay and issue it 3 days before the start of the vacation.

We talk about how to do this in this article.

What to do if they don't let you go?

But what to do if they don’t give you vacation? Before taking radical measures, you need to talk with your superiors and find peaceful ways to resolve the conflict. In case of repeated refusal, the citizen must apply for protection of his rights to the competent authorities.

Attention: Unused vacation can be reimbursed with monetary compensation only on the personal initiative of the employee and with the appropriate application.

Application to the labor inspectorate

You can contact this authority after the date written in the vacation schedule. Two identical statements should be drawn up in free form, outlining in great detail the essence of the appeal and complaint.

One copy with the inspector's visa will remain with the applicant, the second - with the inspection employee.

Documents confirming what was written must be attached to the letter.

Next, you need to send the application in any convenient way:

• hand over personally;
• send by mail with notification;
• send a request by email;
• use the online labor inspection service.

During the consideration of the complaint, the inspection commission will conduct an unscheduled inspection of the company. The inspector will determine the legality of compliance with the norms for the provision of rest in relation not only to this person, but also to the entire staff of the organization.

If violations are exposed, the employer will be given a mandatory order to eliminate the violations, and will also be held accountable in accordance with Art. 5.27 Code of Administrative Offenses of the Russian Federation. In this case, the employee will receive a long-awaited vacation.

Radical methods of getting vacation

A decisive step in resolving this issue would be to contact the prosecutor’s office with a request to conduct an unscheduled inspection of a violation of the Labor Code of the Russian Federation in a specific organization.

The application must be accompanied by documents confirming the fact that you are in an employment relationship with the employer and provide a copy of the vacation schedule. After this, you should wait for the test results.

Claim against employer

A claim is filed with the judicial authorities if an employee, in addition to vacation, wants to receive compensation from his employer. You need to compose it correctly, in legible handwriting, adhering to the correct structure.

What to do if an employee does not want to go on vacation

There are often situations when the employee himself does not want to rest and refuses to go on vacation. As we have already found out, such hard work is fraught with fines for the company. What should I do?

First, make sure that you have a vacation schedule and that the stubborn person is familiar with it. The schedule is mandatory not only for the employer, but also for all employees. And if a worker refuses to go on vacation in accordance with the schedule, this is a violation of labor discipline, punishable in accordance with local regulations and legislation of the Russian Federation (Article 192 of the Labor Code of the Russian Federation). The employer has the right to give the employee at least a reprimand.

But in which case a violator can be fired, read the material “Labor Discipline and Responsibility for Its Violation.”

An employee’s unauthorized departure from work during the period of leave must be recorded in order to eliminate future disputes about payment. This can be done by a human resources employee or an accountant. In order to stop all discussions, you can completely order the company’s security service or the employee’s immediate supervisor not to allow the worker to enter the workplace during vacation days.

ATTENTION! You can send an employee on vacation only with his consent - this is the fact of familiarization with a receipt with the vacation schedule or the manager’s order to send the employee on vacation.

Some employers, trying to get out of a situation where an employee wants to continue working without violating the Labor Code, arrange a vacation period for weekends. That is, the employee divides his annual paid leave into several parts, one of which, by law, cannot be less than 14 days (Article 125 of the Labor Code of the Russian Federation), and he takes the remaining parts on weekends.

For example, if an employee works a 5-day shift, then the accountant issues him 2 days of vacation every week - on Saturday and Sunday, until the employee uses all the allotted vacation days. In this way, the employee will exercise the right to leave and will work at the same pace.

The Labor Code of the Russian Federation does not directly prohibit such a scheme. However, inspectors may still consider this practice a violation of the law: weekends and annual paid leave are different types of rest time (Articles 106, 107 of the Labor Code of the Russian Federation). By issuing a day off, even at the request of the employee, the employer reduces the number of days of rest for the subordinate, which leads to an actual increase in working hours and infringement of the employee’s rights (paragraph 6, 12 of Article 21 of the Labor Code of the Russian Federation). The Ministry of Labor draws attention to this, in particular. Therefore, we recommend that you practice this method of providing vacation: give the employee vacation days on weekends, taking 2 adjacent days - Friday and Monday (with a five-day work week).

The employee may ask you to replace the vacation period with a cash payment. This is also prohibited by law - compensation in lieu of vacation is allowed only for days over 28 calendar days of the annual vacation period. An employee can receive money instead of vacation only upon dismissal - in the form of compensation for unused vacation (Article 127 of the Labor Code of the Russian Federation).

Briefly

1. Extraordinary paid leave in the summer can be provided to parents of large families with children under 12 years of age, the father or mother of a disabled minor, as well as a number of employees of various categories on the basis of articles of the Labor Code of the Russian Federation and federal laws: adoptive parents, maternity leavers and their husbands, minor employees, WWII veterans, husbands and wives of military personnel, honorary donors and some others in accordance with the legislation of the Russian Federation.
2. Unpaid summer leave can also be provided at the request of employees with children under 14 years of age or one child if he is being raised only by a father or a single mother; parent of a disabled person under 18 years of age. Employees on the occasion of marriage, the birth of a child, the funeral of loved ones, disabled workers, pensioners and other citizens mentioned in legislative acts corresponding to their status are entitled to it.
3. Preferential rights to summer vacation can also be granted by agreement with the employer.

Results

The right to rest in the form of vacation is one of the basic rights of an employee guaranteed to him by the Labor Code of the Russian Federation.
The parties to the labor relationship must agree on the vacation schedule in the vacation schedule and strictly observe it. Deviation from the schedule is possible by mutual agreement of the parties and must be documented. Not providing leave to an employee is risky; in the event of an audit, fines are likely to be imposed. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.