The boss does not allow vacation - what should an employee do if vacation is not granted?

Labor disputes due to non-provision of leave are an increasingly common occurrence today. They arise for various reasons, the main one of which is the lack of an approved vacation schedule. According to the laws of the Russian Federation, all companies must have such schedules, and they should be approved for the next year annually and no later than mid-December.

As a rule, these violations are noted in private organizations where employees are sent on leave with the permission of their superiors - written or oral.

What to do if the vacation you were entitled to did not become a happy reality?

Does a manager have the right to forget (ignore) his responsibilities? What does the law say?

The duration of leave is determined by law. Each officially employed employee must annually go on vacation (approx. - paid, Article 114 of the Labor Code, Article 122 Part 1 of the Labor Code) for 28 days (Article 115 of the Labor Code) while maintaining both the average salary and his position. The vacation period for minors is 31 days. The Labor Code also provides for the employee’s right to use and the duration of study leave.
28 days of vacation can be used once or divided into 2 vacations of 14 days , which must be provided within 1 working year.
If the employer, after a year of work for his employee, has not exercised his right to leave , the employee has the right to do this independently. Why? Because the exercise of the right to vacation is determined by the legislator, and not by the employer: every employee after 6 months of official work has the right to 14 days of vacation. From the 2nd and following year of work, the manager provides vacation (28 days) to his employee according to the schedule and sequence of vacations.
Employees under 18 years of age can go on vacation before the end of their six-month period of work employees who adopted babies under 3 months of age; and women before/after maternity leave. Employees from the listed categories independently determine their vacation time when submitting a corresponding application to management.
The absence of a vacation schedule in a company implies the independent exercise of the right to vacation by an employee with his independent determination of a convenient time for this vacation. Moreover, management’s disagreement with the period of time chosen for vacation does not matter and is not at all an obstacle to going on vacation. True, you will have to warn management about this in writing a couple of weeks before the long-awaited “vacation”.
The employer is also obliged to warn its employees about vacations a maximum of 2 weeks before they occur and in writing (Article 123, Part 3 of the Labor Code). If the manager did not warn the employee, as required, 2 weeks in advance, then the employee has the right to move his vacation time forward by 2 weeks required by law.
The time for using vacation may well be determined by agreement between the employee and management. But such an agreement must take into account the nuances of the law. That is, the manager does not have the right to worsen the conditions for the implementation of vacation (for example, to give a shorter vacation than required by law).
Lack of vacation for 2 years in a row against the employee’s wishes is a gross violation of the law (Article 123-124 of the Labor Code).
If the vacation was never used , then it is “carried over” to the next year (that is, added to the next year’s vacation). It is legally impossible to exchange your vacation for monetary compensation. But in the event of a layoff or dismissal, the employer is obliged to compensate you in money for the vacation that you did not take.
When working in hazardous production or with irregular working hours, the employer is obliged to provide you with additional leave (also paid), the duration of which must be at least 3 days (it is recorded in the internal labor rules/schedule or in the team/contract). This additional leave may be replaced by monetary compensation.

I have another problem: I’m tired in self-isolation, I want to rest outside of my schedule. So it is possible?

The vacation schedule can only be violated by mutual agreement with the manager.
Photo: pexels.com - The employer is not at all obliged to provide unscheduled leave at your request and has the right to refuse. The exception is some categories of workers. For example, pregnant women, minors, employees whose wives are on maternity leave. They are given vacation at a time convenient for them,” explains Vladislav Kalinin, a member of the Russian Lawyers’ Association .

How to fight for your rights?

The manager has the right not to allow you to go on vacation if it is included in the schedule only if you yourself have given your consent. And then, only on the condition that you received your last year’s vacation and took the full vacation. 2 years without vacation is a gross violation of Article 123-124 of the Labor Code.
Don’t rush to immediately poke your bosses in the nose with the Labor Code. First, try to resolve the issue peacefully and find a compromise. Maybe it is possible to postpone your vacation by a couple of weeks so that you can finish some important work (this will only add points to your “karma” for career growth), or do it ahead of schedule (if there is no one to replace you). Or you can, for example, do some urgent work right during your vacation (you can conclude a civil contract for this case). If management does not want to let you go for a whole month, split your vacation into 2 (or more) periods. And if the company has financial problems, offer to divide the payment of vacation pay: part - before the vacation and the rest - after.
Is it impossible to achieve a compromise? And your boss stubbornly refuses to give you vacation? Write a vacation application and submit it 2 weeks before your vacation. Management refuses to sign it? Remind him in writing (exceptionally politely) that he is violating your legal rights, according to Article 123-124 of the Labor Code. You can also remind about a fine of 30,000-50,000 rubles. (Article 5.27 of the Administrative Code) and administrative liability for violation of workers’ rights. This written claim is drawn up in 2 copies and takes into account Art. 22, 115, 122-125 Labor Code, Article 37, paragraph 5 of the Constitution.
And the complaint didn’t help? Then all that remains is to appeal to the State Labor Inspectorate (as well as to the prosecutor’s office and the court).

How to formalize a suspension

If an employee refuses vaccination without a good reason by the deadline, the employer must issue an order to remove the employee from work without pay. The basis for deprivation of wages in this case is Part 3 of Art. 76 Labor Code of the Russian Federation.

The form for an order to remove an employee due to refusal to undergo mandatory vaccination is free. The employer can develop it independently. In this case, the order must indicate:

FULL NAME. and the position of the employee;
the reasons for which he was suspended from work;
period of suspension.

Before issuing such an order, you must obtain a written refusal from vaccination from the employee.

The order of removal must be presented to him against his signature.

Thus, you first need to request a written refusal from the employee to refuse vaccination, and then issue an order for suspension without pay.

If you are employed unofficially and are not given leave...

Even with “unofficial” employment of an employee, the employer must necessarily draw up an employment contract. This is given 3 days from the moment the employee is allowed to work. That is, direct labor relations arise from the moment the employee starts working, and he (together with the employer) is subject to all relevant provisions of the Labor Code.

As for vacation or time off at his own expense, the employee is entitled to it at any time under an existing agreement with the employer after six months of continuous work (exceptions are defined in Article 128 of the Labor Code).

If the legal right to leave is violated, the employee can safely file a complaint with the State Labor Inspectorate and additionally indicate a request for non-disclosure of personal data (to avoid retaliation from management).

Self-isolation has been lifted, but our company is still remote. How to write a vacation application?

— You can apply for leave after switching to remote work by exchanging electronic samples of documents (scanned applications with all seals and signatures - editor's note). When you return to work, if necessary, you can issue them as required. The employee needs to submit a signed application in two copies to the employer in an official manner at least two weeks in advance - under a stamp. If it is impossible to do this in person, send it by mail or to an official email address,” said Tatyana Golubeva, senior lecturer at the Department of Business, Labor and Corporate Law of the Russian Academy of National Economy and Public Administration .

If you are employed under a contract agreement, but they don’t give you vacation...

According to the laws, the basis for the emergence of labor relations between an employer and an employee is an employment contract. It is precisely this “employee/employer” relationship that is subject to all norms of labor law, including payment of sick leave, vacations, etc.

As for the contract, it already relates to contractual relations, which, in turn, are regulated by the Civil Code of the Russian Federation. That is, everyone who works under a contract is deprived of their right to vacation (sick leave, vacation pay, etc.) .

Of course, this type of work is very beneficial for the employer, but it is worth noting that a civil law contract can also become an employment contract - through the court, at the request of the employee, or at the request of the State Labor Inspectorate. And if the court recognizes this contract as an employment contract , then the employer will have to issue a work book to his employee and provide all benefits, including vacation (plus pay unpaid amounts for benefits - sick leave, vacations, etc.).

If the work is remote

The number of workers who must be vaccinated to prevent the further threat of the spread of coronavirus infection is determined by the chief sanitary doctor of the region.

EXAMPLE
60% of employees specified in clause 2.1 of the resolution of the Chief Sanitary Doctor of Moscow dated June 15, 2021 No. 1 include exclusively employees (regardless of the conditions and nature of work) who received vaccination. Exceptions are provided for employees with medical contraindications.

Thus, employees working remotely (remotely) who refuse vaccination and have no contraindications to it may be suspended from work.

Remote workers are subject to mandatory vaccination unless they have contraindications.

According to Rostrud, transfer to remote work is not an alternative to suspension!

Contact the State Labor Inspectorate

How to find the State/Labor Inspectorate? All addresses in the regions today can be easily found on the Internet. For example, here - www.rostrud.info
Who can apply? Any citizen, employee group or trade union.
We write a complaint against the employer (if you don’t want to “shine” your name, you can ask for an inspection without indicating your full name - anonymously, Article 358 of the Labor Code) in any form, describing the essence of your problem as clearly and in detail as possible. Be sure to provide all information in full (inspectors do not consider anonymous information). We hand this complaint directly into the hands of the inspector or send it by mail (note - registered, with acknowledgment of receipt).
Time limit for consideration of the complaint. As a rule, such applications are processed quickly - no more than 15 days.
The maximum period is 1 month. True, in megacities, a complaint can wait up to six months for consideration, due to the heavy workload of inspectors.
After the complaint, your company is visited by a commission , and the inspector carefully checks the purity and legality of compliance with all standards for the provision of leave for all employees of the organization.
After the inspection, based on its results , the manager is usually held accountable, in accordance with Article 5.27 of the Labor Code, thereby obliging him to immediately provide his employees with vacation according to the schedule.

If the inspector refuses you (and you are not going to appeal the refusal to the Federal Service for Labor and Employment), there is an even more radical option - going to the prosecutor's office and court. Reason: denial of leave in the last 2 years.

Usually, after management is called to the prosecutor, all measures to return working conditions to the legal framework are taken by the employer immediately.

The vacation issue has been resolved, it’s time to pack your things for vacation according to the detailed list.

Have there been similar situations in your work? And how did you achieve your goal? Share your stories in the comments below!

What does the Labor Code of the Russian Federation and other laws say?

The Labor Code of the Russian Federation provides for the possibility of removing an employee from performing work duties: this is possible not only in cases provided for by the Labor Code of the Russian Federation and federal laws, but also by other regulatory legal acts of the Russian Federation (paragraph 8, part 1, article 76 of the Labor Code of the Russian Federation).

And one of these cases is a violation of the provisions of the Federal Law of September 17, 1998 No. 157-FZ “On Immunoprophylaxis of Infectious Diseases” (hereinafter referred to as Law No. 157-FZ).

This law states that the lack of preventive vaccinations entails:

refusal to hire for work, the performance of which is associated with a high risk of contracting infectious diseases;
removal of citizens from such work.

If there is a threat of the emergence and spread of dangerous infectious diseases, chief state sanitary doctors and their deputies in the regions may issue decisions on preventive vaccinations of citizens or their individual groups for epidemic indications (subclause 6, clause 1, article 51 of Federal Law No. 52 of March 30, 1999 -FZ “On the sanitary and epidemiological welfare of the population” (hereinafter referred to as Law No. 52-FZ).

Such powers are confirmed by clauses 1 and 2 of Art. 10 of Law No. 157-FZ and Order of the Ministry of Health dated March 21, 2014 No. 125n, which approved the National Calendar of Preventive Vaccinations and the Calendar of Preventive Vaccinations for Epidemic Indications (Appendix No. 2).

Thus, coronavirus vaccination has been included It becomes mandatory if a corresponding resolution of the chief sanitary doctor has been issued in a constituent entity of the Russian Federation on vaccination of individual citizens or their categories (workers of certain industries).

If such a decision on mandatory vaccination for epidemiological reasons is made and formalized by an act of the chief sanitary doctor of the region or his deputy, then vaccination becomes mandatory .

From paragraph 2 of Art. 11 of Law No. 157-FZ it follows that any preventive vaccinations are carried out voluntarily. But the result of refusal may be removal from work without pay.

has the right to suspend an employee who refuses vaccination without pay.

Also see “ For which jobs is coronavirus vaccination required: List 2021 ”.

Moreover, the employer is obliged to suspend from work an employee who refuses to undergo vaccination in the absence of medical contraindications. Basis - para. 8 hours 1 tbsp. 76 Labor Code of the Russian Federation.

From what date to suspend?

The date of suspension from work due to refusal of vaccination depends on the timing of vaccination determined by the Chief Sanitary Doctor of the region.

EXAMPLE
Heads of organizations and individual entrepreneurs in Moscow were obliged to:
until July 15, 2021 – organize preventive vaccinations with the first component or a single-component vaccine;
until August 15, 2021 – the second component of the vaccine against the new coronavirus infection.
According to Rostrud, suspension from work due to an employee’s refusal to be vaccinated should be issued from August 15, 2021 , if the employee has not provided a vaccination certificate or documents confirming medical contraindications to it on this date.

The list, form, content, as well as persons entitled to issue such documents are determined by the Ministry of Health of the Russian Federation.

According to the law, the employer suspends (does not allow to work) the employee for the entire period of time until the circumstances that became the basis for the dismissal are eliminated (Part 2 of Article 76 of the Labor Code of the Russian Federation). Commenting on this norm, Rostrud cites a rather vague wording that the employer has the right to suspend “for the period of epidemiological troubles.”

Procedure

Employees may be faced with the problem of what to do if their manager does not grant leave. You can appeal against an employer’s actions only if the following requirements are met:

vacation is provided according to schedule;
The employee has worked for the organization for at least 6 months.

If there are obstacles from management to legal rest, the employee may contact the following authorities:

commission on labor disputes in the organization;
trade union;
labor inspection;
the prosecutor's office;
district court.

Complaint against an employer to the labor inspectorate (sample)

Not all companies have labor dispute commissions or organized trade unions. In this case, you must first contact the labor inspectorate, and if the employer ignores the official’s conclusion, contact the prosecutor’s office or court.

If there are contraindications

The rules on compulsory vaccination do not apply to those who have contraindications to it, established by methodological recommendations for the procedure for vaccination with Gam-COVID-Vac, EpiVacCorona and CoviVac, which are confirmed by a medical report .

According to Rostrud, the employer has the right to require employees who have contraindications to vaccination against COVID-19 to submit supporting medical documents. In case of refusal, the employee is subject to suspension from work without pay.

Which categories of workers cannot be refused?

Pregnant woman before maternity leave

Article 260 of the Labor Code establishes that an employee has the right to take annual leave before maternity leave, after maternity leave, or after completing maternity leave. To exercise this right, a written application must be submitted to the employer.

The length of leave depends on whether the woman used her right to rest in the current year or not. If she has not yet been on vacation, or has not used it fully, then she is given a rest period equal to the remaining days.

Attention! The employer has the right to refuse leave if she has already used her right to rest in a given year, and her new working year has not yet begun.

For minor employees

Leave for an employee who has not yet reached 18 years of age must be granted outside the schedule on any date desired by the employee. In addition, the rest period is not 28 days, as for ordinary categories of workers, but 31 calendar days.

Thus, a minor is not subject to the rule of granting leave only after 6 months of work - he can write an application after a month of work and take the entire period at once, and the employer has no right to refuse him. But if he does not work the entire year, then upon dismissal from his salary it will be necessary to withhold excess amounts of vacation pay (but not more than 20% of the total payment).

Wife/husband of military personnel

The Labor Code, as well as the current law, establish that the second military spouse can take leave at the same time as the other spouse. It does not take into account whether this period of rest is provided according to the schedule or outside of it.

To receive a vacation, you must write an application to transfer the vacation period to another time and attach an available document confirming the benefit. The employer has no right to refuse such a transfer.

Attention! In addition, the second spouse has the opportunity to take advantage of the privilege and equalize the vacation period with the first spouse (in the case when he has a longer vacation period). However, additional days are provided without pay in the status of vacation at your own expense.

Single mother

The Labor Code or other legislative documents do not provide for priority rights to leave for single mothers. Thus, they must go on vacation along with other employees and according to the established schedule.

However, Art. 263 of the Labor Code of the Russian Federation establishes that if this is established by a collective agreement, then a single mother should be given a vacation period without pay for 14 days at any time convenient for her. In this case, this vacation can be provided in full or in parts.

Attention! To obtain this right, the mother must fill out an application with a request and attach documents confirming her status as a single mother.

Parents of a disabled child

This category of employees retains all standard leave rights. In addition, in 2015 an amendment was made to the Labor Code of the Russian Federation (Article 262.1). She established that such workers can receive a period of rest at their request at any time they need. They cannot be denied the right to receive paid leave.

This rule applies not only to parents, but also to guardians, adoptive parents, and guarantors. It is valid until the child turns 18 years old.

What to do if your boss denies you leave

Often, labor laws are observed only on paper.
In real life, managers often deny their employees vacations, justifying their decision with mythical production needs or other equally important reasons. This state of affairs cannot be tolerated. We need to fight for our rights, because company directors are not omnipotent, and they can be held accountable for violating the Labor Code.

Labour Inspectorate

This organization is the regulator of legal relations between employers and hired personnel. Therefore, if the company’s management illegally refuses leave, the first thing to do is contact the Labor Inspectorate.

Read also: Tax on bicycles in Russia in 2021

You can do this in three ways:

Personally;
Through the official website;
By mail.

The complaint is drawn up in free form, but without expressive expressions or profanity. Anonymous applications will not be accepted for consideration, so the applicant must leave his personal identification information. Upon receipt of the complaint, an investigation will be carried out. If the violation is confirmed, the employer will be held administratively liable.

Prosecutor's office

It is better to contact this supervisory authority after an application to the labor inspectorate or in situations where this authority was unable to solve the problem.
An application to the prosecutor's office can be submitted in person or via the Internet. As in the previous case, anonymous letters are not accepted for consideration. The complaint must detail the circumstances of the case and attach photocopies of documents confirming the employment relationship with the employer. Verification of such requests takes a month; in some cases, the period can increase to 60 days. The applicant is notified of the results of the verification by letter sent by mail or email.

Court

This is the last authority to turn to in cases where pre-trial settlement methods have not produced the expected result. Attached to the statement of claim are copies of applications to the labor inspectorate and the prosecutor's office, as well as official responses received from these authorities.

Important! Through the court, you can demand not only leave, but also compensation for moral damage caused by the actions of the employer.

In any case, the situation with non-provision of required leave must be resolved strictly within the framework of current legislation. Some employed citizens believe that they can go on vacation on their own if it is their turn, notifying their immediate superior. This is mistake. Such situations are interpreted as a violation of labor discipline. Therefore, the employer has the right to dismiss a negligent employee legally.