Author of the article: Vladimir Danilevsky Last modified: January 2021 71386
Leave due to the death of a relative is a necessity for a citizen who has lost a loved one. During this time, you need to do a lot of important things, say goodbye to your loved ones and put your thoughts in order before going to work. For an employer, providing days is not a right, but an obligation established by the Labor Code of the Russian Federation. Despite the clear regulation of the procedure, in practice conflicts still occur between the parties. Often the court intervenes in the matter. The article will describe in detail the nuances of providing leave in connection with the death of an employee’s relative, as well as issues that can be agreed upon by the employee and the employer.
Legal regulation of the issue
The main document regulating the situation under consideration is the Labor Code of the Russian Federation, as well as the Family Code of the Russian Federation.
Yes, Art. 128 of the Labor Code establishes the employee’s right to receive unpaid days in the event of the loss of a loved one. This category of leave is justified by the employee’s family circumstances. In this case, the period for which a citizen is released from work is determined in the latter’s application in agreement with the management of the employing organization. The employer must provide days related to family circumstances to the following categories of citizens:
- WWII participants - up to 35 days in 12 months;
- for citizens who have reached retirement age and continue to work - up to two weeks per year;
- parents and spouses of persons who worked as part of the law enforcement agencies of the Russian Federation, died as a result of injuries during the performance of duty, or died as a result of diseases received during service - up to 2 weeks in 12 months;
- persons with disabilities who continue to work - up to 2 months a year;
- at the birth of a baby, official marriage, death of loved ones - up to 5 days;
- in other situations specified in legislation or collective agreements of organizations.
In the case of the death of a relative, the question arises as to who exactly falls into this category. Labor legislation does not provide explanations. Therefore, it is worth using the definition approved by the RF IC. The Ministry of Labor of the Russian Federation adheres to the same position (letter dated August 30, 2019 No. 14-2/OOG-6315).
Leave of up to 5 days without pay is provided to citizens who have lost:
- parent;
- grandfather (grandmother);
- child, grandchild;
- brother (sister).
The relatives indicated above correspond to the list named in Art. 14 RF IC. In addition, the clarifications of the Ministry of Labor of the Russian Federation say that confirmation of family ties when submitting an application is not provided for by current legislation. However, the personnel service of the organization has the right to ask an employee in need of leave to present, if desired, a certificate of the death of a loved one and a document indicating a relationship with the deceased.
Important! If the employee refuses to fulfill this request, then management will still not be able to refuse to provide the person with days, since this norm is not legally enshrined.
Expert commentary
Platonov Alexander
Lawyer
In the event of a conflict, the court will side with the petitioner and recognize the absence from work as valid. For example, according to the appeal ruling of the Supreme Court of the Karachay-Cherkess Republic dated November 1, 2017 (case No. 33-1004/17), a citizen challenged her dismissal due to absence from work due to the death of her grandmother. The authority determined that the employer’s actions were illegal, including in terms of unilateral termination of the employment agreement in accordance with paragraphs. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation.
It is also worth noting this detail: adopted children in relation to their adoptive parents and vice versa are considered equally close to relatives by blood and origin (Article 137 of the Family Code).
Design features
Leave is issued based on an application from the worker. It is acceptable to submit this document right before your vacation, since death is not something that can be planned. The application form is not established by law. When drawing up, you should focus on the standard form.
Application example
General Director of Prodvizhenie LLC I.V. Sidorov, promotion department manager A. S. Krylova
statement.
Please give me leave without pay from 07/06/2021 for 5 calendar days due to the death of my father.
07/05/2017
A.S. Krylova
How to apply correctly?
Based on the application, management issues an order to issue leave. In this case, either the enterprise template or the T-6 form is used. The paper does not need to specify the reason for the vacation, but it is necessary to indicate its start and end dates.
Management must also put the appropriate marks on the time sheet:
- OZ or 17 – leave due to the death of a relative, granted on the basis of the Labor Code of the Russian Federation.
- DO or 16/DB or 18 – leave due to the death of another person, granted on the basis of the employer’s decision.
Documents must be requested from the employee. In particular, you need a copy of the death certificate, documents confirming the relationship with the person (for example, a birth certificate). As a rule, these documents are provided after the vacation.
Is leave paid due to the death of a relative?
In accordance with the requirements of the Labor Code, days are provided to the employee without pay. However, the employer can proactively pay the citizen for missed time. If the organization practices this procedure for granting leave, then days with continued pay can be obtained under a local act. It must contain appropriate justification for payments (in the case of funerals).
In such a situation, paid leave can be extended for another 5 days, provided for by current labor legislation (at your own expense). To do this, you need to create an additional application and submit it for approval to the management of the hiring company.
Applications for leave due to the death of a relative (sample)
Material support from the organization
The legislation does not give organizations the obligation to provide financial support to a citizen in connection with the death of a relative. However, in practice, some enterprises transfer certain amounts to a citizen for the purpose of moral and material support, because the employee bears significant expenses in connection with the funeral. In order to properly organize the process, the company must adopt internal regulations containing the relevant standards.
Within the framework of local agreements, assistance involves the implementation by the parties of the following stages:
- Submission of an application addressed to the head of the organization from an employee.
- Transfer of documents confirming the relationship of the employee and the deceased.
- Transfer of funds to the employee’s account within the terms established by the contracts. Most often, money is transferred within 14 days from the date of loss of a loved one.
State support for an employee in connection with the death of a loved one
Upon the death of a relative, a citizen is provided with financial assistance at the expense of the state. Social benefits have a specific purpose. It is provided for the funeral of a loved one. You can receive money either directly by contacting the local social security department or through your employer.
Expert commentary
Kamensky Yuri
Lawyer
To apply for a social support measure, the beneficiary must submit documents using one of the methods indicated above. The deadline for submitting papers is 6 months from the date of death.
Are proceeds from a relative's funeral subject to taxes?
Financial support from the employer and the state is transferred to the relative of the deceased who has completed the appropriate application in full (without deducting insurance premiums and tax withholdings). This rule, including that established by clause 8 of Art. 217 Tax Code of the Russian Federation. However, to exempt yourself from contributions, the deceased must be the employee's child, parent or legally married partner. In other cases, the amount is not subject to reduction if the citizen lived with the deceased in the same living space (in fact, he was registered there).
Allowance for funeral services
Not many people know that in the Russian Federation, as a social state, compensation is paid for funeral services. Relatives directly involved in organizing the funeral are entitled to receive a sum of money. In 2021, the payment amount starts from 5,900 rubles; in a number of regions where there is an increasing coefficient, the benefit is larger.
In addition to the above payment, a number of enterprises provide special compensation for the death of a close relative. This rule is fixed in the collective agreement and applies to all officially employed employees. The amount of the benefit is determined by the employer. Actual funeral costs are not taken into account in this case.
You can receive benefits to pay for funeral services at the place of employment of a deceased relative; if he did not work, then at the Pension Fund of the Russian Federation or social security.
What does an employer face if they refuse to provide leave?
There are situations when an employer refuses to provide a person with leave due to the need to say goodbye and bury a relative. Most often this is due to an unlawful requirement to provide certificates indicating the relationship of citizens. One way or another, the employee can complain to regulatory authorities. A complaint to the labor inspectorate will most likely result in a large fine for a negligent employer. Sanctions are provided for the following persons (Part 1 of Article 5.27 of the Administrative Code):
| For legal entities | Officials and individual entrepreneurs |
| 30,000 - 50,000 rub. | 1000 - 5000 rub. |
How can an employee defend his right to be provided with days?
If an employer adamantly refuses to provide a person with leave for the funeral of a loved one, then the latter must act decisively, because the truth is on his side. As a rule, the first authority to contact is the labor inspectorate. However, during preparations for burial and farewell ceremonies, not everyone will act in this way.
Taking into account judicial practice, it is recommended to use the following algorithm of actions:
- Formation of an application for the provision of days in connection with the loss of a relative.
- Submission of a document confirming admission (possible by mail). The best option would be to submit the appeal in two copies to the secretary of the organization. The latter will mark the registration of the application and return one of the documents to the citizen.
- Unauthorized abandonment of work for the period specified in the legislation (5 days according to the Labor Code of the Russian Federation).
Expert commentary
Gorchakov Vladimir
Lawyer
The indicated scheme will allow you to avoid dismissal even in the presence of a conflict situation. If an employer tries to terminate a contract with a subordinate unilaterally, then such an action can be easily challenged in court and reinstated.
When resolving a dispute in a labor inspectorate or court, you will need to submit:
- evidence of the formation and submission of an application for days off;
- death certificate of a relative;
- documentation indicating the presence of a family relationship between the employee of the enterprise and the deceased.
In case of litigation, there is no need to pay a state fee (clause 1, clause 1, article 333.36 of the Tax Code).
Since the death of a loved one is a valid reason for temporarily leaving work, the courts almost always side with the plaintiff. Employers are well aware of this and admit their mistake at the first mention of the standards enshrined in labor legislation.
How many days are given according to Art. 128
The amount of leave required comes to the fore.
Especially in such cases:
- when you need to travel far;
- The trip itself takes quite a long time.
A simple example: an employee’s husband, who was working in the capital of the country or abroad, died. There won’t be any problems with the documents, but she needs time to get to the relative’s body. What she must do is regulated by the above law. The woman writes a statement (you can first discuss the current situation with the employer in words, but words are not enough), which will outline the essence.
The maximum period is 5 calendar days, regardless of whether they fall on weekends or holidays. The number can be increased if necessary by taking vacation after the weekend or days assigned to each employee as standard vacation.
We recommend you study! Follow the link:
Providing and calculating student leave in accordance with the Labor Code
In addition, there is always the option of reaching an agreement: the employer is not a machine or a robot and he will understand if the journey requires more time than is allocated in this case. A similar situation occurs with a relative who cannot be called close.
Having previously discussed the issue with the employer, you can write an application for unpaid leave and indicate the reason for a funeral. But the list of relatives can be expanded and supplemented by the employer himself, and therefore you must first clarify who is considered a close relative not according to standard concepts, but according to the documents of the given enterprise.
