Annual paid leave under the Labor Code (nuances)

The procedure for granting leave according to the Labor Code of the Russian Federation

Annual basic paid leave (according to Article 114 of the Labor Code of the Russian Federation) is free time that is provided:

• any employee for a certain number of days a year;
• without fail;
• with saving of working space;
• with payment based on the average salary in the previous year.

In order for an employee to go on vacation, some nuances must be observed:

1. Vacation experience is the minimum time that an employee must work in an organization in order to gain the right to go on vacation.

The general requirements for calculating length of service are set out in Art. 121 Labor Code of the Russian Federation. It includes:

• actual time worked;
• the time when an employee was absent from work, but his place was retained, including during forced absences and downtime;
• the time when the employee was suspended through no fault of his own;
• vacation time at your own expense up to 14 days a year.

And the time does not turn on:

• on parental leave until the appropriate age;
• downtime, absenteeism, suspensions due to the fault of the employee;
• vacations at your own expense in excess of 14 days.

According to the norms of the Labor Code (Article 122), the first opportunity for an employee to take basic leave arises after his work experience with a given employer is 6 months. Exceptions may be made:

• for pregnant women and women on maternity leave;
• minors;
• adoptive parents of newborns;
• other citizens in cases provided for by federal laws, for example, for Chernobyl victims (clause 5 of article 14 of the law of the Russian Federation of May 15, 1991 No. 1244-I), spouses of military personnel (clause 11 of article 11 of the law of May 27, 1998 No. 76-FZ ).

Further vacations are given in accordance with the vacation schedule approved by the employer for the next year.

1. The procedure for granting vacations requires that they comply with the schedule. There are 2 options for compiling it:

• The schedule shows the exact vacation dates. Then the employer must remind (notify) the employee about the vacation against receipt no later than 2 weeks before it starts (Article 123 of the Labor Code of the Russian Federation).
• The schedule shows only the month of vacation. Then the employee should write a statement indicating the start date of the vacation, and the employer should notify the employee about the start of the vacation from the specified date. The deadline remains the same (minimum 2 weeks).

According to the Labor Code of the Russian Federation, vacation can be postponed due to serious production needs. It should be borne in mind that transferring vacation to the next year is possible only with the consent of the employee.

ConsultantPlus experts spoke in detail about the nuances of postponing vacation due to production needs. Get trial access to the K+ system and upgrade to the ready-made solution for free.

Unscheduled leave may be granted to the same categories of employees who are entitled to leave granted without completing the minimum required length of service.

Read more about drawing up a vacation schedule in the article “Vacation schedule - form and sample for filling out in 2021.”

1. The leave is formalized by an order, which the employee reads against signature.

The form and example of the order are given in the material “Order for annual paid leave - sample and form” .

Sample application

New changes in legislation do not establish a unified application form. Important data such as:

• Full name and position of the manager, company;
• Full name and position of the employee;
• document's name;
• request to provide leave, start and end date;
• date and signature.

After 6 months of work, the law requires vacation, which is paid. It is available in full, regardless of working for less than a full year, and is calculated based on the billing period and average earnings.

How long is the vacation?

The duration of the main paid leave must be at least 28 calendar days per year (Article 115 of the Labor Code of the Russian Federation). A longer holiday can be set:

• federal legislation for certain categories of workers;
• internal regulations of the enterprise (for example, a collective agreement).

Important! By agreement between management and the employee, leave can be taken in parts, provided that at least one part lasts at least 14 days. Find out how you can split your vacation into parts here.

The duration does not include (vacation for these periods is extended):

• holidays;
• days of illness.

Vacation days are reflected separately in the working time sheet.

Read more about this in the article “Working time sheet - form T-13 (form)” .

Right or obligation of the employer?

Is an employer required to provide vacation after 6 months of work? This issue often becomes a stumbling block between the interests of the employee and the employer.

The latter may mistakenly believe that he is not obliged to provide it immediately after the period of 6 months from the date of employment. However, it is not. An employee has the right to go on vacation for 14 days after working for more than 6 months.

However, he can do this later, for example, if an employee in a similar position is on vacation, on sick leave, etc.

Refusal to provide rest time for an employee may result in an appeal to the competent authorities with subsequent inspections.

When should vacation be paid?

As a general rule, vacation pay must be issued to the employee no later than 3 days before going on vacation.

See : “If vacation starts on Monday, you cannot issue vacation pay on Friday.”

In practice, exceptions are possible (for example, an employee is immediately given a part of paid leave, and the money is paid the day before), but the procedure for such situations is not established by law. That is, the inspection authorities may regard it as a violation.

See: “Emergency leave by an employee may result in a fine for the employer.”

Rules for calculating average daily earnings

To clarify the question you are interested in, you must:

1. First, find out information about the calculation period.
2. Determine the amount of payments issued to the citizen during this time period.

The calculation includes the calendar year until the start of the vacation.

Accounting for months in the calendar is done like this:

1. January: from 1st to 30th inclusive.
2. February: from 1st to 28th inclusive.
3. March: from 1st to 31st inclusive.
4. The remaining months are calculated similarly.

When calculating vacation pay, the days worked by the employee before the vacation are taken into account.

Example one . How to find out the calculation period?

A citizen wants to go on vacation from 07/10/19.

How then is the calculation period calculated:

• time from July to December '18;
• time from January to June '19.

Additional paid leave: cases of provision and payment

Additional leave is provided without fail in situations provided for by the Labor Code of the Russian Federation and other federal laws:

• workers employed in hazardous and (or) hazardous industries;
• working in the Far North and similar places;
• minors;
• disabled people;
• workers with irregular hours;
• working in the fields of sports, education and medicine;
• for certain types of work of a special nature;
• employees of government agencies for military and regulatory purposes;
• a circle of people for whom leave is compensation (victims in Chernobyl, Semipalatinsk, etc.).

Additional holidays may also be established by internal regulations.

If there are additional vacation days, they are summed up in the year with the main vacation to calculate the total duration of annual vacation and the amount of payment for vacation.

Cash taken into account when determining the average salary

Expert opinion

Novikov Oleg Tarasovich

Legal consultant with 7 years of experience. Specializes in criminal law. Member of the Bar Association.

Based on the Regulations, the average salary is calculated on the basis of payments made to a citizen by the company (Resolution of the Government of the Russian Federation of December 24, 2007 N 922 (as amended on December 10, 2016) “On the specifics of the procedure for calculating the average salary”) More details:

• earnings - salary, hourly payments, interest on revenue, commission plan awards, etc.;
• earnings given to a citizen in kind;
• material maintenance provided for the period worked by a state or municipal employee;
• payments to people working in the media and cultural workers;
• remuneration of teachers for extra time worked, less workload for a given academic year, accrual time is not an important factor;
• various types of additional payments - for secrecy, knowledge of foreign languages, extensive experience, class management (for educational institutions);
• compensation paid for unsuitable working conditions;
• other bonuses and payments.

Excerpt from Decree of the Government of the Russian Federation dated December 24, 2007 N 922 (as amended on December 10, 2016) “On the specifics of the procedure for calculating average wages”

Important ! It is worth noting that social compensation is not taken into account - this is material assistance, compensation for lunch, travel, education, etc.

Results

Annual leave is mandatory for each employee after a certain period of work with the employer giving the leave. In some cases this period may be shortened. When employees go on vacation during each calendar year, it is regulated by the vacation schedule approved for that year.

The duration of full annual leave is 28 calendar days, but can be increased by additional days provided. Persons of certain categories are given additional leave without fail. Vacations may be split into parts.

Vacation pay is paid no later than 3 days before the start of the vacation. Their calculation is done for the actually used number of vacation days by multiplying them by the average daily earnings. The latter value is calculated from the income received by the employee at the place of receipt of leave for the 12 months preceding the month of going on leave, and taking into account the legally established average number of months per year. Vacation pay when the billing period is not fully worked out occurs according to a special formula.

Sources: Labor Code of the Russian Federation

You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Examples of calculations of vacation payments in 2021

Situation 1

An employee works on a 5-day working week and consistently receives the same amount of wages (salary). It is quite easy for such an employee to calculate how much vacation pay he will receive. To do this, he just needs to take the amount of his salary and divide it by 29.3, and then multiply it by the number of vacation days.

Let the salary of such an employee be 100,000 rubles. “net”, i.e. this is the amount he receives monthly (“advance” + “salary”) after personal income tax has been withheld. The salary in this case will be 114,943 rubles. Then the “price of the day” of vacation pay will be 3,922.96 rubles. (114,943 / 29.3).

And the amount of vacation pay for 7 calendar days is 27,460.72 rubles. (3,922.96 x 7).

If an employee wants to save vacation days, then he can write an application for 5 days of vacation (from Monday to Friday), and then the amount of vacation pay will be 19,614.8 rubles. (3,922.96 x 5).

But by keeping vacation days, the employee will receive less money.

In Calculation No. 1 you can clearly see the difference between wages for 5 working days and the amounts of vacation payments for 7 and 5 calendar days. In this case, you should pay attention to those months in which the difference is negative - vacation during this period will bring additional income to the employee due to the fact that there are many working days in them and the “price” of a working day becomes less.

The production calendar for 2021 was used for the calculation.

Calculation No. 1

In Calculation No. 2, we will calculate the total amount an employee will receive if he takes a week’s vacation in each month in 2021.

From the total number of working days for each month, 5 working days are subtracted, which the employee would normally miss when taking a 7-day/5-day vacation, and the amount of payments for the month (salary + vacation pay) that he will receive in the end is calculated.

Calculation No. 2

As can be seen from Calculation No. 2, the profitable months for a vacationer in 2021 are:

• March,
• April,
• June,
• July,
• August,
• September
• October,
• December.

But January, February, May and November are the months in which vacation will deprive the employee of part of his earnings.