How to calculate vacation if it falls on holidays

Author of the article: Yulia Kaisina Last modified: January 2021 140138

The Labor Code guarantees the right to annual paid leave, which is measured in calendar days. This means that it includes both working days and weekends (excluding non-working holidays). In practice, vacation usually begins on weekdays, but in some cases it becomes necessary to take vacation from the weekend. What should the employee, HR officer and accountant pay attention to, and is it possible to take vacation only on weekends?

General provisions

The Labor Code of the Russian Federation stipulates the right to rest, one of the types of which is vacation (Article 106 and Article 107 of the Labor Code of the Russian Federation). Its standard duration is 28 calendar days. For some categories of citizens this figure increases. The right to it arises six months after employment.

Expert commentary

Kamensky Yuri

Lawyer

Vacation is provided in accordance with the schedule drawn up by the employer, taking into account production processes and the opinions of employees. In the future, changes to this schedule are allowed only with the consent of both parties. For example, an employer may recall an employee from vacation due to business needs, or an employee may ask to reschedule the vacation to another time. The employee is notified by signature that he is to go on vacation no less than two weeks before the start of the vacation (Article 123 of the Labor Code of the Russian Federation).

The Labor Code allows you to take all days at once or split your vacation into parts. The number of such parts is not limited, but at least one of them must be at least 14 calendar days (Article 125 of the Labor Code of the Russian Federation). The duration of the remaining parts is not regulated - theoretically, they can be taken even for 1 day during the calendar year. At the same time, replacing vacation with monetary compensation is not allowed, except in cases of dismissal of an employee from the company. Also, you cannot transfer vacations to the next year.

The start date of the vacation must be agreed upon between the employee and the employer. In practice, most often vacation is taken from the first working day after the calendar weekend. But this is not necessary - the start date of the vacation can be any if it suits both parties - both from the middle of the working week and from the weekend.

Legislation

Article 112 of the Labor Code of the Russian Federation contains a list of specific dates officially declared as non-working days. If such a day falls within vacation time, the vacation is automatically extended by one day, which is the first working day after the vacation. Examples will be discussed below

, now it’s enough to simply understand the rule:
“a holiday during a vacation = plus one day for vacation.”
Management is well aware of such subtleties of labor legislation and prepares for them in advance. If possible, such time periods are simply excluded from the vacation schedule, since it is much easier to reduce the procedure for granting vacations to a simple formula “from Monday to Monday”, and not be put in a difficult situation in which one employee has not yet left, finishing the last day, and the other has already gone on vacation since Monday.

Regular attempts by the same employee to figure out vacation time for holidays will never go unnoticed by the manager, and one can only guess what conclusions he can draw regarding such a legally prepared subordinate.

Vacation from the day off

With a five-day work week, vacation from the day off begins either on Saturday or Sunday. Most often, employees do not take advantage of this opportunity, because there is no point in it - these days a person does not go to work anyway and can use them at his own discretion. But going on vacation during one of them is not forbidden.

There may be several reasons for this:

• earlier accrual of vacation pay. By law, an accountant must transfer vacation pay no later than 3 days before the start of the vacation. If the first day of vacation is Monday, then the employee receives the money on Thursday. If you specify Saturday as the first day, the money will be issued on Tuesday. In some cases (large expenses, tourist trip, urgent need for finances) this plays a decisive role;
• In the organization they are often sent to work on their days off. Despite the fact that working on days off is a right and not an obligation of an employee (with the exception of a few specially specified cases), such a practice may be of a “voluntary-compulsory” nature. If a person has planned a trip or simply does not want to work on Saturday or Sunday on the eve of his vacation, he can write an application for vacation on these days in order to be guaranteed to avoid being called to work;
• The employee has several days of vacation left, but for some reason it is not possible to take them off during working hours, or the person himself prefers to work. In this case, he can write a vacation from the day off. Two days will be spent on vacation, and the organization will not have an obligation to provide them in the future. Thus, the employer does not have any vacation debt, and, as a result, he is not in danger of trouble in the event of inspections. At the same time, the number of working days is almost not reduced and the production process does not suffer. The employee himself will receive payment for these days, which for some is preferable to real rest.

These are just some of the reasons; in a particular case, the motives may be different. For example, a person needs to go to work on a certain date, and the first day of vacation is chosen taking this circumstance into account.

In this case, it does not matter what kind of day off we are talking about - a calendar day, or a “sliding” one, which happens to people with a shift schedule.

It must be borne in mind that the employer does not have the right to force a person to write an application for leave on a day off. In the same way, if an employee has already used the 14-day vacation allotted to him, and wants to split the rest, resting only on weekdays, he cannot be forced to add two days off to his vacation against his wishes. However, this rule applies only until the vacation schedule is drawn up. When it is agreed upon, the employee goes on vacation for the number of days specified in the document.

Holiday leave

In addition to calendar weekends, there are non-working holidays. Their difference is that they are not included in the next vacation and are not subject to payment (Article 120 of the Labor Code of the Russian Federation). In this case, the vacation is extended by the number of holidays.

Even if an employee works on a staggered schedule and does not rest on holidays, these days are not included in the next vacation. Therefore, writing an application for leave from a holiday most often does not make sense - this day is actually excluded from the calculation of leave and is not subject to payment. However, theoretically this is not prohibited, for example, in order to receive vacation pay earlier.

This also makes sense if a person works on a rotating schedule and has a work shift on a holiday. In this case, he will not receive money for that day, since non-working holidays are not paid to anyone, but he will be able to go on vacation earlier.

Expert commentary

Gorchakov Vladimir

Lawyer

Moreover, if a holiday falls on a calendar weekend and is thus transferred to a weekday, then you can write a vacation application from the date of transfer. For example, March 8 fell on a Sunday, so the day off was moved to Monday. In this case, the employee can write an application for leave from Saturday or Monday (March 7 or 9, respectively).

Will they be allowed to take only May 4-7 and rest for 10 days?

The Labor Code does not contain prohibitions on such actions.

Example

Sidorov S.S. wrote a statement:

Please provide me with another paid leave from 05/04/2021 for 4 calendar days.

Sidorov will get a mini-vacation of 10 calendar days using only four vacation days. Of all the options described in the article, this is the most profitable in terms of saving days. But there are two restrictions:

• the employer agrees to let Sidorov go (and if he does not agree, it is useless to insist);
• when dividing the rest period, do not forget that one part of it should be at least two weeks continuously.

Holidays only on weekends

Sometimes an employer, for some reason, refuses to provide a person with leave. For example, the company has a staff shortage, and the departure of an employee will negatively affect the work process. Some employers offer to write a vacation application only for weekends (Saturday and Sunday, or those days that are scheduled weekends).

Despite the fact that the employee receives payment for these days, such an action violates the employee’s rights to rest. Since in accordance with Art. 107 of the Labor Code of the Russian Federation, vacation and weekly continuous rest (weekends) are different types of rest, then their regular combination actually lengthens the working hours of employees throughout the year and does not allow them to fully rest.

Expert commentary

Gorbunova Olga

Lawyer

This contradiction is indicated in the letter of the Ministry of Labor dated December 7, 2018, which reads: “The Code does not establish a prohibition on granting leave to an employee if the start of the leave falls on a weekend and (or) a non-working holiday. At the same time, providing annual paid leave exclusively on weekends will not comply with the requirements of the Labor legislation of the Russian Federation.”

Despite the fact that the letters of the Ministries are of an explanatory nature and are not officially normative acts, it is recommended to adhere to them. The current practice is such that the information contained there becomes instructions for the application or interpretation of certain legal norms. Therefore, despite the fact that in the Labor Code itself there are no direct prohibitions on vacations only on weekends, from December 2021 this practice is considered illegal.

At the same time, the wording in the Letter can be understood in two ways. It can be interpreted in such a way that we are talking only about the constant practice of providing regular leave exclusively on weekends. Therefore, it can be assumed that a one-time incident will not be regarded as a violation. However, if possible, it is better for the HR officer to play it safe and not take out vacations only for weekends. If there is such a need, it is recommended to add at least one working day to them (Friday or Monday with a five-day working week or in accordance with the schedule). In this case, there will be no formal violation of the Letter of the Ministry of Labor, since the employee rests at least one working day and his rights are not infringed.

Important! If during an audit it is discovered that an employee’s vacation is provided exclusively on weekends, this approach may be regarded as a hidden payment of compensation for unused vacation. In this case, the employer faces a fine.

In accordance with Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation for a primary violation a warning or fine is possible:

According to Part 2 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, repeated violation leads to increased fines and disqualification for a period of one to three years:

How to book a vacation

Weekend leave is processed in the same way as any other. The employee writes a statement addressed to the manager, indicating:

• vacation start date;
• its duration in accordance with the vacation schedule.

The day you go back to work is calculated as usual: by the number of calendar days, with the exception of those that fall on holidays. If this happens, the vacation is extended for an appropriate period (usually 1 day).

Based on the application, an order is issued, and the accounting department calculates wages. At the same time, the accountant must remember that vacation pay in this case should be transferred earlier. Marks are also entered into the employee’s time sheet and personal card.

How to relax longer and spend fewer vacation days

The most economical way for those who continue to work as usual or remotely 5 days a week is this: from April 30 for seven days. Statement wording:

Please provide me with another paid leave from 04/30/2021 for 7 calendar days.

The calculation is as follows: seven days end on May 7, the 8th is Saturday, then there are 2 more days off - the 9th and 10th. Leave for work on 11.05. I've been off work for almost a week and a half.