Vacation is not on schedule. Latest clarifications from officials

The order of granting paid vacations is established annually by the vacation schedule - this provision of Art. 123 of the Labor Code of the Russian Federation is remembered by almost all employers and in mid-December they already have a ready and approved vacation schedule. But it is not always executed as clearly as stated.

In many cases, neither the employee nor the employer can predict in advance the exact time for going on vacation. On the part of the employer, the decision to take an employee’s vacation unscheduled can be influenced not only by the employee’s requests and their own interests, but also by external circumstances. And the notorious “production necessity” may arise spontaneously and outside the plans of the employer himself, but in this case, the transfer of vacation is possible only with the written consent of the employee and no later than for the next working year (Part 3 of Article 123 of the Labor Code of the Russian Federation).

On the employee side, plans change for a variety of reasons.

Therefore, it is often possible to state at the end of the year that the vacation schedule was only partially fulfilled, while the bulk of vacations were not granted according to the schedule. And here the HR officer and accountant feel uneasy. First of all, it’s scary because it’s unclear whether the employer will face punishment for the fact that the schedule was executed so poorly, but at the same time everyone (both employees and employer) was satisfied. It’s even worse if the requirements for advance notice and payment three days before the vacation were not met.

But let's look at everything in order.

New schedule for a new company

The vacation schedule is a mandatory document that companies are known to draw up at the end of the calendar year and approve no later than two weeks before the new year.
But what about enterprises that started working in the coming year? Do they need to draw up such a schedule, or can new companies operate without a vacation plan at all until the end of the year? No, they cannot, the State Labor Inspectorate in Moscow reported in a letter dated February 1, 2021 No. 77/7-1899-21-OB/10-3366-OB/18-1193.

The State Tax Inspectorate indicated that a vacation schedule must be maintained even for a company that began operating from the beginning of the year, while the schedule of employee rest periods must be filled out as new specialists are hired.

Labor inspectors also clarified that micro-enterprises may refuse to draw up local regulations, including a vacation schedule. However, in this case, the company needs to enter into a written agreement with the employee, reflecting this fact in a standard employment contract.

THERE IS NO HOLIDAY SCHEDULE - THIS IS AN UNCONDITIONAL VIOLATION

For the absence of a vacation schedule, the employer may be held liable in the form of a fine provided for in Part 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation, in the amount:

• for a legal entity - from 30 to 50 thousand rubles;
• for individual entrepreneurs - from 1 to 5 thousand rubles;
• for responsible officials of the organization - a warning or a fine from 1 to 5 thousand rubles.

There are no ways to minimize the risk of liability, other than timely approval of the vacation schedule.

Exact dates

Letter of Rostrud dated December 24, 2021 No. PG-59141-6-1 is devoted to the accuracy of compliance with the dates specified in the vacation schedule. The department was asked whether it is necessary to indicate specific dates in the vacation schedule? Indeed, according to the Ruling of the Supreme Court of the Russian Federation dated February 6, 2014 No. APL13-606, Russian labor legislation does not contain requirements according to which exact calendar dates must be indicated in the list of rest periods. And is it possible, if the employee has not yet decided on the dates on which he plans to rest, to indicate only the month in the vacation schedule? The question is really relevant, especially for workers who are planning a vacation for a certain season, but have not yet purchased tickets to the vacation destination with exact dates.

In response to the question, the department clarified:
Current legislation does not establish the employer’s obligation to indicate a specific date in the vacation schedule, however, in practice the date is usually indicated due to the regulation of the continuity of the organization’s activities and for the convenience of all employees.

Further, Rostrud noted that the very concept of “vacation schedule” presupposes the indication in the document of specific periods: the beginning and end of employees’ rest time. The dates indicated in the list are the result of an agreement between employers and employees. At the same time, in the future, changes can be made to the schedule at the request of the employee; to do this, he needs to write a statement and agree on new vacation dates with the employer.

Rostrud noted:
The vacation schedule in this case is a document during the implementation of which, by virtue of mutual agreements, changes can actually be made. At the same time, he is a guarantor for both parties in the event that an agreement cannot be reached - both parties adhere to the established vacation schedule.

Thus, it is better to draw up a vacation schedule indicating the start and end dates of the vacation period, and if vacation plans change, agree on new dates.

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What changes await us

The State Duma is currently considering draft amendments to Art. 136 of the Labor Code of the Russian Federation, prepared by specialists from the Ministry of Labor. The decision goes against the previously stated position: the department proposes to calculate the time between the start of vacation and payment in working days.

In addition, the approach to payments in case of unscheduled leave will change radically. If an employee submits an application for unscheduled leave less than three days before it begins, the employer is obliged to transfer the money no later than three days from the date of application. That is, the countdown of time will be carried out in reverse: not from the beginning of the vacation, counting backward, but from the date of application - forward. For scheduled holidays, the same procedure will remain.

For comparison, let’s analyze the situation of Alexey Filonov according to the current rules and the rules proposed by the Ministry of Labor.

The changes proposed by the Ministry of Finance will seriously simplify the employer’s task: not every enterprise can find funds and pay them to an employee within a few hours. And for HR officers there is double work: first, arrange leave without pay, then the second - paid leave. With the approval of amendments to Art. 136 of the Labor Code of the Russian Federation, these difficulties will become a thing of the past. You just need to remember in which case the three days are counted before the vacation, and in which - after the application.

At a convenient time

Some categories of employees have the right to go on vacation not according to a schedule drawn up in advance, but at a time when it is convenient for them. At the same time, the company cannot deny such employees vacation. For example, Article 262.2 of the Labor Code establishes that employees with three or more children under the age of 12 may rest not in accordance with the vacation schedule (which, we recall, is a mandatory document both on the part of the employer and the employee). employees), and at a convenient time for them. In this case, how should the company maintain a vacation schedule, should such employees be included in the general list? The answer to this question was given by the Russian Ministry of Labor in letter dated December 8, 2021 No. 14-2/OOG-17786.

The department reported that in the described situation, all employees must be included in the vacation schedule, including those who have preferences when choosing the start date of their vacation time. Subsequently, when the specialist decides on the date, he must inform the employer of his decision in advance.

The Ministry of Labor noted that.

What does “at least three days in advance” mean?

The deadlines for paying vacation pay - no later than three days before the start of the vacation - are specified in Art. 136 Labor Code of the Russian Federation. And this provision raises questions among accountants.

The first of them is in which days are we counting, calendar or working days? Rostrud, in letter No. 1693-6-1 dated July 30, 2014, and the Russian Ministry of Labor, in an information message dated June 16, 2014, clarified that three calendar days must be counted. If the payment day coincides with a weekend or holiday, payment must be made the day before.

If Alexey Filonov had written a vacation application from Tuesday, November 5, 2021, the accounting department would have to transfer vacation pay no later than Friday, November 1, because November 2 and 3 are weekends, and November 4 is an official public holiday.

Another question is whether the payment day should be included in the three days specified by law? There is still no clear solution approved by labor legislation. In letter dated July 30, 2014 No. 1693-6-1, Rostrud admits that the employer has the right to accrue vacation pay on the first of three days. And this position received support in the courts: the Kemerovo Regional Court (ruling dated January 26, 2017 No. 33-942/2017) and the Leningrad Regional Court (ruling No. 33-3731/2015 dated August 6, 2015) sided with the employer, recognizing his right to include payment date within the designated three days.

But there are also precedents when the courts took the opposite point of view. For example, the Chelyabinsk Regional Court, by appeal ruling No. 11-11043/2015 dated September 17, 2015, indicated that three full days must pass between the start dates of vacation and payment, and recognized the wrongness of the medical institution that paid the money in violation of this deadline. Similar decisions were made by the Rostov Regional Court (decision dated September 16, 2013 No. 33-11864) and the Perm Regional Court (decision dated January 23, 2018 No. 21-46/2018).

Moreover, in 2021, Deputy Head of the Ministry of Labor of the Russian Federation Ivan Shklovets, answering questions from users of the Salary portal, clarified:

“The payment terms are determined in calendar days. If leave is granted on Monday, it begins at zero o'clock on Monday, that is, from Sunday to Monday. Consequently, three calendar days are counted back - until zero o'clock on Friday. This means that vacation pay must be paid by zero o’clock on Friday.

The previous working day—Thursday—ends at 6 p.m., so vacation pay must be paid before the end of the working day on Thursday or transferred after 6 p.m., but no later than zero o’clock on Friday.”

Given this point of view, we strongly recommend that you keep track of how much time is left before the start of your vacation and transfer your vacation pay on the fourth day before the vacation at the latest. The law does not prohibit doing this in advance.

Alexey Filonov’s situation can be resolved as follows: Alexey receives vacation pay on November 11, and takes out paid leave from November 15. Then the deadlines will be met.

Duration of vacation

The duration of the main annual leave granted to an employee cannot be less than 28 calendar days. This period does not include holidays.

The minimum duration of annual leave does not depend on the working hours established for the employee (normal, part-time or reduced). We note, however, that for certain employees the Labor Code and federal legislation establishes a special, extended annual leave. So:

• the duration of the minimum vacation for minor workers is 31 days;
• annual leave for disabled employees cannot last less than 30 days;
• the minimum duration of leave for employees of child care institutions is 43 days;
• employees of educational institutions and teachers have the right to annual leave with a minimum duration of 42 to 56 days;
• Investigators of the prosecutor's office and prosecutors are guaranteed annual leave of at least 30 days.

In all the above cases, the duration of leave is indicated in calendar days.

When the end of vacation is postponed

In addition, rescheduling the end of the vacation is also possible if the vacation falls on:

• the employee’s time of illness (this must be confirmed by a sick leave certificate);
• military training;
• the period of summoning the employee to the investigative authorities (prosecutor's office) as a victim or witness;
• the period of performance of government duties by the employee.

If these circumstances arise, the employee’s vacation will be interrupted, which means the date of return to work must be postponed to a later time.

Splitting and transferring leave

It is possible to grant leave in parts. The division of vacation is carried out by agreement between the employee and the employer, and at least one of the parts of the vacation must last at least 14 calendar days (Article 125 of the Labor Code of the Russian Federation).

Also, by agreement between the parties to the employment contract, vacation may be postponed in cases where:

• the employee was not notified of the start of vacation two weeks before it began;
• The employee was not paid vacation pay on time.

If the employer postpones vacation without the employee’s consent

When a citizen is not allowed to go on vacation or the vacation time is postponed without his consent, then the opportunity to protect his rights is provided. To do this, you need to use the following options for filing complaints:

• to a trade union organization, if one operates in the company;
• state labor inspectorate;
• to the prosecutor;
• judge.

These organizations have the right to organize a check as to whether a person has the right to such rest. If it is determined that a violation has occurred, the perpetrators will be held accountable. However, before you conflict with the company’s management, you can try to negotiate peacefully.

Typical mistakes in granting vacations in 10 questions and answers

Every employee has the right to leave or monetary compensation for it upon dismissal. Moreover, regardless of who the employer is, what the organizational and legal form of the organization is, what type of employment contract and the amount of remuneration. Unfortunately, when granting labor leave, employers often violate the law.

Common mistakes

In some organizations, labor holidays are not paid, their duration is sometimes less than 24 calendar days, and the frequency exceeds a year, there are no vacation schedules, or vacation is not provided to employees in accordance with the schedule.

However, other situations also occur. For example, an employee refuses to take a leave of absence on the scheduled date, starts work early when there is no production need for it, etc.

Let's consider the most typical situations of violations when granting labor leaves, as well as some features of their provision.

Do all organizations need to create a vacation schedule?

A schedule in an organization (including micro-organizations) is mandatory if there is at least one employee on staff.

A vacation schedule must be drawn up, approved and brought to the attention of all employees no later than January 5. A different period may be established by a collective agreement or agreement. The employer can also coordinate it with the trade union <*>.

Note : An agreement under the Labor Code is not an agreement between an employee and an employer, but a normative act. It contains the obligations of the parties and regulates relations in the social and labor sphere at the level of a certain profession, industry, territory <*>. Agreements are concluded at the republican level (general agreement), sectoral (tariff agreement) and local (local agreement).

In the case when the powers of the head of the organization are transferred under an agreement to another commercial (management) organization or individual entrepreneur and there are no employees on staff, there is no need to draw up a vacation schedule.

The schedule provides for vacation, but the employer does not provide it. Is this allowed?

The labor leave schedule must be mutually observed by the employee and the employer. It is possible to change the duration of the scheduled labor leave only by agreement of the parties.

The exception is enshrined in Art. 172 TK. According to this rule, the employer has the right to grant early leave due to exceptional circumstances. For example, when work is unexpectedly suspended due to an accident, natural disaster, lack of energy resources, raw materials.

Consequently, the employer cannot refuse the employee a scheduled leave of absence.

Does an employer have the right to insist that an employee take vacation in installments?

By agreement between the employee and the employer, labor leave may be divided into two parts, unless otherwise provided by a collective agreement or agreement. Moreover, one part must be at least 14 calendar days <*>.

The employer does not have the right to make a decision to divide the vacation into parts unilaterally. This is permitted only by agreement with the employee. Thus, the employer’s refusal to provide the employee with full leave is unfounded.

How long can an employee not take a leave of absence at his own discretion?

The employer is obliged to provide the employee with labor leave, as a rule, during each working year (annually). However, there are exceptional cases when an employee’s full leave of absence in the current working year may adversely affect the normal activities of the organization or individual entrepreneur. Then it is allowed, with the consent of the employee, to transfer part of the vacation to the next working year <*>.

The working year for which labor leave is granted is a period of time equal in length to a calendar year, but calculated for each employee from the date of hire <*>. For example, if an employer hired an employee on September 15, 2021, his working year will be from September 15, 2021 to September 14, 2021. Accordingly, until September 14, 2021, the employee must be granted leave.

The legislation does not give the employee the right to choose whether to take annual leave or refuse it.

Let us note that failure by employers' officials to fulfill the obligation to provide employees with annual leave of absence is one of the most common violations identified by the Department of State Labor Inspection of the Ministry of Labor and Social Protection.

How many parts can labor leave be divided into and which of them must be at least 14 calendar days?

By agreement between the employee and the employer, labor leave can only be divided into two parts. Of course, provided that the collective agreement or agreement does not provide otherwise.

It will be a violation of labor legislation to divide an employee’s vacation into more than two parts if the organization does not have a collective agreement or agreement that allows for such a possibility.

In accordance with Part 1 of Art. 174 of the Labor Code, when dividing vacation into parts, any one of them must be at least 14 calendar days. In this regard, it is possible to make the second part of the vacation lasting more than 14 calendar days.

In what time frame must the employer pay the average salary during the labor leave?

The employer is obliged to pay the average salary during the labor holiday no later than two days before it begins <*>. For employees who work under a contract, the average salary for the entire duration of the labor holiday is paid no later than the day before it begins <*>.

According to Part 1 of Art. 10 of the Labor Code, the periods associated with the emergence, change or termination of employment relationships usually begin to run the next day after the date that determines their beginning.

Procedural periods are calculated from the next day after the date that determines their beginning, and end on the corresponding date of the last year, month or week of the period. If a deadline is set for any action, it must be completed before 24:00 on the last day of the deadline.

For example, an employee’s vacation begins on the 7th. The average earnings for the period of labor leave in the case of a contract must be paid no later than 24:00 on the 5th, in the case of an employment contract - no later than 24:00 on the 4th.

What are the consequences of late payment of vacation pay, including in cases where an employee requests leave from the current or next day and the vacation pay cannot be paid on time?

Failure by an employer to comply with the deadline for paying average earnings during a working vacation is a fairly common violation.

Part 1 art. 9.19 of the Code of Administrative Offenses provides for a fine of 4 to 20 basic units for late payment of average earnings during labor leave. For a legal entity, the fine will be up to 100 basic units.

If the employer does not pay the money on time, the employee has the right to demand on the basis of clause 5 of part 1 of Art. 171 of the Labor Code to transfer vacation to another period agreed with the employer in the current working year. But, as practice shows, employees rarely use this right.

In addition, this administrative violation may become the basis for early termination of an employment agreement (contract) at the request of the employee (Article 41 of the Labor Code). And this entails the need to pay compensation in the amount of two weeks’ average earnings for persons working under an employment contract, three months for persons working under a contract.

Employees often ask for work leave from the current or next day. Then the employer's officials may require a statement that the employee does not object to the transfer of average earnings saved during the vacation at a later date.

However, the legislation does not provide for the possibility of paying the average salary to an employee during labor leave at his request at a later date than established. Consequently, even if there is an application from the employee, transferring money at a later date will be a violation.

Will it be a violation if a part-time worker does not want to use his leave at the same time as his leave for his main job?

The specifics of granting labor leave to part-time workers are determined by Art. 347TK. According to this norm, labor leave for part-time workers is granted simultaneously with labor leave for their main job.

When drawing up a vacation schedule in accordance with clause 3, paragraph. 3 hours 4 tbsp. 168 of the Labor Code, the employer is obliged to check with the part-time employee about the vacation time at the main place of work and plan vacation based on this.

But if a part-time worker does not want to use leave at a part-time job simultaneously with leave for his main job, the general rule will apply.

Thus, Art. 347 of the Labor Code on providing part-time workers with labor leave simultaneously with labor leave for their main job is obligatory for the employer if the employee wishes.

Are there any specifics regarding the provision of labor leave to home-based workers?

Homeworkers have the right to labor leave on a general basis. The duration of vacation must be at least 24 calendar days. This requirement applies to all employers. Disabled homeworkers are granted labor leave of 30 calendar days.

Is it possible to provide labor leave to persons performing work under a civil contract?

With citizens performing work (providing services) under civil law contracts (contracts, paid services, copyright agreements, etc.), not labor, but civil law relations arise. Such relations are regulated not by the Labor Code, but by the Civil Code. Consequently, these citizens do not have the right to labor leave, as well as compensation for non-use.

Published in the journal “Industrial and Trade Law”, 2021, No. 6

Employer's refusal

Important! The employer has every right to refuse to provide leave in advance.

According to the law, the employer's opinion is of particular importance. This also applies to the preferential categories of citizens indicated above. No one will punish the employer for refusing. This is not provided for by the Labor Code of the Russian Federation.

However, citizens in the preferential category have the right to insist on leave . With a written complaint, they have the right to contact the labor inspectorate, which, in turn, can satisfy the applicant’s request and issue an appropriate order to the company.

If a pregnant woman requests leave, she must indicate references to laws in the application, and provide a written opinion from a medical institution as a basis. In addition to the application, other papers are attached - certificates, etc. Therefore, it is better to establish a relationship with the employer immediately upon starting a job. So that in the future you don’t have to go to third-party organizations for help.

What is the rest period for days not worked?

Is it possible to take the period of rest that an employee is entitled to by law ahead of time? It turns out yes. Those days when an employee goes on vacation, but does not have a full right to it in the form of time worked, are called vacation in advance. Naturally, all days taken in advance must be worked off .

Is it possible to provide such leave in advance for the next year, in a situation with dismissal immediately after the holiday? Yes, it is possible, but in this case the difference for unworked days is withheld from the worker’s salary. This rule is regulated by Article 137 of the Labor Code of the Russian Federation.

Vacation of a new employee

During the first year of work, employees have unscheduled vacations. According to the law, a person can receive it within six months after being hired. For individual people, this period can be reduced at their request. Naturally, the schedule for a beginner does not include rest time. Therefore, the issue can be resolved only by agreeing with the authorities on rest on days convenient for each of the parties. If an employee is hired to replace a fired employee, management may agree to provide vacation on the days on which it was planned for the previous employee. Then there will be no need to make additional personnel moves.

Providing unscheduled leave without pay

Providing leave for certain categories of employees is not a right, but an obligation of the employer. This is indicated by Part 2 of Art. 128 Labor Code of the Russian Federation. So, the employer is obliged, on the basis of a written application from the employee, to provide leave without pay to the following categories of citizens:

The concept of “vacation in advance” and its legislative framework

There is no official term “vacation in advance” in Russian legislation. Annual paid leave, guaranteed to each employee by the Labor Code (Article 122), is earned for 1 working year. It is counted not from the beginning of January, but from the date of registration of the employment contract, that is, it is individual for each employed person.

An employee can go on this leave after completing six months of work experience (the provisions of Article 122 of the Labor Code of the Russian Federation) or earlier, in agreement with the employer. It is not difficult to calculate that during this time, at best, only half of the officially established vacation duration will be worked. It turns out that the second half, if the vacation is not divided into parts, the employee receives in advance.

If the length of service is less than 6 months, then the advance payment of vacation days provided is even longer.

In the second and subsequent years of work, vacation is given according to the schedule at any time; length of service no longer matters, so vacation is often assigned in advance.

FOR YOUR INFORMATION! International Labor Organization Convention No. 132 on Holidays with Paid, which the Russian Federation ratified in 2010, states that an employee can receive leave from any day of his employment for a duration proportional to the time worked. However, many employers give preference to the norms of the Labor Code of the Russian Federation, which are legally “above” the conventional ones. The Labor Code does not deprive the employer of the right to allow early leave, and, regardless of the time worked, it allows you to receive it in full.

Thus, it is possible to define leave provided in advance as annual paid time for legal absence from the workplace, received before the moment of its actual working out.

Pitfalls of “advance leave” for the employer

It is not surprising that some employers choose not to deviate from their right to provide holiday only on time. There are certain risks in the fact that an employee goes on vacation without earning this opportunity.

The main problem for employers is the possibility of losses due to amounts overpaid for unworked vacation. The manager may face difficulties withholding funds in the event of dismissal of an “over-rested” employee. An employee does not always agree to compensation for vacation pay of his own free will, while it is very difficult to claim this money in court. The law mainly protects the interests of workers, and the regulations provide for a large number of circumstances to which the claim for compensation does not apply, for example:

• the amounts due before dismissal are not enough to cover the debt;
• if the deduction is not made directly upon dismissal, you will have to act through the court or accept the loss of money, the employer has no other legal ways to force the employee;
• the reason for dismissal excludes the possibility of claiming the debt.

Days counted as vacation: how to apply

If for some reason an employee needs an unscheduled day off, he has the right to ask the employer to provide it as paid rest. The employer decides whether to provide it or not. If the go-ahead is received, the employee writes a corresponding statement, in which it is advisable to indicate the reason for the day off.

Employers are not recommended to provide “vacations” in advance for a year that has not yet arrived. In this case, you should not even accommodate beneficiaries, because if an employee quits, it will be quite difficult to deduct paid vacation pay from him, because this can only be done with his consent.