Basic Concepts
According to Articles 114 and 115 of the Labor Code of the Russian Federation, only those persons who have worked in one organization for at least 6 months can receive the right to annual vacation. In this case, the minimum period of each regular leave for them will be:
- At least 28 days for a regular employee;
- More than 31 days – for people with irregular schedules;
- From 30 days – for disabled people of categories 1, 2 and 3;
- At least 35 days – for personnel working in hazardous conditions.
It is important to know! If desired, a citizen can take two weeks of vacation provided for him at once, and leave unused vacation days for later, dividing them into as many parts as he deems necessary (even daily division is allowed).
But in accordance with Art. 123 of the Labor Code of the Russian Federation, before distributing annual rest over several separate periods, the employee must agree on the resulting schedule with management. And this applies to all subordinates, with the exception of pregnant women, minors, part-time workers and women married to military personnel. The listed categories have the right to take vacation at any time convenient for them.
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Important
Experts from the GARANT Legal Consulting Service examined the question of whether annual paid leave expires and what the company faces if it fails to provide an employee with leave for more than two years in a row. Annual paid leave is a number of days off from work, fixed and guaranteed by law, provided annually to all employees for continuous rest and restoration of performance while maintaining their place of work (position) and average salary (Article 106, Article 107, Article 114 of the Labor Code of the Russian Federation ). In accordance with Art. 122 of the Labor Code of the Russian Federation, paid leave must be provided to the employee in each working year.
Does unused vacation expire? According to part four of Art.
In this case, they must be added to the total number of vacation days of the employee and also reflected in column 5;
- at the request of the employee. Then the specific vacation period is determined by agreement with the employer.
Such an application will be no different from a regular application for annual paid leave.
It does not need to specify that we are talking about vacation for the previous working year. Application for unused vacation (sample) to the General Director of Kaleidoscope LLC, I.V. Kiselev. from the leading engineer
Grekova A.K. Application dated January 29, 2018 I request that you grant me leave from February 5, 2020 for 14 calendar days. Leading engineer (signature) Grekov A.K. Application for unused vacation (sample) Why unused vacations are unprofitable for the employer The answer to the question - does vacation for previous years expire in 2020, we already know - it does not.
Unused vacation
Every officially employed citizen can take a leave of absence. Typically, this may be due to the following situations:
- The employee refused to rest;
- The subordinate took only 14 days off from his allotted 28 days.
This debt must be recorded in schedule T-7, with a transfer to the next year (in column number 5, where all additional employee time off accrued to him in accordance with the Labor Code of the Russian Federation is indicated). A subordinate can take unused vacation for previous years in the form of:
- Extending the next rest;
- Monetary compensation, the amount of which is calculated at a flat rate.
In addition, the employee’s accumulated time off will be taken into account upon his dismissal, which may lead to the cancellation of two weeks of work or an increase in severance pay.
How to apply?
What if an employee decides to take unused vacations from previous periods? The procedure for applying for vacation begins with the employee submitting an application in which it is necessary to indicate the duration of the vacation, its beginning and end.
The law does not stipulate the obligation to indicate in his application for what period he intends to take leave. This is a matter for the enterprise's personnel department, which must monitor the progress of its employees' vacations.
But if the employee nevertheless indicated such a period, then it should be taken into account that if this period is included in the two-year period preceding the vacation, then the employer is obliged to provide the unused vacation indicated by the employee. If it is not included, the employer has no such obligation, since according to Part 4 of Art. 122 of the Labor Code of the Russian Federation, vacations are provided according to the priority established by the employer.
We invite you to read: Extraordinary leave at your own expense
Important! The employer himself decides for what period to provide vacation, which has accumulated over more than two years. After the employee submits an application, the manager issues an order in form T-6.
It indicates the type of leave, its duration, the period from which it is added (the days and their reasons are listed here, for example, for an irregular working day, for a long period of work at the enterprise, etc.), as well as the period for which it is provided .
The order is endorsed by the personnel employee, signed by the manager and given to the employee for review against signature.
Mandatory vacation dates
Having received an order to go on regular leave, a subordinate has 14 days to challenge it. If during this period the management agrees to the transfer by signing the appropriate application, then the employee’s days off will be counted for the next year as bonus rest (additional dismissals are indicated in column 5 of the T-7 form).
Attention! If the employer refuses, the employee will have to be removed from official duties no later than 2 weeks after receiving the order not to do so. At the same time, a subordinate will be able to challenge the decision of his superiors only if the period of time off granted to him exceeds 28 calendar days established by the Labor Code (Article 114 Part 1).
How to show it in graphics
According to the rules for filling out form No. T-7, the vacation schedule for the next calendar year must be drawn up and approved by the manager no later than December 17 of the current 2020. In column 5 of the document you need to indicate the number of vacation days that the employee is due for the next working year. This includes both main and additional leave provided for by the Labor Code of the Russian Federation and local regulations on the organization. Also see "Vacation Schedule".
Restrictions on “storing” vacation days
If the manager agreed to transfer the current number of unused days of compulsory vacation, then the employee will need to take this entire period off no later than until December of the next year. Otherwise, his remaining days off will be lost, without the possibility of further compensation.
The only exception, when unpaid leave can be kept for more than two years, is the employer’s refusal to provide rest to a subordinate, the reasons for which were:
- Carrying out urgent work at the enterprise (in this case, management should take care of postponing the leave for the coming months or providing financial compensation as an alternative);
- Bankruptcy of the organization (if a financial crisis occurs, management must amicably resolve the issue of redistributing vacations with their subordinates);
- Lack of a foreman capable of replacing an employee who has gone on vacation.
All of the listed situations that contribute to the forced transfer of time off violate the regulations of Rostrud. Therefore, in order to avoid litigation, the manager will agree to long-term retention of the subordinate’s remaining vacation or to payment of compensation in the amount of his double daily rate.
Can vacation not taken off be lost?
So, for example, an employee may work part-time and in such a situation it is permissible not to use a work permit.
In addition, when working outside the Labor Code, a work book is not required.
For example, a specialist is hired to perform one-time work.
Let's say an artist is asked to paint a picture. In such a situation, a work book is not needed, since it is not an employment contract. Most often, an employment contract is replaced by a contract. Thus, in some situations you can work without using a work book, but there will be no violation of the law, since it is not an employment contract, but another type of contract.
Procedure for registering unused days
Due to the fact that a non-vacation is no different from a regular vacation, documents for leaving for it should be drawn up in the same order:
- The subordinate is warned in writing 14 days in advance;
- Data on his time off are recorded in schedule T-7 (possible changes are also indicated here);
- Upon returning to the enterprise, the employee signs in the register, after which he receives permission to shift.
If it was not possible to resolve the issue in the standard manner, and you understand that your unused vacation arrears are being burned, then, as an alternative, you should write a refusal to take time off addressed to your superiors, followed by a request for compensation. This option will be most effective in this case, since it allows you to convert accumulated days off into a monetary reward.
How compensation is paid
At some enterprises, a different scheme works: the period of time for vacation is calculated, and it is for this period that the length of service is extended. It turns out that the employee, according to the documents, is working in the organization for another month or several, but in fact he can start looking for work. Whether this can be done legally, you need to check with a lawyer for that period of time, for example, for 2020.
There is another way, but it can be called a little risky, and many people do not welcome it. If an employee has several vacations that have not been spent, you can write a resignation letter of your own free will, receive compensation payments, and re-employ yourself in your same position.
The notarial procedure is formalized correctly, and has the right to be, but in its consistency it is a bit like a scam, which is why both the accounting department and the administration do not welcome it.
In other cases, it is possible to replace vacation with a cash payment only in two cases:
- If the employee is not pregnant or a minor and if the leave is not associated with deterioration of health due to harmful characteristics of work.
- If compensation is subject to a period of time lasting more than 28 days.
In order to receive a cash payment instead of a vacation, you need to write an application addressed to the director of the company, in any form, but indicating basic data. It is on this basis that the responsible employee will calculate exactly how much you will receive. In this case, the HR department employee will make appropriate notes in the vacation schedule.
As you can see, if you did not manage to use your vacation as intended, then the days will not be lost or wasted - they will be transferred to the next period, and you will always be able to take advantage of your honestly earned vacation at any time convenient for you.
Management does not have the right to offer you any resistance, since this is a violation of the law and is punishable by a fine.
Cash compensation for unused vacation
Most often, monetary compensation for unused vacations is required by those persons who submit documents for payment. But Art. 126 of the Labor Code of the Russian Federation does not prohibit receiving such payments to employed citizens who have officially refused to take regular leave. The only exceptions are:
- Pregnant women;
- Minors;
- Employees performing job duties in hazardous conditions;
- Liquidators of the consequences at the Chernobyl nuclear power plant.
For the listed categories of workers, regular days off are mandatory in accordance with the Labor Code of the Russian Federation.
Ignoring the Labor Code in this case can result in not only a serious fine for the manager, but also removal from his position for a period of 3 to 5 years. We found out whether unused vacation accrued in previous years expires and during what period it must be exhausted by law. In conclusion, it remains to add that the only alternative to postponing the holiday is a request for financial compensation for days off. Without it, the employee’s dismissal will disappear within 2 years from the date of signing the first order about his going on leave.
Is an employee entitled to compensation if he did not take vacation for the past year?
Another way to resolve the issue of accumulated vacation balances is to pay compensation. According to Part 1 of Article 126 of the Labor Code of the Russian Federation, if the vacation entitlement to an employee (including taking into account balances for previous periods) exceeds 28 days, then the difference can be replaced at the request of the employee with monetary compensation.
NOTE! This rule does not apply to pregnant women, employees under 18 years of age, or workers in hazardous industries. The persons listed must use their vacation in full.
The amount of compensation is calculated in the same way as vacation pay - based on the employee’s average daily earnings and the number of vacation days not taken.
Do not forget that, according to Article 127 of the Labor Code of the Russian Federation, upon dismissal, an employee is entitled to compensation for all days of unused vacation without restrictions.
In what cases it is impossible to replace vacation with monetary compensation and how to calculate it correctly in permitted cases, find out in the ConsultantPlus system. If you do not have access to K+, get a trial demo access and proceed to the explanation and calculation example for free.
