According to the Labor Code of the Russian Federation, weekly rest is given to every employee. It is at least 2 days in a five-day working week and one in a six-day week. By law, rest must be at least 42 hours weekly. Additional work on weekends must be paid double.
Most often, Sunday is a day off. The second free day is regulated by a collective agreement or internal regulations of the organization. As a rule, with a work week consisting of 5 days, 2 days off follow each other. With a shift work schedule, days off are also determined by internal regulations and can be provided on weekdays. In what cases are additional days off allowed? Let's figure it out.
Weekend work
Working on official weekends in the organization is prohibited by the Labor Code. There are certain rules. It is possible to call an employee on his legal day off only with the written consent of the latter and only in certain cases listed below.
- In case of an industrial accident or natural disaster to eliminate the consequences.
- In order to prevent an accident.
- To perform urgent tasks on which the work of the organization as a whole depends.
- Workers in creative professions.
- On an individual basis and exclusively voluntarily on the part of the employee.
Who gets extra days off?
What is it regulated by?
The issue of obtaining an additional free day is regulated by the labor legislation of the Russian Federation, and specifically Article 262. This document states that parents or guardians of disabled children can receive additional free days. At the same time, they are paid by the federal insurance service. Additional days off are provided for the above category of citizens to fulfill their parental responsibilities. The basis for their provision is considered to be a written statement from the employee.
Article 262 of the Labor Law states that those who have custody of a disabled child are given 4 additional free days per month. Not only parents, but also trustees or guardians can get an extraordinary day off. If there are several latter, then the weekends can be divided at their discretion. Women who work in the village are entitled to one extraordinary day off from work per month. We'll talk about how to pay for additional days off later.
What if employees continue to work from March 30 to April 3?
In this case, the issue of payment is resolved by itself: wages are paid for the time worked (Article 129 of the Labor Code of the Russian Federation). And this is likely to be a very common option for companies that have the ability to work remotely.
Since Decree No. 206 mentions non-working days , which are neither weekends nor holidays, double payment in this case is not allowed.
How and when can I get extra days off?
Additional free days are not provided to the following categories of citizens:
- Citizens on basic paid leave.
- Citizens on additional leave.
- Citizens on maternity leave.
If the additional day off coincides with the employee being on sick leave, it can be moved to another day in the same month. This can only be done under the following conditions: the employee must go to work and provide a certificate of incapacity for work in the current month. That is, if an employee did not use his additional day off, say, in March, this day off will not be transferred to April. The right to additional days off can begin to be used from the period when the child was assigned a disability group. This right ends upon reaching the age of majority or when the category of disability is removed.
Do I need to extend my vacation if it falls between March 30 and April 3, 2020?
The employee goes on vacation from March 30, 2020 for 2 weeks. Should the vacation be extended due to the fact that the week from 03/30/2020 to 04/03/2020 has been declared a non-working week, and what will happen to the payment?
Non-working days declared by the President of the Russian Federation are not considered holidays and weekends, which means that vacation pay for these days is not paid and vacation is not extended for them. Holidays are listed in Art. 112 Labor Code of the Russian Federation.
The week from March 30 to April 3, 2020 looks like this:
- for workers on five-day work days: March 28-29 and April 4-5 - days off;
- March 30-31 and April 1-3 are closed.
- March 29 and April 5 are days off;
Annual paid leave is calculated in calendar days (Article 120 of the Labor Code of the Russian Federation), and:
- weekends are included in the number of calendar days of vacation and paid,
- Non-working holidays are not included in the number of calendar days of vacation and are not paid.
Non-working “presidential” days are not included in holidays (they are not listed in Article 112 of the Labor Code of the Russian Federation). Accordingly, for the period from 03/30/2020 to 04/03/2020, the norms of Art. 120 of the Labor Code of the Russian Federation are not applicable. Pay these days like all other days of annual leave.
Confirmation from the parent's place of work
If both parents or multiple guardians receive paid additional days off, you must confirm that one of them did not choose the allotted days. For this purpose, a certificate from the employer is provided. It can be taken from the place of work of the second guardian or parent. This type of benefit is monthly, which means that an application for additional days off will need to be written every month. But there are a few exceptions here, for example if the parent:
- single (with documentary evidence);
- is listed as missing, dead or has limited rights to the child;
- stays in places of deprivation or restriction of freedom;
- is on a long-term business trip for more than one month.
All of the above facts must be documented and attached to the application for additional days off. What else is worth considering? What does an additional day off for child care entail?
Can an employee interrupt a vacation that falls in the week from 30.03 to 03.04?
An employee, indeed, may ask to interrupt his vacation so as not to waste it due to the fact that it falls on an emergency weekend. At the same time, the employer has the right to refuse the employee: vacation is interrupted only by agreement of the parties (Article 124 of the Labor Code of the Russian Federation). If he doesn’t mind, you need to get an application from the employee for early termination of vacation.
But then you will have to recalculate vacation pay:
- reverse excessively accrued vacation pay and contributions accrued on them;
- recalculate personal income tax on the employee’s income;
- make changes to the timesheet to reflect additional days off instead of vacation;
- calculate wages for March and April, taking into account days worked;
- withhold overpaid vacation pay minus personal income tax with the next payment to the employee in April.
Required documents
In addition to a certificate stating that the other parent or guardian did not receive additional days off, you must provide the following set of documents:
- A certificate confirming the child's disability.
- Confirmation of registration of a disabled child at the place of residence.
- Birth certificate, guardianship or adoption certificate, that is, any document confirming the right to exercise parental responsibilities.
These documents are provided one-time for the period specified in them. If the certificate is issued for a year, then it is valid once a year. The original documents are returned to the employee after review.
Payment for additional days off is made only for disabled children and is calculated based on the average salary for the past year. Women working in the village are not paid an additional day off.
The number of extraordinary days off does not depend on the number of disabled children in the care of one family. Below we will consider in more detail the issue of providing citizens with additional free days.
Insurance premiums.
The issue of charging insurance premiums for payments to parents for providing additional days off to care for a disabled child is also controversial.
The official position is that insurance premiums must be calculated from these amounts (Part 17, Article 37 of Federal Law No. 213-FZ dated July 24, 2009, Letter of the Ministry of Finance of the Russian Federation dated March 30, 2017 No. 03-15-05/18599). In particular, in accordance with paragraph 17 of Art. 37 of Federal Law No. 213-FZ financial support for the costs of paying for additional days off provided for caring for disabled children in accordance with Art. 262 of the Labor Code of the Russian Federation, including accrued insurance contributions to state extra-budgetary funds, is carried out at the expense of interbudgetary transfers from the federal budget provided to the Social Insurance Fund budget.
That is, they must be accrued and paid (clause 1, clause 1, article 420 of the Tax Code of the Russian Federation, clause 1, article 20.1 of the Federal Law of July 24, 1998 No. 125-FZ “On compulsory social insurance against industrial accidents and occupational diseases” ):
– insurance contributions for compulsory pension insurance; – insurance premiums for health insurance and compulsory social insurance in case of temporary disability and in connection with maternity; – insurance contributions for compulsory social insurance against accidents at work and occupational diseases.
There is an alternative position supported by judges in all districts. According to the arbitrators, since payment for additional days off provided to care for disabled children does not fall into the category of remuneration for labor, but is a means of ensuring social protection for the relevant categories of citizens, it is not subject to insurance contributions:
– Ruling of the Supreme Court of the Russian Federation dated April 19, 2018 No. 306-KG18-3498 in case No. A12-8078/2017; – Ruling of the Supreme Court of the Russian Federation dated April 19, 2018 No. 306-KG18-3492 in case No. A12-8081/2017; – Resolution of the Supreme Court of the Russian Federation of October 3, 2018 No. F01-4399/2018 in case No. A29-16002/2017; – Resolution of the Supreme Court of the Supreme Soviet of July 2, 2018 No. F02-2352/2018 in case No. A74-12264/2017; – Resolution of the Supreme Court of the Russian Federation of November 8, 2017 No. F03-3640/2017 in case No. A73-1890/2017; – Resolution of the AS ZSO dated May 30, 2018 No. F04-1817/2018 in case No. A70-9326/2017; – Resolution of the AS MO dated June 28, 2018 No. F05-8607/2018 in case No. A40-136588/2017; – Resolution of the AS PO dated August 15, 2018 No. F06-35197/2018 in case No. A06-8864/2017; – Resolution of the AS SZO dated September 19, 2018 No. F07-10646/2018 in case No. A13-19088/2017; – Resolution of the AS SKO dated 06/08/2017 No. F08-3553/2017 in case No. A32-23265/2016; – Resolution of the AS UO dated November 9, 2018 No. F09-6672/18 in case No. A76-24776/2017; – Resolution of the AS CO dated March 22, 2018 No. F10-520/2018 in case No. A48-3193/2017.
In fairness, we note that all court decisions adopted to date are based on the provisions of the Federal Law of July 24, 2009 No. 212-FZ “On Insurance Contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund,” which has become invalid from 01/01/2017, and not according to the norms of the Tax Code of the Russian Federation. However, since the wording of these two documents is almost identical, we believe that the arbitrators will not change their opinion in the future.
What advice should you give to policyholders? If they are not afraid of being in a courtroom, payments for additional days off provided to employees with disabled children may not be subject to insurance premiums. For those who are more careful - in order to avoid controversial situations - it is better to charge insurance premiums.
Additional days off to care for a disabled person
Among the nuances regarding the documents required when applying for an extraordinary holiday, it should be taken into account that in addition to the child’s disability certificate itself, you will also need to obtain a certificate from the local social protection authorities with information that the child is not being held in special custody. institution, that is, not under the care of the state. However, this rule does not apply to detention in five-day and six-day boarding schools.
If one of the parents is not officially employed or is providing himself with work independently (for example, in the case of an individual entrepreneur), then the second working parent submits a certificate stating that his spouse is unemployed or provides himself with work independently. Only if such paper is provided will the working parent be allocated and paid for the required 4 days off from work per month. If one of the spouses takes part of the weekend, the other can take the remaining paid days off upon presentation of the certificate described above. If one of the parents is on vacation or maternity leave, then the second parent can use the right to provide additional free days.
Average earnings are calculated by dividing wages accrued for the billing period by the number of working days in this period based on the average working hours, in accordance with the legislation of the Russian Federation.
Days off for women workers in rural areas
As described above, rural workers are provided, upon written request, with 1 additional day off per month without pay. Moreover, an employee may demand an additional day off under the Labor Code without specifying a reason. Since a priori it is assumed that this day will be dedicated to family and children. According to the law “On urgent measures to improve the situation of women, families, protection of motherhood and childhood in rural areas,” an employer does not have the right to refuse an employee.
An order is issued on additional days off.
You can negotiate the procedure for granting an additional day off either by drawing up an application monthly or by determining the number of additional days required at the beginning of the year, half-year, quarter, etc. Denial of an employee’s legal right to have a day off from work may serve as a reason to contact the labor commission for further proceedings, including judicial proceedings. After all, such a refusal is an illegal infringement of the rights of employees.
Rules for workers of the Far North
According to Article 319 of the Labor Code of the Russian Federation, parents working in the Far North or in areas equivalent to it are given one extraordinary unpaid day off per month. This rule applies to those children whose age does not exceed sixteen years.
As in the case of rural workers, the employer does not have the right to refuse to receive one additional free day per month for the above-mentioned category of citizens. If an employee of the specified category has several children, the number of days does not increase. This will be only 1 day per month. As in the case of parents of children with disabilities, the day off is granted not only to parents, but also to legal representatives: trustees or guardians. The procedure for granting an extraordinary day off is exactly the same as in all previous cases, upon application by the employee and upon presentation of a certificate of non-use of the day off by the other parent.
Let's sum it up
- During the spread of coronavirus, health protection becomes the main priority for workers and employers. Therefore, the government appoints a forced rest period from 03/30/2020 to 04/05/2020.
- This leave can only be used in one form - self-isolation within the walls of your home.
- Vacation from March 30 to April 3 is provided with pay.
- The procedure for paying for a quarantine week raises some questions, because the Labor Code of the Russian Federation does not define the concept of “non-working day”. Today the situation looks like it is essentially a “remote” working week, but with access to work by agreement between the employee and the employer. If a “non-emergency” employee is not going to work that week, he cannot be forced.
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Additional days off for those who combine work and study
Employees who combine university studies with work are entitled to additional days off according to the Labor Code. However, they are partially paid. An employee undergoing part-time or evening studies at accredited higher educational institutions, 10 months before leaving to defend his thesis, has a reduced work week by 7 hours or is offered one day off. In this case, 50% of average earnings are paid, but not less than the minimum wage. This category includes not only students of universities, but also students of state-accredited institutions where they can receive secondary vocational education.
Conditions for providing a day off from work or reducing working hours during the week:
- If the education is acquired by the employee for the first time.
- If a person is studying in several educational institutions at once, free time is provided for studying only in one educational institution of the employee’s choice.
The calculation, as in previous cases, is made by calculating average earnings. An additional day of rest is provided for working on a day off.
Is it possible to declare a simple one?
The question is controversial. The President of the Russian Federation said that workers who went on a quarantine non-working week should have their salaries maintained. But in what size? The Ministry of Labor explains: “at normal, not increased.” There is no mention of average earnings in Decree No. 206.
Downtime is a temporary suspension of work for reasons of an economic, technological, technical or organizational nature (Article 72.2 of the Labor Code of the Russian Federation). If you declare downtime, it will be for reasons beyond the control of either the employee or the employer. Such downtime is paid in the amount of at least 2/3 of the tariff rate, salary (official salary), calculated in proportion to the downtime (Article 157 of the Labor Code of the Russian Federation).
Declaring downtime from 03/30/2020 to 04/03/2020 is a risk.
Characteristic features of receiving days off in certain industries
There are some sectors of the economy that have certain features in receiving days off and paying for them. For example, this applies to the civil aviation sector of the Russian Federation. For example, if a dispatcher was brought to work on a legally free day, he will certainly be offered another day to rest, since there is a legally regulated regime for the distribution of working time and rest for employees who manage air traffic.
Women working in the field of mechanical engineering and raising a child under the age of sixteen are given one extraordinary free day per month without pay. The same applies to women working in the field of transport construction.
