Right to rest
Legislators have determined that any employee has the right to rest. Thus, Article 115 of the Labor Code of the Russian Federation stipulates that for 28 calendar days a citizen retains his job and is paid the average salary.
For some professions, and also depending on working conditions, the next rest period may be extended. The amount of additional vacation days is established in accordance with the Labor Code of the Russian Federation and certain federal laws and regulations.
The vacation period is established in advance and is fixed in a special mandatory document - the vacation schedule. Please note that the vacation schedule is approved for all company employees for the next calendar year. Rest is provided in full or divided into parts. Receiving vacation days at a time other than fixed in the schedule is unacceptable. However, in exceptional cases, the employer may accommodate the employee halfway.
https://youtu.be/VKoenNUtBHk
Rules for interrupting rest
The employer has the right to request that the employee be recalled from leave for business reasons. Article 125 of the Labor Code of the Russian Federation establishes the basis that the employer can recall a specialist, but only with his consent. A complete list of situations of legal call-out from vacation is not fixed at the legislative level. Consequently, the employer must independently determine situations in which a specialist’s rest may be interrupted. This list must be familiarized to all personnel, preferably under signature.
Useful video
How to correctly recall an employee from annual paid leave, whether it is necessary to recalculate vacation pay, whether the employee returns the money - see the answers in the video:
https://youtu.be/tnpWGIa3vzA
Article 125 of the Labor Code of the Russian Federation allows you to call an employee to work ahead of schedule from annual vacation, but for this you must obtain the consent of the vacationer. If he does not agree, then the challenge is not possible.
The procedure requires mandatory documentation: the employer is required to provide documentary support for the need for recall and notification to the employee, and consent from the employee. The final point is the preparation of the order.
When there is a need to recall an employee
Our legislators have not approved a list of situations in which an employer has the right to call an employee back from vacation. Consequently, Russian employers have completely free hands? However, is this so, let's look at specific situations.
If a production need arises in the organization’s activities, the employer can call the employee back from vacation. What is considered a production necessity:
- Dismissal of a specialist.
- Illness of other employees, accidents, injuries at work.
- Initiation of inspections, control and (or) audit activities.
- Participation in competitions, grants, competitions.
- Economically unstable situation.
- Introduction of a state of emergency.
- Other circumstances.
For example, a business trip for a replacement may become a production necessity to recall an employee from leave.
However, according to Art. 125 of the Labor Code of the Russian Federation, it is impossible to recall an employee from vacation without his consent, regardless of the reasons. Even if the reason for interrupting the vacation is an emergency.
In what cases is it possible?
Recall from vacation is possible if a very difficult situation has arisen at production in the following cases:
- an employee who can replace a vacationer falls ill, and no one else can perform such work;
- there is a threat of an accident at work, and without the participation of a resting worker, preventing the accident is impossible;
- downtime, missed deadlines, etc. are possible.
A vacationer can be involved in the production process, interrupting his next period of rest from work, only if he wishes - if he enters the position of administration and returns to performing functional duties. This means that the review is valid only with the consent of the vacationer (Article 125 of the Labor Code of the Russian Federation).
In the same article. 125 of the Labor Code of the Russian Federation states that it is permissible to divide vacation time, but in such a way that one of its components lasts at least 14 days.
What vacations does the employer have no right to interrupt?
All vacations, except for regular labor leave, cannot be interrupted regardless of the employee’s consent to begin performing direct job duties. What does it mean?
This means that the employer can only offer the specialist to take annual paid leave. In other cases, similar actions will be regarded as a violation of labor laws.
So, what vacations cannot be interrupted under any circumstances:
- Parental leave and maternity leave. However, if the mother decides to start work on her own, then the employer has no right to hinder the employee’s zeal. But it is impossible to offer a woman on maternity leave to go to work even in emergency situations or for operational reasons.
- Study leave also cannot be interrupted at the initiative of the employer. Even if the session ended early. The employee can independently come to work after completing the educational process. However, it is impossible to tear him away from his studies. The reasons don't matter. Recall from study leave is illegal.
- Leave without pay is not interrupted. Such leave is agreed upon with management in advance. It is common for an employee to take a few days off without pay to deal with family issues. And it is impossible to recall him from unpaid leave. It’s easier to wait for it to come out than to violate established legislation.
- Days to care for a disabled child. Let us remind you that the parent of a disabled child has the right to apply for up to four paid days a month to care for a child with health limitations. Recalling an employee from such leave is also unacceptable.
What do we end up with? An employer cannot issue a recall from vacation without the employee’s consent. And we are talking only about annual leave. No other holidays may be interrupted.
When you can and cannot recall from vacation
There are a lot of justifications for which there is a need to return a person to the workplace, and the legislation does not introduce regulations regarding the application of the provisions of the Labor Code of the Russian Federation. The initiative to recall a job can come from the manager, if there are compelling reasons, or by the personal will of the subordinate.
Depending on the specifics of work activity, the employer determines who can be recalled from vacation and issues a recall for the following reasons:
- Conducting external inspections at the enterprise (from the Federal Tax Service or other supervisory authorities);
- need for an urgent business trip;
- due to an accident at work;
- investigation of the cause of an accident at the enterprise;
- a force majeure event occurred that caused significant damage to the employer;
- a temporary replacement worker falls ill.
Certain categories of persons cannot be called back to work early under any circumstances.
The categories for which review is not allowed are described in paragraph 3 of Art. 125 labor legislation:
- Citizens under 18 years of age.
- Women during pregnancy.
- Persons employed in hazardous and life-threatening work.
If an employee does not feel the desire to interrupt his rest or cannot for some reason return to the workplace, no one by law has the right to insist on going to work or apply punishment. If a case is identified of forcing an employee to work during the vacation period, the official will be held accountable under the Code of Administrative Offenses of the Russian Federation (Article 5.28) for illegal actions and arbitrariness.
It is permissible to define the circumstances under which an employee is subject to recall from vacation in an act regulating the internal regulations of the enterprise or in another regulatory document. When establishing specific reasons for the early return of an employee, the manager must proceed from the main tasks - eliminating extreme situations and negative consequences.
A difficult question: how to find an employee on vacation
To obtain a specialist’s consent to recall from vacation, at least verbally, you will need to contact this same employee. The easiest way to do this is by phone: mobile or landline.
But often, when applying for a job, employees indicate “work” numbers, that is, for colleagues and superiors. This number is often turned off during vacation so that colleagues do not bother you. What to do:
- Messengers. You can write a message in one of the instant messengers that are usually used in team work.
- Social media. Colleagues quite often add each other as friends. You just need to write a message to the employee on Odnoklassniki, Instagram, or VKontakte asking to get in touch.
- A personal meeting. If the search via the Internet does not produce results, then you can visit the employee in person. The address of residence can be clarified in the HR department. However? The information is not always relevant and reliable.
To avoid such problems with finding vacationing subordinates, it is permissible to introduce a separate requirement into company policy. For example, “always be in touch” so that management or the team can contact for consultation at any time. Inform your place of stay on vacation. However, it is impossible to impose penalties for violating such a policy or require strict compliance. This is a violation of the right to privacy.
Submitting a vacation review
The procedure for calling a specialist is quite simple and there are no difficulties. However, the algorithm is not fixed at the legislative level. There is also no specific opinion on how to deal with paid vacation pay.
So, to formalize the procedure with personnel, you first need to obtain consent to recall from vacation. Sample:
The specialist can also formalize his consent with a special statement. Example of an application for recall from vacation, sample:
An employee can convey his consent by mail, electronically, or by personally delivering a document to the employer. After the employee has agreed to take up his duties, the employer is obliged to issue a separate order - an order to recall the employee.
In addition to the order, changes must be made to the approved vacation schedule. And also register changes in periods of absence in the employee’s personal card (form T-2). The timesheet will have to be drawn up based on the employee’s actual time worked.
Service memo
In a large organization, the head of the company learns about the need to bring a person to work ahead of schedule from a report. In the memo, the head of the department sets out the arguments and reasons for the early recall of the employee from vacation. If possible, explanatory documents on the need for such actions are attached to it.
Verbal notification
The head of the enterprise orally, by telephone or in person, agrees on the review with the employee. Having received verbal consent, it is usually formalized in writing.
The document does not have a set form; it is drawn up in any form. The manager is then required to issue the appropriate order for the organization.
Written Notice
The company may notify the employee of the upcoming recall in writing. Written feedback does not have a clear form and is drawn up at the discretion of the manager or personnel officer. For example, it might look like this:
Open Joint Stock Company "Vintik"
Notice to the master of gas compressor units No. 1
01/19/2018 Fedorov A. E.
Due to the occurrence of an emergency situation (breakdown of a gas compressor unit), in order to ensure stable operation of the enterprise and eliminate the emergency situation, we ask you to give your consent to recall from vacation and begin work duties ahead of schedule from 01/20/2918.
According to Art. 125 of the Labor Code of the Russian Federation, you can use the remaining part of the vacation at a time convenient for you this year or add it to next year’s vacation
Director (signature) Teriverdiev O. G.
If the employee agrees, he signs this document or obtains a separate written consent.
If the employee wants to leave
Without a production need, you cannot leave your annual leave before the deadline. That is, an employee cannot return from vacation at his own request without an offer from management to recall him from vacation.
For example, an employee on vacation has a start date for work on the 10th of the month, so it is impossible to leave a day or two earlier without a corresponding decision from the manager. Although this situation often occurs in cases where an employee does not agree with the vacation schedule or wants to gain a couple of paid days to take them later.
Note that we are again talking about another vacation. If a woman on maternity leave who is on maternity leave or maternity leave or other cases wants to go to work, there is no need to interfere.
How to recall an employee
There are circumstances when an organization urgently needs an employee who has gone on vacation.
The only way out is a recall from vacation. If an employee refuses to interrupt his rest, he cannot be forced. A prerequisite is the person’s personal consent. In this case, the worker has the right to take the unused remainder of his vacation off at any time convenient for him during this year, or add it to his vacation days next year.
In order not to fall under criminal liability, you need to remember about certain categories of workers whose vacation is not allowed to be interrupted under any circumstances. These include:
- persons under the age of majority;
- workers with difficult and life-threatening working conditions;
- pregnant women.
It is also impossible to recall from additional study leave those who study and work at the same time.
Recall of an employee from vacation occurs, as a rule, in the following sequence.
Recalculation of vacation pay
Officials are of the opinion that recall from vacation without recalculation of vacation pay is unacceptable. That is, when the recalled employee starts work, the paid vacation pay must be recalculated and the excess must be retained. However, the company has no right to retain them on its own. The specialist can deposit money into the cash register or into a current account. Or write an application to offset the excess funds received against wages.
IMPORTANT! Taxes are withheld from vacation pay - personal income tax 13%, and insurance premiums are charged.
It is also necessary to immediately discuss how the work days will be used. For example, time off will be provided against unused vacation, or these days will be added to a future vacation.
If an employee’s recall from vacation is issued for a short period of time, for example for one or two days, with the subsequent provision of time off (extension of the next vacation), then the recalculation may not be accrued.
However, if the accounting department did not recalculate, and the employee did not take these days off, then the amount of the overpayment will be recognized as compensation for unused vacation days. And such compensation is only due upon dismissal. comments powered by HyperComments
