For what reasons can they be denied leave at their own expense?

Author: V. V. Danilova

What document is the main one for granting employees leave? What to consider when creating a vacation schedule? What are the features of transferring vacation and for how long can it be postponed? How long are employees entitled not to take annual leave? In what order are vacation days used? What should an employer do if an employee refuses vacation? What documents should I fill out? Can an employee be subject to disciplinary action?

All permanent employees without exception have the right to rest for at least 28 calendar days. And while some people don’t even have that many days, others don’t go on vacation for years. But this is not only inconvenient for the employer and, in particular, for personnel officers, but also fraught with administrative liability. We will talk about how many years an employee may not go on vacation and what an employer should do if some employees do not use their annual vacation, we will talk in the article.

Reason for vacation.

According to Art. 123 of the Labor Code of the Russian Federation, the priority for granting paid vacations is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization no later than 2 weeks before the start of the calendar year in the manner established by Art. 372 Labor Code of the Russian Federation.

At the same time, the vacation schedule is mandatory for both the employer and the employee.

Articles on the topic (click to view)

• Fine for late payment of vacation pay
• What to do with unused vacation
• What to do if your employer does not pay vacation pay
• How long after employment is vacation allowed?
• Is maternity leave taken into account when calculating pensions?
• Accounting for compensation for unused vacation
• Dismissal while on maternity leave

Drawing up a vacation schedule is quite a responsible matter, especially if the organization has a large staff of employees. In such cases, first, as a rule, schedules are drawn up in structural units, and then a consolidated schedule is formed. Drawing up a draft vacation schedule for a unit can be entrusted to the heads of these units. Based on the schedules they submit, the HR department draws up a consolidated vacation schedule. Moreover, the responsibility of department heads to draw up a draft schedule is better fixed in the appropriate order.

If such powers are not granted to managers, they can simply collect their wishes from employees, on the basis of which and taking into account the requirements of labor legislation, the personnel employee will already draw up a unified vacation schedule.

When drawing up a vacation schedule, the right of certain categories of employees to vacation at any time and the length of service required to provide such vacation should be taken into account. Don’t forget to include unused vacations from previous years in your schedule.

In addition, when drawing up a schedule, you will have to take into account the wishes of other employees, the order of vacations in the previous year, the intensity of the labor process during the year, and the specifics of the organization’s activities. We will have to try to ensure that neither the interests of employees nor the interests of the employer are infringed. To avoid disputes, you can prescribe the procedure for granting vacations in a local regulation and familiarize employees with it.

After drawing up, the schedule is signed by the head of the personnel service and approved by the head of the organization or an authorized person (signed). If there is a trade union at the enterprise, then the schedule must be agreed upon with it. Despite the absence of an obligation to familiarize employees with the approved schedule against their signature, this must be done.

We repeat that all these activities must be completed no later than 2 weeks before the start of the new calendar year.

Let us remind you that in accordance with Art. 693 of the List of standard management archival documents generated in the course of the activities of state bodies, local governments and organizations, indicating storage periods, approved by Order of the Ministry of Culture of the Russian Federation dated August 25, 2010 No. 558, the vacation schedule must be stored in the organization for 1 year. Moreover, the calculation of the period is carried out from January 1 of the year following the year of completion of office work. That is, the vacation schedule for 2020, approved in December 2020, ends on December 31, 2020. Therefore, it needs to be stored throughout 2017.

https://youtu.be/cmXGU6PAz0o

When will an employer's refusal be unlawful?

As we found out, in some cases the employer is obliged to satisfy the employee’s request for leave without pay. In particular, according to Part 2 of Art. 128 of the Labor Code of the Russian Federation, the employer must provide the following leave:

• participants of the Great Patriotic War - up to 35 calendar days per year;
• for working old-age pensioners (by age) – up to 14 calendar days per year;
• parents and wives (husbands) of military personnel, employees of internal affairs bodies, the federal fire service, authorities for control of the circulation of narcotic drugs and psychotropic substances, customs authorities, employees of institutions and bodies of the penitentiary system, killed or died as a result of injury, concussion or injury, received while performing the duties of military service (service), or as a result of an illness associated with military service (service) - up to 14 calendar days a year;
• for working disabled people – up to 60 calendar days per year;
• employees in cases of the birth of a child, marriage registration, death of close relatives - up to 5 calendar days.

There are often problems with leave on the latter basis. In particular, the employer does not always correctly identify close relatives. (For example, is it necessary to provide an employee with unpaid leave in connection with the funeral of his uncle?) There is no precise interpretation of this concept in any Russian law. So, according to Art. 2 of the RF IC, family members are spouses, parents and children, and by virtue of Art. 14 of the RF IC, close relatives are considered to be parents and children, grandparents, grandchildren, full and half brothers and sisters. As you can see, the categories “family members” and “close relatives” overlap. We believe that the provision of unpaid leave in connection with, for example, the death of an uncle remains at the discretion of the employer, but a refusal to provide such leave in connection with the death of a grandmother will be illegal.

Also on the topic: Can a pregnant woman be fired? Labor rights of pregnant women

Given in Art. 128 of the Labor Code of the Russian Federation, the list of grounds when an employer does not have the right to refuse leave is far from exhaustive: relevant cases can be established by the Labor Code of the Russian Federation or other federal laws.

For example, according to Art. 173 of the Labor Code of the Russian Federation, the employer is obliged to provide leave without pay to employees admitted to entrance examinations upon admission to a higher educational institution, as well as to students of preparatory departments of educational organizations of higher education for passing the final certification - 15 calendar days. Slightly less—10 calendar days of unpaid leave—is required to be provided by the employer to employees who combine work with obtaining secondary vocational education (Article 174 of the Labor Code of the Russian Federation).

note

An employee with two or more children under the age of 14, an employee with a disabled child under the age of 18, a single mother raising a child under the age of 14, a father raising a child under the age of 14 without a mother, a collective agreement annual additional leaves without pay can be established at a time convenient for them, lasting up to 14 calendar days (Article 263 of the Labor Code of the Russian Federation).

In some cases, unpaid leave is granted to part-time workers. So, by virtue of Art. 286 of the Labor Code of the Russian Federation, if at a part-time job the duration of annual paid leave is less than at the main place of work, then the employer, at the request of the employee, must provide him with leave of the corresponding duration without pay.

But not only the Labor Code defines cases when an employer cannot refuse unpaid leave: such cases can also be established by other federal laws. For clarity, we present them in a table.

Let us note: the refusal to grant leave guaranteed by labor legislation and the subsequent disciplinary punishment of employees who went on such leave without the consent of the employer is recognized by the courts and regulatory authorities as unlawful. Thus, Z. went to court with a demand against the Municipal House of Culture and Arts named after. G.V. Kalinichenko" on reinstatement after dismissal for absenteeism. During the consideration of the case, the court found that, based on the decision of the election commission of the municipal district, Z., as an authorized representative of the candidate for the position of head of the district, was issued certificate No. 1 stating that she is an authorized representative of the candidate. The employer was notified about this.

08.08.2014 Z. received a phone call, she was informed that she needed to appear at the administration of the Moscow Region, where she stayed from 13.00 to 18.00. 08/11/2014 Z. submitted an explanatory note, in which she indicated the reasons for her absence and details of the identity of the authorized representative, and attached a certificate from the administration of the Moscow Region. However, the management of MU still fired Z.

By virtue of Art. 43 of Law No. 67-FZ, during the period of authority of the authorized person, the employer is obliged to give the authorized persons, at their request, unpaid leave. Since such leave was not granted to Z., even though she did not write a statement, but informed management about the need for absence by telephone, the dismissal was considered illegal: there was a good reason for leaving work - carrying out activities related to elections, about than Z. subsequently provided a certificate (Appeal ruling of the Moscow Regional Court dated March 18, 2015 in case No. 33-5980/2015).

For your information

Cases for granting unpaid leave may be established by collective agreement or industry agreements. For example, the Industry Agreement on Organizations of the Federal Agency for Technical Regulation and Metrology for 2020–2017 gives a woman with a child under the age of 16 the right to one additional day off per month without pay.

Also on the topic: How to calculate compensation for unused vacation upon dismissal?

To summarize the section, we say that if the employer has provided the number of days of unpaid leave in full determined by law, collective agreement or agreement, then upon a new request during the same year, the employer has the right to refuse such leave to an employee of a preferential category. For example, a disabled employee received 30 days of unpaid leave in April and August 2020 (in total, according to Article 128 of the Labor Code of the Russian Federation, a disabled person has the right to count on 60 days a year). If he asks for unpaid leave again, for example, in November, the employer has the right to refuse to provide such leave and this will not be a violation of the law.

Transfer of vacation to next year.

Annual paid leave can be carried forward to the next working year. If such a transfer is carried out at the initiative of the employer in accordance with Part 3 of Art. 124 of the Labor Code of the Russian Federation, two conditions must be met:

Providing an employee with leave in the current working year may adversely affect the normal course of work of the organization;

the employee agreed to transfer the vacation to the next working year.

The employee himself can apply to reschedule the vacation to another date, including next year. If the employer does not object, an order should be issued for such a transfer and changes should be made to the vacation schedule.

Leave transferred at the initiative of the employer must be used no later than 12 months after the end of the working year for which it was granted.

By virtue of Part 1 of Art. 125 of the Labor Code of the Russian Federation, by agreement between the employee and the employer, annual paid leave can be divided into parts, one of which must be at least 14 calendar days. The question arises: how many such parts should there be in the next working year if the vacation was completely transferred to this year? That is, should the employee use two vacations of 14 days, and the remaining 28 days in parts, or one vacation of 14 days, and the remaining 42 days in parts?

From the provisions of Art. 125 of the Labor Code of the Russian Federation, regardless of how many vacation days the employee uses during the year, we can conclude that one part of the vacation must be at least 2 weeks continuously, and the rest of the vacation time for both years can be divided into parts by agreement between the employee and the employer.

Expert opinion

Polyakov Pyotr Borisovich

Lawyer with 6 years of experience. Specialization: civil law. More than 3 years of experience in drafting contracts.

The employer must take into account unused days of annual paid leave for previous periods when drawing up each new vacation schedule.

This is important to know: How much vacation is required after 6 months of work?

When an employer does not have the right to refuse an employee leave

Many who are interested in what to do if they are not allowed to go on vacation should know that the established provisions have determined the measures to be taken against an unscrupulous employer.

Of course, in most cases, the company will give people the opportunity to rest at the moment that was agreed upon in advance, and they will go away to recover according to their turn.

However, a situation may occur in the life of any person when he is not allowed to take advantage of such an opportunity due to far-fetched reasons or due to personal hostility. At such moments, many are lost and do not know what to do if they are not allowed to go on vacation or if they are not allowed to submit a request.

https://www.youtube.com/watch{q}v=TCRr9O4yOCg

Keep in mind that even in such difficult circumstances there is a way out. The whole point is that if for some reason a person was not allowed to rest, or his appeal was not even signed, he can appeal to state budgetary supervisory authorities or judicial authorities about the employer’s violation of his duties.

We invite you to read: Employee rights upon dismissal at the initiative of the employer

The appeal itself must be in writing. It is best to deliver it in person. It would be correct to justify your position by referring to corporate documents. Then you can count on a positive result of the consideration of the application.

It should be noted that not only the head of the organization, but also the specialists involved in preparing the documentation for the provision of periods of rest are at risk of being obligated to make this mandatory payment.

The easiest way to solve the problem is to contact your manager. It is quite possible that this is a misunderstanding, and the situation will be resolved through a polite conversation. You should never give up this method, because according to statistics, at least 40% of situations are resolved this way.

Even if the employer is not enthusiastic about the employee’s upcoming vacation, it is always possible to find a compromise. An option in which the plans of management and the employee will not be violated will be easily found if the parties constructively discuss the problem.

There are many cases where it is the loyalty of employees and the provision of the manager with the opportunity to move the rest time to an earlier or later date that makes it possible to resolve the conflict and make a decision that satisfies each of the participants in the labor dispute.

Another compromise option is when an employee takes time off to do urgent work while on vacation. This makes it possible to ensure continuity of the labor process and provide the citizen with a prescribed period of rest.

Unfortunately, an agreement may not be reached. The boss simply refuses to sign the vacation application. Here the employee has no choice but to contact the labor inspectorate. Such actions include an audit of the company’s work and a fine of 50 thousand rubles.

The manager himself will be fined 5 thousand rubles. Thus, to the question whether leave can be denied, the answer is yes, but for such violations the company and the director personally face a fine.

How many years can vacations not be used?

In accordance with Art. 124 of the Labor Code of the Russian Federation prohibits the failure to provide annual paid leave for 2 years in a row, as well as the failure to provide annual paid leave to employees under the age of 18 and persons employed in work with harmful and (or) dangerous working conditions.

That is, if, as a general rule, employees may not use annual leave for at least 2 years, then employees under the age of 18 and employed in jobs with harmful and (or) dangerous working conditions must use leave every year.

Failure to provide annual paid leave for more than 2 years in a row, as well as failure to provide the unused part of annual leave when it is transferred within 12 months after the end of the working year for which it is provided, is a violation of labor legislation and, in the event of an inspection by the labor inspectorate, a fine may be imposed on the organization in accordance with Part 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation.

If it turns out that the employee has not used vacation for 2 years and has accumulated 56 calendar days of vacation, should the employer provide him with 84 days next year or will they “burn out”? Of course, nothing “burns out”; there is no such concept in labor legislation. You will have to either provide the employee with 84 days of vacation, or pay compensation for these days upon dismissal.

Previously, doubts on this issue arose in connection with the ratification of the International Labor Organization Convention No. 132 “On Paid Holidays” (hereinafter referred to as the Convention) in accordance with Art. 9 in which a continuous part of the annual paid leave (at least 2 working weeks) is granted and used no later than within a year, and the remainder of the annual paid leave - no later than 18 months after the end of the year for which the leave is granted.

The situation is simpler if the employee used the main part of the vacation in the amount of 14 days every year, and the remaining unused parts of the vacation were accumulated. Here the Convention establishes that any part of annual leave in excess of the established minimum duration may be deferred with the consent of the employee for a period exceeding 18 months, but not exceeding separately established limits (clause 2 of Article 9).

Thus, the remaining vacations can be used by the employee within the terms (periods) agreed with the employer. And in case of dismissal, the employer will be obliged to pay compensation for all unused (accumulated) vacations (Article 127 of the Labor Code of the Russian Federation).

Nevertheless, the employer should not allow employees to pay arrears for vacations - primarily because working without vacations affects both the physical and psychological state of the employee, as a result, labor productivity and immunity decrease, and the employee more often goes on sick leave. Problems are possible, even to the point that an industrial accident may occur.

In addition, when paying compensation upon dismissal, the employer may overpay if the employee’s salary was increased over the last year, since compensation for unused vacation is calculated based on average earnings for 12 months (Regulation on the specifics of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation dated December 24. 2007 No. 922).

To avoid problems with unused vacation and payment of compensation, some employers, after 2 years without vacation, formalize the dismissal of the employee with payment of compensation, and then rehire him. From a legal point of view, there seem to be no violations. But if this option is used constantly, then inspectors may see a violation of the rights of employees: firstly, their length of service for the next annual paid leave is interrupted, and secondly, the employee may lose the rights to guarantees or payments established in the organization, for example, for continuous work experience.

When is an employee entitled to vacation at his own expense?

The Labor Code of the Russian Federation provides for specific cases and situations in which the employer is obliged to provide a team member with leave without pay based on a written application.

Its duration per year is also regulated by law, labor agreement or collective agreement of the organization.

Categories of employees who are legally entitled to leave at their own expense?

Elderly people are wondering whether they can deny a pensioner a vacation at their own expense? Here is a list of persons who have the legal right to use such recreation:

• veterans who participated in the Great Patriotic War (up to 35 calendar days per year);
• working age pensioners (up to 2 weeks);
• disabled people of all groups (up to two months);
• Heroes of Labor, Russian Federation and USSR, holders of the Order of Glory (up to 21 days);
• family members of military personnel killed or injured while performing their duties (up to 2 weeks);
• spouses of military personnel can rest as long as the wife (husband) is on vacation;
• on-the-job training employees if they cannot take paid study leave (up to 15 days);
• other categories of workers whose rights are enshrined in federal laws and other regulations.

Also on the topic: Indexation of pensions for working pensioners in 2018

The last paragraph implies other cases specified in the collective agreement or in the industry agreement.

In what situations is an employer required to provide leave?

The following situations are considered respectful:

• birth of a baby (up to 5 days);
• marriage registration (up to 5 days);
• death of immediate relatives (up to 5 days);
• son's conscription into the army (up to 5 days);
• daughter (son) preparations for a children's health camp (up to 5 days);
• others.

In such cases, refusal to take leave without pay is considered illegal, for which the person responsible may be held accountable.

Russian legislation does not clearly stipulate a list of valid grounds; employers directly have the right to determine them through internal local acts and orders.

In such agreements you can often find situations in which management is obliged to provide days off without pay:

• mothers, fathers or employees with two children under the age of 14;
• single parents with children under 14 years of age;
• citizens with disabled children under 18 years of age.

If an employee has a situation that falls under the above list, then management does not have the right to refuse to provide rest at its own expense.

It happens when an employee has the right to take leave for two reasons. In this case, he can choose only one with the longest duration. Leave without pay cannot be accumulated.

Actions of the employer if the employee refuses leave.

So, what to do if an employee does not use vacation or does not use it in full, accumulating the remaining parts with the permission of the employer, and what liability may arise for, we figured it out. But what if an employee doesn’t want to leave either this year or next year, and he has one reason or another? Of course, you can get into a situation once or twice, but then the problems will have to be solved directly by both the personnel officer and the employer. Therefore, you shouldn’t let everything take its course. The employee should be subject to disciplinary action, for example, first a reprimand, then a reprimand.

But for such punishment to be legal, certain requirements must be met.

1. There must be a vacation schedule signed by the head of the personnel department, approved by the head of the organization and agreed upon with the trade union, if there is one. It is also advisable to have the employee’s signature confirming his familiarity with the schedule.

2. 2 weeks before the start of the vacation according to the schedule, the employee must be notified of the start time of the vacation. Receipt of the notice must be confirmed by the employee's signature. If an employee refuses to sign a document, a report should be drawn up about this.

3. An order is needed for the provision of annual leave, which the employee is familiar with. If he refuses, this fact must be recorded.

4. No later than 3 days before the start of the vacation, it is necessary to pay the employee vacation pay (Article 136 of the Labor Code of the Russian Federation).

Do not forget that if the employee was not paid in a timely manner for the duration of the annual paid leave or the employee was warned about the start time of this leave later than 2 weeks before it began, then the employer, upon the written application of the employee, is obliged to postpone the leave to another date agreed with the employee .

5. An employee’s return to work during vacation must be documented.

6. Disciplinary action is carried out in accordance with Art. 192 and 193 of the Labor Code of the Russian Federation.

Well, if the employee still continues to go to work during his vacation, give him written notice that the time he is at work is not subject to payment, since he is on annual leave according to the approved vacation schedule.

This is important to know: Is maternity leave taken into account when calculating a pension?

It is clear that bringing administrative liability for refusal to go on vacation is an extreme measure intended for those who “maliciously” evade their right to rest, creating problems for the employer. In ordinary cases, you can accommodate an employee who asks to reschedule his vacation if there are valid reasons. Then the employee must write a statement and indicate these reasons in it.

If it is no longer possible to postpone the vacation, and the employee’s refusal to rest suits the employer, then it is possible, by sending the employee on vacation, to conclude a civil contract with him for this period.

Summarize. If your employees flatly refuse to go on vacation, you can:

postpone vacation, except for the case when the employee did not go on vacation at all for 2 years;

dismiss the employee, pay him compensation, and then hire him (we do not recommend abusing this method);

take leave, and conclude a civil contract or provision of services with the employee;

issue leave, and bring the employee to disciplinary action.

Expert opinion

Polyakov Pyotr Borisovich

Lawyer with 6 years of experience. Specialization: civil law. More than 3 years of experience in drafting contracts.

Some employers provide employees with weekend leave. This, in principle, does not contradict the law, but it will provide unnecessary questions from inspectors.

We also remind employers that you cannot refuse to provide scheduled leave, except in cases of production necessity and with the written consent of the employee. And if an employer illegally denies an employee leave and he goes on leave without permission, he cannot be fired for absenteeism (clause “d”, paragraph 39 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” ).

What to do if you are not allowed to rest

The right to rest arises for employees who have worked for the company for at least 6 months. Depending on the time of year when the six-month period expires, the employee is either given rest at his request or included in the schedule for the next year. The schedule is drawn up by the organization in December of the current year and approved no later than December 17. Each employee is notified of the completed priority schedule by signature.

Can they refuse the next leave requested ahead of schedule{q} They can if the employee does not belong to a preferential category that has the opportunity to receive an annual rest period before the end of the six-month period of work.

The right to early leave in the first six months of work is granted to:

• minors;
• pregnant women before a planned maternity leave;
• adoptive parents of infants (up to 3 months);
• husbands of women on maternity leave;
• part-time worker, provided it coincides with the holiday at the main place;
• wives of military personnel at the same time as their husbands;
• victims of the Chernobyl accident;
• war veterans;
• disabled war veterans;
• Heroes of Russia, Heroes of Socialist Labor; Heroes of the USSR;
• honorary donors;
• victims of testing at the test site in Semipalatinsk.

Do they have the right to refuse leave to non-preferential categories if the need for provision is justified, for example, by health or family circumstances{q} The law does not prohibit an employer from giving a rest period to an employee if he requests it. But this is a right, not an obligation of the employer. It is impossible to force the issuance of leave to an employee who does not have six months of work experience in the company and the right to early receipt.

The schedule for providing planned vacations for the next calendar year is established at the end of the current year. This document is mandatory for both parties: the employer and the employee. It happens that the employer refuses the next leave, citing that there is no one to replace the employee, or for other reasons.

In practice, when an employee is denied scheduled leave, an alternative is offered. Such an action will be legal if the employee agrees to the proposal and does not object to the transfer. The law allows transfer to the next calendar year. But you must observe the ban on a two-year period of work without rest. It is also prohibited to carry underage workers even with the employee's consent.

Does the employer have the right to refuse leave without its subsequent transfer{q} No. It is prohibited by law to refuse to provide employees with assistance on time according to the approved schedule. But this prohibition does not affect moments when an employee requests a period outside the schedule. Submitting a groundless application out of turn is one of the reasons why leave may be denied.

Can a manager refuse leave by offering to receive monetary compensation for the entire period {q} No, despite the legal possibility of receiving monetary compensation instead of exercising the right to rest, this is impossible. Payment of compensation is allowed only for a portion of the days exceeding the 28-day annual period.

If the employee has a duration of, for example, 34 days, then he can, if he wishes, receive compensation for 6 days. And, of course, payment of compensation is possible only at the request of the employee, and not in the form of a refusal by the employer. The right to compensation does not apply to some categories (clause 3 of Article 126 of the Labor Code of the Russian Federation). These employees need to “walk” for the entire period of more than 28 days.

In addition to annual and unpaid leave, the issue of providing educational leave is often raised. This category is provided for citizens combining work and study. Study leave is primarily paid based on the employee's average salary. But simply receiving an education is not enough to qualify. Conditions must be met:

1. The education received is the first in the corresponding level. It is understood that if an employee has completed higher education (specialist), then he is entitled to educational leave when receiving a master's degree, graduate student, etc.
2. Provided only for studying at one of the educational institutions, if there are several of them. The choice of educational institution is made by the employee.
3. Study leave can only be taken at the main place of work if the employee also works part-time.
4. The educational organization in which the employee receives his education must have state accreditation.
5. The application for provision is accompanied by a certificate of summons from the educational institution.
6. The duration should not exceed the established limits. It is possible to issue longer ones by agreement with the employer.

We suggest you read: Is it necessary to change your license at your place of registration?

The provision of study leave is guaranteed by the Labor Code of the Russian Federation as well as annual ones, therefore, if study leave is denied without reason, then such actions can be appealed.

Zinovieva Natalya Igorevna

Lawyer at the Legal Defense Board. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and other regulatory documents to regulatory authorities.

Still have questions on the topic Ask a lawyer

Vacation refusal

It is generally accepted that every worker looks forward to the vacation period, but there are situations when an employee, on the contrary, wants to postpone this period. Sometimes employees even want to give up rest days altogether, claiming compensation payments.

But it should be understood that both the work itself and the employee’s rest are regulated by the Labor Code of the Russian Federation. And neither the employer nor the worker can change existing legal norms at will.

Is it possible not to go on vacation? How is this formalized? And most importantly, in what cases is refusal to rest considered unacceptable? And is it possible not to agree to go on vacation voluntarily?

Guaranteed basic paid leave

Constitutional human rights determine his right to work and rest. Labor legislation specifies this right. Article 114 of the Labor Code stipulates the mandatory provision of annual leave to all employees, which is issued with job retention and payment of monetary compensation.

Article 115 points to the fact that the minimum number of days of annual rest must be 28 days and can be increased by the employer by any number of additional days issued.

By law, an increase in the duration of the main vacation period is mandatory if:

1. The employee was hired for a position with an irregular schedule. The extension must be made by at least three days, but the maximum duration is determined individually.
2. For workers in harsh climatic conditions in the Far North and other areas.
3. Having special working conditions, which are listed in the Labor Code of the Russian Federation and other legislative acts.

By law, the vacation period is planned in advance. For this purpose, a vacation schedule is drawn up annually, which determines the timing of each individual employee’s departure for vacation and his return.

The Labor Code of the Russian Federation allows you to divide annual leave into parts, one of which must be for a period of at least 14 days, and the duration of other parts is determined independently.

Obligation to adhere to schedule

As mentioned earlier, vacation periods are planned in advance. This is done in order to maintain the continuity of production processes and avoid layering vacation periods one on top of another. What to do if an employee does not want to go on vacation? If there is a schedule, this question does not even arise. The employee is simply notified of the beginning of this period two weeks in advance, and on the specified day must go on vacation.

Article 123 of the Labor Code of the Russian Federation establishes that a schedule must be drawn up at all enterprises. The deadline for accepting schedules for the next year is set at mid-December of the current year.

Vacation periods are established through interaction between the employee and the employer, that is, the employee can go on vacation at a time convenient for him if the employer approves the chosen dates. At the same time, the employer does not have the right to refuse an employee the exercise of his right without significant reasons, but do not forget that some organizations, due to the nature of their activities, provide vacations only in certain seasons and months, such as educational institutions.

It is not always possible for the employees themselves and even the employer to fully follow the schedule drawn up in advance.

The management of the organization, if necessary, can recall an employee from vacation or postpone its start only with the approval of the vacationer himself and if there are compelling reasons.

The vacationer himself can submit an application to postpone previously established deadlines, which may or may not be approved by the manager.

Legality of refusals

In general, if an employer does not allow vacation, this may be considered a violation. However, this rule does not always apply. Therefore, it is necessary to consider under what circumstances the refusal is lawful and complies with the norms of the Labor Code.

Legal aspects

If the employee is not allowed to go on vacation, first of all, the option of the requested vacation is taken into account. Taking this into account, it is necessary to assess whether the manager’s actions are unlawful.

It should be noted that the possibility of temporarily stopping work is guaranteed to every citizen. For example, you can go on another paid vacation once a year, in accordance with the schedule. However, the employer has the right not to give rest if this may negatively affect the work of the enterprise (Article 123 of the Labor Code). In this case, with the consent of the employee, the vacation is transferred to the next year.

As for unpaid termination of work, in this case management has more opportunities to refuse. Usually, a person is sent at his own expense only if there are compelling reasons.

Among them:

• Death of a close relative;
• Retirement age;
• Physical limitations;
• Birth of a child;
• Marriage registration.

In all other cases, the employer has the right to refuse. Therefore, to the question of whether they may not be allowed to go on vacation, they confidently answer in the affirmative.

Situations when management denies permission to go on maternity leave or sick leave are regarded as a gross violation. This is an illegal action for which liability is provided.

Possible reasons

If an employee is not allowed to go on vacation as scheduled, there must be good reason for this. There are a number of factors in which such a refusal is completely legal. These include:

• Work experience in the new place is less than 6 months;
• Violation of the vacation schedule;
• The requirement to provide another vacation with dismissal;
• Increased production demand.

Any other situations in which the employer denies scheduled leave is a violation. The employee has the right to demand compensation or file a complaint.

They may also not be allowed to go on holiday if the citizen is a civil servant, military officer, law enforcement officer or intelligence officer. However, in such cases, the refusal must be justified by the specific circumstances due to which the employee is left in place. These may include various emergency situations and the threat of natural disasters.

Solving the situation

For every citizen the relevant question is what to do if they are not given leave. The solution depends on the specific situation. Employers usually report the reasons for refusal, so that conflicts can be eliminated and the problem can be resolved in alternative ways. Among them:

• Payment of compensation. If the allotted vacation is not used, the employee may be provided with a sum of money as a kind of compensation for damage. It is calculated based on the average monthly salary. Holidays and weekends are excluded.
• Transfer of vacation. The employee, by his personal consent, changes the period of rest. This option is equally beneficial for both management and employees. Cases in which a transfer is possible are described in Article 124 of the Labor Code of the Russian Federation.

Such options are relevant provided that the employer does not allow vacation as scheduled. If you are denied leave without pay, then in this case the problem situation can only be resolved through a complaint.

Replacement of part of vacation with monetary compensation

Article 126 of the Labor Code of the Russian Federation establishes the possibility of replacing part of the vacation period with monetary compensation.

According to the established rules, you can take a refund instead of days off in the following cases:

1. Days exceeding the mandatory period of 28 days are compensated. Such replacement is possible annually at the request of the employee.
2. When summing up vacation periods or transferring them to the next year, you can also compensate for those days that exceed the specified minimum.

Compensation for other parts is also not prohibited by the Labor Code if it is previously approved with the employer.

Please note that these rules do not apply to:

Compensation for unused vacation is awarded to everyone, without exception, who leaves the organization.

Grounds for refusal of leave

If a person does not have benefits, the boss may refuse to provide him with annual leave at a specific time. Even if the schedule is approved. The main reasons for refusal are:

1. The employee decided to rest at a different time than was written in the schedule. He came with this proposal to his boss, who refused him.
2. A difficult production situation arose at the enterprise. It requires workers to be on site.
3. The employee asks to divide the rest into three parts.

REFERENCE: if vacation days have not been used, then the time not taken off is transferred to the next year. But the employer cannot refuse to give leave for more than two years in a row. This is a direct violation of the law! Even if his employee agrees to work without rest.

Prohibition on failure to provide vacation for 2 consecutive years

The Labor Code establishes such rules that an employee goes on annual vacation, regardless of whether employers want it or not. Moreover, the employer may be held liable for failure to provide rest.

An employee can compensate for rest days one year on his own initiative or due to production needs, but next year he will no longer be able to count on this right. Regarding minors, they do not have the right to choose a priori and are obliged to fully rest, regardless of desire and production processes.

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Employees who work in workplaces that have an established class of hazard or danger must also be provided with mandatory, or even compulsory, rest.

How long can you take a vacation?

Now, according to Letter of Rostrud dated December 24, 2007 No. 5277-6-1, vacation is granted to everyone who has worked for six months, not a year.
The regulations on the number of days on vacation for 2020 look like this:

1. Workers in the Far North have the right to vacation for up to 6 months (the journey home and back is included in this period).
2. Workers in hazardous workshops, nuclear engineers, people dealing with hazardous substances are sent on vacation with an additional 7 days to the required 30.
3. Supplement for irregular working hours – 3 days.
4. The special nature of work - vacations are established according to Decrees of the Government of the Russian Federation.
5. Municipal workers have the right to rest for 35 days in a row.
6. The state apparatus will go on vacation for 35 days starting from 2020.
7. Maternity leave lasts 140 days if there are no complications and 1 child is born. In other cases, the deadlines increase.

Additional days of rest are due for length of service:

• 1 – 5 years – 1 day;
• 5 – 10 years – 5 days;
• 10 – 15 years – a week;
• From 15 years – 10 days.

Disabled people, war veterans, and other privileged categories of the population have the right to additional leave or a slight extension of the main one. The schedule and deadlines are set by the employer based on the specifics of the work within the framework of the law.

Can an employee refuse vacation?

Legislation guarantees the right of an employee to be provided with a period of vacation paid at the expense of the employer while maintaining his job.

For the first time, an employee receives this right after six months of work. Further, vacation periods must be provided to him in accordance with the vacation schedule.

This normative act is agreed upon before approval, and then brought to the attention of employees against signature. The rules also establish the employer’s obligation to notify the employee at least two weeks before the start of this period. The laws also stipulate that an employee must take advantage of his vacation within 1.5 years.

Company management may be faced with a situation where an employee does not want to go on vacation. He may not be satisfied with the duration of the vacation provided or he wants to replace it with monetary compensation.

To the question of whether it is possible for an employee to refuse vacation, the answer can be - in most cases - no. This period must be taken off by the employee. The only possibility, in agreement with the employer, is to transfer it to a more favorable time.

But such a refusal is not available to all categories of workers.

Right to annual leave

The provisions on the annual provision of vacation days are given in Chapter 19 of the Labor Code of the Russian Federation. Any employee who has worked at the enterprise for more than six months has the right to count on several days of rest while maintaining pay. After 6 months, the administration provides days of rest, or enters information about the future vacation period into the vacation schedule.

An employee on maternity leave has the right to use her leave in advance immediately after her maternity leave. The basis for providing additional days will be the employee’s application. The management of the enterprise cannot refuse an employee leave, as this would be a violation of labor legislation.

Employees who intend to quit have the right to take days off. Paid days are provided upon application for leave with subsequent dismissal.

In other situations, an employed citizen who has worked for 11 full months receives the full right to rest for the required 28 days. Subsequently, annually, 2 weeks before the end of the year, the company agrees on the vacation time of each employee. Priority in scheduling is given to citizens of benefit categories, who have the right to use days at their own discretion, without asking management for approval.

• Rules for scheduling vacations

When drawing up the schedule, the right of certain categories of citizens to additional paid days is also taken into account (when working in hazardous work that poses a danger to life and health). Days of rest in excess of the standard established by the Labor Code of the Russian Federation are determined on the basis of internal regulations at the enterprise, or by collective agreement.

Sometimes life circumstances change, and it is necessary to postpone the start of the vacation to a later period. There is a need to reschedule days or replace them with monetary compensation.

Changing your vacation date

Article 124 of the Labor Code of the Russian Federation establishes the possibility of shifting the start date of vacation days at the initiative of the employee.

The reasons for the transfer are:

• Sudden illness and registration of an official certificate of incapacity for work. If a person, on the eve of the start of the vacation, applied for a transfer, management does not have the right to refuse this, therefore the previously issued order to grant a vacation period should be cancelled.
• It is possible to reschedule rest time if the previously planned period involves the fulfillment of duties to the state, which allow you to obtain exemption from work.
• Other situations specified in internal regulations or collective agreement.

If the administration has not paid the employee vacation pay the day before, the employed person has the right to refuse the planned vacation, postponing it to a later period. The issue is resolved in a similar way when one of the parties is notified of an upcoming vacation in less than 2 weeks.

Replacement with monetary compensation

Legislation makes sure that every employee has the opportunity to recover during paid leave, so a complete refusal of rest and replacing it with monetary compensation is impossible. The exception is situations with impending dismissal, when an employee quits without taking the days off required by the Labor Code, or cases where the state has guaranteed the provision of paid additional days in excess of the required minimum of 28 calendar days.

• Conditions of monetary compensation for unused vacation

For example, if an employee is entitled to paid 34 days, of which 28 days are a legal obligation, for the remainder of the period the citizen can receive monetary compensation at his own discretion. The employer does not have the right to insist on rest or monetary compensation.

For certain categories of hired citizens, it is not possible to refuse vacation, even additional time - all days must be taken off completely. These categories are mentioned in the provisions of paragraph 3 of Art. 126 labor legislation.

Thus, whether an employee can refuse leave depends on the specific situation, provided there are no prohibitive provisions in the law.

Replacement of rest with monetary compensation: in what cases is it legal?

Expert opinion

Polyakov Pyotr Borisovich

Lawyer with 6 years of experience. Specialization: civil law. More than 3 years of experience in drafting contracts.

The law allows in some cases to replace part of the vacation with monetary compensation. This is only possible if the employee, in addition to the annual main leave, also has the right to an additional or extended part.

On the other hand, the law defines categories of employees for whom replacing vacation with compensation is unacceptable under any circumstances.

• Pregnant workers;
• Workers who have not reached the age of majority (18 years old);
• Workers in workplaces with difficult or dangerous conditions.

In addition, some other legislative acts also contain prohibitions on the payment of compensation - for example, to employees of customs authorities or internal affairs.

If an employee wishes to replace vacation with monetary compensation, then he must refuse vacation according to the schedule by filling out an application for payment of compensation.

What types of vacations exist in Russia

The word "vacation" is usually associated with rest.

But vacations are different and are issued differently.

1. Maternity leave – maternity leave.
2. Educational - for a session for correspondence students and evening students for 28 days.
3. Annual paid – to all employees of the company for 28-30 days.
4. Academic – leave at your own expense for work or for university students.
5. Additional - a few days plus the usual leave for length of service, maybe even as a bonus for good work.
6. Increased - for persons of special social categories, civil servants, municipal workers and those working in the Far North.
7. Additional time - for length of service, several days are added to the vacation, depending on the length of service.
8. Vacation without pay. For various reasons, the salary is not saved, but this type of leave is also classified as “at one’s own expense.”

Children under 18 years of age have the right to additional leave and do not have to wait for the first six months - they are released earlier.

What to do if an employee refuses vacation?

If an employee categorically refuses to go on vacation, the employer can do one of the following:

• Transfer the next vacation to the next year (except for the situation where the employee has not gone on vacation for 2 years in a row, or he is included in the category of employees who are prohibited from transferring vacations);
• Dismiss the employee, pay him compensation, and then hire him again (it is not recommended to abuse this method, as this will cause additional attention from regulatory authorities);
• Carry out registration of leave, but for its period draw up a contract with the employee;
• Force a leave of absence and subject the employee to disciplinary action.

The employer must remember that failure to provide vacation for 2 years in a row, or failure to provide an already transferred part of the vacation within 12 months, is punishable by administrative fines.

The algorithm of actions in this case must be constructed correctly:

• The organization must have an approved vacation schedule, and the employee must be familiar with it against signature;
• 2 weeks before the start of the vacation, the employee must be notified of its start. The employee must sign the copy of the document. If he refuses to sign it, a commission is assembled and an act is drawn up;
• An order for granting leave is drawn up, with which the employee must also be familiarized. If you refuse this action, the same steps must be drawn up;
• No later than 72 hours before the start of the vacation, vacation pay is paid;
• If an employee goes to his workplace during vacation, each given fact must be confirmed by an act;
• According to Art. 192 and 193 of the Labor Code, disciplinary liability is imposed on the employee.

When is unpaid leave granted?

According to Art. 128 of the Labor Code of the Russian Federation, leave of this type can be granted:

1. At the discretion of the employer (but after considering the reason why the employee requests unpaid leave and his production capabilities, he may decide to refuse to provide such leave).
2. By force of law (when an employer cannot refuse to provide an employee with leave without pay).

Therefore, before making a decision to refuse to grant leave to an employee, you need to not only take into account production issues, but also check whether he belongs to the category of employees who cannot be denied leave.

Let's say a few words about unpaid leave by decision of the employer. Part 1 of Art. 128 of the Labor Code of the Russian Federation establishes that for family reasons and other valid reasons, an employee, upon his written application, may be granted leave without pay, the duration of which is determined by agreement between the employee and the employer. From this rule we can conclude that the mandatory conditions for granting such leave are appropriate circumstances, a written statement from the employee and the consent of the employer.

Let us note that the employer, when deciding to grant leave, at his own discretion evaluates the reasons why the employee requires leave, and if he considers them insignificant or disrespectful, he has the right to refuse. We recommend that you approach this issue objectively, since in the event of a dispute, the court or regulatory authority may side with the employee. For example, the Perm Regional Court considered a case on declaring an order to apply disciplinary measures illegal. B. applied to her employer for unpaid leave for a day, without indicating the reason why it was required. Accordingly, the employer refused to provide leave, but B. did not return to work. For this she was reprimanded. The court, having examined the case materials, found out the reason for the absence - the need to appear at the prosecutor's office and the court (the summons was documented with the relevant documents) - and declared the order to apply a disciplinary sanction illegal (Appeal ruling of the Perm Regional Court dated August 12, 2013 in case No. 33-7452).

Of course, the court does not always side with the employee. If he does not show up for work after the employer refuses to provide unpaid leave, the court may recognize the application of disciplinary measures up to and including dismissal for absenteeism as legal and justified (see, for example, Determination of the Moscow City Court dated September 8, 2015 No. 4g/8 ‑8669/2015, Appeal ruling of the Omsk Regional Court dated 09/02/2015 in case No. 33‑6239/2015).

Can an employer force you to go on vacation?

In practice, an employee often tries to find a way to refuse to receive leave. An employer may force an employee to go on vacation if this requirement is based on the vacation schedule adopted by the organization. This schedule is mandatory for both the employer and the employee himself.

If the schedule schedules a longer period of time than the employee wants to take, or the employee does not want to go on vacation at all at the specified time, the employer’s demands to go on vacation are justified. Thus, refusal to take scheduled leave is not acceptable.

It is very important that the employee is familiarized with the vacation schedule upon signature indicating the date of this event. If the introductory signature is not affixed, the employee has every right to declare that he did not know about the time he was going on vacation, and therefore may not take it into account.

Legality of refusals to provide rest at one’s own expense

Unfortunately, many Russians, at least once in their lives, have encountered a situation where their bosses simply do not allow them to go on vacation.
Despite the fact that such actions are legally regarded as a serious violation and are punishable by a fine, employers often take such a step, hoping that the employee will not complain. It happens that the threat of dismissal or other methods of influence are used. To understand whether an employer may not allow an employee to go on vacation as scheduled, it is worth first deciding what a vacation period is and who is entitled to it. According to the labor code, every citizen can exercise his legal right to go on vacation once a year.

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The minimum period for such a period is 28 calendar days. In small companies, often, employees and management agree on this point verbally and in the future, everyone goes to rest at the chosen time. At large enterprises the situation is somewhat different.

In order not to violate the rights of employees and so that every citizen can rest during the year, a special schedule is formed.

The document indicates the vacations of all company employees, and employees are familiarized with the dates upon signature. At the final stage of registration, the employer assures the schedule, thereby automatically accepting responsibility for its compliance.

If the schedule indicates specific vacation dates, then its non-use is possible only with a personal statement from the employee and provided that in the previous period the citizens had a full rest.

Unpaid leaves - administrative - are provided to employees during any period of their work, regardless of length of service, but without retention of pay. The employee must send a request statement to the employer requesting provision. The request must be justified by explaining the purpose. This is necessary to determine compulsoryness. It happens that employees are denied leave at their own expense, citing various reasons.

You cannot refuse if the request came from:

1. WWII participant. The annual duration limit for such employees is 35 days.
2. Working disabled person. Disabled people have the right to 60 days of rest without pay.
3. Pensioners by age. If the pensioner continues to work, then he has the right to 14 days.
4. Widows (widowers) of persons who died in the line of duty or as a result of illness, injury, injury received during the period of service. The limit for this category is set at 14 days.
5. If unpaid leave is requested due to the birth, death or marriage of a close relative. Duration – 5 calendar days.

The list reflected in Art. 128 of the Labor Code of the Russian Federation, not exhaustive. Additional social guarantees may be established by federal laws and local regulations of the employing company. In practice, an employee is rarely denied additional leave at his own expense.

Labor legislation is mostly focused on protecting the interests of workers. But at the same time it also regulates rules limiting the abuse of rights by employees. The same applies to the designation of the list of situations when an employee may be denied leave. When determining whether it is possible to refuse leave, the employer must rely on the norms of the Labor Code of the Russian Federation. The conditions under which an employer can refuse leave at the time desired by an employee are limited only by law.

Refusal will be legal and completely legal if:

1. An employee not from the preferential category requested a rest period in the first six months.
2. A written application was not submitted in the proper form, if the filing of such is regulated. There is no need to write an application if the provision occurs on schedule. It is enough for the employee to familiarize himself with it 14 days before the start.
3. After the requested rest, the employee intends to resign.
4. When production needs arise. But this basis can only be used with the prior consent of the employee.

Knowing for what reason leave may be denied, it is easy for an employee to understand whether the employer’s actions are legal.

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