Vacation debt has accumulated - what to do?
Employees often accumulate vacation arrears over several years. And in such cases, the employer is faced with the question: how to deal with these “debts”? Will it be enough to compensate them with money?
Art. 126 of the Labor Code of the Russian Federation establishes the basic norm for vacations: every citizen of the Russian Federation is guaranteed 28 days of rest per year worked. And he must use these days “in their natural form.”
Thus, if an employer has a debt of, for example, 100 days of vacation, because the employee has not taken vacation for 4 years, then he cannot simply replace this debt with compensation. Only if the employee quits. And in case of dismissal, the employer will have to pay compensation for all unused vacations, that is, for 4 years.
In what cases can you replace vacation with money?
The right to rest, including during the period of annual paid leave, is established by the Labor Code of the Russian Federation. The duration of rest must be at least 28 days a year (Article 21, 115 of the Labor Code of the Russian Federation). The right to rest is at the same time the employee’s responsibility: he cannot receive cash equivalent instead of vacation while continuing to work.
At the same time, some categories of employees are entitled to longer or additional annual leave.
For example, disabled workers have the right to rest for a longer period - at least 30 days a year (FZ-181 dated November 24, 1995), and workers with irregular work hours working in the Far North have the right to additional leave ( Article 116 of the Labor Code of the Russian Federation).
Such additional days off may be established by local regulations of the company, provided and paid at the initiative of the administration.
The difference between the established norm of vacation days (28) and the longer vacation granted to the employee can be compensated at his request. Vacation of 28 days or part thereof is not replaced by monetary compensation, except in the case where an employee quits without having time to go on vacation for the previously worked period.
However, the law does not allow replacing additional leave with compensation in all cases.
There are situations when an employee, having not taken vacation for 2 years, expects to receive money for this entire period or part of it: for example, take 28 days off, and receive money for the remaining time that the company “owes” him. However, compensation cannot be awarded to him in this case.
The legislator allows you to “take with money” all the same additional days for each year, all at once or in parts, and a period of 28 days for each year - to rest (paragraph 2 of Article 126 of the Labor Code of the Russian Federation). Of course, this is only possible if he is entitled to these days by law. Let us analyze these situations in more detail and consider the procedure for obtaining monetary compensation for vacation.
Compensation for vacation and tax claims
When paying a large compensation, the employer risks entering into a dispute with the tax authorities. Questions may arise on their part: why was compensation for all 4 years included in income tax expenses? After all, in accordance with Art. 255 of the Tax Code of the Russian Federation, only compensation in accordance with labor legislation should be included in labor costs when calculating income tax. And labor legislation warns that “failure to provide annual paid leave for two years in a row is prohibited” (Article 124 of the Labor Code of the Russian Federation).
As a rule, the employer challenges such actions of the tax authorities through the court, referring to Art. 127 of the Labor Code of the Russian Federation, which states that in accordance with the Labor Code, he is obliged to pay compensation to the employee for all unused vacations.
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Compensation for unused vacation in 2020
The content of the article
The legislation of the Russian Federation provides for the right of every employee to annual paid leave. For a number of reasons, an employee does not always have the opportunity to take advantage of vacation. As a result, unused vacation days accumulate. You can agree with management to take these days when the employee needs them. But is it possible to compensate for vacation with money in 2020, if so, how to arrange it and whether compensation for vacation is due upon dismissal in 2020.
Compensation for part of the vacation, subject to the availability of additional vacation
If the employee intends to continue working in the company, then only part of the annual paid leave exceeding 28 calendar days can be replaced with compensation. That is, such compensation is provided for those categories of workers who, by law, are entitled to extended basic leave - more than 28 days. These include:
- disabled workers, duration of leave is at least 30 calendar days (Article 23 of Federal Law No. 181-FZ of November 24, 1995);
- minor workers, vacation duration - 31 calendar days (Article 267 of the Labor Code of the Russian Federation);
- municipal employees, vacation duration - 30 calendar days (Clause 3, Article 21 of Federal Law No. 25-FZ dated 03/02/2007).
There are also categories of employees who are entitled by law to annual additional paid leave:
- workers engaged in work with harmful and (or) dangerous working conditions (Article 117 of the Labor Code of the Russian Federation);
- employees with a special nature of work (Article 118 of the Labor Code of the Russian Federation);
- workers with irregular working hours (Article 119 of the Labor Code of the Russian Federation);
- workers working in the regions of the Far North and equivalent areas (Article 321 of the Labor Code of the Russian Federation, Article 14 of the Law of the Russian Federation of February 19, 1993 No. 4520-1).
Additional paid holidays may be established at the discretion of the employer, taking into account production and financial circumstances. At the same time, the conditions and procedure for granting such leaves are prescribed by collective agreements or local regulations.
It is worth noting that replacing part of the vacation with monetary compensation is not an obligation, but a right of the employer. Therefore, he may refuse compensation. This position is formulated, in particular, in the Decision of the Supreme Court of the Komi Republic dated August 15. 2011 No. 33-4410/2011).
In Part 3 of Art. 126 of the Labor Code of the Russian Federation identifies categories of employees in respect of whom the replacement of annual basic paid leave and annual additional paid leave with monetary compensation is not allowed:
- pregnant women;
- workers under 18 years of age;
- employees engaged in work with harmful or dangerous working conditions - they are not replaced by money with annual additional paid leave.
All these employees can receive compensation for vacation only in one case - upon dismissal.
The minimum duration of additional leave is 7 calendar days (Article 117 of the Labor Code of the Russian Federation). However, the specific duration of such rest is established by the employment contract on the basis of an industry agreement and a collective agreement.
That part of the vacation that exceeds 7 calendar days can be replaced by compensation. To do this, the employee needs to write an application to replace the vacation with compensation. In addition, the provision for replacing additional leave with money must be reflected in the industry agreement or collective agreement.
An employee exposed to radiation as a result of the Chernobyl disaster is not subject to compensation for unused additional annual paid leave (provided on the basis of clause 5 of Article 14 of the Law of the Russian Federation of May 15, 1991 No. 1244-1).
How to replace vacation with monetary compensation not upon dismissal
Is it possible to replace part of the vacation with monetary compensation? The answer to this question is yes. Annual paid leave can be replaced with monetary compensation, but not in full, but partially. In other words, you can replace with money those days of the SW that remain beyond the prescribed period of twenty-eight days. When combining SW, as well as when transferring vacation to the next year, the employee has the right to replace with monetary compensation parts of each SW in excess of the twenty-eight days required by law. You can replace all SW days exceeding 28 CD, and any number of them as desired.
The law does not regulate the specific amount of monetary compensation with which the employer can replace each day of unused SW, but it does regulate the method of calculating payments.
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The calculation is carried out in the same way both in case of termination of the employment contract and in case of replacement if the twenty-eight day period is exceeded. The basis is data on the average daily wage.
Kno = K × ZPd,
Where:
Kno - the amount of compensation when replacing SW days;
K - number of days of the unit to be replaced;
ZPD - average daily salary.
Determining the average daily earnings is often difficult. The calculation is made using the following formula:
ZPd = ZP accrued / Code,
Where:
Salary accrual - total payments received by the worker for the specified period;
Code - the number of days the employee worked.
When determining the number of days worked, it matters whether he worked a full month or not. Calculation in these cases is carried out in different ways:
- If the employee has worked all months in full, then the Code is determined as the product of the number of months worked by the average number of CDs in a month equal to 29.3.
- If the month was not fully worked, then it is necessary to determine the ratio of the number of days worked by the employee in this month to the total number of days of the month. The resulting value must be multiplied by 29.3.
Compensatory cash payments for vacation are payments related to the labor interaction between the company and the employee.
They are subject to personal income tax. The regulatory document in this case is the third paragraph (paragraphs 6 and 7) of Article 422 of the Tax Code of the Russian Federation. It lists exceptions to the general rule under which personal income tax may not be paid. However, compensation cash payments that replace annual leave are not mentioned there.
Compensation upon dismissal
The Labor Code does not establish a rule for calculating compensation upon dismissal. Therefore, employers should be guided by the old document - “Rules on regular and additional leaves” (approved by the People's Commissariat of Labor of the USSR on April 30, 1930 No. 169).
In the Rules, it is important to pay attention to clause 35, which states that “when calculating the terms of work that give the right to proportional additional leave or compensation for leave upon dismissal, surpluses amounting to less than half a month are excluded from the calculation, and surpluses amounting to not less than half a month, rounded up to a full month.”
In connection with this rule, the question may arise: how to count half of the month in February, which, as you know, has 28 days? You need to focus not on the calendar month, but on the working month, since vacation is provided for the working year.
Let's say you hired an employee on September 17, 2020. As of November 30, 2020, he will resign. The employer needs to see how many full months the employee has worked. The first two months were fully worked out: from 09/17/18 to 10/16/18 and from 10/17/18 to 11/16/18. And the employee worked the third month from 11/17/18 to 11/30/18, therefore, according to clause 35 of the “Rules on regular and additional leaves”, compensation must be paid only for two months.
In what cases is compensation given instead of vacation?
The right to receive monetary compensation instead of vacation is provided for in Art. 126 of the Labor Code of the Russian Federation. However, you should not hope that you can work the whole year without rest and then get paid. According to the Labor Code, an employee is annually provided with at least 28 calendar days of paid leave. This period cannot be replaced by material compensation. This is only possible when an employee leaves the company. If it becomes known that the employee did not take vacation, the organization will be fined. Therefore, most people working under normal conditions should not count on vacation compensation without dismissal.
This is important to know: Vacation certificate of the Ministry of Internal Affairs (filling sample)
However, in some cases this rule does not apply. Even if the employee wishes, the company does not have the right to issue monetary compensation instead of vacation to the following categories:
- minors;
- pregnant women;
- customs workers (clause 2 of article 35 of Federal Law No. 114);
- employees of the Ministry of Internal Affairs (Article 45 of the Resolution of the Armed Forces of the Russian Federation No. 4202-1);
- workers whose working conditions are harmful or dangerous.
There are exceptions to the last rule. According to Art. 117 of the Labor Code of the Russian Federation, leave for employees whose working conditions are classified as harmful or dangerous must be increased by at least seven days. If the actual duration of additional leave is longer (for example, it exceeds the standard one not by 7, but by 10 days), then a person has the right to replace the part in excess of the mandatory minimum allowance (in this case, 3 days) with monetary compensation. In the same way as in the general case, he can take money for all days in excess of the standard, or for some part of them. This can be done on the initiative of the employee himself or stated in local regulations.
Algorithm of actions for processing and receiving compensation for vacation
To receive money in exchange for part of the vacation, the employee must write a corresponding application. You can use the sample.
Having received an application from the employee, the employer issues an order to replace part of the vacation with monetary compensation, drawn up in any form.
The order must indicate:
- Full name and position of the employee;
- the number of vacation days that must be replaced by monetary compensation, the billing period;
- the basis for issuing the order;
- details of the employee's application.
The employee reads the order and signs it. After this, the employer enters into the employee’s personal card (unified form T-2) in section 8 “Vacation” information about the replacement of part of the annual paid leave with monetary compensation.
How are the remaining columns filled in?
Column 1 “Type of leave” specifies which leave is replaced by monetary compensation (main, additional).
There are no specific comments for filling out columns 2 and 3 “Working periods” - they are filled out according to general rules.
The number of vacation days that are subject to replacement with compensation is indicated in column 4 “Number of calendar days of vacation.”
In columns 5 and 6, the corresponding entry “Replacement of vacation with monetary compensation” is made.
Column 7 “Grounds” reflects the details of the order. The same information should be recorded in the vacation schedule - in column 10 “Note”. Just make a note that part of the annual leave has been replaced by money, indicating the number of compensated days.
Submitting an application for monetary compensation for annual leave
An application for monetary compensation for annual leave is completed by the employee. Since it is he who must express such a desire, it is he who writes the application. This paper should indicate:
- To whom the application is addressed (full name of the employer, as well as his position).
- From whom (employee's full name).
- Next, provide the following information: a request for compensation for vacation, based on Article 126 of the Labor Code of the Russian Federation, indicate the vacation period, the exact number of days that you should be compensated. Please also indicate whether this is additional leave or annual leave.
- Sign and date.
This application example is relevant both for compensation of part of the vacation and for its full compensation.
Who is entitled to such a payment when leaving work?
Every single one, despite the length of work. Compensation for unspent vacation should not be confused with the right to vacation, which is received by employees who have worked for at least six months. Even if you worked only 1 month at work, you are entitled to payment for the days that should have been included in your future vacation.
It is not necessary to use all the entitlement leave at once and employees can split it into different parts throughout the year (observing, of course, the rule of mandatory availability of one leave period of at least two weeks). Therefore, it happens that an employee, having worked for six months and used up the rest allotted to him at that time, then worked for another 6 months, for example, and decided to quit. In this case, from the total number of days allotted to him for the year, the used ones will be subtracted and the days that the employee did not use will be paid for.
In addition, there is also the concept of full vacation for all employees who have worked for a whole year. There are exceptions to every rule:
- Those who have worked for 11 months, which are fully included in the work period, can also receive payment for their full vacation.
- Those who have worked from 5.5 to 11 months can also count on similar compensation, provided that the dismissal is not due to their fault, but due to the liquidation of this enterprise/organization/reduction of staff.&
Always, except for the specified exceptions, the general rule applies - the calculation of vacation according to the length of service you have worked. And if the minimum vacation in the Russian Federation is established for you, that is, 28 days, we divide these 28 days by 12 (months per year) and get the number of days of your vacation that fall on each month you work - and this is 2.33 days. This figure will help you calculate the days to be paid if you have worked for less than a year.
For example, Andrey worked at the company for only 5 months and found a higher-paying job, but for these 5 months he has the right to receive vacation pay. And to calculate how much vacation he needs to pay for, you need to multiply 5 by 2.33 - that’s 11.65 days.
And Irina worked for a full year, in addition, during the previous billing period she did not fully use up her allotted vacation (10 days left). Then to the 28 days of rest for the past year we add 10 days for the previous year and we get 38 days for which we must pay her compensation.
Can an employer refuse?
It is important to understand that an employee has the right to apply for a payment and claim it, but, alas, he cannot demand it - it is up to the employer to decide whether to accommodate the employee or refuse. In addition, there are cases in which you yourself have no right to agree:
- If such an employee is a pregnant woman.
- If the employee is under 18 years of age.
- If you work in hazardous or hazardous conditions.
For the latter, by the way, there is still a small exception - if an employee works in harmful conditions, but does not want to rest for the entire vacation, you can sign an additional agreement with him to his employment contract on the basis of collective, industry, inter-industry and other agreements and give part of it in money vacation over seven days. That is, if in general such an employee’s vacation should last, for example, 56 days, 21 days can be compensated with money.
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Calculation examples
Example 1
Irina Nikolaevna is a specialist in the human resources department at the St. Petersburg State Budgetary Healthcare Institution “City Clinic No. 5”. Irina’s salary is 30 thousand rubles. According to the collective agreement, an employee of the public sector, to which this specialty belongs, has an irregular working day. Therefore, Irina Nikolaevna can take an additional 14 days to her vacation. From May 1, 2020, Irina Nikolaevna rested for 28 days. After returning from vacation, the employee decided to receive compensation for additional vacation and wrote a statement addressed to management with a request to provide her with such a monetary payment. On the next payday, Irina will receive a payment in the amount of 14,286 rubles.
Example 2
A pregnant employee working in an enterprise with hazardous working conditions has the right to an addition to the standard leave - 14 days. The employee's salary is 25 thousand rubles. From June 1, 2020, a woman goes on vacation and wants to add up her standard and additional vacations. She wrote about this in a statement to her employer. Thus, the employee’s return date to work is July 13, 2020. The vacation payment she will receive will be equal to 35,714 rubles.
Maternity payments in 2020 - find out full information. You can find out how to correctly calculate the average daily earnings taking into account sick leave here. Read about the child tax deduction in this article.
Are all employees entitled to substitute additional leave compensation?
The employer has the right to provide additional leave to an employee, regardless of what position he holds. Even if the employee’s work does not fall into the categories listed above.
If the employee’s work is related to any of the listed items, it is the employer’s responsibility .
A citizen can take advantage of additional leave:
- in the form of prescribed non-working days;
- as monetary compensation;
The exception to this situation is a group of people for whom additional leave cannot be compensated in monetary terms.
These include:
- Employees under eighteen years of age.
- Pregnant women.
- Customs officers.
- Citizens who received radiation exposure during the liquidation of the Chernobyl disaster.
Why is vacation transfer allowed?
The legislator stipulated the occurrence of situations during vacation when annual leave must be interrupted or granted at a different time. Such cases are:
- transfer of leave due to sick leave;
- the need to perform government duties, during which time exemption from work is granted by law;
- in other cases.
Non-payment of vacation pay, notification of vacation less than 14 days before its start also becomes the basis for transferring the vacation to another period agreed with the employee.
If the production process requires the presence of an employee and his going on vacation paralyzes the activities of the organization, with the consent of the employee, the vacation is also postponed to another period of time. However, it must be used within the year following the year of provision. That is, working for 2 years without vacation is acceptable.
Therefore, if you need to find out whether it is permissible to replace vacation with monetary compensation in the event of its postponement, remember that in this case the legislator says “no” (Article 124 of the Labor Code of the Russian Federation).
Workers who are under 18 years of age, as well as those employed in hazardous and hazardous industries, must be granted leave annually; transfers are not allowed.
