Failure to provide labor leave during the period is prohibited. Penalty for failure to provide leave to an employee

An employee has the right to transfer annual paid leave both during the working year and to the next year. The next paid leave may be postponed

— if the employee was not paid vacation pay on time or was not notified in a timely manner about the start of vacation;

- if an employee going on vacation will adversely affect the company’s activities.

Based on Part 2 and Part 3 of Article 124 of the Labor Code of the Russian Federation, the postponed vacation can be used no later than 12 months after the end of the working year or transferred to the next year.

The labor inspectorate may fine an organization or its manager for failure to provide an employee with annual paid leave. Article 5.27 of the Code of the Russian Federation on Administrative Offenses provides for fines for violation of labor legislation (including rules on vacations). The Labor Inspectorate may impose a fine:

- for officials of the organization - in the amount of 1000 - 5000 rubles;

- for an entrepreneur - in the amount of 1000 - 5000 rubles;

- for the organization - in the amount of 30,000 - 50,000 rubles.

The labor inspectorate may learn about violations in the organization during an inspection or from a written complaint from an employee.

A selection of the most important documents upon request Employer's liability for failure to provide leave(regulatory legal acts, forms, articles, expert consultations and much more).

Regulatory acts

Articles, comments, answers to questions: Employer's liability for failure to provide leave

Guide to HR issues. Annual basic paid leave Failure to provide annual paid leave for two years in a row is prohibited, as well as failure to provide it to employees under the age of 18 and employees engaged in work with harmful and (or) dangerous working conditions (Part 4 of Article 124 of the Labor Code of the Russian Federation).

Providing leave: typical mistakes and violations

Violation of this requirement may result in administrative liability under Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, and in case of repeated commission of a similar offense - under Part 2 of Art. 5.27 Code of Administrative Offenses of the Russian Federation.

Document available: in the commercial version of ConsultantPlus

51. PROCEDURE FOR PROVIDING LEAVE

Word forms of the word “unsent”

Part of speech: adjective

Positive degree:Comparative:

Superlative:

Part of speech: cr. adjective

Morphological Dictionary of the Russian Language, GNU FDL 2012 [email protected]

ST 124 Labor Code of the Russian Federation.

Annual paid leave must be extended or postponed to another date,
determined by the employer taking into account the wishes of the employee, in the following cases:

temporary disability of the employee;
the employee performs state duties during his annual paid leave, if the labor legislation provides for exemption from work for this purpose;
in other cases provided for by labor legislation and local regulations.

If the employee is not paid on time during the annual
paid leave or the employee was notified about the start time of this leave later
than two weeks before its start, the employer, upon written application of the employee, is obliged
transfer annual paid leave to another date agreed with the employee.

In exceptional cases, when granting leave to an employee in the current working
year may adversely affect the normal course of work of the organization, individual
entrepreneur, it is allowed, with the consent of the employee, to transfer the vacation to the next working day
year. In this case, the vacation must be used no later than 12 months after the end of that working period.
year for which it is provided.

Failure to provide annual paid leave for two years is prohibited.
in a row, as well as failure to provide annual paid leave to employees under the age of
eighteen years of age and workers engaged in work with harmful and (or) dangerous working conditions.

Commentary to Art. 124 Labor Code of the Russian Federation

1. In the cases specified in Part 1 of the commented article, annual paid leave is extended by the number of calendar days during which the circumstances that served as the basis for the extension were in force, or is postponed to another period. When the vacation is extended, the amount of wages paid to the employee during the vacation does not change, and payment for days of temporary disability and performance of government duties is made in accordance with the law (see Art.

Unused vacation does not expire

Art. 170, 183 of the Labor Code of the Russian Federation and commentary thereto).

When transferring vacation in these cases to another period, the time for which the vacation is postponed is determined by the employer, taking into account the wishes of the employee. If the circumstances provided for in Part 1 of Art. 124 of the Labor Code of the Russian Federation, did not occur during the vacation period, but immediately before the employee went on vacation according to the schedule; the vacation must also be postponed to another date during the current working year.

2. Violation by the employer of the vacation payment deadline (see Article 136 of the Labor Code of the Russian Federation and the commentary thereto) or the warning period serves as the basis for rescheduling the vacation to another period, and this period must be agreed upon between the employee and the employer.

3. The Labor Code does not disclose the concept of “exceptional cases”, which allow the employer, with the consent of the employee, to postpone vacation to the next working year. Part 3 of the commented article contains only a general criterion that the employer must follow. When obtaining the employee’s consent to postpone the vacation, the employer must indicate specific exceptional circumstances that may lead to disruption of the normal operation of the organization or individual entrepreneur.

4. In any case, employees under the age of 18 and employees engaged in work with harmful and (or) dangerous working conditions must be granted annual leave. For all other employees, the rule prohibits non-provision of vacation for two consecutive years.

5. A special procedure is provided for employees working in harsh climatic conditions. For persons working in the Far North and equivalent areas, a full or partial combination of vacations is allowed, but not more than two years in advance. In this case, the total duration of the leave provided should not exceed six months, including the time of leave without pay, necessary for travel to the place of use of the leave and back (see Article 322 of the Labor Code of the Russian Federation and the commentary thereto).

Another commentary on Article 124 of the Labor Code of the Russian Federation

How to avoid a labor dispute over vacation?

Announcement: Do I need to create a vacation schedule? Why does an employer need a vacation schedule? Responsibility for the lack of a vacation schedule. Right to vacation. Vacation experience. Duration of vacation. Wishes of employees.

The duration of the vacation planned for the next calendar year depends not only on the date the corresponding right arose and the vacation period. The number of calendar days of vacation not used by the employee for the previous period should be added to the calculated duration of annual paid leave.

In addition, it is necessary to take into account that some employees have the right to additional paid leave (Articles 116-119, 173-176 and 350 of the Labor Code of the Russian Federation). According to Part 2 of Article 120 of the Labor Code, when calculating the total duration of annual paid leave, additional paid leaves are summed up with the annual main paid leave. This means that the launch schedule indicates the total duration of paid leave.

For some employees, the employer is obliged to provide vacation at any time convenient for them (even before six months have passed from the start of work for this employer). The list of such persons is given in the table on page 1. p.2 .

As a rule, workers want to relax in the summer or early autumn. But when drawing up a vacation schedule, the employer must not only take into account the wishes of employees, but failure to provide vacation as scheduled ensure the continuous operation of the organization.

For this reason, the manager has the right to evenly distribute the start-up of the organization’s employees throughout the year. He may establish that during each month no more than 8.33% of the staff can be on vacation (100%. 12 months), or apply a different basis for distributing the start time of vacations. It makes sense to establish a certain order of vacations among employees of related professions (positions) of one division, for example, among store salespeople, department specialists, workers of the same specialty in a separate workshop (site).

We take into account the wishes of employees

In some cases, when preparing a schedule, the employer has the opportunity to take into account the wishes of employees regarding vacation planning.

The form in which employees can express their wishes regarding the start date of vacation, dividing it into parts and transferring it is not established by law, so the personnel service resolves this issue independently. You can ask the employee to write a statement indicating the expected start date of the vacation in any form. This is convenient when the number of employees in an organization is small (up to 20 people) (see. sample application).

The employee's immediate supervisor must affix his or her visa to the application.

In an organization with a large number of employees, it is more convenient to draw up a vacation planning sheet for each department. It should provide free columns in which employees can express their wishes (see. sample statement).

Are employees of the organization required to write an application for the next annual leave? According to Art. 122 of the Labor Code of the Russian Federation, annual leave is granted to employees on the basis of the vacation schedule issued in accordance with the order of the manager. If you have such documents, it is not necessary to write an application.

However, there are exceptions for the following cases:

– the schedule indicates only the month in which the employee goes on vacation. In this case, the employee must write in the application the exact start date of his vacation;

– the employee goes on vacation unscheduled. Upon agreement with the administration of the organization, the vacation schedule must be changed based on this application.

In addition, the Labor Code obliges those employees who have the right to leave before the expiration of six months of continuous work to write a statement.

The schedule is drawn up according to a unified form No. T-7. approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1.

Information on the time of distribution of vacations of employees of all structural divisions for the calendar year is reflected in the schedule by month in accordance with the Instructions for the application and completion of forms of primary accounting documentation for the accounting of labor and its payment, approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1.

The vacation schedule must be approved no later than two weeks before the start of the calendar year (Part 1 of Article 123 of the Labor Code of the Russian Federation). Thus, the schedule for 2009 is no later than December 17, 2008.

The schedule is signed by the heads of the personnel service and structural divisions and approved by the head of the organization or an authorized person.

If the organization has a trade union body. the schedule must be consistent with it (Part 1 of Article 123 of the Labor Code of the Russian Federation). The procedure for taking into account the opinion of the elected body of employees is established in Article 372 of the Labor Code.

The shelf life of the schedule is one year (Article 356, Section 8 of the List of standard management documents generated in the activities of organizations, indicating storage periods, approved by the Federal Archive of October 6, 2000).

Additional annual paid leave. In addition to the main annual leave, the schedule reflects additional annual paid leave.

note

Additional leaves without pay are not reflected in the schedule. The categories of persons entitled to such leave are listed in Article 263 of the Labor Code.

Vacations not taken. Vacations that were not used by employees during the current year, including those transferred to the next year, are also taken into account when drawing up the schedule.

Leave granted to external part-time workers. The Labor Code does not mention the possibility of taking such vacations into account in the schedule. But if an external part-time employee reports the start date of vacation at the main job, then the personnel department will take this into account when drawing up the schedule, and the employer will be able to decide when to grant vacation to other employees.

At the vacation planning stage, the HR employee fills out only columns 1-6 of form No. T-7.

The names of positions in column 2 are indicated in accordance with the staffing table. If the organization does not assign personnel numbers to employees, column 4 is not filled in.

Columns 7, 8 and 9 are filled in by hand as workers go on vacation. In column 7, notes are made after the actual end of the vacation. Column 8 indicates the document on the basis of which the vacation is transferred (personal statement of the employee, order of the manager to postpone the vacation due to production needs, etc.).

Note.

However, as practice shows, the terms for granting leave fixed in this document are not always respected. This is due to the fact that during the year, unforeseen situations arise in the production activities of the organization or employee (for example, employee illness), as a result of which previously planned vacations cannot be provided on time. In such cases, they are either postponed to another date, or extended or divided into parts. By the way, such actions are not prohibited by law (Articles 124 and 125 of the Labor Code of the Russian Federation). But we must not forget about the following :

Firstly, when dividing vacation into parts, as we said earlier, at least one of the parts must be at least 14 calendar days. Secondly, when transferring vacation to another period, the vacation must be used during the working year. At the same time, we draw your attention to the fact that transferring vacation to the next working year (with the consent of the employee) is allowed only in exceptional cases. when its provision in the current year may adversely affect the normal course of work of the organization(Part three of Article 124 of the Labor Code of the Russian Federation). Third, It is prohibited to fail to provide annual paid leave for two years in a row, as well as to not provide leave to employees under the age of eighteen and employees engaged in work with harmful and (or) dangerous working conditions (part four of Article 124 of the Labor Code of the Russian Federation). The part of the vacation unused due to recall from vacation can (at the employee’s choice) be provided at a time convenient for him during the current working year or added to the vacation for the next working year.

Advice Pay attention to documents that expire this year.

When forming files into the archive, it is important to remember that only executed, correctly executed documents are placed in the file. At the same time, check whether all your cases are formed in strict accordance with the nomenclature of cases (indexes of cases, their headings and storage periods must be indicated according to the nomenclature of cases). Please also pay attention to those documents that are not directly related to personnel records, but are mandatory. In particular, have you completed all the activities provided for in the Work Plan for the implementation of military registration and reservation of citizens in the organization for 2008?

Therefore, before you send this document to the shelf at the end of the current year (the storage period for the vacation schedule is one year!), check: do you have employees who were not granted vacation this year for one reason or another, whether they were on vacation last year, and for what period each of them did not use vacation. At the same time, pay attention to minors and “harmful” workers, as well as employees whose vacation was divided into parts or postponed to another date. If, for example, an employee’s vacation was divided into parts, look to see if he was provided with a part lasting 14 calendar days.

How can this be checked? According to the current year's vacation schedule. Of course, if all information about vacations (the date of actual granting of vacation, the date of the intended vacation in case of transferring it to another period, the basis for the transfer) was timely recorded in columns 7, 8, 9 and 10 ****. If not, then this needs to be done immediately .

If the situation with respect to one or another employee is critical, immediately arrange leave.

**Clause 5 art. 14 of the Law of the Russian Federation of May 15, 1991 No. 1244-1 “On the social protection of citizens exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant.”

*** Please pay attention to employees who are entitled to extended leave (for example, minors - 31 calendar days (Article 267 of the Labor Code of the Russian Federation), disabled people - at least 30 calendar days (Article 23 of the Federal Law of November 24, 1995 No. 181- Federal Law “On social protection of disabled people in the Russian Federation”).

**** To be filled out by hand. Column 10 is filled in if necessary.

Magazine "Personnel Affairs" No. 12 2005

HR officers are often faced with the following problem: the vacation schedule drawn up in December is only half fulfilled over the next year. Employees ask for vacations with little regard for the schedule, and management meets them halfway. Employees have different motives: circumstances have changed, tickets have already been purchased, they urgently need to use up part of the vacation left over from last year. Is it possible to somehow change this situation? Let's get a look.

You may ask: is it necessary to change anything at all if it is more convenient for management and employees? Of course it is necessary. After all, the vacation schedule in accordance with Article 123 of the Labor Code is a binding document. And if the inspector is from State Labor Inspectorate will notice that the vacation dates in the schedule and in the “vacation” orders differ, he will demand an explanation from you and may fined for violating labor laws*. The official will be right - according to the meaning of the law, deviations from the vacation schedule can only be made as an exception.

Planning vacations together with employees If in your organization the vacation schedule is considered a formal document, it is quite natural that employees do not attach much importance to it. Therefore, first of all, you must improve the status of this document in the eyes of management and staff. Remind the director that the vacation schedule is mandatory.

But what about the employees? The best way to convince employees to comply with the vacation schedule is to involve them in the development of this document. When employees plan their own vacations, there are practically no deviations from the planned plan.

We have developed a special form in which it is convenient to reflect the wishes of employees regarding vacations. You will see a sample on page 46. This form (we called it “draft vacation schedule”) is distributed to all structural divisions of the organization. There it is filled out by employees and signed by the head of the department. Then all projects are sent to the personnel department, and on their basis a consolidated vacation schedule is drawn up, which is agreed upon with the heads of departments. After the schedule is approved by the director of the organization, extracts need to be made from the document and placed in prominent places in the structural divisions. By following this scheme, you will not only reduce the number of deviations from the schedule, but also solve a number of problems along the way:

1. Save time, because the main work on planning the schedule will be done by the employees themselves.

2. Prevent conflicts with employees regarding vacation time. Subsequently, it will be enough to show the employee the vacation schedule plan with his signature to prove that you have taken into account his wishes.

3. Prevent conflicts with department heads regarding the irrational distribution of vacations, since the bosses themselves will plan the vacations of their subordinates, taking into account the workload.

* -In accordance with Article 5.27 of the Code of Administrative Offences, the fine for violations of labor legislation ranges from 500 to 5000 rubles.

Question on topic In the vacation schedule, we do not indicate specific vacation dates, but only the month of the expected vacation. This is due to the fact that in December workers find it difficult to name the exact dates of their future vacations. Are our actions breaking the law?

E.L. Mozhaeva,

HR department inspector (Anapa)

There is no violation here, since the regulations do not provide clear instructions on how to designate vacation time in the schedule. However, it is more logical and correct to write not a month, but a specific date, since in the unified form of the T-7 vacation schedule, the term “date” (planned and actual) is used in columns 6 and 7.

In addition, the option with a specific date is much more convenient. See for yourself: if you indicate the exact date, then in the future you will not need to require an application for leave from the employee - you just need to prepare an order. If you indicate only the month, you will definitely need an application to determine the exact date of the vacation. And this is extra paperwork. So convince employees to decide on a specific vacation date in December.

Answered the question Larisa SANKINA,

Associate Professor, Department of Document Science, Russian State University for the Humanities

Vacation is not on schedule. How to apply correctly? Any personnel officer will tell you that, despite all efforts, the vacation plan is never implemented one hundred percent. Of course, it is simply impossible to foresee all life situations, and it often happens that an employee needs to go on vacation unscheduled. Then it needs to be done correctly.

First, you will need a written statement from the employee explaining why they require time off at an unspecified time. Based on the application, you prepare an order for granting leave using the unified T-6 form.

And in the vacation schedule it is necessary to make a note that the employee’s planned vacation date has changed. So that you can clearly imagine the entire procedure for applying for a vacation in this case, we have presented it in the form of a table on this page.

Vacation registration not according to schedule Document

The very name of the leave “annual paid leave” establishes the obligation of the Employer to provide the Employee with paid leave during the working year. At the same time, the working year is twelve calendar months calculated from the first day of work of the employee(clause 2 of article 92 of the Labor Code of the Republic of Kazakhstan). That is, the Employee does not have to work a full one working year in order to have the right to go on labor leave. By agreement with the Employer, the Employee may be granted a leave of absence after several months of work. At the same time, the number of days of vacation provided is calculated in proportion to the number of days of work experience at a given enterprise, giving the right to paid annual leave.

Paragraph 1 of Article 92 of the Labor Code of the Republic of Kazakhstan establishes that paid annually labor leave The employee for the first and subsequent years of work, by agreement of the parties, is provided at any time of the working year. The period for granting labor leave is determined annually in accordance with the vacation schedule, which is approved by the Employer taking into account the opinion of the Employees or established by agreement of the parties (clause 1 of Article 93 of the Labor Code of the Republic of Kazakhstan).

Failure to provide labor leave or part thereof for two consecutive years is prohibited.

This norm is established by paragraph 3 of Article 94 of the Labor Code of the Republic of Kazakhstan and is valid even in the case where the Employee voluntarily agrees with the non-provision of labor leave for two years in a row, while receiving compensation for unused labor leave.

For violation of this requirement, Article 88 of the Code of Administrative Offenses establishes administrative responsibility of the Employer, namely: failure by the employer to provide labor leave for 2 years in a row entails a fine for officials in the amount of 20 MCI (monthly calculation indices), for small businesses or non-profit organizations - in the amount of 40 MCI, for medium-sized businesses - in the amount 60 MCI, for large businesses - in the amount of 100 MCI.

Thus, providing the Employee with annual paid leave is one of the important responsibilities of the Employer, which ensures the Employee’s constitutional right to rest. And it is in the interests of the Employer to strictly follow and implement the norms of labor legislation in order to avoid conflict situations with Employees, as well as penalties from labor authorities and social protection of the population.

Dear users! The information in the article complies with the legislation of the Republic of Kazakhstan in force at the time (date) of publication.

Read also in the series of articles about vacations.

Information updated:

In the work of any company and in the life of any person, so-called non-standard situations can arise. For example, a production need (tax audit, dismissal of another employee, accident, etc.) may require recalling a specialist from vacation. An employee may fall ill while on vacation or ask the employer to pay him monetary compensation instead of vacation. Here we will consider cases when an employee:

Early exit (recall) from vacation

A recall from vacation is an employee’s early return to work due to production needs. True, for this the administration must obtain the consent of the vacationer himself (Article 125 of the Labor Code of the Russian Federation). But the legislation says nothing about how to fix it. Therefore, the person being recalled can sign directly on the recall order or write a statement that he does not object to his return to work. If the employee does not want to interrupt his vacation, such actions cannot be considered as absenteeism, therefore there is nothing to punish him for (clause 37 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On some issues of the application of legislation by the courts of the Russian Federation in resolving labor disputes ").

To avoid additional approvals and red tape, it is reasonable when concluding an employment contract to stipulate in advance the possibility of recall from vacation.

Starting from the 1st day of an employee’s early return to work, he is paid his salary in the usual manner. And they recalculate the previously paid amount of vacation pay. To do this, the average daily earnings are multiplied not by 28 calendar days, but by the number of days that the returnee actually took off. The difference between the “old” and “new” vacation pay amounts can be (by agreement with the employee):

credited to wages;
returned by the employee to the company's cash desk.

The employee may (at his own choice) use the unused part of his vacation:

take a walk at any convenient time during the current working year;
add to vacation for the next working year.

When an employee agrees to come to the workplace, the administration must issue an order. There is no unified form for this document, so it is compiled arbitrarily. For example, like this:

Please note: under no circumstances should pregnant women, employees under 18 years of age, and workers who are employed in production with harmful or dangerous working conditions be recalled from vacation (Article 125 of the Labor Code of the Russian Federation).

Transfer of vacation

To prevent an irreplaceable specialist from having to be recalled from vacation, the administration can “anticipate” production needs in advance. Here is what is said in Article 124 of the Labor Code: “in exceptional cases, when the provision of leave to an employee in the current working year may adversely affect the normal course of work of the organization, it is allowed, with the consent of the employee, to transfer the leave to the next working year.”

A corresponding order is drawn up to postpone the vacation. It indicates the reason for postponing the vacation and the period for which it is “postponed.” This is what this document might look like:

If the vacation had to be postponed, an appropriate note is made about this in the vacation schedule (columns 8 and 9).

Sometimes employees, realizing the importance of their presence at work and sacrificing their rest, themselves turn to management with a request to provide them with the opportunity to work during their next vacation. Naturally, for an additional fee.

As a rule, in such situations a contract is concluded with a person. As a result, the employee receives both vacation pay and money earned under this agreement.

If an employee gets sick while on vacation

If an employee falls ill during vacation, then, in accordance with Article 124 of the Labor Code, his rest period must be extended.

Please note: the administration is also obliged to extend the vacation:

if the employee performed government duties during the vacation (if the law provides for exemption from work for this);
in other cases provided for by law or local regulations of the company.

You need to increase your vacation time by the number of days that were not used for proper rest.

Please note: everything said applies to both the main annual paid leave and the additional one. In other words, additional leave is also extended by the number of days of incapacity.

The situation is different if a person gets sick during vacation and is subsequently fired. This leave does not need to be extended. During illness during the vacation period followed by dismissal, the employee only needs to pay temporary disability benefits (letter of Rostrud dated December 24, 2007 No. 5277-6-1).

After recovery, the employee must write a statement about when he would like to take his vacation: immediately after illness or later.

In the first case, the administration issues an order in any form to extend the vacation.

For example: “Due to illness, extend the vacation period of I. I. Ivanov by 15 days - from May 24 to June 7, 2017 inclusive. Reason: sick leave No....". Such an order is not mandatory; if it is absent, the sick leave details are simply indicated in the “Notes” section of the vacation schedule.

Example. How to extend vacation for sick days

An employee of JSC Aktiv, Somov, was granted another annual paid leave for 28 calendar days (from July 1 to July 28). During the vacation period, Somov fell ill and presented a certificate of incapacity for work for 5 days. Somov’s vacation needs to be extended for these 5 days.

If a sick vacationer decides to take a break later, the administration either issues a regular order for the next vacation or arranges for its postponement.

Please note: all guarantees for extending leave due to illness apply only to the employee himself. If a child falls ill under such circumstances, the mother or father’s leave will not be extended. And in this case, sick leave is issued only from the day when the employee was supposed to begin performing his work duties, without taking into account the days from the onset of the child’s illness.

Example. How to determine the period of sick leave for care during vacation

On July 13, she went to the children's clinic due to her son's illness. The temporary disability certificate was issued on July 29 and closed on August 5.

Money instead of vacation

Cash compensation for unused vacation is paid to:

upon dismissal (Article 127 of the Labor Code of the Russian Federation);
at the written request of the employee for that part of the vacation that exceeds 28 calendar days (Article 126 of the Labor Code of the Russian Federation). At the same time, for pregnant women and employees under the age of 18, the basic annual paid leave cannot be replaced with monetary compensation. The administration does not have the right to pay money in lieu of additional paid leave to those employees who are engaged in harmful or dangerous work.

The amount of compensation for unused vacation is calculated as follows:

Moreover, the average daily earnings are calculated in the same way as when paying for “regular” vacation.

Having determined the average daily earnings, you need to find out how many days of vacation the employee is entitled to during the period worked.

As a general rule, an employee is entitled to 28 days of vacation each year.

If the employee has worked less than this period, then the number of vacation days is determined in proportion to the months worked. For one full month worked, you are entitled to 2.33 days of vacation (28 days: 12 months).

The company is obliged to pay compensation on the day of dismissal. This is required by Article 140 of the Labor Code.

When resigning, an employee may decide not to receive monetary compensation, but to spend the unused part of the vacation.

Then (upon the written request of the employee) you will first provide him with unused vacation, and then fire him (this does not apply to cases where a person is fired for guilty actions).

Please note: you can only spend the unused part of the next paid leave due for the last two working years.

If the employee has not been on vacation for more than two years

It happens that some employees do not take vacation for several years, or even ten years. The question quite reasonably arises: what to do with unfilled vacations and whether they are burned out?

The answer is provided by the Labor Code and Convention No. 132 of the International Labor Organization “On Paid Leave” (Russia ratified the Convention by Law No. 139-FZ of July 1, 2010; the Convention entered into force on September 6, 2011).

The norms of the Labor Code and the Convention on the duration of leave and its breakdown into parts are fully consistent with each other.

According to Article 3 of the Convention, the duration cannot be less than three weeks; according to Article 115 of the Labor Code, it is 28 calendar days.

According to Article 8 of the Convention, vacation can be divided into parts in such a way that one of the parts of the vacation consists of at least two continuous working weeks, according to Article 125 of the Labor Code - at least 14 calendar days.

The rules regarding the “depth” of the period for which leave is granted are also consistent.

According to Article 9 of the Convention, the continuous part of the leave is granted and used no later than within one 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 Labor Code stipulates that in a number of cases leave must be used no later than 12 months after the end of the working year for which it is granted, and failure to provide annual paid leave for two consecutive years is prohibited.

Article 127 of the Labor Code establishes that upon dismissal, an employee is paid monetary compensation for all unused vacations earned from a given employer. Article 11 of the Convention states that if an employee has unused vacation days upon dismissal, the employer is obliged to compensate them.

Thus, it is “possible” to use vacation leave only for the last two years. In other words, the employer is prohibited from submitting more than two working years of leave. Failure to comply with this procedure is regarded as a violation of labor legislation and is punishable by an administrative fine.

That is, only the time allotted for rest and not used for a period exceeding two years “burns out.” But all unused vacations, including for a period exceeding two years, in the event of dismissal of an employee, the employer is obliged to compensate him with money. We lose rest, but we don’t lose money.

Continuation is available only to paid users of the berator

A question came to our editorial office: “Do unused vacations expire from January 1, 2018 due to changes in the Labor Code of the Russian Federation?” Indeed, there will be changes in the Labor Code of the Russian Federation related to workers going on vacation.

What's happened?

Deputies are preparing changes to the Labor Code regarding vacations. And the workers believed that vacations for periods before 2018 would be lost if they were not all taken off in 2017. Accountants are also confused about this issue.

Let us remind you that each employee is entitled to 28 calendar days of vacation per year of work.

According to the amendments, the employer must give annual paid leave at any time to one of the parents raising a disabled child under the age of 18, as well as to one of the parents with two or more children aged 14.

This law does not affect the rules for granting vacations. But the question of whether unused vacation pay is burned does not answer. Let's understand the issue.

Do unused vacations expire as of January 1, 2018?

So, each employee receives the right to 28 days of vacation per year of work. As we said above, some employees receive the right to additional days of vacation by these 28 days.

An employee may, for some reason, not take 28 days off during the year. In this case, days not taken off automatically transfer to the next year. At the same time, the Labor Code of the Russian Federation states that the transfer of vacation is possible only for one year (Article 124 of the Labor Code of the Russian Federation).

Article 124 of the Russian Federation

It is prohibited to fail to provide annual paid leave for two years in a row, as well as to not provide annual paid leave to employees under the age of eighteen and employees engaged in work with harmful and (or) dangerous working conditions.

The employee has not been on vacation for two years in a row. Are vacations expiring?

Let’s say an employee has not been on vacation for two years in a row. Are vacations expiring?

In this case, the employer violates labor laws. For this, the organization can be fined from 30,000 to 50,000 rubles. or suspend its activities for up to 90 days (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

But there will be no punishment for the employee. And the days of your vacation will not be lost. The employee is entitled to full leave for these days.

Is it possible to replace vacation with money?

Vacation cannot be replaced by compensation. Even the vacation that the employee has not taken for more than two years. The employee can only take these days off on vacation. At the same time, vacation pay is paid for vacation, which can be calculated

Penalty for failure to provide leave to an employee may be appointed by the labor inspectorate. In this article we will tell you in what order an employer provides an employee with leave, what the consequences of violating labor laws are, and what to do if an employee wants to work without vacations.

Procedure for granting leave

The legal basis for regulating the relationship between employee and employer is the Labor Code of the Russian Federation, letters and orders of the Ministry of Labor of the Russian Federation. The State Labor Inspectorate (SIT) checks compliance of the parties to labor relations with the law, and fines for its violation on the basis of the Code of Administrative Offenses of the Russian Federation.

Before we find out what sanctions the State Tax Inspectorate can impose on a company for failure to provide leave, let’s figure out who gets the right to go on leave and when.

An employee can apply for rest in the form of vacation after six months of continuous work in the company. If the manager does not mind, then leave can be obtained earlier (Article 122 of the Labor Code of the Russian Federation).

In the future, vacation is provided in accordance with the vacation schedule - the company annually forms it in December for the next calendar year.

You will find the form and example of filling out the schedule in.

The vacation schedule is approved by order of the manager and is given against signature for review by each worker. From this moment on, the schedule is a mandatory document for both the employee and his management. Its absence is a reason for a fine from the State Tax Inspectorate.

ATTENTION! A number of employees have the right to demand vacation days at any time:

minors (Article 267 of the Labor Code of the Russian Federation);
women before and immediately after maternity leave, as well as immediately after parental leave (Article 260 of the Labor Code of the Russian Federation);
men - during their wife’s maternity leave (Article 123 of the Labor Code of the Russian Federation);
Chernobyl victims (clause 5 of article 14 of the law of the Russian Federation of May 15, 1991 No. 1244-1) and some other workers.

For each year of work, the employee is entitled to leave of at least 28 calendar days (Article 115 of the Labor Code of the Russian Federation).

Find out more about calculating length of service for annual leave.

The vacation period can be divided, but one of the parts must be at least 14 days.

In what cases can an employee go on vacation be postponed?

Annual leave can be extended (or postponed by agreement of the employer and employee) in the following situations:

the worker is sick;
the worker performs state duties - if they require release from the main job;
the employer forgot to notify the subordinate 2 weeks in advance about the upcoming start of the vacation;
the employer did not pay vacation pay on time (3 working days);
in other situations provided for by federal legislation and local regulations (Article 136 of the Labor Code of the Russian Federation).

If an employee’s going on vacation negatively affects the organization’s business activities, then it is permissible to transfer the vacation period to the next working year.

Whether the director can not allow vacation on schedule due to production needs and other vacation issues are on ours.

The transfer of vacation leave at the request of the employee is documented based on the employee’s application and the order of the manager. If the change in vacation dates is due to production needs, then the personnel service or accounting department must have the employee’s written consent to the change. For the convenience of both parties to the labor relationship and to minimize disputes, do not forget to indicate the new period of the employee’s vacation in the manager’s order to postpone the vacation.

An employee must be allowed to go on vacation no later than 12 months after the end of the working year for which he is entitled to go on vacation (Article 124 of the Labor Code of the Russian Federation). Transferring vacation is an exceptional measure and should not be practiced constantly; the employer may receive a fine for shifting vacation from year to year.

Fine for failure to provide leave for more than two years

The Labor Code of the Russian Federation prohibits not providing annual paid leave to an employee for 2 years in a row, and prohibits minor workers and those engaged in activities with hazardous working conditions from providing leave in principle (Article 124 of the Labor Code of the Russian Federation).

Administrative liability is established for these violations:

The statute of limitations for violation is 1 year.

If a company breaks the law and does not send workers on vacation, then at the end of the calendar year, vacation days do not disappear anywhere, but remain the organization’s debt to the employee.

Example

For 4 years from the moment of employment of programmer Igor Valentinovich Vasilchenko, Sigma LLC did not provide him with leave, citing the fact that Vasilchenko is a valuable employee and is constantly needed by the company. Therefore, the programmer has the right to 4 × 28 days = 112 calendar days of vacation (Igor Valentinovich does not belong to the category of beneficiaries entitled to additional days). If Vasilchenko decides to resign from Sigma LLC, then the company will have to pay monetary compensation for the programmer’s unused vacation, and not for 1 year, but for all 4 - 28 days for each.

Unused vacation days for previous years of work are provided to the employee in the current calendar year:

or as part of the vacation schedule;
or by agreement between the employee and his management (the worker writes an application for leave, indicating the number of unused days of rest, and the employer endorses the application and issues an order for leave).

During a calendar year, an employee can use several vacations (letter of the Ministry of Finance of the Russian Federation dated May 13, 2010 No. 03-03-06/4/55).

We talk about how to do this in the article.

What to do if an employee does not want to go on vacation

There are often situations when the employee himself does not want to rest and refuses to go on vacation. As we have already found out, such hard work is fraught with fines for the company. What should I do?

First, make sure that you have a vacation schedule and that the stubborn person is familiar with it. The schedule is mandatory not only for the employer, but also for all employees. And if a worker refuses to go on vacation in accordance with the schedule, this is a violation of labor discipline, punishable in accordance with local regulations and legislation of the Russian Federation (Article 192 of the Labor Code of the Russian Federation). The employer has the right to give the employee at least a reprimand.

An employee’s unauthorized departure from work during the period of leave must be recorded in order to eliminate future disputes about payment. This can be done by a human resources employee or an accountant. In order to stop all discussions, you can completely order the company’s security service or the employee’s immediate supervisor not to allow the worker to enter the workplace during vacation days.

ATTENTION! You can forcefully send an employee on vacation only with his consent - this is the fact of familiarization with a receipt with the vacation schedule or the manager’s order to send the employee on vacation.

You can get out of a situation where an employee wants to continue working without violating the Labor Code: arrange a vacation period for weekends. This means that the accountant will divide the annual paid leave into several parts, one of them, by law, cannot be less than 14 days (Article 125 of the Labor Code of the Russian Federation), and the remaining parts will be determined for the employee’s weekends.

For example, if an employee works a 5-day shift, then the accountant issues him 2 days of vacation every week - on Saturday and Sunday, until the employee uses all the allotted vacation days. In this way, the employee will exercise the right to leave and will work at the same pace.

The Labor Code of the Russian Federation does not directly prohibit such a scheme. However, inspectors may still consider this practice a violation of the law: weekends and annual paid leave are different types of rest time (Articles 106, 107 of the Labor Code of the Russian Federation).

By issuing a day off, even at the request of the employee, the employer reduces the number of days of rest for the subordinate, which leads to an actual increase in working hours and infringement of the employee’s rights (paragraph 6, 12 of Article 21 of the Labor Code of the Russian Federation). Therefore, we recommend that you practice this method of providing vacation: give the employee vacation days on weekends, taking 2 adjacent days - Friday and Monday (with a five-day work week).

The employee may ask you to replace the vacation period with a cash payment. This is also prohibited by law - compensation in lieu of vacation is allowed only for days over 28 calendar days of the annual vacation period. An employee can receive money instead of vacation only upon dismissal - in the form of compensation for unused vacation (Article 127 of the Labor Code of the Russian Federation).

Results

The right to rest in the form of vacation is one of the basic rights of an employee guaranteed to him by the Labor Code of the Russian Federation. The parties to the labor relationship must agree on the vacation schedule in the vacation schedule and strictly observe it. Deviation from the schedule is possible by mutual agreement of the parties and must be documented. Not providing leave to an employee is risky - in the event of an audit, fines are likely to be imposed.

A selection of the most important documents upon request. The employer’s responsibility for failure to provide leave (regulatory acts, forms, articles, expert consultations and much more). Regulatory acts: Responsibility of the employer for failure to provide leave “Labor Code of the Russian Federation” dated December 30, 2001 N 197-FZ (as amended on February 5, 2018) Failure to provide annual paid leave for two years in a row is prohibited, as well as failure to provide annual paid leave to employees aged up to eighteen years of age and workers engaged in work with harmful and (or) dangerous working conditions. “Code of the Russian Federation on Administrative Offenses” dated December 30, 2001 N 195-FZ (as amended on March 7, 2018) Article 5.27.

What is the penalty for failure to provide leave to an employee?

In addition to the main annual leave, the schedule reflects additional annual paid leave. Please note: Additional leaves without pay are not reflected in the schedule.

The categories of persons entitled to such leave are listed in Article 263 of the Labor Code. Vacations not taken. Vacations that were not used by employees during the current year, including those transferred to the next year, are also taken into account when drawing up the schedule.

Attention

Failure to provide vacation as scheduled. provision of vacation according to schedule

Therefore, an employee with whom payments are not made in a timely manner has the right to compensation for moral damages according to the rules of Art. 237 Labor Code of the Russian Federation. Moral damage is compensated in cash in amounts determined by agreement of the parties to the employment contract.
In the event of a dispute, the fact of causing moral damage to the employee and the amount of compensation for it are determined by the court, regardless of the property damage subject to compensation. Administrative liability for violation of labor legislation (including the requirements of Art.
127 and 140 of the Labor Code of the Russian Federation) is established by Art. 5.27 Code of Administrative Offenses of the Russian Federation. According to Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, violation of labor legislation entails the imposition of an administrative fine on officials in the amount of 1,000 to 5,000 rubles; for persons carrying out entrepreneurial activities without forming a legal entity - from 1000 to 5000 rubles.

Responsibility of the employer for various violations of labor legislation

Important

At the same time, the absence of a vacation schedule does not relieve the employer of the obligation to provide employees with annual paid vacations. Lack of internal labor regulations By virtue of Art.

100 of the Labor Code of the Russian Federation, the start and end times of work, the time of breaks in work, the number of shifts per day, the alternation of working and non-working days are established by the internal labor regulations in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, and agreements. According to Art. 189 and 190 of the Labor Code of the Russian Federation, internal labor regulations - a local regulatory act approved by the employer, taking into account the opinion of the representative body of employees.
When hiring an employee, the employer is obliged to familiarize the employee with the internal labor regulations in force at the enterprise (Part 3 of Article 68 of the Labor Code of the Russian Federation).

Employer's liability for failure to provide leave

Accordingly, the absence of internal labor regulations may serve as a basis for bringing the employer to administrative liability under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation (see, for example, the decision of the Suzdal District Court of the Vladimir Region dated February 24, 2012 in case No. 2-191/2012). Failure to provide regular holidays to employees for a long time. Annual paid leave is a period of rest guaranteed by law, consisting of a certain number of consecutive days free from work and provided annually with the preservation of the place of work and average earnings (Art.

106, 107 and 114 of the Labor Code of the Russian Federation) to restore the employee’s performance. Paid leave must be provided to the employee annually.
Failure to provide annual paid leave for two consecutive years is prohibited (Part 1 of Article 122, Part 4 of Article 124 of the Labor Code of the Russian Federation, letter of Rostrud dated 06/08/2007 No. 1921-6).

What liability is provided for failure to provide leave to employees?

If the established deadline is violated, the employer is obliged to pay the specified compensation with additional interest in the amount of not less than one three hundredth of the refinancing rate of the Central Bank of the Russian Federation in force at that time on amounts not paid on time. Interest is accrued for each day of delay, starting from the next day after the due date for payment until the day of actual settlement, inclusive.

In addition, Art. 237 of the Labor Code of the Russian Federation provides for compensation for moral damage caused to an employee through the fault of the employer (illegal actions or inaction). In paragraph 63 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” (hereinafter referred to as Resolution No. 2) it is explained that the Labor Code of the Russian Federation does not contain any restrictions for compensation for moral damage in case of violation employer of the employee's property rights.

Failure to provide vacation for more than 2 years in a row: what are the penalties?

Compensation can be paid (1) only for part of the vacation exceeding 28 calendar days per working year; (2) only at the request of the employee; (3) if there is no prohibition on replacing vacation with compensation (More on this: In what cases can vacation be replaced with monetary compensation). In practice, the following methods are used to correct this situation. 1. The employment contract with the employee is terminated and upon dismissal he is paid compensation for all unused vacations. The next day, a new employment contract is concluded with the employee.

Of course, this happens in agreement with the employee. 2. The employee is granted short-term vacations including days off, for example, from Friday to Monday inclusive.

In such a situation, the employee will eventually use all accumulated vacation time. In this case, not so much working time will be used, and the employee will receive vacation pay.
Code of the Russian Federation on Administrative Offences. Labor inspectors can learn about a violation during an inspection of an organization or from an employee complaint. Nina Kovyazina, Deputy Director of the Department of Medical Education and Personnel Policy in Healthcare of the Russian Ministry of Health Situation: Is it possible to provide an employee with weekend leave? By agreement between the employee and the employer, annual paid leave can be divided into parts. Moreover, at least one part of this vacation must be at least 14 calendar days (Article 125 of the Labor Code of the Russian Federation). Annual leave is provided in calendar days, not working days. Thus, formally, the Labor Code of the Russian Federation does not prohibit the provision of vacation days on weekends, for example on Saturday and Sunday, to an employee who works on a standard five-day working week.
Thus, for each working year, the employee must be provided with paid leave. Violation of this rule is a violation of labor legislation and leads to the employer being brought to administrative liability under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation (see, for example, the decision of the Lyubinsky District Court of the Omsk Region dated March 26, 2012 in case No. 2-121/2012). The employee, in turn, is obliged to use vacation within the time limits established by the vacation schedule.

The employee must be notified of the start time of the vacation with a personal signature no later than two weeks before its start (Part 3 of Article 123 of the Labor Code of the Russian Federation). If the employer notified the employee in time about the start of the vacation and gave him the average salary no later than three days before the start of the vacation (Part.

9 tbsp. 136 of the Labor Code of the Russian Federation), then the employee has no reason to refuse to go on vacation.

Responsibility of the employer for failure to provide scheduled leave to the employee

The number of calendar days of vacation not used by the employee for the previous period should be added to the calculated duration of annual paid leave. In addition, it is necessary to take into account that some employees have the right to additional paid leave (Articles 116-119, 173-176 and 350 of the Labor Code of the Russian Federation). According to Part 2 of Article 120 of the Labor Code, when calculating the total duration of annual paid leave, additional paid leaves are summed up with the annual main paid leave. This means that the launch schedule indicates the total duration of paid leave. Important Certain categories of employees have the right to extended leave - more than 28 calendar days (Articles 115, 267 and 334 of the Labor Code of the Russian Federation).