home Accounting Can an employee take compensation instead of vacation? Is it possible to replace another vacation with monetary compensation?

Can an employee take compensation instead of vacation? Is it possible to replace another vacation with monetary compensation?

An employee's annual paid leave can be replaced with monetary compensation only in two cases - if the dismissed employee has unused vacations left or if we are talking about replacing a part of the vacation exceeding 28 calendar days with a cash payment (). Let's look at both of these situations in more detail.

Compensation for unused vacation upon dismissal

Upon dismissal, the employee is paid monetary compensation for all unused vacations (). It is worth noting that despite the fact that the right to use vacation for the first year arises for the employee after six months of his continuous work, an employee who has worked for the company for less than six months still has the right to compensation for unused vacation (,).

The employer must pay the amount due to the employee on the day of dismissal, and if the employee did not work on that day, then no later than the next day after he presents the corresponding demand ().

Determine the number of vacation days the employee is entitled to, taking into account his length of service. At the same time, not only employees who have worked a full year, but also employees:

have worked for this employer for at least 11 months, which are subject to credit towards the period of work giving the right to leave;
having worked from 5.5 to 11 months, if they are dismissed due to the liquidation of an enterprise or institution or individual parts of it, reduction of staff or work, as well as reorganization or temporary suspension of work, etc. ().

In all other cases, employees are entitled to leave proportional to their length of service. For example, if an employee has an annual paid leave of 28 calendar days, for each month of service he is entitled to 2.33 calendar days of leave (28 days: 12 months).

Thus, the number of vacation days due to an employee can be determined using the following formula:

O = E: 12 x C, where
O – the number of vacation days due to the employee;
E – total duration of vacation;
C – number of months of vacation experience.

Subtract the days already used by the employee from the number of vacation days allotted to the employee. At the same time, often the number of vacation days for which compensation is due upon dismissal turns out to be fractional. Their rounding is not provided for by law, but the Ministry of Health and Social Development of Russia explained that the employer can round the resulting number, although not according to the rules of arithmetic, but exclusively in favor of the employee ().

If the employee has completed a full 12-month pay period:

NW = (W: 12: 29.3) x D, where:

29.3 – average monthly number of calendar days (constant indicator in accordance with);

If an employee has not fully worked for one or more months of the pay period:

SZ = (W: (29.3 x M + N)) x KD, where:
SZ – average earnings for vacation days;
W – wages actually accrued for the billing period;
M – the number of full calendar months (when the employee worked all working days or shifts);
N – number of calendar days in incomplete calendar months;
D – number of calendar days of vacation.

In this case, the H indicator for each month must be calculated separately:

N = 29.3: KD x KO, where:
N – number of calendar days in an incomplete calendar month;
KD – number of calendar days in a month;
KO - the number of calendar days worked this month.

The results obtained for the H indicator for each partial month should then be summed up and the resulting total substituted into the formula for calculating average earnings.

Let us remind you that the average daily earnings are calculated for the last 12 calendar months (,). In this case, time, as well as amounts accrued during this time, are excluded from the billing period if:

the employee retained his average earnings in accordance with the law (for example, annual basic paid leave), with the exception of breaks provided for by the Labor Code of the Russian Federation for feeding a child;
the employee received temporary disability benefits or maternity benefits;
the employee did not work due to downtime due to the fault of the employer or for reasons beyond the control of the employer and employee;
the employee did not participate in the strike, but due to this strike he was unable to perform his work;
the employee was provided with additional paid days off to care for disabled children and people with disabilities since childhood;
in other cases, the employee was released from work with full or partial retention of wages or without payment in accordance with the law ().

ATTENTION!

Persons who have entered into an employment contract for a period of up to two months () and seasonal workers () are entitled to vacation not in calendar days, but in working days (at the rate of two working days per month of work). In this regard, the average daily earnings of such employees should be calculated using the following formula:

SZ = (Z: P6) x D, where:
SZ – average earnings for vacation days;
W – actual accrued wages;
P6 – the number of working days according to the calendar of a 6-day working week that fall within the hours worked;
D – number of working days of vacation.

Multiply the calculated average daily earnings by the number of unused vacation days. This will be the amount of compensation due to the employee.

At the same time, the resigning employee has the right to prefer the vacation itself as compensation. In this case, he must submit a written application to the employer for the provision of unused vacation with subsequent dismissal - only employees who are fired for guilty actions cannot exercise this right (). In this case, the day of dismissal is considered the last day of vacation, and the last day of work is the day preceding the first day of vacation (). This is necessary so that the employer can properly fulfill its obligation to formalize the dismissal and pay the dismissed employee.

Compensation for part of annual paid leave

Part of the annual paid leave exceeding 28 calendar days can be replaced by monetary compensation (). This is possible when the employee is entitled to extended or additional leave (,).

In addition, when summing up annual paid leave or transferring leave to the next working year, compensation can be received for the part of each annual paid leave exceeding 28 calendar days, or any number of days from this part. If an employee who is entitled to an annual basic paid 28-day vacation did not use it last year, he will still not be able to receive compensation this year, regardless of how many days of vacation he has accumulated. This is due to the fact that, as stated above, the right to replace part of the vacation with a cash payment can only be used by those employees who are granted extended or additional vacation.

To learn how to correctly determine the period in which the last 12 calendar months of work of an employee applying for monetary compensation instead of vacation falls, read the material “Determination of the billing period when calculating compensation for unused vacation” V "Encyclopedia of solutions. Labor relations, personnel" Internet version of the GARANT system.

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However, there are a number of nuances that are important to keep in mind.

First, to receive compensation, the employee must submit a written application. The employer does not have the right to replace part of the employee’s vacation with compensation on his own initiative.

Secondly, the employee who submitted the corresponding application should not belong to any of the following categories:

pregnant women;
workers under 18 years of age;
workers engaged in work with harmful and (or) dangerous working conditions (if the question concerns).

These employees are prohibited from paying compensation even at their request. But there is an exception here too. It applies to workers engaged in work with harmful and (or) dangerous working conditions. Part of their annual additional paid leave, which exceeds seven calendar days, on the basis of an industry (inter-industry) agreement, collective agreements, as well as the written consent of the employee, drawn up in the form of an additional agreement to the employment contract, can be replaced by separately established monetary compensation ().

At the same time, even if all the above conditions are met, providing compensation for part of the vacation is the right, but not the obligation of the employer. Therefore, he has the right to refuse the employee’s request.

If management nevertheless decides to satisfy the employee’s request, replacing the vacation with monetary compensation must be issued in the form of an order from the employer, issued in free form. The main thing is to reflect for which vacation in which particular working year compensation is provided. In this case, the average earnings for payment of compensation are calculated in exactly the same way as for compensation for unused vacation.

Related documents:

Decree of the Government of the Russian Federation of December 24, 2007 No. 922 " "
, approved CNKT of the USSR April 30, 1930 No. 169

Each employee has the right to annual paid leave of 28 calendar days. This right arises after six months of working for one employer.
Vacation is provided according to a schedule that must be approved no later than December 15 of the current year for the next year. The right to use does not depend on the calendar year, but on the working year, that is, from the moment the employee is hired. This is stated in the letter of Rostrud dated December 18, 2012 No. 1519-6-1.

If he was hired on November 15, 2017, then the right to use full vacation arises six months later, that is, from May 15, 2018. In this case, the employee can “walk” for 28 calendar days, but he will receive “Vacation Pay” in proportion to the time worked.
He will have the right to full vacation and full “vacation pay” only after 11 months of work, that is, from October 14, 2018.

In addition to the main vacation, there is also an additional one. It is provided to certain categories of workers. For example:

workers of the Far North and territories that have a similar status;
workers working in hazardous working conditions;
workers with hazardous working conditions;
other categories of workers listed in Art. 116 Labor Code of the Russian Federation.

Both basic and additional leave are paid. The amount of vacation pay depends on the employee’s average earnings over the last year. According to Art. 139 of the Labor Code of the Russian Federation, to calculate the average salary, all labor payments to an employee for the last calendar year are taken into account.

An employee has the right to receive compensation for unused vacation only in two cases:

upon dismissal for all unused vacation days;
without dismissal for vacation days exceeding 28 calendar days. This is stated in Art. 127 Labor Code of the Russian Federation.

The amount of compensation for unused vacation depends on the number of days and the employee’s average earnings for the last year. The average salary of an employee for the year is calculated by dividing the actual salary for the year by 12 months and by a constant number of 29.3 - this is the average number of days in a month.

For example, an employee has 6 days of unused vacation in 2018. Over the last year, his total salary was 420,000 rubles.
The average daily salary of this employee is (420,000 / 12) / 29.3 = 1,194.5 rubles per day
For 6 days of unused vacation, he will receive 1,194.5 * 6 = 7,167.2 rubles.

Is it possible to receive compensation for vacation and continue to work? An employee can only receive compensation for unused additional vacation. To do this, he must write an application addressed to the employer or a person authorized by the employer to sign such applications.

The application is written in free form. If your company has developed an application form, you must use it. The application must contain the following information:

In the upper right corner you must indicate information about the employer and the applicant:
- the position of the employer's representative who has the right to sign such statements, and his full name. For example: “To the General Director of Petarda LLC, K.P. Silyanov”;<\li>
- position and full name of the applicant. For example: “From the programmer M.E. Uvarov”;
Next, in the center you need to write the word “Statement”;
Then the “body” of the statement. Here you need to indicate the main text, that is, a request to replace unused vacation days with monetary compensation. Also here you need to indicate the reason why the additional leave arose, its duration and period. You also need to indicate Art. 126 of the Labor Code of the Russian Federation, on the basis of which such a right arises for the employee;
Then the date of application and the signature of the employee himself.

Based on the application, the personnel officer issues an order and sends an order for payment of compensation to the accounting department. The employee must read the order and put his signature on it.

Payment of compensation is made within 10 days after acceptance of the application or on the day of payment of the next salary.

Replacing a vacation that does not exceed 28 calendar days with monetary compensation is prohibited by law. But some employers accommodate employees halfway and pay them such compensation for those vacations that employees “did not take off” in previous years.
Since this is prohibited by law, at the very first inspection by the labor inspectorate, the employer, as a legal entity, will be fined in accordance with Part 1 of Art. 5. 27 of the Code of Administrative Offenses of the Russian Federation in the amount of 30 thousand rubles, and for the general director, as an official, the fine will be from 1,000 to 5,000 rubles.

The decision to pay compensation is made by the employer. This is his right, not his obligation. This is stated in Art. 126 of the Labor Code of the Russian Federation, as well as in the letter of Rostrud dated March 1, 2007 No. 473-6-0.

Nina Kovyazina, Deputy Director of the Department of Medical Education and Personnel Policy in Healthcare, Ministry of Health of Russia

Cases of replacing vacation with compensation

What part of an employee’s annual paid leave can be replaced with monetary compensation?

Provided there are no restrictions, only that part of the annual leave that exceeds 28 calendar days can be replaced with monetary compensation. Such an excess is possible if the employee is entitled to additional or extended leave. If an employee has not taken vacation for two years, then only that part of each annual vacation that exceeds 28 days can be replaced with compensation. Such rules are established by the Labor Code of the Russian Federation.

It is also worth remembering that the organization is obliged to provide annual leave to employees (Part 1 of Article 122 of the Labor Code of the Russian Federation). Vacation can be transferred to the next year only for production reasons: if the provision of vacation will adversely affect the work of the organization (Part 3 of Article 124 of the Labor Code of the Russian Federation). It is prohibited not to provide leave for more than two years in a row ().

Example of replacement with vacation compensation

Accountant of the organization A.S. Glebova has the right to:

basic leave lasting 28 calendar days;
additional leave for irregular working hours lasting 3 calendar days.

The total duration of Glebova’s annual paid leave is 31 calendar days (28 days + 3 days).

Each year of work, Glebova may, with the consent of the employer, replace part of the annual leave lasting 3 calendar days with monetary compensation.
If Glebova did not use vacation for the last year and by the current year she had accumulated 62 calendar days of vacation: 31 days for each year, then the employee will be able to replace only 6 days of vacation with monetary compensation. 3 days of additional leave for each working year, exceeding 28 calendar days of standard main leave. It is unlawful to replace 28 days of basic leave accumulated over the past year.

Advice: There are two ways to replace any unused vacation days with money.

First way. Formalize the dismissal of the employee. Upon dismissal, an employee who has not used his right to vacation is entitled to monetary compensation for all unused vacations (clause 28 of the Rules on regular and additional vacations dated April 30, 1930 No. 169). When calculating compensation associated with the dismissal of an employee, take into account all of his basic and additional unused vacations for the entire time he worked in the organization (). An employee's right to compensation does not depend on the reason for his dismissal. Moreover, it does not matter whether the employee is hired again by the same organization after some time.

Therefore, to pay compensation, you can first fire an employee and then hire him again, for example, a week later. Neither the Labor Code of the Russian Federation nor the Tax Code of the Russian Federation requires any explanations to be given in this case. An organization's personnel decisions are its internal matter. However, if necessary, the reason for such actions can be explained as follows: it was not possible to hire another instead of the dismissed employee, or the employee changed his mind and decided to return.

Second way. Send the employee on vacation for the weekend. Only non-working holidays () are not included in the number of calendar days of vacation and are not paid. Thus, vacation days that fall on weekends are included in the number of calendar days and are subject to payment. Including in the case when an employee requests leave for two calendar days - Saturday and Sunday. Labor legislation does not prohibit doing this. The only restriction: at least one of the parts of the divided vacation must be at least 14 days. The employee can use the remaining days as he pleases. If the administration of the organization does not object, then each week he has the right to use only a few days of vacation from the remaining half. This procedure for dividing annual leave into parts is provided for in the Labor Code of the Russian Federation.

It is better to resort to the second method from time to time. Constant registration of vacation days falling on weekends may cause complaints from inspectors, since in this case the purpose of such a guarantee as vacation is not fully observed. Vacation days are still provided in addition to standard days off. Logically, it may include some days off, but not all.

This method has another option. If an employee goes on vacation for a week or two and does not plan to use the entire vacation or has accumulated vacations from previous years, it is more profitable for him to indicate in the application that he takes vacation not from Monday to Sunday, but from Saturday of one week to Sunday is different. For example, an employee plans to take a vacation for two weeks from September 11 to September 24, 2017. Then in the application it is better for him to indicate: “I ask you to provide me with another annual paid leave for the period from September 9 to September 24, lasting 16 calendar days.” In this case, the employee will receive more vacation pay.

Question from practice: Is it possible to pay compensation for additional leave in advance: before the end of the working year for which it is provided. Payment of compensation is not related to the dismissal of an employee

Yes, you can.

The legislation provides for the right of an employee in a number of cases to replace part of the annual leave, including days of additional leave, with monetary compensation. However, there are no restrictions on the period of such replacement.

Thus, if an employee has the right to leave, then he has the right to compensation for it to the extent that can be legally replaced by compensation.

This follows from the provisions of the Labor Code of the Russian Federation.

This approach applies regardless of the type of leave that is subject to compensation, and also applies to additional leave for irregular working hours.

Question from practice: Is it possible to pay compensation to an employee for unused additional leave if the employee’s first main paid leave has not yet been provided or has been partially provided. An employee is entitled to additional days of rest for working on irregular working hours.

Yes, you can.

The organization has the right to provide the first annual paid leave to the employee in advance (even if he did not work for the required period of six months) (). When calculating the total duration of annual paid leave, additional paid leaves are summed up with the annual main paid leave (). At the same time, the Labor Code of the Russian Federation does not make the possibility of granting additional leave dependent on whether the employee has taken the main vacation or not (Article, Labor Code of the Russian Federation).

Employees with irregular working hours are required (by law) to be provided with annual additional paid leave (Article , Labor Code of the Russian Federation). The employee’s right to receive additional days of rest arises along with the right to receive basic paid leave (clause 14 of the Rules on regular and additional leaves of April 30, 1930 No. 169) and does not depend on whether the employee was involved in work outside the normal working hours time or not.

Part of the annual paid leave exceeding 28 calendar days, upon written application of the employee, can be replaced by monetary compensation (). Moreover, such a replacement is a right, not an obligation of the organization. In the situation under consideration, this part is actually equal to the duration of the annual additional paid leave for irregular working hours. The organization has the right to pay this amount to the employee in the current working year, including even before the provision of the first main paid leave.

Question from practice: Can an employer, due to production needs, replace them with monetary compensation instead of providing regular vacations to employees?

No, he can not.

Due to production needs, the employer, in agreement with the employee, may postpone the vacation or part of it to the next year. Moreover, such postponed leave must be provided no later than 12 months from the end of the year for which this leave is granted.

At the same time, the legislation provides for the replacement of vacation with monetary compensation, while:

You can only compensate for that part of the vacation that exceeds 28 calendar days (regardless of which years the vacation is provided for: one current one or several). In this case, it is necessary to take into account restrictions on compensation;
the initiative to replace part of the vacation with compensation should come from the employee himself, not the employer.

Thus, the employer, on his own initiative, cannot replace at least part of the vacation with monetary compensation, even if there is a production need. Such a replacement is possible only with the consent of the employee.

This conclusion follows from the totality of the provisions of Parts, Article 126, Part 3 of Article 124 of the Labor Code of the Russian Federation.

Question from practice: Is it possible for a part-time worker to be paid compensation instead of vacation?

Yes, you can, but only for a part exceeding 28 calendar days, or in full - upon dismissal.

A part-time worker enjoys all the guarantees provided for by labor legislation, including the right to replace vacation with monetary compensation (Part 2 of Article 287 of the Labor Code of the Russian Federation). In this regard, only part of a part-time worker’s vacation exceeding 28 calendar days can be replaced with compensation (Part 1 of Article 126 of the Labor Code of the Russian Federation). A part-time worker can receive compensation for all unused vacation upon dismissal (Part 1 of Article 127 of the Labor Code of the Russian Federation).

The type of part-time job - external or internal - does not affect the procedure for replacing vacation with monetary compensation, since such a dependence is not established by the Labor Code of the Russian Federation.

Question from practice: how to calculate vacation pay compensation upon dismissal: at the rate of 2.33 or 2 days per month. The employee was hired under a fixed-term employment contract during the vacation of the main employee. The duration of vacation is 28 calendar days

The answer to this question depends on how the expiration date of the employment contract is determined.

If the expiration date of the contract is determined by a specific calendar date (the last day of vacation of the main employee), then by virtue of the direct instructions of the law, an employee hired for 28 days will receive compensation at the rate of 2 working days per month (Part 1 of Article 291 of the Labor Code of the Russian Federation, clause 35 Rules approved by the People's Commissariat of the USSR on April 30, 1930 No. 169).

If the expiration date of the contract is determined by an event, for example, before the main employee returns to work, then compensation will be determined in the general case on the basis of 2.33 calendar days of vacation (Part 1 of Article 115 of the Labor Code of the Russian Federation).

Question from practice: Is it possible, at the request of an employee, to replace with monetary compensation additional days of rest due for blood donation days?

No you can not.

Additional days of rest for donors are provided in accordance with the requirements of the Labor Code of the Russian Federation. At the same time, neither the Labor Code of the Russian Federation nor the Law of July 20, 2012 No. 125-FZ contains such a type of guarantee as replacing additional days of rest with monetary compensation. Thus, the employer does not have the right to replace the employee with monetary compensation for additional days of rest due to him for the days of donating blood. Similar clarifications are contained in the letter of Rostrud dated March 19, 2012 No. 395-6-1.

An exception is the case when an employee asks to add rest days to vacation and, without using the vacation, quits.

Prohibition of compensation

Which employees cannot replace vacation with monetary compensation?

pregnant women - regarding the main and any types of additional leave;
employees under the age of 18 - regarding basic and any types of additional leave;

employees engaged in work with harmful or dangerous working conditions - in terms of additional leave of a minimum duration of seven calendar days for work in the specified conditions. However, if the additional leave for harmful or dangerous working conditions exceeds the minimum duration, that is, eight calendar days or more, then the days of excess can be replaced with monetary compensation. At the same time, the procedure, size and conditions of such replacement must be established in the relevant industry or inter-industry agreements and in the collective agreement.

This follows from the totality of the provisions of Article 126 and the Labor Code of the Russian Federation.

In addition, a ban on replacing vacations with monetary compensation may be established in separate departmental documents. For example, a complete ban on the replacement of any types of leave - both main and additional - applies to:

customs officers (clause 2 of article 35 of the Law of July 21, 1997 No. 114-FZ);
employees of internal affairs bodies (Part 3 of Article 45 of the Regulations, approved by Resolution of the Supreme Council of the Russian Federation of December 23, 1992 No. 4202-1).

These restrictions do not apply when employees are dismissed. In the event of termination of the employment contract, compensation for any types of unused vacation occurs in accordance with the general procedure ().

Question from practice: Is it possible to replace additional leave for northern employees with monetary compensation?

Yes, you can.

Employees who work, including on a rotational basis, in regions of the Far North and areas equated to regions of the Far North are provided with additional annual leave lasting, respectively, 24 and 16 calendar days (Article , Labor Code of the Russian Federation). In addition, employees working in other regions of the North, where regional coefficients and a percentage rate of salary are established, have the right to additional leave ().

As a general rule, part of the annual leave that exceeds 28 calendar days per working year can be replaced with monetary compensation. Such an excess is possible if the employee is entitled to additional or extended leave. At the same time, the legislation provides for cases when there is a ban on replacing vacation with monetary compensation without dismissing an employee. However, there are no restrictions on replacing additional leave provided to northerners. This follows from the provisions of the Labor Code of the Russian Federation.

Thus, additional leave for northern employees, in the absence of other restrictions, can be replaced by monetary compensation, either fully or partially.

The legality of this position is confirmed by the courts. See, for example, the appeal ruling of the Krasnoyarsk Regional Court dated August 25, 2014 No. 33-8160/2014.

Question from practice: Is it possible to pay compensation to an employee who has unused vacation days for hazardous work if, for health reasons, he is transferred to a job that does not involve hazardous working conditions?

As a general rule, you can't. An exception is the case of compensation for that part of the annual additional leave for harmful activities that exceeds its minimum duration, namely seven calendar days (Labor Code of the Russian Federation).

That is, if the additional leave for harmful working conditions is eight calendar days or more, then the days of excess can be replaced with monetary compensation. At the same time, the procedure, size and conditions of such replacement must be established in the relevant industry or inter-industry agreements and in the collective agreement. Question from practice: Is it necessary to pay the employee compensation for unused vacation before she goes on maternity leave? The duration of an employee's annual basic leave does not exceed 28 calendar days. The employee did not take another vacation during the year.

No no need.

The Labor Code of the Russian Federation provides for two cases of payment of monetary compensation in lieu of vacation:

upon dismissal of an employee who has not used his right to vacation. In this case, monetary compensation is due for all unused vacations (or Article 126 of the Labor Code of the Russian Federation.
Thus, in the situation under consideration, it is unlawful to replace unused vacation with monetary compensation either at the initiative of the employer or at the request of the employee herself. The legitimacy of this position is also confirmed by the courts, see, for example, the appeal ruling of the Supreme Court of the Republic of Sakha (Yakutia) dated July 31, 2013 No. 33-2830/2013.

If she wishes to take advantage of the accumulated vacation days, the employee has the right, at her own discretion, immediately after the end of maternity leave or child care leave (part 3 of article 122, part 1 of article 126 of the Labor Code of the Russian Federation, letter of the Ministry of Labor of Russia dated April 25, 2002 No. 966-10 Question from practice: What are the consequences for an employer of replacing an employee’s entire vacation with compensation?

By replacing the entire vacation with compensation, and not the part exceeding 28 calendar days, the employer will violate labor laws. For such a violation, labor inspectors can fine both the employer and his officials.

The fines are:
- from 1000 to 5000 rub. - for individual entrepreneurs and officials of an organization, for example a manager;
- from 30,000 to 50,000 rub. - for organizations.
This is provided for in Part 1 of Article 5.27 of the Code of the Russian Federation on Administrative Offenses.

For a repeated offense, labor inspectors will punish more seriously - the amount of fines will increase:
- from 10,000 to 20,000 rub. - for officials of the organization and entrepreneurs. The fine for officials may be replaced by disqualification for a period of one to three years;
- from 50,000 to 70,000 rub. - for organizations.
Such measures of liability are already provided for by Part 2 of Article 5.27 of the Code of the Russian Federation on Administrative Offenses.

Every officially employed citizen has a number of rights and freedoms that are protected by labor legislation. In particular, this concerns the right to a well-deserved rest or its compensation in monetary terms.

Right to compensation

According to labor legislation, replacing vacation with monetary compensation is possible if the employee voluntarily consents to this. For example, in 2016, an employee did not take his allotted vacation or part of it, thereby transferring it to 2017.

Not every employer can provide an employee with more than 28 calendar days of rest per year, so the remainder is usually compensated in cash. In fact, the unspent part of the vacation is replaced by additional payments. Article 126 of the Labor Code implies that monetary compensation is due only for that part of the vacation that exceeds the 28 calendar days established by law. For example, workers in the Far North are additionally entitled to 24 calendar days of rest. It is these that the employer can replace with a cash payment based on the average salary.

Compensation upon dismissal

Labor legislation in Article 127 clearly states that monetary compensation for unused vacation must be paid by the employer to the employee upon dismissal. The final payment includes payments for time worked, bonuses and additional funds due, and payments for vacations that were not used. The employee's right remains vacation followed by dismissal. For example, before leaving the workplace, a citizen has the right to receive all the rest days due, and not financial compensation. The work experience during the vacation period is not interrupted, and the employee retains his job. It is impossible to fire him during this period of time. An employee has the right to change his mind about resigning at his own request by writing a corresponding statement no less than 14 calendar days before the end of the employment contract.

Who has a vacation of more than 28 calendar days

Vacation of civil servants

According to the law, civil servants have the right to additional leave for length of service and irregular working hours. Rest days for length of service are accrued depending on the employee’s length of service. Read more in this

In addition to workers in the Far North, there are categories of workers who are entitled to rest for more than 28 calendar days. These categories have the right to replace vacation with cash compensation in 2019 at their own request. Such specialists are:

teaching staff;
medical workers;
employees with disabilities;
scientific workers of higher educational institutions;
civil servants of the state civil service;
workers performing research work.

Each employee in this area has the right to rest 28 calendar days a year at the expense of the employer, and for the remaining days to receive compensation in cash equivalent. The employer, in turn, has the right to refuse payment, insisting on proper rest for the employee.

How to get compensation

Since the employer has the right to refuse to replace annual paid leave with monetary compensation, the employee must know exactly how to receive the funds due to him. First of all, you need to write an application addressed to the manager, which indicates the period of additional paid leave, which should be replaced by a financial payment. The employer is obliged to consider the application within three working days, and then issue an appropriate order.

Who is not entitled to compensation?

Employees employed in complex, harmful and dangerous industries and who have vacations of more than 28 calendar days do not have the right to replace additional days with financial payments. First of all, this is due to working conditions, which are difficult and harmful to health. That is why the employer has the right to refuse to provide payments on legal grounds. As practice shows, partial compensation is paid to employees engaged in hazardous work, but in total they do not exceed seven calendar days of vacation.

How and when compensation for unused vacation is paid - see the video below:

Employees who are under 18 years of age at the time of their vacation cannot demand that their vacation be replaced with money. Article 126 of the Labor Code prohibits minors from receiving compensation in lieu of annual paid rest. The same rule applies to pregnant women going on maternity leave and employer-paid leave.

Registration of compensation

After receiving, reviewing and signing the employee’s application, the employer is obliged to issue an order for compensation for unused vacation according to the established model. The order includes a description of the period that must be replaced by a material payment; the exact dates are specified in the text of the order. In addition, the deadline by which payments must be accrued in full is indicated.

How is the amount calculated?

For unused vacation, compensation is calculated based on the employee’s average salary. The total annual salary is divided into 12 calendar months, and then divided by the average number of days in one month. The amount received is the average daily wage, which is the basis for calculating compensation for unused vacation. The number of days not taken off is multiplied by the average daily wage, where the result will be the amount of payment.

You can ask a lawyer any questions you have in the comments below.

Compensation for unused vacation without dismissal - 2019 is a question that worries accountants of any large and medium-sized company, because almost all organizations are very reluctant to replace unused vacation with cash compensation for employees. But are they obliged to do this? And what should an accountant pay attention to in this matter?

In what cases is compensation for vacation provided without dismissal?

According to the Labor Code, each employee who has worked for the company for 1 year is entitled to at least 28 days of paid leave annually. But in practice, few workers, especially in medium-sized and large companies, manage to take all 28 days off in a year. There can be many reasons: there was no desire, the manager did not let me go due to high workload, etc. For all possible reasons, the consequences are the same.

Art. 126 of the Labor Code of the Russian Federation allows the company, instead of vacation days that the employee does not want to use, to pay him monetary compensation.

IMPORTANT! In Art. 126 of the Labor Code of the Russian Federation enshrines the right of the company’s management, and not the obligation, so the final decision on the issue in any case will remain with the organization.

However, the company does not always have the right to accommodate an employee who wants to receive money in exchange for certain vacation days. The Labor Code of the Russian Federation establishes a special list of persons who must be provided with leave, and not compensation replacing it. Such persons include (Article 126 of the Labor Code of the Russian Federation):

pregnant women;
minors (under 18 years of age);
persons who work in conditions considered harmful or dangerous;
employees who were exposed to radiation as a result of the accident at the Chernobyl nuclear power plant (letter of the Ministry of Labor of the Russian Federation dated March 26, 2014 No. 13-7/B-234).

NOTE! For persons working in harmful or dangerous conditions, one exception is established: only the minimum additional leave, which is 7 days, cannot be replaced with a cash payment. This means that if, for example, an employee has the right by law to 10 days of additional leave, then only instead of 3 days of such leave can money be paid.

If the employee does not fall into any of the listed categories, the company may, at his request, replace the vacation with a cash payment.

But the following is important here: you can pay money only in lieu of those days that exceed the 28 days of vacation that an employee is entitled to per year. This rule applies to vacation for each year separately. The parts of vacation not taken for different years in the amount of no more than 28 days are not summed up for the purpose of calculating compensation.

A situation similar to the above is when an employee decides to quit without taking the full vacation allotted to him. Can he then count on compensation?

For more details, see the article “Calculation of compensation for unused vacation according to the Labor Code of the Russian Federation” .

Example

The employee did not take advantage of vacation during 2018; he had 28 days left. A similar situation repeated itself in 2019. Neither in 2018 nor in 2019 did the total number of vacation days for an employee exceed (calculated separately for each year) 28 days. Therefore, the employee cannot count on replacing the 2018-2019 vacation with a cash payment.

The question arises: in what cases can one demand compensation for vacation left over from past years of work in the company? Only if the employee has the right to extended or additional leave (for example, disabled workers, etc.).

IMPORTANT! Even if the employing company is not obliged to provide increased leave to an employee due to the direct requirements of the Labor Code of the Russian Federation, it has the right to do this independently by securing such leave in the local regulatory legal acts (for example, upon reaching a certain number of years of work experience in the company, the employee’s leave increases by some amount of days).

How is compensation for vacation without dismissal calculated in 2019?

The Labor Code of the Russian Federation does not indicate what specific amount of compensation a company must pay to an employee for each day of non-vacation, but establishes a calculation method.

As in the case of payment for the remaining days of vacation upon dismissal in our situation, if the employee does not leave the company, compensation is also calculated based on data on the specialist’s earnings on average for 1 working day:

To urgent departure = To deputy day . × SRHR,

To urgent departure — amount of monetary compensation;

To the deputy . — the number of vacation days in lieu of which money will be paid;

SRWP is the average salary of an employee for 1 working day.

The greatest difficulties in practice are caused by the calculation of the employee’s average earnings per day for the purposes of this compensation. It is determined by the formula:

SRZP = salary accrual. / To school days,

Salary accrued - the total amount of payments (salary, bonuses, etc.) that the employer accrued to the employee for the period under review;

To school days — the number of days (calendar) that are taken into account when calculating the average salary of an employee for 1 working day.

At the same time, the number of days that are involved in calculating the average daily salary of an employee, for example, for 2019, is calculated differently for full and partial months of work:

if the months are fully worked, then to the academic day. is taken to be equal to the number of months of work multiplied by 29.3 (the average number of calendar days in a month);
if some months of 2019 were not fully worked, then they are taken in proportion (the ratio of the number of days in a month during which the employee actually performed his official duties to the total number of days in such a month). And then this proportion for each month not fully worked is multiplied, as in the case of a full month, by 29.3.

Tax consequences of paying compensation for leave without dismissal

Cash payments instead of unused vacation days are undoubtedly payments related to the existence of an employment relationship between the company and the specialist.

As a general rule, all payments from an employer to an employee are subject to personal income tax. The Tax Code of the Russian Federation contains special exceptions in this part: a list of payments not subject to personal income tax. The compensation in question is not mentioned among them. Consequently, personal income tax will have to be charged (paragraph 6, 7, paragraph 3, article 217 of the Tax Code of the Russian Federation).

In addition, the corresponding amount of insurance contributions should be added to the amount of compensation to working employees for unused vacation days (clause 2, clause 1, article 422 of the Tax Code of the Russian Federation, clause 2, clause 1, article 20.2 of Law No. 125-FZ).

But the situation with income tax is better: the amount of such compensation can be taken into account in expenses, since this is provided for in clause 8 of Art. 255 Tax Code of the Russian Federation. However, it must be taken into account that only a part of the annual paid leave exceeding 28 calendar days can be taken into account in expenses (letters of the Ministry of Finance of the Russian Federation dated January 24, 2014 No. 03-03-07/2516, dated November 1, 2013 No. 03-03-06/1 /46713).

Replacement of vacation with monetary compensation

Along with understanding the methodology for calculating the amount of monetary compensation in lieu of leave, as well as the tax consequences of its payment, the company must clearly understand what basic steps need to be taken in order to pay such compensation to an employee.

Often employees take the rest of their vacation and quit immediately after.

For more information on this, see Art. “How to properly arrange leave followed by dismissal?” .

First, it is necessary for the employee to contact the employer with a corresponding application.

After the application is received, the company's management must decide whether to provide compensation or not.

If it was decided to replace unused vacation with a certain amount of money, then the organization should then generate a corresponding order in any form.

IMPORTANT! Such an order must necessarily indicate information about the employee, the number of vacation days that the employer intends to compensate in money, as well as a reference to the basis for payment of such compensation (the corresponding statement from the employee).

Next, you should not forget to reflect the fact of replacing unused vacation days with a cash payment in the employee’s personal card (Form No. T-2). In particular, in section VIII “Vacation” of such a card, it is necessary to indicate the basis (for example, additional leave) for providing compensation, and also refer to the completed order of the manager for this employee.

After which, the fact of replacing vacation with a cash payment must be recorded in the vacation schedule in order to prevent confusion in the future. In the schedule, as a note (column 10), you need to indicate how many days were compensated with money, and also provide details of the manager’s order

For more information on how to create such a vacation schedule, see the article “Vacation schedule - form and sample for filling out in 2019” .

How to correctly submit an application for compensation for unused vacation?

An employee who wishes to receive a certain amount of money in lieu of unused vacation may have questions, in particular, regarding the application for such compensation. How to compose it? Are there any statutory requirements for the application?

Neither the Labor Code of the Russian Federation nor Russian legislation on accounting impose special requirements for an employee’s application. It is only important that such a statement be written in the name of the head of the organization. The rest, including the form and content of the application, can be anything at the discretion of the employee.

You can find a completed sample application for vacation compensation on our website.

Results

Thus, in 2019, it is important for employees to remember that if they have more than 28 days of vacation left in 2018, then they can ask the employer to pay monetary compensation instead of these days. The employer needs to know that paying such compensation is his right, not his obligation. In addition, some groups of people (for example, pregnant women) cannot replace vacation with cash payments.

It is also important to understand that the payment of such compensation will be subject to personal income tax and insurance contributions, but the legislator allows it to be taken into account in income tax expenses. It is equally important for the employer to remember how to correctly calculate the amount of such compensation and document its payment (by order of the manager based on the employee’s application).