home Magazine Unused vacation: expired or not. Vacation under the new rules Procedure for granting unused vacation

Unused vacation: expired or not. Vacation under the new rules Procedure for granting unused vacation

The right of citizens to rest is enshrined in the Constitution of the Russian Federation; it also applies to employees of enterprises, which is expressly stated in the Labor Code. Despite this, employees are not always able to take a well-deserved vacation. People refuse to rest of their own free will, trying to prove their indispensability in the workplace. Sometimes working without vacations is an expression of staff loyalty to a manager who is having difficulties, and sometimes the result of blackmail by the employer.

When agreeing to work without vacation, employees often do not know whether unused vacation from 2020 expires or whether they can use the accumulated free days later or receive monetary compensation in return.

Dear readers! The article talks about typical ways to resolve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and FOR FREE!

The issue is especially acute given unused vacation arose after 2010, when Russia signed an international convention on the organization of labor of citizens. According to international rules, the opportunity for unused rest days is retained by the employee only for 21 months.

If a person missed the compensation deadlines, then all vacation days that were not used will be lost forever.

You should familiarize yourself in advance with the legislation and practice of decision-making at the employer level and judicial disputes in 2020 in Russia in order to understand under what conditions you can take off unused vacation days or receive compensation for them.

What it is

The very concept of “unused vacation” arises from the basic right given to each employee, according to Chapter 19 of the Labor Code. An employee has the right to take leave if he has worked for the company for more than six months. The right can be granted earlier, by agreement with the employer, or in the presence of exceptional circumstances, which are enshrined in law.

According to the law, there are several types of vacations:

, lasting 28 calendar days;
additional paid;
additional without salary.

Any form of order must have a manager’s visa, after which it is registered in the accounting register.

There is no unified form of the log, so it is formed depending on the data, the entry of which will be convenient for the employer for planning and accounting for staff vacations.

When registering transfers of unused days, recall of an employee from another vacation, etc., the journal must reflect the basis for allowing deviation from the planned schedule. In case of transfer of unrealized vacation, it is the employee’s statement.

How to transfer

Labor legislation insists on an annual rest period for workers, and the absence of rest periods for two consecutive years is expressly prohibited.

In this case, the transfer of vacation or part of it is legally permissible:

at the initiative of an employee or due to production necessity;

with mutual consent of the employer and employee;

if the transfer deadline falls within the next 12 months beyond the deadline fixed in the schedule.

The employer may not release the employee from work during the planned period, but only with the latter’s consent. If the vacation is included in the approved schedule, the employee has the right to leave work, despite management’s request for a postponement. However, this right is used by employees quite rarely, since it expresses a lack of loyalty to the entire team.

Among the common reasons why managers initiate rescheduling of employee vacations:

the indispensability of the employee when performing work that suddenly appears;

introduction of new technologies or equipment at the enterprise that require the presence of an employee;

the inability to cancel an employee’s business trip that falls during his vacation period;

the need to entrust an employee with the affairs of an employee who is sick;

a surprise inspection at the enterprise or department to which the employee belongs.

There is also a limitation when splitting vacations. According to it, one part of the vacation should not be less than 14 days. This rule ensures that employees have a minimum duration of leave and prevents employers from manipulating staff leave.

To transfer vacation to the next period at the initiative of an employee, only four grounds are allowed:

if his vacation coincides with a period of temporary incapacity for work;

if there are exceptional personal circumstances;

if the employee was not warned about the need to go on vacation within the period established by law (two weeks before the start of the vacation);

if vacation pay was not accrued on time.

Since the law does not specify personal reasons that allow employees to postpone basic vacations, the possibility of transferring on this basis is left to the discretion of the enterprise management. To add days off to the next vacation period, the employee must submit an application.

Employee statement

You do not need to comply with any special requirements when writing an application. Usually it is drawn up on a regular sheet.

the addressee, who can be the immediate manager or the director of the enterprise, indicating his position, full name, name of the company;

Full name and position of the applicant;

a request to transfer vacation days, indicating their number;

the reason for the transfer;

employee signature.

If the transfer is carried out for personal reasons, and management does not object, a general wording is sufficient. When a transfer is required for reasons that violate the employee’s rights, it is better to describe the situation in detail and complete the application in duplicate. One of the applications that remains with the employee should receive an acceptance mark.

Compensation

To motivate employees to rest, the Labor Code limits the possibilities of monetary compensation for vacations.

According to the law, the required 28 days of vacation can only be used:

it is impossible to receive money in the current working year instead;

compensation is allowed only if the vacation was postponed and the number of days in total exceeded 28 (the days making up the difference are the only ones that the employee can be compensated for during the next year);

after two years, they can only count on compensation if they are fired.

Upon dismissal

For those who decide to leave the company, there are several options for using vacation days that were not used during the period of work.

Opportunities and conditions:

if at the time of dismissal there is unfulfilled vacation for the current year, you can use it to reduce the days intended for working under the law (depending on the number of days of vacation, you can reduce it to two working weeks);

vacation for the current year can be obtained not in days, but in money;

if the number of days of current vacation at the time of dismissal is more than 14, then the difference can only be compensated;

past vacations that have not been used for more than two years will be compensated in cash.

The choice of option depends only on the employee. The employer does not have the right to impose a method of disposing of unused vacation days.

Therefore, if it is not intended to reduce the working time due to vacation, in order to compensate for unused days at the time of dismissal, the employee only needs to monitor the work of the accounting department. Severance pay should be calculated taking into account unrealized vacations without additional efforts on the part of the employee.

Going on maternity leave

Their rights are broader than those of other employees:

during pregnancy it is almost impossible to fire a woman;

a woman cannot be denied leave before and after maternity leave, regardless of her length of service at the enterprise;

It is prohibited to recall pregnant women from vacation;

Pregnant women are protected from employers’ encroachments on basic and maternity leave.

In addition, the employer does not have the right to refuse to provide the husband with leave at a convenient time if it coincides with the wife’s maternity leave.

When going on maternity leave, a woman can supplement it with those days that were not used during previous vacations:

Due to these days, you can go on sick leave earlier for pregnancy and childbirth;

you can postpone them to the end of the maternity leave, lengthening it;

monetary compensation for refusal of the main and maternity leave not allowed.

Depending on which period of maternity leave the unused vacation is included in, vacation pay is calculated.

Thus, in 2020, an employer cannot prevent an employee from taking legal leave. The employee may be given the opportunity for additional rest or compensation. Upon dismissal, employers are required to pay in full for all vacation days to which the employee was entitled during the period of work, but was unable to take advantage of it.

Not all employees go on vacation every year. There are those who have not rested for three, four or more years in a row. This state of affairs contradicts the Labor Code, so personnel officers and accountants have to urgently apply for leave for past periods. Our article will help you figure out how to correctly draw up a vacation schedule in this situation, in what sequence to provide vacations for past periods, and what is the maximum number of days of rest that can be provided in the current year.

“Ideal” vacation scheme
If you strictly follow the letter of the law, then you cannot “accumulate” vacation for more than two years. This is directly stated in Article 124 Labor Code. Therefore, even if the employee does not want to rest, the employer is obliged to issue compulsory leave.
To do this, it is enough to include the employee in the vacation schedule, which, according to Article 123 of the Labor Code of the Russian Federation, is mandatory not only for the employer, but also for the employee himself. Next, you need to notify the person against signature of the start of the vacation no later than two weeks before the start, and also accrue and pay vacation pay. These actions will mean that the employer has complied with the requirements of the law, regardless of the employee’s intentions.
However, in real life, many companies and entrepreneurs do not act this way. As a result, among the workers there are those who have not rested for three, four or more years. To rectify the situation, HR officers and accountants have to urgently apply for leave for past periods.

Should unused vacation be included in the current schedule?
There is an opinion that when drawing up a schedule for the next year, only the vacation provided for the current period should be taken into account. But leave for past periods should be provided upon a written application from the employee. Supporters of this point of view refer to Article 124 of the Labor Code of the Russian Federation, which states that the transfer of vacation to another period is carried out upon the written application of the employee.
But there is another point of view, which we also adhere to. The current schedule must include all vacations, including those granted for previous periods. After all, it is possible that the employee does not write a statement, and then the schedule will become the only basis for granting “overdue” leave.
As for Article 124 of the Labor Code of the Russian Federation, it we're talking about about a situation where the employer did not fulfill his duties. Namely, he did not issue vacation pay or did not promptly warn the employee about the start of vacation. In such circumstances, the reason for postponing the vacation is the employee’s application. If the leave is not used at the employee’s initiative, an application is not required.

In what order should holidays be granted for past periods?
The Labor Code does not say in what sequence vacations not used in previous periods should be granted. In practice, experts use two different approaches.
The first approach implies that you first need to provide vacation for the current period, and only after that move on to “overdue” vacations. Proponents of this approach argue as follows: since, according to Article 122 of the Labor Code of the Russian Federation, leave must be granted annually, the current period has priority. An additional argument is the letter of Rostrud dated 01.03.07 No. 473-6-0. It contains the following phrase: “Labor legislation does not contain provisions providing for the use of vacations for working periods in chronological order.” This means that vacation for later periods can be taken before vacation for earlier periods is used.
The second approach, in contrast, is to grant leaves in chronological order. Let's illustrate with an example.
Let's say an employee did not take vacation for 2012, 2013, and so on until today. In this case, the employer must first give leave for 2012, then for 2013, and so on. Vacation for 2018 will be the last one. The basis here is the fact that, thanks to the chronological order, “old debts” are reduced, and the employer gradually corrects the violation. At the same time, the requirement of Article 122 of the Labor Code of the Russian Federation was met, because vacation was granted this year. This approach does not contradict Rostrud letter No. 473-6-0, since this letter does not directly prohibit chronological sequence.
In our opinion, both approaches are acceptable. The employer needs to choose the one that seems more acceptable to him and fix it in local regulations(for example, in an order from a manager).

How many days of vacation can be provided during the year?
If an employee has not rested for several years, then the number of unused vacation days can be in the dozens, and sometimes even exceeds 100. The question arises: will the employer break the law if he provides all these days within one year?
The Labor Code does not contain any restrictions on this matter. Simply put, a company or entrepreneur can safely pay off their vacation “debts” to an extent that will not harm production process. Moreover, in a situation where all “overdue” leave is granted at once, the employer has a significantly increased chance of avoiding conflict with labor inspectors. Thus, when it comes to unused vacation, then any number of days is legal.

Every year the employee must rest; the Labor Code of the Russian Federation provides for a mandatory paid period in the form of vacation with a minimum amount of, in the general case, 28 cal days. However, often in practice a situation arises when employees work at an enterprise for several years without going on vacation. Is this acceptable? Will vacation not taken be forfeited?

In 2017, vacation not taken, according to the labor code, does not expire. Vacation days are transferred to future periods; upon dismissal, the employer is obliged to pay monetary compensation for all unfilled vacation days.

The reason for working without a vacation break may be related to both the desire of the employee himself and the characteristics of the organization labor process in company. Many workers do not want to rest so as not to lose wages, intending to receive monetary compensation for vacation pay for all days not taken off.

Compensation for unspent vacation days is possible only upon dismissal. You can also replace with money additional paid leave to the main one. If employment contract is not terminated, then it will not be possible to replace unused vacation for the past working year with compensation.

Is it necessary to go on vacation every year?

Article 122 of the Labor Code of the Russian Federation states that it is provided to every employee annually. Each working year requires a minimum of 28 calendar days. In some cases, additional days are added - .

There are also provisions in Article 124 that vacation for the past working year must be taken no later than 12 months following its end. It turns out that an employee must rest at least once every 2 years. In practice, there are increasingly situations where workers work for several years without going on vacation. Vacation days accumulate. The question arises: will the accumulated vacation days burned out? Is it possible to receive monetary compensation for them or can you go on one long vacation of a duration equal to the total duration of all vacations not taken?

Will vacation not taken be expired in 2017?

The Labor Code does not change in this matter in 2017; the worker must still go on vacation every year. If this does not happen, then it is necessary to rely on Rostrud letter 1921-6, according to which an employee who has not rested for several years still has the right to all vacation days not taken. Vacations have not expired before and will not expire in 2017 either. There are no changes in this matter.

If an employee resigns, he must be paid monetary compensation for all vacation days not taken off. If an employee long time did not rest, then the total number of unspent days can be tens or hundreds of days. For all these days, compensation is calculated based on average earnings for the 12 months before dismissal.

Of course, this violates the requirements of the labor code regarding the mandatory provision of annual paid leave, but not a single paragraph of the Labor Code of the Russian Federation contains rules that days not taken off for a period exceeding 2 working years must be burned out. Until such a provision is introduced into labor legislation, the employer is obliged to pay for all unspent days.

Will the vacations accumulated over several years “burn out”, and is it possible to receive compensation for them? Yesterday, Dmitry Pozorov, a member of the board of the Russian Lawyers Association, answered these and other frequently asked questions at the RIA Novosti agency.

The uproar began after Russia ratified the International Labor Organization (ILO) convention two weeks ago. Despite numerous speeches by experts, an opinion has emerged in society that because of it, Russian labor legislation could radically change and people could lose some of their rights. However, the lawyer said unequivocally: it won’t get worse. In fact, the Labor Code, adopted in 2001, was drawn up taking into account the requirements of this convention, which is more than 50 years old, and fears that our laws will now be rewritten are groundless.

Perhaps, main question The thing that concerns many people is whether the vacations accumulated over several years will be burned out. After all, there is a clause in the convention that you should take a vacation within 18 months after the end of the year for which it was taken. As Dmitry Pozorov explained, this does not mean that if the vacation is not spent on time, it will be lost. Another thing is that accumulating vacations over several years is essentially illegal. No, there is no direct ban on accumulating vacation time in the law. It says that a person must take at least two weeks in a row a year off, and he can postpone the remaining days to a later date. But at the same time, the law and the ILO convention guarantee the right to rest. And if an employee does not go on vacation for three years, even at will- This gross violation labor legislation. And the labor inspectorate, inspecting such an enterprise, will certainly apply administrative sanctions in accordance with the Code of Administrative Offences. So it’s better not to save up 100 days of vacation, but to take it off in a timely manner. If it turns out that they already exist, then, of course, they will not go anywhere, but it is better to agree with the employer on how best to use them, and do so. You can receive compensation for them only upon dismissal. There is no talk of the option for people to take the money and “close” their previous vacations in this way. It is illegal. And there is not a word about this in the convention - otherwise employers may begin to abuse this clause.

True, there is one nuance in our Labor Code, Article 124. It says that “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 year. In this case, the leave must be used no later than 12 months after the end of the working year for which it is provided." And this point, according to Dmitry Pozorov, may be a contradiction with the provisions of the convention. And after it comes into force, the agreement of the employee and employer's request for a full transfer of vacation may become invalid.

As for dividing the vacation into parts, here, according to the lawyer, there are no special restrictions, except that one of the parts of the vacation should not be less than two weeks in a row and it does not matter whether it is the first half of the vacation, the second, or you divide it into three parts. The main thing is that during the year a person can rest for two weeks in a row.

In a situation where a person gets sick during vacation, the employer is required by law to extend his vacation by the amount " sick days"Another thing is that the vacation does not have to continue immediately after the sick leave. The manager and the employee can agree on his displacement.

Conflict in the company: Management prohibits employees from accumulating vacation days.
Cause of conflict: The boss sends the employee on vacation so that he can take off the accumulated rest days. The employee refuses. He was threatened with a reprimand and deprivation of his bonus.
Who is formally right: Employer. But disciplinary action will not solve the question of how to close unfilled vacations.
How to avoid such disputes in the future: Include all rest days in your vacation schedule and notify the employee in advance of the upcoming vacation.
What caused the conflict?
The personnel officer informed the employee that he had accumulated unpaid vacation days. Those that he is entitled to for the previous year of work and earlier periods. By law, they must be used in the current working year - they cannot be transferred to the future again. Otherwise, the company will be fined 50,000 rubles.
After such a conversation, the employee received a notice: in two weeks his “vacations” begin. But he refused to sign this document that he had read it. The employee explained that he only needs two weeks of rest a year. And it’s more profitable for him to work - usually vacation pay is lower than salary.
The personnel officer recalled that the employer is prohibited from leaving a person without vacation for two years in a row, even if he himself agrees to it, and that if the employee refuses, the director will be forced to reprimand him and deprive him of his bonus.
Let's figure out who is right. And how can you tactfully resolve the problem.
What should an employer do?
Let’s say right away that the manager is right in forcing the employee to take off accumulated vacation days. After all, this is how he wants to comply with the law. Another thing is that a reprimand and deprivation of a bonus will not solve the problem. What to do in such situations?
Every company has a vacation schedule. It is mandatory for both the employer and employees. So, such a document must be drawn up taking into account unused vacations. And then it’s easy to send the employee on vacation according to the schedule, even if he doesn’t want to. It is enough to notify him of the planned vacation two weeks before it starts, and pay vacation pay no later than three days in advance. An application for leave from the employee is not required.
An alternative to notification may be an order to grant leave. One way or another, the employee must be familiarized with the document against signature. If he refuses to sign, draw up a report about this and pay for the vacation.
Does the schedule not take into account accumulated rest days? You can make changes to it by familiarizing the employee with them.
You are required to use vacation for previous working years. This is directly stated in Article 124 of the Labor Code of the Russian Federation. And even in court you will not find support if you file a complaint against your employer for forcing you to take accumulated days off.
You, of course, can go to work without permission while on vacation. But this is unprofitable and even risky. Firstly, such work will not be paid. Secondly, it may be regarded as a violation of labor discipline. And for this, again, disciplinary action will be applied. And they will also deprive the bonus if according to internal rules it is appointed only when the employee has no comments.
Three legal ways to close accumulated vacations
Only in particularly extreme cases can one do this: dismiss the employee at his own request, pay him compensation for unused vacation and soon rehire him. If necessary, here is an explanation for the auditors: the employee himself decided to return, but we have not yet found him worthy replacement. However, it is often not worth resorting to such a scheme.
Another legal option: you can offer the employee to sometimes go on vacation only on weekends. After all, these days, unlike holidays, are included in vacation and are paid (Article 120 of the Labor Code of the Russian Federation). But the downside here is this: the employee will have to write applications for a two-day vacation each time, and there will be more work in the accounting department.
And finally, you can arrange a vacation for the employee and conclude a contract or service agreement with him for the same period. This is safe if the task is essentially different from job responsibilities employee.
Sergey Shilkin- leading expert of the magazine "Glavbukh"
Tatiana Ilyukhina- Department head legal support insurance in case of temporary disability and in connection with maternity of the Legal Department of the Federal Social Insurance Fund of the Russian Federation.