If an employee goes on vacation not according to the vacation schedule. When an employee goes on vacation not according to schedule Another vacation according to schedule

Vacation outside the vacation schedule — a certain period of rest for employees who have the right to preferential choice of vacation time. At the same time, the opportunity to choose given to them is not the “willfulness” of employees and managers, but is established by current regulations. Moreover, deprivation of such a right or ignoring the requirements of the law may lead to lengthy litigation and administrative liability.

Which categories of employees have the right to choose vacation at a time convenient for them?

Not every person has the right to ask for leave at the most favorable period of time for him, but the employer has every right to refuse the employee upon presentation of the latter’s written will regarding the provision vacations outside the vacation schedule. The only exceptions are situations when a citizen belongs to one of the categories provided with special benefits.

This type of worker includes:

Any violations in providing guarantees to the above-mentioned employees can be legally appealed by them, including in court.

Family leave

Based on the content of Art. 128 Labor Code of the Russian Federation, unpaid unscheduled leave for family reasons, as well as other valid excuses, may be provided to a citizen who has made the appropriate demands to the employer and has such a right. In this case, the duration of the provided rest is fixed in an agreement between the parties to labor relations on an individual basis.

According to the method of exercising rights, rest days at one’s own expense are usually divided into two categories (depending on the initiative of the parties):

• leave at the discretion of the employer;
• vacation as an integral guarantee of a working citizen.

Vacation at the discretion of the employer

In Part 1 of Art. 128 of the Labor Code of the Russian Federation reflects the right of the head of the company to provide administrative (that is, unpaid) days of rest to an employee based on the latter’s application. However, the wording “may be provided” used in the norm gives the employer complete independence in determining the validity of the reasons for the employee who submitted the corresponding application to go on leave and the duration of such leave. It is also worth noting that today the legislation does not contain an exhaustive list of valid grounds that would allow an employer to consider a received application and make an objective decision on it.

It is also not uncommon for subordinates, when submitting an application, not to indicate the reasons why they require short-term unpaid leave. In such cases, consideration of the issue falls exclusively within the prerogative of the manager, therefore, without violating the law, he has the right here to either make concessions and release the employee without prejudice to the work process, or to refuse leave.

Vacation as an integral guarantee for the employee

• persons who participated in the Great Patriotic War;
• age pensioners who continue to work;
• spouses of military personnel, police officers, firefighters, customs officers, employees of institutions and bodies of the penal system, who died or died due to severe wounds, concussions or injuries received in the course of performing official duties, or due to temporary disability associated with service;
• working disabled people;
• employees due to the birth of children, marriage, death of close relatives.

• citizens combining work with higher and secondary education, as well as citizens entering training at the specified educational levels (Articles 173 and 174 of the Labor Code of the Russian Federation);
• citizens caring for children (Article 263 of the Labor Code of the Russian Federation);
• persons working part-time (Article 286 of the Labor Code of the Russian Federation).

How to take leave outside the established holiday schedule

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If there are grounds for going on vacation and there are circumstances that give the right to grant unpaid after-hours leave, the employee can contact the manager in writing at any time convenient for him. At the same time, justification for the need to provide vacations outside the vacation schedule made in the application at the discretion of the employee.

After signing, the document goes to the manager’s desk. If satisfied, the employer must impose a resolution on him and issue an appropriate order; in case of refusal, indicate in writing on a document the reasons for his decision and, if possible, offer the employee accessible ways out of the current situation.

Don't know your rights?

Important: the boss does not have the right to refuse to grant a subordinate the required extra-curricular leave in the cases provided for in Part 2 of Art. 128 of the Labor Code of the Russian Federation, since litigation can be much more expensive than the banal absence of an employee from the workplace.

The final step is to familiarize the employee with the issued order for the provision of leave, which precisely indicates its start and end dates, and the employer’s resolution on it. An obligatory point when resolving the issue of providing vacations outside the vacation schedule is to affix the employee’s personal signature on the familiarization sheet (typical for enterprises with a significant number of personnel) or directly on an empty space on the order indicating the date.

If the employee refuses to put a date and signature on the order for granting leave, the responsible employee, in the presence of witnesses, draws up a corresponding act, which is endorsed by all persons present.

An employee requests a postponement of vacation - what to do?

Employee guarantees providing for the right to demand the transfer of the main (paid) rest time to another period of time are reflected in Art. 124 of the Labor Code of the Russian Federation, the provisions of which come into effect in the following situations:

• when the leave coincides with a period when the employee is unable to perform official functions due to illness, pregnancy and childbirth;
• if deductions for the period of annual paid leave are not made in advance or the employee is warned about the beginning of this period less than 3 days or 2 weeks, respectively;
• in case of involving an employee during the vacation period in solving problems of national importance, for the performance of which he was released from work;
• if, due to exceptional reasons, the employer, on his own initiative, but with the consent of the employee, recalls him from the main vacation.

In all other circumstances, the issue of postponing the rest time fixed in the vacation schedule is resolved strictly within the framework of an agreement between the parties. In this case, the employer satisfies the employee’s stated request solely at its discretion.

Is it possible to recall an employee from unpaid leave?

At the moment this issue is not covered by law. However, it is more appropriate to recall an employee from administrative leave in a similar manner to the procedure for recalling an employee from annual paid leave, the legal aspects of which are enshrined in Art. 125 Labor Code of the Russian Federation:

1. Obtain consent from the subordinate to terminate vacation at the employer’s suggestion.
2. Having obtained one, issue an appropriate administrative document, which should indicate the reasons for the recall and the date the employee returns to work.

A feature of the procedure for recalling an employee from unpaid leave is that the remaining unused rest days are not subsequently added to the main leave and are not provided at a convenient time for the employee during the current year.

Extracurricular rest during the period of dismissal of an employee

If an employee submits a resignation letter, it is necessary to carry out the calculation procedure correctly and provide the accumulated vacation days in proportion to the time worked. If the dismissed employee has unused rest periods and wants to take them off outside of the schedule before the dismissal procedure, it is advisable to refer to Art. 127 Labor Code of the Russian Federation.

According to this article, upon dismissal, an employee may be provided with both monetary compensation for unused days of paid leave and rest followed by dismissal. In this case, the employee’s last day of work is recognized as the last day on vacation. The procedure for determining the number of days when calculating compensation for unused rest periods is set out in the letter of the Ministry of Health and Social Development dated 05/07/2005 No. 4334-17.

Is it possible to send an employee on unpaid leave at the initiative of the employer?

Very often, especially nowadays, the labor inspectorate receives complaints from workers that some employers are forced, under threat of dismissal, to write applications for leave without pay. For such a violation of the requirements of labor legislation, the employer may be held liable under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, and he may ultimately face not only a fine or disqualification.

During the consideration of the case, the judicial authority has the right to evaluate the period of the employee’s stay on forced unpaid leave as a temporary suspension of work due to the fault of the employer or an attempt to save money by paying the employee. If such circumstances exist, the court will hold the employer financially liable and collect the accumulated wage arrears with full compensation for the moral damage caused.

Thus, M. filed a claim in the court of first instance for recovery from P. LLC. arrears of wages, compensation for unused vacation, severance pay for 3 months, compensation for moral damage, expenses for paying for the services of a defense lawyer and issuing a power of attorney for him. By the decision of the Verkh-Isetsky District Court of Yekaterinburg dated March 10, 2016, M.’s stated claims against LLC “P.” were fully satisfied.

In satisfying M.’s demands for the collection of the above payments, the district court proceeded from the fact that the organization’s announcement of downtime in relation to the plaintiff was contrary to current legislation and violated her labor rights. After all, downtime in this case is not caused by the suspension of work activity, as reflected in Art. 72.2 of the Labor Code of the Russian Federation, but is associated solely with the employer’s desire to reduce the cost of paying for her labor, which does not correspond to the basic principles of legal regulation of labor relations.

The court of appeal considered these conclusions of the district court to be correct, since they correspond to the facts established in the case and the evidence base collected and do not contradict the provisions of the law regulating labor relations. Based on the above, the panel of judges left the final document of the first instance court unchanged, and the defendant’s complaint without satisfaction (appeal ruling of the Sverdlovsk Regional Court dated May 21, 2016 in case No. 33-9840/2016).

What can affect the duration of administrative leave?

In labor legislation, there is a limitation on the duration of stay in vacation outside the vacation schedule at your own expense is not specified in any way. Thus, the decision on this matter is made at the discretion of the employer: after discussing the issue with the employee and concluding an agreement, the employer has the right to grant him administrative leave of any duration.

The provided days of extra-curricular leave are subject to mandatory recording, since their duration affects the total length of service, on the basis of which the annual paid period of time is calculated. In relation to this situation, from the provisions of Art. 121 of the Labor Code of the Russian Federation, we can conclude that the length of service that gives the right to the above guarantee includes the time of administrative leave granted at the initiative of the employee, not exceeding 2 weeks during the working year.

For clarity, let's look at an example. The full working year of an employee who got a job on 07/12/2015 will end on 07/12/2016. If unpaid leave is provided during this period, for example in August and October 2015, lasting 10 and 12 days, respectively, the working year of such an employee will increase by a number of days exceeding 2 weeks (the total number of days without pay is 22). Thus, the next date from which it will be necessary to start counting for the provision of annual paid leave will be 07/20/2016.

Competent planning and proper organization of providing vacations to employees is the key to the effective operation of any enterprise. Taking into account the opinions and benefits of employees in combination with compliance with legal requirements for the provision of vacations outside the vacation schedule allow rational distribution of financial and labor resources without compromising the production process.

Scheduled leave - is an application required?

The procedure for granting vacations is determined in accordance with the schedule approved by the employer (paragraph 1 of article 123 of the Labor Code of the Russian Federation).

Conclusion! Thus, an analysis of the norm allows us to come to the conclusion: an application for leave according to the vacation schedule is not required.

Note! The employee must write such a statement in the following situations:

• when he has not yet worked (continuously) for 6 months for this employer;
• when he would like to go on vacation at a time different from the vacation schedule and/or change the agreed duration of vacation.

Application for transfer of vacation according to law

In practice, situations are common when an employee, due to circumstances, is unable to go on vacation in accordance with the approved schedule. The circumstances under which the employer is obliged to transfer vacation are regulated by Art. 124 Labor Code of the Russian Federation.

This topic is covered in more detail in our other articles: How to write an application to reschedule vacation, Application to reschedule vacation - sample, Reasons for rescheduling vacation at the initiative of the employee.

Important! If the vacation is subject to postponement due to the employee’s illness, then after returning from sick leave, he writes an application for the transfer of vacation indicating the reason, number of days, start and end dates of the vacation and attaches a certificate of incapacity to work. If the employee has not yet decided on what dates he would like to postpone the vacation, then in the employer’s administrative document on the postponement of the vacation it must be written that these dates will be determined on the basis of an additional application from the employee (see the decision of the Krasnodar Regional Court dated June 21, 2017 in case No. 12-2186/2017).

Application for unscheduled leave: sample

In situations where an employee wishes to take leave outside the agreed schedule, he must send a corresponding application to the employer. It should include the following information:

• information about the employer: name of the organization, full name and position of the authorized person in whose name the application is written;
• information about the employee: his full name, name of position and department, personnel number;
• a formulated request for leave indicating the type of leave, duration in calendar days, start and end dates;
• date of application;
• employee signature with transcript.

Note! There is no unified template for such a statement, so it is written in any form.

For example, such a statement can be compiled using our template: Application for unscheduled leave - sample.

The above form can be called universal, because it can be used by a worker whose vacation is not scheduled in principle (for example, a new employee), or by an employee who wants to reschedule his vacation. In the second case, the following form can also be used: Application for transfer of vacation - sample.

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So, the answer to the question “If the vacation is on schedule, is an application necessary?” will be negative: no, in this case an application is not required. An application must be submitted in situations where an employee wants to reschedule a vacation for a period different from that agreed upon in the schedule, or when the date and duration of the employee’s vacation are not approved by the schedule.

The vacation schedule is mandatory for the employer and employees. However, situations often occur when employees ask to transfer vacation days to another period. The decision to transfer is made by the manager.

The schedule of annual paid vacations is approved in advance, and the employer takes into account the wishes of employees and the dates they choose for rest. However, sometimes employees, for personal reasons due to circumstances that arise, want to change the planned vacation period. Experts from the magazine “Actual Accounting” told us what an employer should do in such a situation and what documents need to be drawn up.

The employer makes the decision

To go on unscheduled vacation, an employee must write an application in any form (for an example of an application, see Fig. 1). It must indicate the new start date of the vacation and the reasons for its postponement.

The employer confirms his consent to the postponement of leave by affixing the “I do not object” resolution and his signature to the employee’s application. If the company has structural divisions, the application must be signed first by the head of the division, and then by the head of the company (Instructions approved by the State Statistics Committee of Russia dated 04/05/2001 No. 1).

We prepare personnel documents

The vacation schedule form T-7 (approved by the State Statistics Committee of Russia dated 04/05/2001 No. 1) provides for the possibility of transferring vacation to other dates. If the employee’s vacation period changes, the personnel officer (or the person responsible for maintaining personnel documents) fills out columns 8 and 9 “Transferring vacation.” In column 8 you need to indicate the name of the document on the basis of which the rest period is changed. As a rule, this is a statement from the employee indicating the reason for the transfer (health status, family situation, etc.) with the necessary documents attached: a certificate of incapacity for work, a summons or invitation from the court or other documents confirming the presence of special circumstances. In column 9 you need to indicate the date of the proposed vacation. The reason why the vacation is postponed can be indicated in column 10 “Note”.

For an example of entering data on transferring vacation, see Fig. 3 (data from Fig. 1 and 2 were used).

In the personal card in the T-2 form, in the record of the vacation that is being transferred, you should indicate how many vacation days were used. As a basis for making such an entry, it is necessary to reflect the details of the order to postpone the vacation. For an example, see Fig. 4 (data from Figures 1 and 2 were used).

Expertise of the article: Ivan Shklovets, Deputy Head of the Federal Service for Labor and Employment

Opinion 1:

Irina Shcherbinina, head of the department of legal support for the activities of subsidiaries and affiliates of the legal department of the company Gazprom Neftekhim Salavat

The employer may refuse to transfer

Suppose an employee wrote a statement in which he expressed a desire to go on vacation outside of the schedule, but did not meet with understanding from the employer. What should an employer do about this? Is he obliged to explain to the employee the reasons for his disagreement?

When answering these questions, you must proceed from the following.

Firstly, when drawing up the schedule, both the production capabilities of the employer and the wishes of the workers themselves were taken into account, that is, the schedule is the result of an agreement reached by both parties to the labor relationship.

Secondly, and more importantly, after its approval as a local act, the schedule acquires the force of a document mandatory for both the employee and the employer.

If a person wants to go on vacation not according to schedule, but the employer does not recognize the reason for the postponement as valid or does not have the production ability to release the employee during this period, we believe that in this case the employer is not bound by any obligations and does not have to explain the reason for his disagreement, give written refusal.

It will be enough for the employer’s representative (manager or his deputy) to apply a laconic resolution “I do not agree” to the employee’s statement, without going into other production issues. At the same time, employees must remember that unauthorized use of vacation, as well as its transfer without agreement with the employer, is legally qualified as absenteeism and may become grounds for the employer to apply disciplinary action to the employee.

Opinion 2:

Irina Sidorova, financial consultant at the Nalogovik law firm

If the employee came in the middle of the year

The vacation schedule is drawn up in advance, so if an employee did not start working for the company from the beginning of the year, there will be no data about his vacation in the schedule for the current year. However, this cannot be a reason for denying a new employee leave. He has the right to write an application for leave and, if the employer gives his consent, take it off at a time convenient for himself and the employer. The visa of the head of the enterprise on the application will be confirmation of the agreement reached on the vacation period.

The need and procedure for making changes to the vacation schedule are not defined by law. If the employer decides to change the vacation schedule, then this should be done in the same order as the main schedule was approved. It is advisable, with a certain frequency, to draw up an additional schedule to the main approved vacation schedule using the same T-7 form, including newly hired employees who did not start working for the company from the beginning of the year.

The procedure for granting annual leave is determined on the basis of the adopted vacation schedule. The company management may make an exception for certain categories of specialists. What legal consequences does a situation have when an employee goes on vacation unscheduled, and what documents need to be drawn up, we will tell you in the article.

From the article you will learn:

Vacation schedule

Providing an employee with the opportunity to receive annual paid leave is a direct obligation of the employer, established by Art. 114 Labor Code of the Russian Federation. At the same time, Art. 115 of the Labor Code establishes that the duration of rest in a classic situation should be 28 calendar days. Article 116 of the Labor Code of the Russian Federation supplements this condition by indicating the fact that some categories of workers, for example, those who work in the Far North, should be provided with additional leave, the duration of which is established by separate provisions of the Labor Code or special regulatory documents.

Read more about unscheduled vacation here:

Art. 123 of the Labor Code of the Russian Federation determines the procedure granting vacations company employees. Thus, this section of the code establishes that the legal basis for its establishment is the vacation schedule, which must be formed in each organization no later than two weeks before the start of the next calendar year.

Download documents on the topic:

Employee's application to transfer the unused part of the vacation according to the schedule
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Application for postponing vacation that coincided with maternity leave
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Employee's application for postponement of leave due to illness
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Order to postpone the date of vacation
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At enterprises that carry out personnel document flow in accordance with the provisions of Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 N 1, the vacation schedule is published using a unified form No. T-7. If an employee does not have a vacation according to plan, for example, if it is a vacation that is not according to the schedule of a pregnant woman, the vacation schedule must reflect the actual situation related to the postponement of the planned vacation.

Note! According to Federal Law No. 402-FZ of December 6, 2011, the use of unified forms is not mandatory. Thus, the company has the right to independently develop a form of vacation schedule.

Art. 122 of the Labor Code of the Russian Federation establishes that for most employees the right to receive paid leave arises no earlier than after the expiration of a six-month period of continuous employment with a particular employer. However, this provision applies only to the first year of work in the organization. In the second year and thereafter, the employee can go on vacation at any time of the year if such a vacation is agreed upon with the employer and included in the vacation schedule.

The right to unscheduled leave

Art. 123 of the Labor Code of the Russian Federation, which establishes the mandatory implementation of the vacation schedule for both employees and the employer, simultaneously provides that certain categories of employees have the right to granting leave not on vacation schedule. The list of relevant categories and the conditions for providing them with paid leave are listed in separate articles of the Labor Code of the Russian Federation and other regulatory documents. In particular, these categories of employees include:

1. employees planning to go on maternity leave or intending to return from such leave. According to the provisions of Art. 122 of the Labor Code of the Russian Federation, unscheduled leave is granted to a pregnant woman at her request at any time, including before the end of six months of continuous work in a given organization;
2. employees whose age has not reached 18 years (Article 122 of the Labor Code of the Russian Federation);
3. employees who have gone through the procedure for adopting one or more children under three months of age (Article 122 of the Labor Code of the Russian Federation);
4. employees whose spouses are in (Article 123 of the Labor Code of the Russian Federation);
5. employees who are parents, guardians or trustees of a child under eighteen years of age who has a disability (Article 262.1 of the Labor Code of the Russian Federation);
6. employees who are spouses of military personnel (Federal Law of May 27, 1998 N 76-FZ);
7. employees who have the sign “Honorary Donor of Russia” (Federal Law of July 20, 2012 N 125-FZ);
8. workers injured during one of the following disasters: at the Chernobyl nuclear power plant (RF Law of May 15, 1991 N 1244-I), Semipalatinsk test site (Federal Law of January 10, 2002 N 2-FZ);
9. workers who have the titles of Heroes of Socialist Labor, Heroes of Labor of the Russian Federation, full holders of the Order of Labor Glory (Federal Law of January 9, 1997 N 5-FZ), and in addition to them - disabled people and participants in the Great Patriotic War (Federal Law of January 12, 1995 . N 5-FZ).

Note! Categories of employees entitled to receive unscheduled leave can submit a corresponding application at any time: no requirements in this regard are established by law.

Providing unscheduled leave without pay

Art. 128 of the Labor Code of the Russian Federation provides that in a number of cases an employee may be granted leave not provided for in the current vacation schedule, without pay.

Please pay attention! The vacation schedule reflects only annual paid vacations. Leave without pay is not indicated in the schedule.

At the same time, the specified article of the Labor Code and some other sections of this regulatory act list a specific list of situations when the employer is obliged to satisfy the request of his employee to provide such rest:

marriage;

death of a close relative;

the need to participate in activities related to on-the-job training;

participation of employees in the performance of state or public duties, such as maintaining public order, the work of volunteer fire brigades, etc.

Note! If the employee has not yet taken his next paid vacation this year, by agreement with the employer, when one of these situations occurs, he can receive paid vacation on account of his annual leave.

Providing unscheduled leave by agreement with the employer

If the employee managed to reach an agreement with the employer on this issue, he can go on unscheduled leave, even if he does not belong to any of the preferential categories and does not find himself in a situation of special life circumstances that give the right to extraordinary leave. As a rule, in this case, the initiative comes from the employee, and in order to ensure that his absence from the workplace does not lead to significant disruptions in the work process, it is advisable for him to contact the employer with a corresponding request in advance.

Note! An application to the employer with such a request is made in writing and preferably no later than two weeks before the desired date of going on vacation.

Procedure for granting unscheduled leave

In the standard procedure, which means employees going on vacation in accordance with approved schedule, the employer is obligated to inform the employee two weeks before this date of the upcoming vacation in the form of a written notice. This rule is established by Art. 123 Labor Code of the Russian Federation. In this case, the employee must put his signature on this notification, thereby confirming the fact of his familiarization with its contents.

However, if you go on vacation not according to schedule, a fundamentally different registration procedure applies. So, in this situation, an employee who wants to go on an unplanned vacation, as a rule, turns to the employer with a written application, which indicates the dates and duration of the desired vacation, as well as additional conditions and reasons justifying his request, if any.

Note! In some organizations, internal regulations may provide for a special form for such a statement.

If we are talking about preferential categories of employees or situations where the employer is obliged to provide an employee with leave, approval of such an application is not required on his part. In all other cases, it is necessary that the employer agrees to provide rest for the employee.

Order to grant unscheduled leave

Further, if the employee goes on vacation not according to schedule, the personnel department prepares and submits for signature to the head of the organization an order granting vacation to the employee. If the enterprise uses unified forms of documents approved by Resolution of the State Statistics Committee of the Russian Federation of January 5, 2004 No. 1, one should resort to form No. T-6.

However, an enterprise has the right to use an independently developed form of such a document that best suits its needs. In this case, the employee must be familiar with the contents of the order against signature.

Note! In accordance with Art. 62 of the Labor Code of the Russian Federation, an employee has the right to receive a certified copy of the order to be sent on leave within three days by contacting the employer with a written application.

Recording information about unplanned leave

Vacation granted to an employee outside of the previously approved schedule, however, must be reflected in all personnel documents of the organization, which are issued in connection with the employee’s departure on vacation. In particular, we are talking about the following procedures:

1. entering information about the order to grant leave into the journal for registering regulatory documents, if such a journal is maintained in the organization;
2. entering data on leave into the time sheet;
3. entering information about the transfer of vacation into the vacation schedule and marking the use of the allotted rest;
4. entering information into the employee’s personal card. All information about the leave granted, including its type, duration and dates of grant, is reflected here. However, the employer is not obliged to familiarize the employee with the contents of such a record.

Vacation pay not according to schedule

Even if the employee is given vacation outside the schedule, he is subject to the requirements for the procedure for paying vacation pay provided for by current legislation.

Article 136 of the Labor Code of the Russian Federation determines that funds due to an employee must be paid to him no later than three days before going on vacation.

If this event is preceded by holidays, payment of vacation pay is made earlier by the number of days that are holidays. Moreover, in accordance with the provisions of the letter of Rostrud dated July 30, 2014 No. 1693-6-1, calendar days must be used for calculations.

Note! Current legislation allows for the payment of vacation pay at an earlier date.

Employers whose employees go on vacation unscheduled may be faced with a situation where an employee submits an application for leave less than three days before the planned start date of the vacation. In this case, administrative liability measures will not be applied to the employer who failed to comply with the deadlines for paying vacation pay established by law.

However, the provisions of Art. 236 of the Labor Code of the Russian Federation will remain in force in relation to him: this means that if the specified deadlines are violated, he will have to pay the employee financial compensation.

Thus, granting leave not according to the vacation schedule represents a rather difficult situation for the employer, which entails the need to make changes to the adopted vacation schedule and implementation of other personnel procedures that require additional time and effort of personnel department employees.

At the same time, current legislation establishes a number of situations in which the employer is obliged to provide an employee with unscheduled rest - for example, unscheduled leave for a pregnant woman. Therefore, authorized employees of the enterprise need to know how unscheduled leave is processed and what procedural rules apply.

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Why a formal approach to vacation scheduling is dangerous for companies

Is a leave application necessary if the employee is on scheduled rest?

How to properly arrange for unscheduled leave

December is the traditional time for scheduling annual paid vacations for the next calendar year. The form of this document (No. T-7) was approved by Decree of the State Statistics Committee of Russia dated 01/05/04 No. 1 On approval of unified forms of primary accounting documentation for recording labor and its payment and is mandatory for all companies, regardless of their form of ownership. In practice, many people treat the preparation of a vacation schedule as a mere formality, believing that only the fact of its existence is important in case of an inspection by the labor inspectorate. As a result, the company risks making a number of mistakes that threaten both claims from inspectors and a fine for violation of labor laws (Article 5.27 of the Code of Administrative Offenses of the Russian Federation), and claims from employees.

Scheduling procedure

According to Article 122 of the Labor Code, paid leave must be provided to the employee annually in accordance with the priority established by a particular employer. This priority is determined by the vacation schedule. It 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).

Approval of the schedule. The vacation schedule is signed by the head of the HR department and approved by the head of the company (director, general director, etc.) or a person authorized by him. This is established in the Instructions for the use and preparation of forms of primary accounting documentation for recording labor and its payment (appendix to the order of the resolution of the State Statistics Committee of Russia dated 01/05/04 No. 1). If the company has a trade union body, then the schedule is approved taking into account its opinion (Article 123 of the Labor Code of the Russian Federation).

Notification of employees. The law does not oblige the employer to coordinate vacation times with employees. There are exceptions, which will be discussed below. But as a general rule, the order of vacations is set by the employer, and the employee only needs to be notified of the start time of the vacation no later than two weeks before it starts (Part 3 of Article 123 of the Labor Code of the Russian Federation). You can use the vacation schedule itself to notify employees. To do this, in the last column of form No. T-7 Note, you can add an inscription about the start time of the vacation, the employee has been notified, and opposite his last name, the employee will put the date of notification and signature.

Vacations at the request of employees. Certain categories of employees, in cases provided for by the Labor Code and other federal laws, are granted leave at their request. In particular, the employer is obliged to provide annual leave at the request of the employee while his wife is on maternity leave (Part 4 of Article 123 of the Labor Code of the Russian Federation), at the request of the employee before or immediately after maternity leave, or at the end of the leave for child care (Article 260 of the Labor Code of the Russian Federation). Spouses of military personnel, at their request, leave is granted simultaneously with the leave of military personnel (Clause 11, Article 11 of Federal Law No. 76-FZ dated 27.05.98 On the status of military personnel), combat veterans at any time convenient for them (Article 16 of Federal Law dated 12.01 .95 No. 5-FZ On Veterans). In such cases, appropriate changes are made to the vacation schedule based on the employee’s application.

QUESTION ON THE TOPIC

How to provide vacation to an employee who, at the time the schedule was approved, was not yet working for the company and was not included in the schedule?

In this case, leave is granted to this employee at his request without being reflected in the schedule. If the application is submitted after six months of continuous work with a given employer, then the employer cannot refuse leave (Part 2 of Article 122 of the Labor Code of the Russian Federation). Vacation before the end of six months of work is possible only with the consent of the employer.

Providing vacation according to schedule

After approval of the schedule by the employer, it becomes mandatory both for the employer and for employees (Article 123 of the Labor Code of the Russian Federation). That is, employees must go on vacation exactly during the periods specified in the schedule. In this case, no applications from them for leave are required.

Vacation registration procedure. Based on the approved schedule, the head of the company issues monthly leave orders throughout the year. To do this, you can use both the unified form No. T-6* (used to register leave for one employee) and form No. T-6a (used to register leave for several employees at once). The order must be familiarized to employees against signature. Based on the order, you need to make notes about vacation in special sections of the employee’s personal card (Form No. T-2) and his personal account (Form No. T-54 or No. T-54a) and calculate vacation pay using Form No. T-60 Note-calculation of granting leave to the employee. In the appropriate column of the vacation schedule, you must make a note about the actual date of vacation.

A common mistake when granting vacation. Sometimes the vacation schedule performs a purely formal function: despite its existence, in fact, vacations are granted at other times based on employee applications. This approach can cause problems for the company. Firstly, a discrepancy in the schedule between the planned and actual vacation dates, in the absence of grounds for rescheduling the vacation or making changes to the schedule, is itself a violation of labor laws. Secondly, if the company does not rely on the vacation schedule, but only on employee statements, a situation may arise where some employees did not apply for vacations during the year and, accordingly, did not use their vacation. Under this system, individual workers do not have vacation for several years in a row. This is already a gross violation of labor laws. The Labor Code obliges the employer to provide vacation to the employee every year, regardless of whether he has expressed a desire to rest or not. To comply with this obligation, the annual vacation schedule is used. In exceptional cases, it is possible to postpone the vacation to the next year, but even in these situations, failure to provide vacation for two years in a row is prohibited (Part 4 of Article 124 of the Labor Code of the Russian Federation).

Even if the vacation is divided into parts, the employee must use all 28 days

There are cases of incorrect interpretation of the provisions of labor legislation on the division of leave into parts. Some companies, citing Article 124 of the Labor Code, from year to year provide employees with only part of the annual paid leave of 14 calendar days, and the rest remains unused. At the same time, employers believe that they are not violating the ban on not providing vacation for more than two years in a row, since the employee took at least one part of the vacation off. This is the wrong approach. The fact is that the legislation does not provide for annual basic paid leave of less than 28 calendar days. Even taking into account the division of vacation into parts, these 28 days must be used in full.

Postponement of planned vacation to another time

Article 124 of the Labor Code provides for cases when a scheduled vacation must be postponed to another time. At the same time, transferring vacation to the next year is possible only in exceptional cases, when the provision of vacation in the current working year may adversely affect the normal course of work of the company (Part 3 of Article 124 of the Labor Code of the Russian Federation). Such transfer of leave only with the consent of the employee.

Postponement of vacation due to employee illness. If an employee falls ill during a period that falls on a planned vacation, then the vacation that has already begun is extended by the corresponding number of days of temporary disability or postponed to another period (that is, the employee uses this part of the vacation later). This period is determined by the employer taking into account the wishes of the employee. The legislation does not establish a document on the basis of which the transfer of vacation is drawn up, so it can be drawn up in any form. For example, an employee submits an application to postpone vacation, and the head of the company puts a positive resolution on the application. The new date of vacation and the basis for its transfer must be reflected in the vacation schedule in a special column for rescheduling vacation.

Other cases of rescheduling vacation. There are cases when the employer is obliged to postpone the planned vacation at the request of the employee. This is when the employee was not paid vacation pay in a timely manner (three days before the start of the vacation, Article 136 of the Labor Code of the Russian Federation) or was warned about the start date of the vacation later than two weeks. In these situations, the employee may apply to postpone the vacation to another period, and the employer is obliged to satisfy this application. In addition, the planned vacation is postponed at the request of the employee, if at the time of drawing up the schedule it was not yet known that he had circumstances provided for by law under which he has the right to go on vacation not in the order of priority established by the employer, but at his own request.

Local company regulations may provide for other grounds for postponing vacation.

Making changes to the schedule. In practice, the question arises: what to do if an employee, due to some other circumstances (not established by law), wants to change the vacation date planned in the schedule and the employer agrees to accommodate him? In this case, you can make changes to the vacation schedule based on the employee’s application. The new vacation date is reflected in the vacation transfer column, and the employee’s statement is indicated as the basis.

QUESTION ON THE TOPIC

Is it possible, by agreement between the employee and the employer, to divide annual leave so that one part is 14 calendar days, and the remaining part is one day each?

Can. The legislation does not contain any restrictions regarding the procedure for using the remaining leave in excess of the mandatory part of 14 calendar days.

Dividing annual leave into parts

According to Article 115 of the Labor Code, the duration of annual paid leave is 28 calendar days (for certain categories of employees it may be longer). By agreement between the employee and the employer, annual paid leave can be divided into parts so that at least one of the parts is at least 14 calendar days (Part 1 of Article 115 of the Labor Code of the Russian Federation).

Dividing annual leave into parts is possible only by agreement between the employee and the employer. Since the vacation schedule is approved by the employer unilaterally, at the time of approval it cannot reflect vacation divided into parts. The schedule should indicate a single period of 28 calendar days. It seems that the vacation can subsequently be divided into parts at the request of the employee. After the positive resolution of the head of the company is affixed to this application, changes are made to the schedule indicating the number of calendar days and the date of each part of the vacation. But if the employment contract contains a condition that the employee’s vacation is always divided into certain parts, then these parts are immediately reflected in the schedule when it is drawn up.

Source - Company Lawyer magazine