The fact that when an employee is dismissed for unused vacation days he is entitled to monetary compensation is probably known to every accountant. Is it possible to pay compensation to a working employee who has not taken all the vacation days set for the year? provides such an opportunity, but in strictly limited cases. In addition, as an employer, it is a right, not an obligation, for you to replace vacation with employee compensation. That is, if you wish, you can refuse to pay the employee money instead of vacation. And if you still agree to such a replacement, read the article for details on how to arrange it correctly.
Note.Replacing vacation with monetary compensation is the right of the employer, and not his obligation.
Who should not replace vacation with monetary compensation
The employee asks you to replace the vacation with monetary compensation. And before satisfying his request, you should make sure that the employee is not among the persons for whom you cannot replace vacation with money. The list of such persons is provided for by Part 3 of Article 126 of the Tax Code of the Russian Federation. These include:
Pregnant women;
Employees under the age of 18;
Workers exposed to radiation as a result of a disaster at Chernobyl nuclear power plant(see also the letter of the Ministry of Labor of Russia dated March 26, 2014 N 13-7 / B-234);
Employees engaged in work with harmful and (or) hazardous conditions labor. Here, however, there is an exception.
So, you can replace with monetary compensation part of the annual additional paid leave to Chernobyl victims, exceeding its minimum duration - 7 calendar days(parts 2 and 4).
Accordingly, if your employee does not fall under any of the specified categories of persons, then you can replace his vacation with monetary compensation.
How many vacation days can be replaced
The maximum number of vacation days that can be replaced by compensation is not legally established. However, you are also not entitled to replace the entire vacation of the employee with monetary compensation.
The provisions of Part 1 of Article 126 of the Labor Code of the Russian Federation allow compensation to be paid only for that part of the vacation that exceeds 28 calendar days.
Consequently, your employees can count on a replacement only if you provide them with extended basic or additional leave (Articles 115 and 116 of the Labor Code of the Russian Federation). In the table on p. 28 we cited the categories of workers who, by law, are entitled to extended basic and additional holidays.
The list of employees who are mandatory provided with extended basic or additional leave
Grounds for granting leave | Minimum vacation time |
|
Extended basic leave |
||
Workers under 18 | Art. 267 of the Labor Code of the Russian Federation | 31 calendar days |
Working disabled (regardless of disability group) | Art. 23 of the Federal Law of November 24, 1995 N 181-FZ | 30 calendar days |
Additional leave |
||
Workers engaged in work with harmful and (or) dangerous working conditions | Art. 117 Labor Code of the Russian Federation | 7 calendar days |
Workers with a special nature of work | Art. 118 Labor Code of the Russian Federation | The term is determined by the decrees of the Government of the Russian Federation |
Workers with irregular working hours | Art. 119 Labor Code of the Russian Federation | 3 calendar days |
Employees working in the Far North (including part-time jobs) | Art. 321 of the Labor Code of the Russian Federation | 24 calendar days (16 calendar days - for areas equated to the regions of the Far North) |
Workers exposed to radiation due to nuclear testing at the Semipalatinsk test site | P. 15 Art. 2 of the Federal Law of 10.01.2002 N 2-FZ | 14 calendar days |
Workers exposed to radiation as a result of the Chernobyl disaster | P. 5 Art. 14 of the Law of the Russian Federation of 15.05.91 N 1244-1 | 14 calendar days |
But even if your employees do not fall under the specified list, you can establish additional leave for them yourself (part 2 of article 116 of the Labor Code of the Russian Federation). In this case, be sure to prescribe in the collective agreement or other local regulatory act the procedure and conditions for granting such leave.
Note.The employer has the right, at his own discretion, to provide employees with additional holidays.
If in one working year the employee did not take part of the vacation of 28 calendar days and transferred them to the next year, he will not be able to replace these days with compensation. Only vacation days exceeding 28 calendar days of the main vacation of each year are subject to monetary replacement.
Example 1. M.E. Sobolev has been working at AvtoLombard LLC since May 14, 2012. According to the employment contract, he has the right to paid leave of 28 calendar days for each working year. In the first working year (from 05/14/2012 to 05/13/2013), he used 21 calendar days of vacation. In the second working year (from 05/14/2013 to 05/13/2014) - 26 calendar days. For two working years out of 56 calendar days (28 calendar days + 28 calendar days), he used only 47 days. 9 calendar days remained unused. Can he replace these unused days with monetary compensation? No in this case the employee does not have the right to replace part of the vacation with monetary compensation. Since the duration of his annual paid leave is only 28 calendar days. And only days exceeding the specified limit for each year of work are subject to replacement.
How to apply for the replacement of vacation with monetary compensation
To replace part of the vacation with monetary compensation, you need to:
Receive a statement from the employee with a corresponding request;
issue an order;
Make an entry on the replacement of vacation with compensation in the employee's personal card;
Enter information about the replacement of vacation in the vacation schedule.
Let's look at these steps in more detail.
Step 1. Application of the employee. Replacing vacation with monetary compensation is carried out at the request of the employee, which he reflects in his application. It should be written in the name of the head of the company ( individual entrepreneur). The form of such an application is not established by law, therefore, an employee can draw it up in any form.
Step 2. Order of the employer. If you agree to replace part of the employee's vacation with monetary compensation, you must issue an appropriate order.
There is also no unified form of such an order. Therefore, compose it in any form. Indicate in it the full name and position of the employee, the number of days of the billing period and vacation to be replaced by monetary compensation. Also reflect the basis for issuing this order - the details of the employee's application.
Step 3. Employee's personal card. After the order is issued, information on replacing part of the paid vacation with monetary compensation must be reflected in the employee's personal card. This information is reflected in section VIII "Vacation".
Step 4. Vacation schedule. You should also reflect information about replacing part of the vacation with monetary compensation in the vacation schedule. To do this, make an entry in column 10 "Note". Be sure to indicate the number of vacation days to be replaced, and the details of the order. The entry in column 10 of the vacation schedule may be as follows: "Part of the additional paid vacation in the amount of 4 (four) calendar days was replaced by monetary compensation on the basis of order No. 136-ls of July 29, 2014."
How to calculate compensation
To determine the amount of cash compensation to be paid to an employee, you need to multiply the average daily earnings by the number of days to be replaced by compensation.
Note.The amount of monetary compensation paid in return for vacation is calculated based on the employee's average daily earnings.
The average daily earnings in this case are calculated according to the rules for calculating vacation pay. They are established by article and paragraph 10 of the Regulations on the peculiarities of the procedure for calculating the average wages(approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922).
So, if the employee worked in full for the billing period, you should divide the actual amount of the employee's salary for this billing period by 12 and by 29.3 (average monthly number of calendar days).
If one or more months of the billing period were not fully worked out or there were excluded periods, then the average daily earnings are calculated as follows. First determine the number of calendar days in fully worked calendar months:
KDMP \u003d KMP x 29.3,
where KDMP - the number of calendar days in fully worked months of the billing period;
KMP - the number of fully worked months;
29.3 - the average monthly number of calendar days.
KDMN = 29.3: KKDMN x CODE,
where KDMN is the number of calendar days in a month that is not fully worked out;
KKDMN - the number of calendar days of the month that is not fully worked out;
CODE - the number of calendar days worked in a given month.
If there are several months that have not been fully worked, then the number of calendar days must be determined for each of them. And then add up the results.
Then calculate the total number of calendar days taken into account when determining the average earnings:
KKD = KDMP + KDMN,
where KKD is the number of calendar days taken into account when calculating average earnings.
And finally, determine the amount of the average daily earnings:
SZ \u003d SV: KKD,
where SZ - average daily earnings;
SV - the amount of payments accrued to the employee in the billing period.
Example 2. An employee of LLC "AvtoPawnshop" O.V. Simonova, according to the employment contract, is entitled to an additional vacation in the amount of 4 calendar days. She turned to the employer with a statement about replacing this part of the vacation with monetary compensation. The settlement period is from August 1, 2013 to July 31, 2014. From April 1 to April 28, 2014 O.V. Simonova was on her regular vacation for 28 calendar days. And in January 2014, an employee was ill for 10 days. The remaining months of the billing period are fully worked out.
Over the last 12 calendar months payments in favor of the employee amounted to 420,500 rubles, of which vacation pay - 29,800 rubles. and payments on sick leave - 9200 rubles. Calculate the amount of compensation that is due to the employee.
First, we determine the number of calendar days in fully worked months. It is 234 days. (8 months x 29.3 days). Now we calculate the number of days in months that are not fully worked out. For January 2014, it is equal to 19.85 days. (29.3 days: 31 days x 21 days), for April 2014 - 1.95 days. (29.3 days : 30 days x 2 days). The total number of days in the months not fully worked was 21.8 days. (19.85 days + 1.95 days).
The number of calendar days taken into account when calculating the average earnings is 255.8 days. (234 days + 21.8 days). The allowances counted do not include average earnings saved during vacations and temporary disability benefits. Therefore, vacation pay must be calculated based on 381,500 rubles. (420,500 rubles - 29,800 rubles - 9200 rubles). The average daily earnings for calculating compensation will be 1491.4 rubles. (381,500 rubles : 255.8 days). The amount of compensation payable by O.V. Simonova, will amount to 5965.6 rubles. (1264.04 rubles x 4 days).
Note that the labor legislation does not define the period in which you must pay compensation to the employee in return for vacation. But we recommend that you do this on the next day set for the payment of wages.
Note. FAQ
Is it possible to replace study leave with monetary compensation?
No. Labor legislation allows only part of the annual paid leave to be replaced with monetary compensation (Articles 126 and 127 of the Labor Code of the Russian Federation). And your employee's study leave has nothing to do with annual paid holidays. It is considered additional targeted leave related to training (Articles 173-176 of the Labor Code of the Russian Federation).
What will happen to us if we replace an employee's vacation with money that does not exceed 28 calendar days?
In this case, you may be held liable under Article 5.27 of the Code of Administrative Offenses of the Russian Federation for violation of labor laws. The head of the company faces a fine of 1,000 to 5,000 rubles. For a repeated violation, he can be disqualified for a period of one to three years. And a fine in the amount of 30,000 to 50,000 rubles can be imposed on an organization, and from 1,000 to 5,000 rubles on an entrepreneur. Instead of a fine, the organization and the merchant may face a suspension of activities for up to 90 days. True, this violation can be detected only if the labor inspectorate comes to you with an inspection.
What taxes and contributions should be charged on the compensation paid
By general rule compensation paid in return for vacation is the employee's income. In the list of payments not subject to personal income tax, it is not named (Article 217 of the Tax Code of the Russian Federation). Accordingly, from its amount, you need to calculate, withhold and transfer to the personal income tax budget. About this - the letter of the Federal Tax Service of Russia dated 13.03.2006 N 04-1-03 / 133. Personal income tax should be paid to the budget on the day the money is received from the bank for payment of compensation or on the day it is transferred to the employee's bank account.
Also, the amount of compensation paid to the employee is subject to contributions to the PFR, FSS and FFOMS. This is expressly provided for by subparagraph "i" of paragraph 2 of part 1 of Article 9 of the Federal Law of July 24, 2009 N 212-FZ and paragraph 13 of subparagraph 2 of paragraph 1 of Article 20.2 of the Federal Law of July 24, 1998 N 125-FZ. This conclusion is also confirmed by the regulatory authorities (letter of the FSS of the Russian Federation of November 17, 2011 N 14-03-11 / 08-13985).
The law prohibits working without vacation, receiving a cash equivalent instead of the prescribed vacation once a year. But this does not mean that there are no options for receiving compensation for unused vacation. Not only do they exist, but they are quite legal and can be used in situations permitted by law.
Under what conditions will vacation pay be paid?
Any employee is entitled to annual paid leave (Article 114 of the Labor Code of the Russian Federation). The duration of the main vacation is 28 calendar days. There is also an additional vacation, which is provided:
- in the conditions of the Far North and regions equated to them;
- in harmful and dangerous working conditions;
- in special conditions, with irregular working hours, etc.
If there are doubts about whether it is possible to receive compensation for unused vacation, then by referring to the Labor Code, you can understand that the answer is unambiguously affirmative.
An equivalent for a rest not taken can be assigned if:
- the employee leaves;
- the rest due to him exceeds 28 calendar days (Article 126 of the Labor Code of the Russian Federation).
When leaving, the employee is entitled to receive benefits for all days of earned rest. The amount of compensation is calculated based on the number of vacation days and average earnings for the last year.
The second case in which compensation is possible is a vacation of more than 28 days. Then for all additional days or part of them, a monetary equivalent is charged. For example, if a vacation of 34 days is required, then you need to use 28 of them for vacation, and receive compensation for the remaining 6 days.
However, the law does not oblige the employer to strictly follow this rule. The employer has the right not to pay additional vacation days, but to demand their use for rest.
Please note! The rule does not apply to pregnant women, workers under 18 years of age, workers employed in hazardous and hazardous industries. They must use the additional leave for its intended purpose.
Why is vacation postponed?
The legislator has stipulated the occurrence of situations during the holidays, when the annual leave must be interrupted or granted at another time. Such cases are:
- postponement of leave due to sick leave;
- the need to fulfill public duties, for the period of which, according to the law, exemption from work is given;
- in other cases.
Non-payment of vacation pay, notification of the grant of vacation less than 14 days before its start also become the basis for postponing the vacation to another period agreed with the employee.
If the production process requires the presence of an employee and his going on vacation paralyzes the activities of the organization, with the consent of the employee, the vacation is also postponed to another period of time. However, it must be used within the year following the year of issue. That is, work for 2 years without vacation is permissible.
Therefore, if you need to find out whether the replacement of vacation with monetary compensation is allowed in case of its transfer, remember that in this case the legislator says “no” (Article 124 of the Labor Code of the Russian Federation).
Employees under the age of 18, as well as those employed in hazardous and hazardous industries, must be granted annual leave, transfers are not allowed.
Use of leave before dismissal
According to Article 127 of the Labor Code of the Russian Federation, when intending to terminate the contract, the employee can take the leave due to him, followed by dismissal for own will. They write a statement indicating the date of dismissal, which should be the last day of vacation. If the term of the employment contract has expired, the employee has the right to use the prescribed vacation before dismissal and the date of termination of the contract will also be the last day of the vacation.
This date may not coincide with the previously set date for the end of the employment contract. If a vacation is taken by an employee who wrote a letter of resignation of his own free will, he has the right to change his mind, withdraw the letter of resignation before the start of the vacation. If another employee is hired to take his place, then the withdrawal of the application for dismissal is not allowed (Article 127 of the Labor Code of the Russian Federation).
How to get cash coverage
As mentioned above, if the employee is not sure whether it is possible to replace the leave of monetary compensation in 2019, you should seek clarification from the article of the law. The rule stipulates that compensation is paid only upon dismissal, for all due days vacation, or when non-basic days are not used. To get it, you need to do the following:
- Submit a free form application. If there is a special form form - on the form. The "header" of the application indicates the position of the person who will approve the application, and his full name. Next is the name of the applicant.
- The name of the document is "statement".
- Directly the text, which is a request to replace vacation days with a monetary equivalent. Indicate the circumstances under which additional leave was given, its duration and refer to Article 126 of the Labor Code of the Russian Federation on the right to receive compensation.
- Date and handwritten signature.
After 10 days or on the date of the next issue of wages accepted at the enterprise, the payment must be issued to the applicant. The main vacation is not allowed to be replaced by compensation. This is a violation of the law and the guilty person is brought to administrative responsibility in the form of a large fine. The dilemma of whether it is possible to take compensation for unused vacation, if it is not the main one, without imposing a penalty on the employer, suggests the answer: yes, you can.
For vacation compensation before dismissal, see the video:
Upon dismissal, the employee is required to pay compensation for all vacation days. If it has not been provided within two years, then for two years.
If an employee is not entitled to additional leave, then he does not have the right to compensation for vacation days, for example, not used for 2 years and, accordingly, doubled.
How to take a vacation not all at once
According to the Labor Code of the Russian Federation, the division of vacation into parts is possible upon agreement with the employer. At the same time, one of the parts should not be less than 14 calendar days (Article 125 of the Labor Code of the Russian Federation). The remaining days can be taken in any proportion. In particular, twice for 7 days, twice for 5 days and 4 days, and so on.
The expert answers questions in the comments to the article
Compensation for unused vacationcan be paid to the employee upon termination of the employment contract, as well as in a number of other cases. When it is possible to receive money instead of vacation and in what amount, we will tell in this article.
Annual paid vacation
The state guarantees to each worker a vacation period during which the worker retains workplace and position. Moreover, these rest days are paid by the employer, based on the average salary of the employee over the past year.
The employee has the right to go on vacation after 6 months of continuous work in the organization, and after 11 months, the employer is obliged to provide his employee with paid rest. In the following years, the order of going on vacation in the team is determined in accordance with the vacation schedule, which the organization must approve no later than 2 weeks before the new year.
The standard leave guaranteed by labor legislation is 28 days. In addition, some employees are entitled to an extended vacation period, for example, teachers quite legally rest for 45 or even 56 days. In addition, for special working conditions, some employees are granted the right to additional holidays.
Vacation can be granted in full (4 weeks at once) or divided into parts, while at least one of the parts must be at least 2 weeks.
How is non-holiday leave formed (postponement, extension of vacation, recall from vacation)
Sometimes life circumstances do not allow the employee to fully use the days of the rest planned according to the schedule. In this case, the vacation may be extended or rescheduled for another time. Vacation is extended or postponed:
- If an employee falls ill while on vacation. The disease must be documented (sick leave), which means that in this case it is impossible to do without going to the doctor.
- If during the vacation the employee performed any state duties, for the period of performance of which the legislation provides for the obligation of the employer to release the employee from work.
- In other cases provided by law.
In these situations, the term for extending or postponing the leave is determined by the head of the organization, but taking into account the opinion of the employee.
If the employee was untimely transferred vacation pay or the notice of vacation was received later than the deadline, he has the right to demand that the vacation be postponed to another time. The management is obliged to satisfy such application of the employee.
In rare cases where an employee's absence from work could adversely affect an organization's performance, the law allows annual leave to be carried over to the following year. However, the consent of the employee must be obtained for such a transfer, and vacation days should be used no later than the next year.
In the event of any production needs management can recall an employee from vacation, but only with his consent. The unused part of the vacation must be granted to the employee later in the current year or added to the next vacation.
Failure to provide vacation for 2 years in a row is prohibited by the Labor Code, however, life practice shows that sometimes they forget about the non-vacation part of the vacation, and legal rest days “freeze”.
Will non-holiday leave be burned in 2016-2017? What does the Labor Code say?
For several years, rumors have regularly arisen that soon compensation for unused vacation will not be provided, and unused days will burn out. Is it so?
Actually nothing like that. At one time, there was a period when it was allowed to replace a real vacation with compensation for unused vacation for any time, but after Russia joined the ILO convention, you can’t go on vacation for more than 2 years. Even when the convention was put into effect, some journalists misunderstood its content, and unverified information still circulates from time to time. But neither in 2017, nor in subsequent years, the law provides for the burning of vacation days.
Cash compensation for unpaid leave upon dismissal
Speaking of compensation for unused vacation, we imagine, first of all, monetary compensation for the inconvenience and deprivation caused. Let's turn to the law.
The Labor Code allows the exchange of a vacation period for monetary compensation for unused vacation (Articles 126 and 127 of the Labor Code of the Russian Federation), but with some restrictions.
First of all, they talk about compensation for unused vacation when an employee is dismissed. In accordance with labor legislation, upon termination of an employment contract, an employee is paid compensation for all unused vacation days.
If the employee wishes, then at his request, instead of money, he will be provided with all non-vacation days of vacation, followed by dismissal. In this case, the last day of vacation will be considered the day of dismissal. This option is possible only if the termination of the employment contract does not occur due to the guilty actions of the employee.
Since both the calculation of vacation pay when granting vacation and the calculation of compensation for unused vacation are the same, in material terms, the person leaving does not win anything. Rather, here we are talking about the possibility of being legally absent from the workplace, but so that the record of dismissal in the labor office appears a little later in time than when dismissed with compensation for unused vacation.
With regard to compensation for unused vacation without dismissal, the law establishes some restrictions on monetary compensation for days of unrealized vacation.
Compensation for unused vacation without dismissal
Article 126 of the Labor Code is devoted to compensation for unused vacation without dismissal. It says that annual paid leave can be replaced by monetary compensation, but only to the extent that it exceeds 28 days and at the written request of the employee. If we are talking on the summing up of several annual holidays or on the postponement of the holiday, then a part of each annual holiday over 28 days or any number of days from this part is subject to compensation.
From the foregoing, the following important conclusions can be drawn.
- Only those days of rest that go beyond the standard 28-day vacation are compensated. This means that if an employee has the right to only 28 days of vacation, then there is nothing to compensate in excess of these days, which means that the employee must spend the days not taken off, and compensation for unused vacation is possible only upon dismissal.
- If unused vacation days are summed up, but each vacation is also equal to 28 days or the unused part of a 28-day vacation, then monetary compensation for unused vacation is also not possible.
- If the employee's annual leave exceeds 28 days, then the excess can be replaced by monetary compensation, either in full or in part. For example, a 45-day pedagogical leave makes it possible to claim compensation for both 17 days (the difference between pedagogical and standard leave), and for any other number of days less than 17.
- Compensation for unused vacation over 28 days is provided only at the request of the employee.
Labor legislation prohibits, in any case, except for dismissal payments, to replace rest days with compensation for unused vacation for the following employees:
- pregnant women;
- minors;
- working in adverse working conditions.
How is compensation for unused vacation without dismissal calculated?
How is compensation for unused vacation calculated? important aspect in the issue under consideration, as it affects the material side of the relationship between the employee and the employer.
In order to determine the amount of compensation for unused vacation [P1], both in relation to days of rest in excess of the standard vacation, and upon dismissal, it is necessary to calculate the average salary of an employee for 1 day. The basis is the income of the employee, which was received by him in the past 12 months before the payment of compensation. Legislatively, the calculation rules are reflected in the regulation “On the peculiarities of the procedure for calculating the average wage”, approved by Government Decree No. 922 of 12/24/2007.
To determine the average daily income of an employee, you need to divide the income for the year by 12, and the resulting figure, in turn, divide by 29.3. Thus, the average daily wage of an employee = D / 12 / 29.3. In this formula, D is the employee's annual salary, 12 is the number of months in a year, and 29.3 is the value set in the regulation, which is the average number of days in each month of the year.
In the event that in the billing year the employee did not work in full for any of the months, for example, due to illness, the provision provides a clarifying formula for calculating the average earnings for one day. It is equal to:
D / (29.3 × Mn + Mn), where:
D - income for the past year;
29.3 is the average number of days in each month of the year;
MP - quantity full months in the past year, which the employee worked;
Mn is the number of days in incomplete months that the employee has worked.
For example, a worker worked 10 full months from the billing year, and in 2 months he was sick for 2 weeks (that is, he worked 30 calendar days for both months). The average daily earnings in this case will be equal to:
220,000 (annual income) / (29.3 × 10 + 30) = 681.11 rubles.
After determining the average daily earnings, it remains only to multiply the amount received by the number of days of unclaimed vacation, and the result will be the amount of compensation for unused vacation payable to the employee. For instance:
681.11 × 3 = 2,043.33 rubles.
How to use the sample and write an application for compensation for unused vacation
Since the calculation and payment of compensation for unused vacation is made only upon the personal application of the employee, you need to know how to write such an application.
The legislation does not provide for a unified application form for compensation for unused vacation. The document is written by the employee in free form addressed to the head of the organization.
A typical sample application for vacation compensation contains the following rules: in the upper right corner, the name of the organization, last name, first name, patronymic of the head addressed by the employee are indicated. A little lower, the employee must indicate his data: full name, position, division, personnel number. Even lower in the middle is the name of the document: statement. Further, from the red line, the employee describes his request for compensation for unused vacation.
The text should indicate:
- year of work (period) for which the leave was granted;
- type of vacation (main or additional);
- the number of days for which the employee wants to receive compensation for unused vacation.
The application must be submitted to the office, the secretary of the head or directly to the head, with a mandatory mark of acceptance.
The question of the possibility of receiving funds on account of unused vacation worries many employees. Employees want to acquire their financial compensation and, meanwhile, continue to work.
This issue is especially relevant for persons to whom the vacation was postponed. In their situation, the duration of rest becomes longer than the standard norm, which in a normal situation is enough to fully relax.
Subtleties of unused employee rest
Art. 126 of the Labor Code of the Russian Federation indicates that the employee is entitled to receive compensation. However, it should be understood that the norm is formulated in such a way that this possibility is not absolute. That is, the employee and the employer must come to an agreement on replacing vacation with compensation. The mere desire of an employee is not a basis for calculating and issuing funds for days of rest not provided to him.
In addition, the legislator has identified employees who cannot exercise the relevant right:
- pregnant women;
- employees who have not reached the age of majority;
- employees performing work with harmful, dangerous working conditions.
All employees, without exception, are entitled to receive funds for unused rest days when applying for a dismissal.
The employee will be able to purchase the calculation on the last day of work. at the same time, they are calculated in proportion to the period worked.
Who is supposed to?
Article 126 of the Labor Code of the Russian Federation indicates that the employee, on his own initiative, has the right to replace unused vacation days with material compensation. However, not all employees will be able to take advantage of this privilege. If a person is entitled to rest for 28 calendar days, then he does not have the right to a replacement.
The legislator provided for such an opportunity only for those employees who have a vacation duration of more than a standard period. This is possible in a situation where an employee has the right to claim an additional day of rest per year. Employees individual professions due extended vacation. They can also replace rest days exceeding 28 days with monetary compensation.
The categories of employees who are able to qualify for extended leave are defined in Government Decree No. 466. For example, they include teaching staff, leaders educational organizations, their deputies, as well as persons filling similar positions in structural divisions such institutions.
Minors are entitled to extended leave. They are entitled to an annual rest for 31 calendar days. However, they are not subject to the provision on the replacement of vacation with monetary compensation. Labor legislation directly restricts this possibility for underage workers.
In accordance with Federal Law No. 79, state civil servants who fill the highest and main positions have 35days annual reimbursable vacation. For municipal employees, the rest period is 30 days(more for individual employees).
Also, other categories of employees in the public service are entitled to extended leave:
- judges from 30 working days;
- prosecutors, police, customs officers - from 30 calendar days.
Disabled and elderly workers have the right to apply for an extended vacation, its duration is 30 calendar days.
It is also necessary to note the following categories of workers:
- rescuers of professional services - 30-40 days (the specific period is determined by experience);
- members of the Federation Council and deputies of the State Duma - 42 days;
- citizens who work with chemical weapons– 49 or 56 days (determined specific conditions labor);
- employees medical organizations who are engaged in the diagnosis and treatment of HIV patients or work with materials containing the corresponding virus - 36 working days.
Additional vacation days are given to the following persons:
- Carrying out the function in the conditions of an irregular working day.
- Employed in hazardous or hazardous industries.
- Persons who took part in the elimination of the results of the disaster at the Chernobyl nuclear power plant, as well as those living in the area during the accident.
- Workers working in the areas of the COP.
- As well as some other categories.
How many days can be reimbursed?
How many specific days will be reimbursed to the employee, specifically in each case, taking into account the duration of the paid rest period.
Let's give some illustrative examples.
Head of Sales Department Ivanov A.P. concluded with a reservation about irregular working hours. Article 119 of the Labor Code of the Russian Federation determines that he has the right to receive 3 additional days for vacation. Thus it is at will Ivanov A.P. can replace the rest during this period with monetary compensation.
The assistant prosecutor Alekseeva P.G. Every year paid vacation is equal to 30 calendar days. She can apply in writing to replace 2 nights with monetary compensation.
An interesting situation arises when an employee's vacation is transferred to the next year. For example, due to objective necessity, an employee was recalled from an annual paid vacation period. He has vacation days. In this situation in next year his rest will exceed the standard 28 days. Even if he does not have any grounds for receiving extra days holidays. Theoretically, there is a situation in which an employee can replace part of the rest with monetary compensation. However, in practice things are different.
The legislator in Art. 126 of the Labor Code of the Russian Federation paid attention to this point. If the vacation was postponed for any working year, then employees have the right to choose monetary compensation for the part that exceeds 28 calendar days.
Let's illustrate this situation with an example.
Accountant Semicheva L.B. has a disability . The duration of her annual leave is 30 calendar days. For 2019, 6 days of rest of Semicheva L.B. were postponed. since 2019. Thus, the total duration of the vacation is 36 days (one part - 30 days, the second part - 6 days). The employee will legally receive a monetary refund for 2 days, that is, for the first part, which exceeds 28 days.
The procedure for replacing vacation with monetary compensation
The replacement process is regulated by labor legislation. For a legitimate procedure, you need to go through the following steps:
- statement;
- order;
- entry in the personal card of the employee;
- conversion to vacation schedule.
Employee Statement
The process of replacing vacation with compensation is initiated by the employee. It is with his written consent that the employer can carry out the relevant operations. The employee expresses his will in writing by submitting an application. The legislator does not define any strict form of this appeal.
It is necessary to draw up a "header" of the application, put the date and personal signature. This request is forwarded to the employer. An entry about it is made in the register of applications. He puts his resolution.
But before that, it is necessary to check the existence of grounds for replacing the rest time with compensation. In the absence of such reasons, the employer has the right to reject the employee's appeal. The latter's statements are not an unconditional reason for paying monetary compensation for unused vacations. If there are no grounds for increasing the vacation, the replacement is recognized as illegal.
Order
After the employer has come to the conclusion that it is possible to replace the share of rest with monetary compensation and has signed the employee's application, he issues an order. It is this document that formalizes all the key actions.
In the order to replace the vacation should be in without fail the following information is provided:
- Date of publication and number.
- Link to the relevant article of the Labor Code.
- Full name of the employee, his personnel number, position and specific place of work in which he performs the labor function.
- Vacation days to be replaced by compensation.
- The reason for issuing the order is the employee's appeal (date, registration number).
- Name of the person who issued the order.
The employee must be notified of the order against signature.
In a special column, he indicates the date and puts his signature. Information about the order must be entered in a special registration log, which is kept for five years.
Making an entry in a personal card and vacation schedule
The testamentary stage of the procedure for issuing a replacement is to enter information into the employee's personal data, as well as changes to the vacation schedule. The implementation of each sequential action is the guarantor of the legality of the entire procedure as a whole. So, it represents unified form T-2. It contains various information relating to a particular employee.
Including the card contains data on holidays (section 8):
- for what period is provided;
- amount of days;
- start and end time;
- grounds for granting rest days.
In case of replacement, the card is issued as follows:
- period - the working period for which the vacation is provided;
- number of days - the period to be replaced by compensation;
- start date - indicate "vacation replacement";
- end date - indicate "for monetary compensation";
- basis - order (number, date).
It is imperative to make changes to the vacation schedule. The necessary information should be reflected in column 10 "Note".
The employer or authorized employee must record that part of the annual leave (indicates the specific duration) has been replaced by a monetary amount. You should also make a reference to the basis - the order with the date and number.
Calculation of the amount
The calculation of the amount of compensation is made according to the norms that are valid when determining the average earnings for the vacation period. This indicator is established in Article 139 of the Labor Code of the Russian Federation. Average earnings per day are calculated for the previous 12 months. The accrued wages for this period are divided first by 12 (number of months), and then by 29.4 (average monthly working days).
Calculation example: lawyer Popov S.Yu. for irregular working hours is entitled to an additional day of rest, which are added to the annual paid leave. So, in 2019, the total duration of the rest will be 31 days. Popov S.Yu. has the right to replace 3 days of vacation with monetary compensation. From 01.11.14 to 01.11.15 he was paid for the performance of labor functions in the amount of 300 thousand rubles.
We calculate the average earnings per day:
(300000/12) / 29.4 \u003d 850.34 rubles.
Compensation for 3 days:
850.34 * 3 \u003d 2551.02 rubles.
Similarly, the average earnings per day are calculated when determining compensation for spare days of rest upon dismissal.
It does not matter in which year the “debt” was formed. The calculation takes into account earnings for the previous 12 months.
Replacing vacation with compensation is a process regulated in detail by the legislator. Not all employees have the opportunity to receive funds on account of unused vacation days. Employers should remember that the will of employees alone is not enough to award them compensation. Replace vacation in cash only if there are appropriate grounds.
According to the provisions of Article 115 of the Labor Code Russian Federation the employer must provide the employee with an annual basic paid leave of 28 calendar days. Certain categories of employees are granted extended basic leave (ie, longer than 28 days). IN Labor Code there are also cases when the replacement of days of unused vacation is prohibited. Let's consider this issue in more detail.
According to the provisions of the regulatory enactments establishing the norms labor law, unused vacation days can be replaced by monetary compensation in the following cases:
at the request of the employee - part of the annual paid leave exceeding 28 calendar days ();
persons employed in harmful and dangerous working conditions (Article 117 of the Labor Code of the Russian Federation);
workers with irregular working hours (Article 119 of the Labor Code of the Russian Federation);
employees working in the regions of the Far North and equivalent areas ();
athletes and coaches (Article 348.10 of the Labor Code of the Russian Federation);
persons working in representative offices of the Russian Federation abroad (Article 339 of the Labor Code of the Russian Federation);
honey. employees (Article 350 of the Labor Code of the Russian Federation);
employees who are guaranteed such leave federal laws(part 1 of article 116 of the Labor Code of the Russian Federation).
The following persons are entitled to extended leave:
groups of persons defined by federal laws (part 2 of article 115 of the Labor Code of the Russian Federation).
It is worth remembering that for certain categories of workers, the replacement of annual paid with monetary compensation is not allowed. These workers include:
persons under the age of 18 (part 3 of article 126);
pregnant women (part 3 of article 126 of the Labor Code of the Russian Federation);
staff customs authorities(clause 2, article 35 of Law N 114-FZ);
police officers (part 3, article 45 of the Regulations approved by Decree of the RF Armed Forces dated December 23, 1992 N 4202-1 "On approval of the Regulations on service in the internal affairs bodies of the Russian Federation and the text of the Oath of an employee of the internal affairs bodies of the Russian Federation").
employees of the drug control authorities (clause 105 of the Regulations approved by Decree of the President of the Russian Federation of 05.06.2003 N 613 "On law enforcement service in the bodies for controlling the circulation drugs and psychotropic substances");
persons employed in work with harmful and / or dangerous working conditions. The exception is the payment of monetary compensation for unused leave upon dismissal, as well as for the part of the annual additional paid leave that exceeds its minimum duration - seven calendar days (part 3 of article 126 and part 2, 4 of article 117 of the Labor Code of the Russian Federation);
workers exposed to radiation due to the disaster at the Chernobyl nuclear power plant.
Note: In accordance with Part 2 of Art. 122 of the Labor Code of the Russian Federation, the right to use leave for the first year of work arises for the employee after 6 months of his continuous work. By agreement of the parties, an employee may be granted paid leave before the expiration of 6 months.
Additional leave granted for work in hazardous conditions is due to an employee if he actually worked in such conditions for at least 11 months in a working year (paragraph 2, clause 8 of Instruction N 273 / P-20). If he worked less than this period, then he is granted additional leave in proportion to the time worked in such conditions (clause 9 of Instruction N 273 / P-20, Letter of Rostrud dated 03/18/2008 N 657-6-0);
Additional leave for work in an irregular working hours does not depend on the length of time worked in the working year in an irregular working day (Rostrud Letter dated 05.24.2012 N PG / 3841-6-1);
Making holiday pay
To pay compensation for vacation, the employer must perform the following sequence of actions:
receive a written statement from the employee;
issue an order;
enter information about the replacement of part of the vacation in the employee's personal card and vacation schedule.
Note: Study leave is not related to annual paid holidays, but is considered additional targeted leave related to training (Articles 173-176 of the Labor Code of the Russian Federation). Therefore, the employer is not entitled to replace the employee's study leave with monetary compensation (Letter of the Federal Tax Service for Moscow dated December 27, 2006 N 20-12 / 115069).
Payment of monetary compensation for unused vacation upon dismissal
In accordance with Part 1 of Art. 127 of the Labor Code of the Russian Federation upon dismissal, the employee is paid monetary compensation for all unused vacation days. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day.
Upon dismissal, full compensation is received by employees who have worked with the employer for at least 11 months, or employees who have worked for more than 5.5 months and are dismissed for one of the following reasons:
liquidation of the enterprise;
downsizing;
transfer to another job at the suggestion of the labor authorities;
entry into active military service;
reorganization or temporary suspension of work;
business trips in accordance with the established procedure to universities, technical schools (or training courses specified educational institutions);
unsuitability for work.
In other cases, compensation is paid in proportion to the hours worked.
Note. In accordance with Art. 291, 295 of the Labor Code of the Russian Federation to employees hired for a period of up to 2 months, or employed for seasonal work, monetary compensation upon dismissal is paid at the rate of two working days per month of work.
When calculating the number of days of unused vacation, the length of service includes:
actual work time;
the time when the employee did not actually work, but after him in accordance with labor legislation and other acts containing labor law norms, collective agreement, agreements, local regulations, employment contract the place of work was maintained, including the time of annual paid leave, non-working holidays, days off and other days of rest provided to the employee;
time of forced absenteeism in case of illegal dismissal or removal from work and subsequent reinstatement at the previous job;
the time of leave granted at the request of the employee without pay, not exceeding 14 calendar days during the working year;
the period of suspension from work of an employee who has not undergone a mandatory medical examination through no fault of his own.
Work experience does not include:
the time the employee is absent from work good reasons, including as a result of his suspension from work in the cases provided for;
parental leave until the child reaches the legal age.
Note: In accordance with Art. 121 of the Labor Code of the Russian Federation, vacation time without pay, not exceeding 14 calendar days during the working year, is included in the vacation period.
The final amount of compensation for unused vacation is paid based on average earnings. In accordance with Art. 139 of the Labor Code of the Russian Federation, the average daily earnings for payment of compensation for unused vacations are calculated for the last 12 calendar months by dividing the amount of accrued wages by 12 and by 29.3 (average monthly number of calendar days).
