Leave without pay in 2021

Right to vacation

The first working year begins on the day the employee is hired and ends after 12 months, included in the length of service giving the right to leave. The next working year begins immediately after the end of the previous one (see also letter of Rostrud dated December 8, 2008 N 2742-6-1). In this case, the end (beginning of the next) working year may be shifted due to the fact that some periods of time are not included in the length of service giving the right to annual basic paid leave, in accordance with Art. 121 Labor Code of the Russian Federation.

How to calculate length of service for the next vacation if the employee took several vacations at his own expense

The length of service that gives the right to annual paid leave does not include time on unpaid leave that exceeds 14 calendar days during the working year.

The State Labor Inspectorate in Moscow warns about this in its letter dated 06/04/2020 No. 77/10-20669-OB/18-1299.

The department reminds that according to the norms of 121 of the Labor Code of the Russian Federation, the length of service that gives the right to annual basic paid leave includes the time of unpaid leave provided at the request of the employee, not exceeding 14 calendar days during the working year.

That is, if an employee was on vacation without pay for more than 14 days (for example, 30 days), then when calculating the length of service, vacation days starting from the 15th (16th) are not taken into account. For example, if an organization during the year provided an employee with unpaid leave for family reasons for 20 and 10 days (30 days in total), then 16 days are not taken into account when calculating the length of service.

The end of the working year is postponed by the number of days of absence of the employee excluded from the length of service for vacation.

At the same time, when filling out an order (instruction) on granting leave to an employee (unified form No. T-6, form according to OKUD 0301005), in the column “for the period of work” the date is indicated, conditionally not “from June 1, 2021 to May 31, 2021.” , and “from June 16, 2021 to June 15, 2020.”

GIT experts also note that downtime is included in the length of service that gives the right to annual paid leave.

BUKHPROSVET

The right to use vacation for the first year of work arises for the employee after 6 months of continuous work with the employer. In addition to unpaid leaves, the length of service that gives the right to annual basic paid leave includes the time of actual work and the period of suspension from work of an employee who has not undergone a mandatory medical examination through no fault of his own.

Also, the length of service for the purpose of granting leave takes into account the time of forced absence due to illegal dismissal or suspension from work and the time when the employee did not actually work, but retained his place of work. In particular, this includes non-working holidays, weekends and other rest days provided to the employee.

The length of service that gives the right to annual additional paid leave for work in harmful and dangerous working conditions includes only the time actually worked in such conditions. At the same time, the length of service for the purpose of granting paid leave does not take into account the time the employee is absent from work without good reason, including due to his removal from work, as well as the time of parental leave until he reaches the age specified by law.

Calculation of next vacation days when on vacation without pay

The employee works from 04/03/2015, from 05/04/2015 to 09/30/2015 took leave without pay, from 04/01/2016 to 04/19/2016 - annual leave in the amount of 19 calendar days, for the period 04/03/2015 to 08/16 .2016, from 04/20/2016 to 08/31/2016 took leave without pay. What will be the next period and when can the employee be given the remaining 9 days of vacation?

Additional. Available to persons of certain professions or depending on place of residence. The conditions of the Far North, metallurgy and chemical industry enterprises are considered highly hazardous production, therefore such workers are given an additional two-week vacation. Many payments due to employees in accordance with labor legislation are calculated based on average earnings: vacation pay, compensation for unused vacation, payment for days on a business trip, etc. When calculating average earnings, all payments provided for by the remuneration system are taken into account (clause 2 of the Regulations, approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922).

But during the specified period, the employee used 25 days of leave without pay, which is 11 days more than indicated in Art. 121 Labor Code of the Russian Federation. In this regard, we recalculate the number of days worked and get 9 months and 11 days. Excess of 11 days is excluded from the calculation.

Consequences. What will the holiday entail?

Let's start with the labor supplement . If no additional payment was determined for an employee when fulfilling the work standard, since his salary (tariff rate) is equal to or higher than the minimum wage (hereinafter referred to as the minimum wage), then in the event of non-fulfillment of the work standard due to vacation, there will be no such additional payment.

However, if the labor supplement was calculated, then the accrued salary for the month for the time actually worked is compared with the minimum wage, calculated in proportion to the work norm fulfilled (time worked) .

If the “proportional” minimum wage is higher than the actual one, we charge the employee a “labor” supplement for the difference between these two values.

Let's move on - illness . Unlike annual leave, it is not possible .

Besides,

a period of illness that coincides with a period of vacation at one’s own expense is not subject to payment

This is expressly stated in clause 6, part 1, art. 23 of the Law of Ukraine “On compulsory state social insurance” dated September 23, 1999 No. 1105-XIV

But! We reassure our pregnant women workers. If an employee is granted leave in connection with pregnancy and childbirth during the period of leave without pay, maternity benefits are paid from the date the right to maternity leave arises .

Therefore, if during the period of unpaid leave the employee has the right to leave in connection with pregnancy and childbirth, the leave at her own expense is interrupted and maternity leave is issued.

Therefore, in any case, pregnant women employees will be provided with maternity benefits. Therefore, take care of yourself, dear women!

If during the calculation of sick leave (maternity leave) it turns out that there is a leave without pay in the calculation period, then the days of such leave are excluded from the total number of calendar days that will be included in the calculation of the average salary.

Go ahead. Annual leave .

The time spent on leave without pay is counted towards the length of service, which gives the right to annual basic leave ( Clause 4, Part 1, Article 9 of the Vacation Law

An exception is (not included in the “vacation” period) vacations that are provided in accordance with clause 3, part 1, art. 25 of the Holidays Law

for child care.

When calculating vacation pay, days of unpaid leave are excluded from the calculation period (see letter of the Ministry of Social Policy dated November 26, 2012 No. 1203/13 / 84-12

As you can see, when providing leave without pay, the employer must comply with a number of rules. Our article will help him with this.

conclusions

The Vacation Law divides unprotected vacations into two types: those that are provided on a mandatory basis to certain categories of employees or upon the occurrence of certain events, and those provided by agreement (arrangement) of the parties.
The initiator of “going” on vacation at his own expense must always be the employee. The employer has no right to send it forcibly without obtaining consent.
Temporary disability of an employee, which occurs during the period of vacation at his own expense, is not paid. But maternity benefits must be accrued and paid.

Other materials from Taxes and Accounting, 2021, No. 27:

Quarantine leave at your own expense
Annual leave: let's get acquainted
"Vacation" experience
Newbie wants to go on vacation
Vacation documents? Please!
Vasya, SOS! or Recalling an employee from vacation
Vacation pay. Let's understand the intricacies
Vacation reserve: brief recommendations for creating
Got sick on annual leave
Reducing the coefficient: justification
Adjustment: simplifying your life
Unified social contribution from the Ministry of Salary and vacation
Pay in 3 days: calendar or working days?
Divide into parts
What do you remember about March?

Subscribe to “Taxes and Accounting”

Calculation and possible nuances

Employees should be aware of the impact of personal leave on separation compensation.
Today, not all personnel officers even think about this issue, since they rely on specialized computer programs in which records are kept. However, automation often fails, so knowledge of the theoretical basis will never be superfluous. In 121 art. The Labor Code states that 14 days of unpaid leave are not excluded from the length of service that must be calculated upon dismissal. Accordingly, everything greater than this number is excluded from the length of service. The duration of unpaid rest is taken into account separately for each working year. It is important to remember that when calculating, it is the working year that should be considered, and not the calendar year.

Example calculation

To determine whether personal leave is included in vacation compensation, we can look at an illustrative example.
Let's say a specialist was employed on January 12, which means his 1 month of work lasted until February 11, the next - from February 12 to March 11, etc. Only days of rest at his own expense for more than 14 days are excluded from this period. The employee used 30 days of unpaid leave, so 16 days (30−14) should be subtracted from his length of service. As a result, the specialist’s experience is 8 months and 8 days (24−16). Next, rounding is used. According to the law, the number of days less than 15 is discarded, and the number over 15 is rounded up to 1 month. Therefore, the employee is entitled to compensation for 8 months. The management must pay it in 18.67 days (28 days divided by 12 months and multiplied by 8 months).

Guarantees for employees

In addition to the question of whether unpaid leave is included in the calculation of separation compensation, employees are often interested in their guarantees during this period. The legislation guarantees every employed citizen protection of rights during his unpaid absence from the workplace. It is important to remember that:

An employer does not have the right to remove an employee from his position while he is on unpaid days off.
Also, management cannot transfer an employee to another facility within the organization during his absence. You need to wait until the employee returns to his workplace, and then inform him of further changes.

If a person gets sick while on leave at his own expense and has sick leave, management may not pay the due compensation. The reason for this is that benefits cannot be assigned while the employee is not working.

If the employee went on vacation and during this period she began maternity leave, all due payments must be made. In such a situation, unpaid leave immediately stops. If its manager refuses to make payments required by law, the employee has the right to complain to the labor inspectorate, and then to the prosecutor’s office. An inspection will be carried out, as a result of which the employer may be subject to administrative punishment.

Important information

There are certain points that are very important to consider after an employee has reached an agreement with his superiors and goes on a weekend without accrual of payments. Please remember that:

You must take a document for time off at your own expense, filled out according to the template. If there is none, the manager may be held liable if the employee proves that he was forced to take days off without personal consent.
The employer does not have the right to demand from the employee any papers indicating that he has a valid reason for taking time off. The employee can only provide them on his own initiative.
The total duration of time off may be divided into several parts and they do not necessarily have to be of equal duration. In this case, you will need to carry out the entire registration procedure each time.
Nowhere in the law does it indicate that the unpaid vacation period must be tied specifically to the year worked. But this type of vacation cannot be transferred to the next year. If for some reason an employee does not take advantage of the rest time without saving income, he loses this right in a particular working year.

Calculating compensation for unpaid time off is not difficult. It is also worth remembering that the total length of service in the company cannot include the time when the employee did not work. Vacation without payment cannot be included in the working period for which a pension is assigned.

What is vacation at your own expense?

This is an unofficial wording that is used to refer to leave of the Labor Code of the Russian Federation, Article 128, without pay.
This option exists in case you, for one reason or another, cannot go to work, but have already taken your usual vacation or do not want to take it. In this case, you can agree with management that you will be absent for some time, and your salary will be stopped for this period. You shouldn’t expect sick leave payments if you get sick at this time either. Federal Law No. 255-FZ dated December 29, 2006. But they cannot fire you while you are on vacation at your own expense, Article 81 of the Labor Code of the Russian Federation.

The legislative framework

Such issues are regulated by the provisions of the Labor Code (LC RF). According to which any working citizen has the right to count on a long-awaited vacation. If he initially concluded an employment contract with his boss. Then each year the employee is granted one 28-day vacation . By agreement, you can divide the period or take the whole one. However, there are other options.

Various events happen in life that require attention. Therefore, officials made appropriate changes to the Labor Code of the Russian Federation.

Employees can take additional leave and demand that they be given days off, for which they will pay themselves. This is regulated by Article 128 of the Labor Code of the Russian Federation.

A kind of vacation at one’s own expense, the duration of which is determined by the citizen himself. The parties establish the optimal time through oral negotiations. So that the absence of an employee does not affect his career and the productivity of the organization.

Important! The employee must give the employer a compelling reason why he is forced to leave . Family circumstances, sudden event - depending on what happened . And indicate it in general terms in the application.