Vacation in advance: how and who can take it for the next year, how are unworked days calculated, and what is included in the schedule if it is used and taken off in advance?

09.07.2019
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6 min.

Having worked at one enterprise for more than six months, a person automatically receives the right to leave of at least 28 days. At the request of the employee, this period can be divided into parts and postponed to the time that suits him best. But what happens if a citizen asks his superiors for leave in advance, without serving the required six months in his position? Whether such a circumstance is provided for in the Labor Code, and what restrictions are imposed on it by law, we will consider below.

Definition and features of provision

The Labor Code does not contain wording of such a concept as leave in advance . But in practice, it is generally accepted that this is rest provided to an employee before the end of the working year.

Keep in mind: granting leave in advance is only possible in relation to annual paid leave! Everything else must be provided on time. Also see “When you can take vacations under the Labor Code.”

The manager is obliged to give his employees basic and/or additional rest every year. During the first working year, a subordinate acquires this right after working out half of the working period. The exceptions are certain categories of citizens:

minors;
pregnant employees;
WWII participants;
part-time workers;
raising two or more children;
other persons.

The conditions for granting leave in advance are distinguished from regular leave by the following characteristics:

You need to know exactly which periods to include in your work experience.
Registration of this type of vacation is the right, not the responsibility of the manager.
Minimum duration – 14 days.
Replacement with cash payment is not acceptable.

For other categories of employees, rest is provided in proportion to the part of the working year worked with the consent of management. To receive it, a person must submit an appropriate application. The date is determined taking into account the approved schedule. Also see "Vacation Schedule".

When you are fired due to downsizing

If the main reason for dismissal is liquidation or reorganization of the enterprise, then compensation in full is paid to all employees who have worked for more than five and a half months. Recalculation and deduction are carried out taking into account this fact.

The main document for resolving this issue was adopted more than 70 years ago, but its provisions largely remain relevant to this day. This applies to provisions that do not contradict the current version of the law.

To ensure that the employee is aware of what is happening with his finances, the other party is given a special pay slip containing detailed information. The document states the type of operation and the exact amount.

Currently, the deduction of overpaid compensation itself is possible only in certain situations described in the legislation. Before carrying out the procedure, you must familiarize yourself in detail with existing regulations. Then there is less chance that mistakes will be made or other conflict situations will arise.

The best option is when the parties agree amicably to reimburse the amounts. For example, when an employee voluntarily returns everything to the cash register. But no one has the right to coercion in such situations. If the employee does not consent, the manager can forgive the debt or go to court to demand its repayment. But not everyone agrees to this, since the procedure is always associated with additional expenses.

The court may decide that the withholding is more than 50 or even 70% of the total salary. Such situations are described in legislative norms and will not be considered a deduction for excess amounts in vacation pay. It must be remembered that such actions relate to the rights of the employer, but not to his direct responsibilities.

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Is it possible to take vacation in advance for the next year?

The right to use this type of vacation is granted without restrictions to employees who have worked at least a few days in the new working period. But taking out vacation for the next year is illegal, since the employee has not worked a single day for it!

For employees whose activities are associated with harmful or dangerous environmental factors, registration of basic or additional rest is possible in advance and for its full duration.

Pitfalls of “advance leave” for the employer

It is not surprising that some employers choose not to deviate from their right to provide holiday only on time. There are certain risks in the fact that an employee goes on vacation without earning this opportunity.

The main problem for employers is the possibility of losses due to amounts overpaid for unworked vacation. The manager may face difficulties withholding funds in the event of dismissal of an “over-rested” employee. An employee does not always agree to compensation for vacation pay of his own free will, while it is very difficult to claim this money in court. The law mainly protects the interests of workers, and the regulations provide for a large number of circumstances to which the claim for compensation does not apply, for example:

the amounts due before dismissal are not enough to cover the debt;
if the deduction is not made directly upon dismissal, you will have to act through the court or accept the loss of money, the employer has no other legal ways to force the employee;
the reason for dismissal excludes the possibility of claiming the debt.

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Is vacation compensated in advance upon dismissal?

When an employee arranges a vacation in advance, he subsequently undertakes to work the required number of days. But what to do if the employment contract is terminated? Does the employer have the right to compensate for his losses? The answer to these questions depends on the reason for the dismissal.

The employer does not have the right to demand compensation if the employee took his vacation in advance and was dismissed for the following reasons:

by agreement of the parties;
when the employment contract expired;
transfer to another employer;
staff reduction;
refusal to cooperate due to changes in working conditions;
absence from work for more than 4 months due to temporary incapacity for work (exception – maternity leave);
referral for training;
retirement;
other valid reasons.

If the employment contract is terminated for other reasons, the employer has the right to demand compensation from the employee who took vacation in advance . For example, in case of voluntary dismissal or serious disciplinary offense. It can be deducted without the employee’s consent.

There is a limitation established by Art. 138 of the Labor Code of the Russian Federation: the withheld amount should not exceed 20% of the salary. When vacation pay is transferred in a larger amount or wages are not enough to withhold, you need to negotiate with the employee about the return of the money. He can write a statement of his agreement with the decision being made.

Does the manager have the right to withhold debt for unearned vacations?

Management solves the issue

Dismissal means that on the last day the employee is given all the amounts due to him. This also applies to vacation time that remains unfulfilled.

If a debt arises, the manager will have the right to withhold:

Amounts agreed to by the employee himself.
That part that can be retained only on the basis of legislative norms.

When registering a dismissal in the year of receiving leave, but not fully worked, the employer can withhold amounts that are not compensated for labor, but received as an advance. There are only a few acceptable exceptions to this rule.

Recovery of part of the amount is unacceptable when certain grounds specified in the Labor Code of the Russian Federation are used.

The purpose for any deduction is to pay off the debt incurred to the employer because the amounts were not actually worked out. They were issued to the employee on the condition that they would be compensated in the future. But before dismissal, one of the parties violates this condition. As a result, one party receives unjust enrichment, and the other suffers losses.

How to take a vacation in advance

The registration is carried out by a personnel specialist or accountant, taking into account the norms of the law. It is imperative to comply with the requirements so that if a disagreement arises, there is documentary evidence of the fact that premature rest was granted.

In the situation under consideration, the procedure follows the standard scheme. The employee writes an application for leave in advance , addressed to the manager. In it he states:

desired duration – at least 14 days;
date and your signature;
the reason that influenced the decision (optional).

EXAMPLE On May 16, 2016, Khrustalev was hired as a leading project manager. After working 19 days, the employee urgently needed leave for family reasons from June 13 for 14 days.

He drew up the following document addressed to the director - an application for early annual leave.

If the employer satisfies the employee’s request and gives leave in advance , an order is issued. The document is filled out according to the unified form T-6. Then both parties sign it. Also see “Sample vacation order”.

Holiday payment calculation

All amounts due are determined on the basis of average daily earnings and actual time worked. The calculation is carried out in the following order. Also see “Calculating vacation in 2021: examples.”

We determine the average monthly salary using the formula:

Salary average month – average monthly wage; ZP1, ZP2 – salary for each month of work; N – number of months worked.

We calculate the average daily salary:

ZPsr.d. – average daily salary; 29.3 is the average number of days in one month.

We determine the amount of accrued vacation pay (OTPinit.). It will be equal to:

OTPbeg. = ZPsr.d.x D D – duration of rest (days).

We withhold income tax (13%) from accrued vacation pay:

Personal income tax = OTPinit. x 13%

The amount of cash payments will be:

HOLIDAY PAY = OTPinit. – Personal income tax

EXAMPLE (CONTINUED) Leading project manager Khrustalev took vacation in advance from June 13, 2021 for 14 calendar days. The average monthly salary is 27,300 rubles. It is necessary to determine the amount of vacation pay to be paid to this employee.

Solution.

Let's calculate the average daily salary using the formula:
Let's determine the amount of accrued vacation pay:

OTPbeg. = 932 x 14 days = 13,048 rubles.

The withheld income tax will be equal to:

13,048 x 13% = 1,696 rubles.

As a result, project manager Khrustalev will receive vacation pay in the amount of 11,352 rubles. (13,048 – 1696).

Let’s assume that the vacation provided in advance was used by the employee, and later he quit due to:

A) conscription for military service;

B) at your own request.

Can the head of IMICOR-Sibir LLC receive monetary compensation? If yes, then in what size?

Solution.

A) Conscription for military service This is a valid reason for termination of the contract, and therefore does not serve as a basis for collecting compensation (Part 1 of Article 83 of the Labor Code of the Russian Federation). After Khrustalev’s dismissal, there is no need to demand a refund.

B) Interruption of cooperation at the initiative of the employee This is the basis for the return of vacation pay. The company must withhold from the last salary an amount to pay off the debt for unworked vacation days in the amount of: 13,048 x 20% = 2,609 rubles.

When providing an employee with leave in advance, there is a risk of losing the money paid. Therefore, when an organization goes to court, it is necessary to prepare reliable and convincing evidence of the illegality of the employee’s position, since the court often takes his side.

Dismissal of an employee after an advance vacation

Vacation in advance for the next year carries an obvious danger for the employer. After all, an employee has the right to resign at any time, including while on vacation. In this case, the employer has the right to return money for unworked days from the subordinate’s salary. This is stated in Article 137 of the Labor Code of the Russian Federation. But according to Article 138 of the Labor Code of the Russian Federation, the total amount of deductions cannot exceed 20% of the salary. In most cases, this amount is not enough to cover the resulting losses, so the employer can try to negotiate with the employee on voluntary repayment of the debt.

If an employee refuses to return advance vacation pay, going to court will also not bring a positive resolution to the conflict. Since advance vacation pay is not listed in Article 137 of the Labor Code of the Russian Federation as a basis for the recovery of overpaid funds.

Thus, if the employer was unable to collect a debt from an unscrupulous employee, after a year he has the right to write off this debt as bad.

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