What does failure to provide leave to an employee entail?

In the activities of organizations, the main role is played by employees, whose work activities are regulated by labor legislation. An important role in work is played by rest time, which is necessary to replenish a person’s strength. Therefore, many questions arise regarding the provision of vacations. Sometimes an employee is motivated by personal irreplaceability, and in any organization there are people who do not go on vacation for a long time. It is believed that this is their right, but the employer’s obligation to provide vacation is regulated by law, so failure to provide vacation time to employees for the employer is fraught with administrative liability.

Let's consider what consequences await the employer if he does not provide leave to the employee.

Grounds for granting leave

The vacation schedule drawn up at each enterprise is the basis for granting vacation to an employee. Annual leave while maintaining the average salary and workplace should be 28 days per year (according to the Labor Code of the Russian Federation), while additional leave may be granted depending on the type of activity, regulated by the Labor Code of the Russian Federation and local acts of the organization.

The vacation schedule in the form developed by Goskomstat may not be used by commercial organizations from 01/01/2013, but must be and approved 1 month before the start of the year. The organization can take its own form at the local level. The vacation schedule regulates the procedure for providing employees with rest time for the purpose of avoiding vacation overlaps. All employees and their time on vacation must be reflected.

The main requirements for going on vacation are:

• submitting a leave application from the employee no later than 2 weeks in advance
• payment of vacation amounts 3 days before the start of vacation

How long can an employee not use vacation?

In accordance with the annual basic paid leave, employees are provided with a duration of 28 calendar days.

Categories of employees who are prohibited from not using or postponing vacation for reasons beyond the control of the employee, which may lead to the failure to provide the next vacation in the current working year, are presented:

• employees who have not been on annual paid leave for 2 years;
• pregnant employees;
• workers under 18 years of age;
• workers whose jobs are recognized as hazardous or hazardous.

Example:

To the chief accountant of ABV LLC, P.P. Petrova. The next annual paid leave is planned according to the vacation schedule in the period from 04/26/2020 to 05/11/2020 Petrova P.P. is in her fifth month of pregnancy. Just during the period when the chief accountant should be on vacation, an on-site tax audit should be carried out. In this case, the postponement of vacation can only be at the initiative of the employee. At the initiative of the employer, transferring vacation will be illegal.

Time and terms of vacation

An employee has the right to be granted leave in parts, but one of the leaves must be at least 14 days, regardless of the duration of the leave (the minimum leave is 28 days and days of additional leave are added to it in accordance with the law).

But there are situations when an employee did not write a leave application in a timely manner (which should be monitored by the HR department), recall from leave due to production needs, employee illness, etc. In this regard, the employer is obliged to provide other days for rest. If vacation was not completed during the calendar year, then these days must be transferred to the next year, that is, the vacation of the next year is increased. The vacation schedule for the next year is drawn up taking these days into account.

Art. 124 of the Labor Code of the Russian Federation prohibits not providing vacation for 2 years in a row, which means that the employee must have vacation. Replacing the main vacation with a cash payment is prohibited, but in accordance with Art. 126 of the Labor Code of the Russian Federation, such compensation can be replaced by additional compensation - at the request of the employee (with the exception of minors, pregnant workers and those working in harmful (dangerous) working conditions).

Which employees have priority when taking leave?

The employer must keep in mind that a number of employees have a legal advantage in granting them annual leave:

Responsibility for failure to provide leave to employees

Labor legislation prohibits failure to provide vacation for 2 years in a row and the remaining vacation for previous periods. Therefore, regardless of the reasons, the employer may be held administratively liable on the basis of Article 5.27 of the Labor Code of the Russian Federation.

Due to the fact that employees accumulate vacations, and administrative penalties may be applied, it is recommended that the accumulated vacations be released.

Labor inspectors can learn about a violation during an inspection of an organization or from an employee complaint.

Deputy Director of the Department of Medical Education and Personnel Policy in Healthcare of the Ministry of Health of Russia Nina Kovyazina

What threatens an employer who breaks the law?

For violating the legislation on vacations, the employer faces administrative punishment. There is no separate article in the Code of Administrative Offenses of the Russian Federation for this case, therefore penalties are imposed for violation of labor legislation in accordance with Article 5.27, parts 1 (in case of initial detection of a violation) and 2 (in case of repeated violation).

According to them, the following monetary fines are imposed on the employer:

• For the responsible (official) person within the limits of 1000 - 5000 rubles for a primary violation, and 10,000 - 20,000 rubles for a repeated violation. In especially serious cases, if a repeated violation occurs, an official may be disqualified for 1-3 years.
• Individual entrepreneurs will pay 1,000–5,000 rubles for the first violation and 10,000–20,000 rubles for the second violation. Disqualification cannot be applied to them.
• The company will pay 30,000 - 50,000 rubles for the first violation and 50,000 - 70,000 rubles for the second and subsequent ones.

Example of providing accrued vacations

Although the employer is responsible for providing leave, some employees do not take leave. To avoid liability, the employer can use the following methods:

1. termination of the employment contract (by mutual agreement) - in this case, upon dismissal, compensation is paid, and the next day the employment contract is signed again
2. short-term vacations are provided, taking into account weekends - in this situation, over time, non-vacation days of vacation will be used and vacation pay will be accrued for vacations on weekends

What's happened?

Deputies are preparing changes to the Labor Code regarding vacations. And the workers considered that vacations for periods before 2021 would be lost if they were not taken off all of them. Accountants are also confused about this issue.

Let us remind you that each employee is entitled to 28 calendar days of vacation per year of work.

According to the amendments, the employer must give annual paid leave at any time to one of the parents raising a disabled child under the age of 18, as well as to one of the parents with two or more children under the age of 14.

This law does not affect the rules for granting vacations. But the question of whether unused vacation pay is burned does not answer. Let's understand the issue.

Payments of vacation pay to employees

An employee's vacation is related to payments. Payments are calculated based on average annual earnings (excluding social payments). It is also necessary to take into account that an important condition for an employee to go on vacation is the payment of vacation pay 3 days before the vacation , and for the delay of vacation pay, the employer may be subject to financial liability provided for by the Labor Code of the Russian Federation and expressed in compensation (not subject to personal income tax) for each day of delay in payments . And compensation is calculated based on 1/150 of the key rate of the Central Bank, which is currently 7.25%, but if local acts provide for an increased payment, then compensation in excess of the statutory share is subject to personal income tax.

Administrative liability is also provided for late payment of vacation pay, so the employer needs to calculate all payments for the delay, if any, without waiting for State Tax Inspectorate checks.

Calculation of vacation amounts and reflection in accounting

The procedure for calculating vacation pay is regulated by Art. 139 of the Labor Code of the Russian Federation and the Regulations on average wages, which determines:

1. the amount of payments to the employee for the year preceding the vacation
2. number of calendar days to calculate average daily earnings
3. Average daily earnings and vacation pay

Important! The amount of vacation pay is calculated within the framework of the employment relationship and is subject to personal income tax (minus standard tax deductions) and insurance contributions.

At the same time, the employer, at its discretion, can create a reserve fund for vacation amounts or not.

If there is a vacation pay fund, then vacation pay is reflected: D 96 K 70

If there is no fund, then: D 20 (23, 26, 44, etc.) K 70

Personal income tax on vacation pay: D 70 K 68

Answers to common questions

Question No. 1 : The employee wrote an application for early exit from maternity leave for up to three years and from the date of exit - an application for leave that was not previously used. Can an employer issue such leave?

Answer : Parental leave can be used at the employee’s discretion (Part 2 of Article 256 of the Labor Code of the Russian Federation), that is, he can go to work and go on parental leave at any time. When returning from maternity leave, the employer, at the request of the employee, is obliged to provide another leave.

Question No. 2 : Should an employer provide a part-time employee who is on maternity leave with up to 1.5 years?

Answer : An employee does not have the right to be on two vacations at the same time and receive two amounts of vacation pay. Therefore, in order to use the main leave, you need to receive an application for leave from parental leave and an application for the main leave, and after the main leave you can again write an application for leave to care for a child up to 1.5 years. In this case, child care benefits will not be paid, but only vacation pay will be received.