What is Article 123 of the Labor Code (with comments for 2021) dedicated to and to whom is it important?
Art. 123 of the Labor Code of the Russian Federation establishes the order of granting regular leaves to employees. This issue is equally important for both parties to the employment contract.
However, the employer and employee in this situation are at opposite poles. On the one hand, the employer:
- is obliged (as required by law) to allow the employee to rest;
- forced to ensure the continuity of the production process, regardless of the “vacation” wishes of workers.
On the other hand, the employee:
- has the right to leave his workplace in connection with the legally provided opportunity for annual rest;
- must agree on a vacation period with the employer.
To resolve the entire range of issues that arise in this regard, labor legislation provides for a special mandatory instrument - a vacation schedule.
Read about the procedure for developing and approving a vacation schedule in the following articles:
- “Unified form No. T-7 - vacation schedule”;
- “Order on approval of the vacation schedule - sample (2020)”.
ConsultantPlus experts have prepared step-by-step instructions on how to properly grant leave to an employee. If you don't have access to the system, get an online trial and access the HR Guide for free.
Changing the vacation schedule
Since the vacation schedule is a mandatory document not only for the employer, but also for the employee, if changes are made to it, agreement of the parties is required.
To record the transfer of vacations in the current calendar year in the T-7 form, columns 7-9 are used.
Column 10 (“notes”) should be used in the following cases:
- when vacation or parts thereof are postponed according to the reason indicated in Part 3 of Art. 124 of the Labor Code of the Russian Federation - the provision of leave may adversely affect the normal course of work of the organization;
- when vacation or parts thereof are postponed for the reason specified in Part 2 of Art. 125 of the Labor Code of the Russian Federation - recall from vacation and transfer of vacation to the next calendar year.
Adding a new employee to the approved vacation schedule
As a rule, new employees join the company throughout the year. In this regard, the question often arises: what to do if a person started working after the vacation schedule was approved?
Rostrud relies on law enforcement practice in this matter and provides two options on its official website:
- make changes to the consolidated vacation schedule;
- draw up an additional schedule and attach it to the summary one.
What are the conditions under Art. 123 of the Labor Code of the Russian Federation is the employer obliged to comply?
The Labor Code (Article 123) establishes a set of the following mandatory actions for the employer:
- determine annual vacation priority;
- formalize the terms of paid rest in the vacation schedule (VA);
- approve GO 2 weeks before the next calendar year;
- take into account the opinion of the trade union (presence of an approving signature on the civil defense document);
- provide employees with paid rest in accordance with the Civil Code;
- notify (against signature) employees about the start time of vacation 2 weeks before it begins.
From an employee of such a variety of mandatory actions Art. 123 of the Labor Code of the Russian Federation is not required. All you need to do is:
- express your will when drawing up the Civil Defense;
- comply with civil regulations;
- sign the notification of the upcoming vacation in accordance with the Civil Defense;
- write an application for leave;
- wait for the long-awaited rest;
- legally be absent from the workplace, receiving money for it and enjoying earned rest.
As can be seen from the 2 lists presented, the employer performs many responsibilities, including paying employees money when they are absent from work and organizing the labor process when there are insufficient labor resources. In this case, the employee can only sign the papers and look forward to the upcoming release from work he has earned.
Read about the rules for calculating vacation pay in the material “Calculating the number of vacation days in 2021 - an example.”
The period from 03/30/2020 to 05/11/2020 has been declared non-working due to the spread of coronavirus infection. ConsultantPlus experts explained how to provide an employee with vacation that coincides with non-working days:
Learn the material by getting trial access to the system for free.
Article 119. Annual additional paid leave for employees with irregular working hours
Employees with irregular working hours are provided with annual additional paid leave, the duration of which is determined by a collective agreement or internal labor regulations and which cannot be less than three calendar days.
The procedure and conditions for granting annual additional paid leave to employees with irregular working hours in organizations financed from the federal budget are established by the Government of the Russian Federation, in organizations financed from the budget of a constituent entity of the Russian Federation - by the authorities of the constituent entity of the Russian Federation, and in organizations financed from local budget - local government bodies.
To whom art. 123 of the Labor Code of the Russian Federation allows them to always rest at a time convenient for them?
A small workforce always compares favorably with a large staff by having ample opportunities for a period of annual paid rest. The more employees there are in a company, the more the likelihood of taking a break at the desired time is reduced.
However, such dependence is not terrible for a certain category of workers - this is discussed in Art. 123 of the Labor Code of the Russian Federation there is a separate clause. They have the right to choose their own rest periods.
Among these “free vacationers” are:
- working teenagers;
- workers expecting the birth of a baby;
- workers combining work and study;
- disabled people and war veterans;
- Heroes of labor;
- honorary donors;
- other categories (in accordance with the Labor Code of the Russian Federation and other federal laws).
Art. 123 of the Labor Code of the Russian Federation specifically focuses on only one group of workers of a different category - husbands whose wives are on maternity leave. They have the right to coincide their annual leave with their spouse’s maternity leave. At the same time, the employer does not have the right to refuse them, regardless of how long the employee worked continuously in this company.
Article 120. Calculation of the duration of annual paid leave
The duration of the annual main and additional paid leaves of employees is calculated in calendar days and is not limited to a maximum limit. Non-working holidays falling during the period of annual main or annual additional paid leave are not included in the number of calendar days of leave.
When calculating the total duration of annual paid leave, additional paid leave is added to the annual main paid leave.
How to apply Art. 123 of the Labor Code of the Russian Federation in case of vacation at your own expense?
Article 123 of the Labor Code of the Russian Federation answers this question unequivocally - it does not apply to leaves without pay.
This means the following:
- such vacation breaks from work are not included in the civil defense;
- privileges specified in Art. 123 of the Labor Code of the Russian Federation does not apply to vacations without pay;
- a valid reason is required to receive “non-cash” leave;
- each case of interruption of work activity due to leave at one’s own expense is agreed upon with the employer personally;
- The legislation does not provide any guarantees for the mandatory provision of such a break;
- No one has the right to force the employer to provide this leave (except for the situations provided for in Articles 128, 173, 174, 286 of the Labor Code of the Russian Federation).
In any case, Art. 123 of the Labor Code of the Russian Federation does not apply to such type of vacation as leave without pay.
To figure out when a part-time worker, in addition to his main job, will need to take leave at his own expense, the material “Leave for part-time work and the main place of work” .
Exceptions
The legislation takes into account categories of citizens who vacation when it is convenient for them. The following have the right to take advantage of regular paid leave at any time (comment to Article 123 of the Labor Code of the Russian Federation):
- citizens under 18 years of age (Article 267 of the Labor Code of the Russian Federation);
- war participants, disabled people and combat veterans;
- Heroes of the USSR and the Russian Federation, full holders of the Order of Glory (clause 3 of Article 8 of the Law of the Russian Federation of January 15, 1993 N 4301-1 // Russian Air Force. 1993, N7. Art. 247);
- Heroes of Socialist Labor, full holders of the Order of Labor Glory (Article 6 N 5-FZ of 01/09/1997 // SZ RF. 1997. N3, Art. 349);
- persons who have the sign “Honorary Donor of Russia” (Article 11 “Law on Donation”);
- citizens falling under Art. Art. 14 - 22 of the “Law on Chernobyl”.
- the rights of one of the workers in the Far North and equivalent areas of the parent (or a citizen who is a guardian, trustee) to leave or part of it (at least 14 days) to accompany a child under 18 years of age, a student or a student entering an educational institution of secondary vocational education or higher education are taken into account, located far from home (Comm. Art. 322).
Citizens who have benefits write an application for leave. If there is a document and it is taken into account, then subsequently the dates can be changed only with mutual agreement of the parties.
Results
Art. 123 of the Labor Code of the Russian Federation regulates the order of granting vacations to employees of an enterprise. According to this norm, the employer is obliged to approve the vacation schedule 2 weeks before the new year, having studied the wishes of the employees and indicating in the document the rest periods of each employee. And 2 weeks before the start of the vacation, notify the employee of the upcoming vacation against his signature and pay him vacation pay no later than 3 days before the vacation date.
Calculate your holiday pay using our online calculator.
Sources: Labor Code of the Russian Federation
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What's next
By agreement of the parties, various deviations from the schedule are allowed. There are also circumstances that are observed in favor of an employee who needs unplanned leave.
If the optimal operation of the enterprise is not disrupted, then you can rest at any time during the current year.
When drawing up schedules, you need to take into account that actual vacation may begin no earlier than the year for which it is granted.
No one will independently and without agreement with colleagues change the time set in the schedule. According to Article 123 of the Labor Code of the Russian Federation, unauthorized departure on vacation is considered absenteeism.
Article 121. Calculation of length of service giving the right to annual paid leave
The length of service that gives the right to annual basic paid leave includes:
actual work time;
the time when the employee did not actually work, but in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, he retained his place of work (position), including the time of the annual paid leave, non-working holidays, days off and other rest days provided to the employee;
time of forced absence due to illegal dismissal or suspension from work and subsequent reinstatement to the previous job;
the period of suspension from work of an employee who has not undergone a mandatory medical examination (examination) through no fault of his own;
the time of unpaid leave provided at the request of the employee, not exceeding 14 calendar days during the working year.
(paragraph introduced by Federal Law dated July 22, 2008 N 157-FZ)
(Part one as amended by Federal Law No. 90-FZ dated June 30, 2006)
The length of service that gives the right to annual basic paid leave does not include:
the time the employee is absent from work without good reason, including due to his removal from work in the cases provided for in Article 76 of this Code;
time of parental leave until the child reaches the legal age;
the paragraph is no longer valid. — Federal Law of July 22, 2008 N 157-FZ.
The length of service that gives the right to annual additional paid leave for work with harmful and (or) dangerous working conditions includes only the time actually worked in the relevant conditions.
Important points and legal requirements
When creating a schedule, only the wishes of employees are not enough. The legislation of the Russian Federation requires the following points to be taken into account.
Work experience
Any company employee who has worked for at least six months has the right to take paid leave. For example, if an employee took unpaid leave for more than 7 days during the period for which regular leave was granted, this time is not included in the length of service that provides the right to use paid leave. In other words, the start of the vacation is being postponed. Even in that situation if it is already planned and included in the schedule. Then the vacation schedule, a sample of which is given below in 2021, is subject to correction. This is due to the employee’s lack of sufficient experience. This situation of changing the schedule has a legal basis. Also see “Procedure for granting annual paid leave”.
Certain categories of employees
They have the right to go on paid leave regardless of their length of service. This category includes employees under 18 years of age, women before or after maternity leave, and adoptive parents of children under 3 months old. When drawing up a schedule, it is easy to take into account minors and pregnant women hired. All other cases require the need to coordinate the situation with the administration when an employee whose work experience has not reached six months wants to go on vacation. The Labor Code will tell you how to correctly draw up a vacation schedule. It states that paid leave is not given to employees as an advance, that is, until the end of 6 months of work at the enterprise.
Additional annual leave
They are available to certain categories of citizens whose work is associated with hazardous production or hazardous working conditions. Such types of vacation must also be included in the vacation schedule, the form of which is given in this article. The length of service that allows you to use such leave includes the actual period worked, so the possibility of receiving such leave in advance is impossible
Two holidays
Those who were hired at the end of the calendar year have the opportunity to receive two vacations. For example, if an employee is registered for work in November, then he has the right to go on vacation in June, but before the end of the year take another vacation for the next year. This possibility must be provided for by drawing up a vacation schedule on a form that can be downloaded on the Internet.
Sequence of vacations
It is established according not only to the wishes of the employees, but, first of all, taking into account the interests of workers who have the right to priority leave at any time of the year. When preparing an order to approve the vacation schedule for 2021, it is necessary to draw up a list of such employees in order to initially take into account their requirements
Part-time employees
They have the right to request leave during the time that is approved at another job. To do this, they must provide a supporting document.
Employees who did not use vacation in the previous year
They have the right to choose any convenient period for their vacation, and their wishes are reflected in the schedule first of all
Workers entering universities and their parents
When entering a university (college school) or being the parent of a 9th or 11th grade student, employees can choose their vacation time at their own discretion. This especially applies to residents of the Far North if their children are planning to go to study in other regions. To accompany a child, a parent can take full or partial leave during exams.
Duration of vacation
A standard vacation in our country lasts 28 days. It may be increased if there are additional holidays. In addition, there are certain professions whose employees are entitled to longer leave. This includes teachers, social workers, state and municipal employees, judges, prosecutors, police officers, customs officials, rescue services, etc.
Questionnaires
When drawing up a vacation schedule, a sample of which is presented below, company management must take into account the wishes of employees. In this case, the peculiarities of the labor process must be taken into account. To do this, you can create a questionnaire in which employees write when they want to go on vacation in 2021.
Even employees who are planning to quit, go on maternity leave, or go on maternity leave will have to plan annual vacations. If employees find it difficult to choose a vacation period, ask them to write down approximate dates. You cannot leave empty lines in the chart. Later, employees will be able to agree with management on the transfer of vacation days. Explain to employees which vacation days they need to schedule on the questionnaire. .
Article 126. Replacement of annual paid leave with monetary compensation
Part of the annual paid leave exceeding 28 calendar days, upon written application of the employee, can be replaced by monetary compensation.
When summing up annual paid leave or transferring annual paid leave to the next working year, monetary compensation can be replaced by a part of each annual paid leave exceeding 28 calendar days, or any number of days from this part.
It is not allowed to replace with monetary compensation annual basic paid leave and annual additional paid leave for pregnant women and employees under the age of eighteen, as well as annual additional paid leave for employees engaged in work with harmful and (or) dangerous working conditions, for work in appropriate conditions (with the exception of payment of monetary compensation for unused vacation upon dismissal).
Article 124. Extension or postponement of annual paid leave
Annual paid leave must be extended or postponed to another period determined by the employer taking into account the wishes of the employee in the following cases:
temporary disability of the employee;
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the employee performs state duties during his annual paid leave, if the labor legislation provides for exemption from work for this purpose;
in other cases provided for by labor legislation and local regulations.
If the employee was not paid in a timely manner for the period of annual paid leave or the employee was warned about the start time of this leave later than two weeks before its start, then the employer, upon the written application of the employee, is obliged to postpone the annual paid leave to another date agreed with the employee.
(Part two as amended by Federal Law No. 90-FZ of June 30, 2006)
In exceptional cases, when the provision of leave to an employee in the current working year may adversely affect the normal course of work of an organization or individual entrepreneur, it is allowed, with the consent of the employee, to transfer the leave to the next working year. In this case, the leave must be used no later than 12 months after the end of the working year for which it is granted.
It is prohibited to fail to provide annual paid leave for two years in a row, as well as to not provide annual paid leave to employees under the age of eighteen and employees engaged in work with harmful and (or) dangerous working conditions.
Schedule approval
The completed vacation schedule for 2021 must be signed by the head of the human resources department. And in her absence - another authorized employee, for example, the chief accountant. After which the completed document is finally approved by the head of the organization. From this moment on, the document is mandatory for both the employer and his employees. Therefore, they need to be familiarized with the vacation schedule.
Advice
Familiarize employees with the vacation schedule for 2021 against signature. This way you will protect yourself from the fact that an employee refuses to go on vacation within the period established for him. You can:
- ask the employee to sign opposite the date of his intended vacation in the schedule form itself in the “Note” field;
- attach an introductory sheet to the vacation schedule, in which each employee will indicate the date of familiarization with the document and sign.
Many people are interested in the question: is it necessary to make a separate sample order for approval of the vacation schedule?
Answer: no, not necessarily, since in the header of the “I approve” section the manager leaves a signature, which serves as an order. Following from this, there is no urgent need for an additional order. Also see “Order on approval of the vacation schedule in the T-7 form.”
You need to keep the vacation schedule for a year (clause 693 of the List, approved by Order of the Ministry of Culture of Russia dated August 25, 2010 No. 558).
Article 125. Division of annual paid leave into parts. Review from vacation
By agreement between the employee and the employer, annual paid leave can be divided into parts. Moreover, at least one part of this leave must be at least 14 calendar days.
Recall of an employee from vacation is permitted only with his consent. The part of the vacation unused in this regard must be provided at the employee’s choice at a time convenient for him during the current working year or added to the vacation for the next working year.
Employees under the age of eighteen, pregnant women and employees engaged in work with harmful and (or) dangerous working conditions are not allowed to be recalled from vacation.
Annual vacation schedule: Labor Code of the Russian Federation and rules for drawing up
The schedule is a local act in which information about vacations of employees of structural divisions is entered. Moreover, any department has its own schedule regarding its employees. This scheme is considered optimal for any enterprise: management draws up schedules taking into account the department’s needs for a certain number of employees.
Schedule adjustments are usually handled by the HR department. In addition, he is obliged to take into account the interests of preferential categories of employees. Then an order is issued on the vacation schedule, a sample of which must be presented to the heads of departments.
After the correction has been made, HR officers send the corrected schedules for discussion to the staff whose wishes regarding leave were not initially respected and therefore the deadlines were moved up. Department managers are also reviewing the revision as there may be situations where specific employees may need to be present at certain times of the year.
When rescheduling and adjusting leave for one employee, the schedules of several other people are often shifted. Therefore, the agreement of everyone affected by the changes is necessary.
Taking all this into account, when drawing up a vacation schedule for the next year, it is necessary to foresee the possibility of correction in advance and allocate enough time to this issue in order to have time to approve the schedule on time.
After correction and approval of the new schedule, it is sent again to the personnel department, where a consolidated schedule is drawn up for the entire organization. This work is carried out after the order to draw up a vacation schedule is signed. See “We are issuing an order to draw up a vacation schedule for 2021.”
