General concepts
Mandatory annual leave is a temporary release from official duties in order to restore health, while maintaining a job and average earnings. Its duration for ordinary citizens is 28 days, for preferential categories an extended period is provided:
- People with disabilities – 30 days.
- Employees of an educational institution – 42-56 days.
- Minor citizens – 31 days.
- Municipal or civil servants – 30 days.
- Employees in hazardous work – 59 days.
People with irregular work shifts or employed in the Far North also have the right to receive extended leave. The issue is regulated by the provisions of the Labor Code, but Federal laws (No. 181 of November 24, 1995, No. 90 of June 30, 2006 and others) and local regulations are also taken into account. They allow annual leave to be divided into two parts of 14 days.
The procedure for providing periods for previous years
In fact, vacation not taken at the time is no different from the main vacation, which is provided annually, therefore, the procedure for registering the period not taken off will be similar, with some exceptions.
In particular, in accordance with Article 123 of the Labor Code of the Russian Federation, when granting annual leave, notification is required two weeks before the vacation, but if the vacation is not provided according to schedule and at the request of the employee, notification is not required .
In such a situation, the worker submits an application for consideration by management, which actually reflects a request to use the unrealized part of the vacation for previous years in the form of rest from a certain date or material compensation. Moreover, taking into account that unused parts are not included in the schedule, the employer has the right to refuse to provide rest at exactly the time required by employees, but again with the condition of its use at a later date, for example, after submitting the quarterly report.
If the manager does not object to the implementation of the rest of the leave for previous years, a resolution is imposed on the application, on the basis of which an order is issued to provide legal leave in full or only part of it, with subsequent implementation in another period.
Moreover, if the employee wishes to use the unrealized parts of the vacation not in the form of rest, but in monetary terms , an application is also submitted, and on its basis, again, an order is issued to pay compensation, but only if the institution has sufficient funds.
Vacation cancellation options
To ensure that employees go on vacation in a timely manner, the enterprise draws up special schedules. The plan is drawn up before mid-December, and its absence entails administrative punishment of the official responsible for its preparation.
Its implementation must be strict, but there are situations when an employee has the right to refuse scheduled leave:
- Temporary loss of ability to work.
- The need to fulfill an order of national importance.
- Payments by the company were not made 3 days before the start of the vacation.
- The employee was not notified 2 weeks before the start of the vacation.
I am interested in the answer to the question whether it is possible not to take vacation for those people who want to receive compensation for unused days. This guarantees an additional increase at the end of the year and the resolution of some financial issues. The law allows this, but not more than two years in a row, otherwise the company will face a fine established by Part 1 of Art. 5.27 Code of Administrative Offences.
Attention! It is impossible to refuse legal rest to a minor employee, a pregnant woman, or someone performing work in hazardous work.
Solution options
You can refuse leave to a resigning employee, then he receives compensation for the entire unclaimed period. This is acceptable in the following cases:
- Total unused period of 28 mandatory days upon written refusal.
- Vacation periods that exceed the specified minimum of 28 days are summed up.
- Other parts are reimbursed by agreement with the employer.
Refusal is not accepted from women planning to go on maternity leave in the near future. Another option to resolve the issue is the possibility of postponing the holiday to next year. It is provided according to the same rules, but the place of work (main or part-time) and the date of enrollment are taken into account. The period is counted on working days, not calendar days. Usually, a transfer is resorted to if a citizen going on vacation will negatively affect the activities of the enterprise.
Is it possible to replace it with monetary compensation?
Some employees think that they have the right to refuse annual paid leave and receive monetary compensation. But you need to understand that by law an employee is required to take advantage of the right to rest for a minimum duration of 28 calendar days.
These days off cannot be exchanged for funds. If a person is entitled to an extended vacation, then he is obliged to take 28 days off per year, and an additional part of it can be replaced with monetary compensation.
The exception is persons who work in harmful and dangerous conditions. Also, according to Article No. 126 of the Labor Code of Russia, it is unacceptable to replace additional leave with financial resources for pregnant women and minors.
If the mandatory vacation of 28 calendar days was postponed to the next year, then the employee will have to take 46 days off in the current period. The second part cannot be replaced with monetary compensation. Replacement of paid vacations with money is carried out in case of dismissal.
According to Article No. 127 of the Labor Code of Russia, upon termination of an employment contract with an employee, the employer is obliged to pay him monetary compensation for days of unused rest. The management of the company must provide the amount due on the day of dismissal. This is stated in Article No. 140 of the Labor Code of the Russian Federation.
In what cases is refusal of leave unacceptable?
Some categories of citizens are provided with benefits, certain privileges for light work or shortened working hours. But they also limit their right to refuse leave.
These groups of people include:
- Minors.
- Pregnant women or those returning from maternity leave.
- Guardians or adoptive parents of infants under 3 months of age.
- The woman's husband is pregnant.
- People performing work in hazardous or hazardous industries.
At the same time, they may not comply with the schedule established by the enterprise and go on vacation at any time, having previously written a statement to the employer.
Is it possible not to go on vacation at all?
If the employer complied with all the conditions - drew up a vacation schedule on time, notified you of the upcoming vacation and paid you money - technically you will be on vacation one way or another. However, you can continue to go to work and work, but you will not receive a salary - you have already been given vacation pay for this period. True, the employer, for his part, may not accept this situation and hold you accountable under the Labor Code of the Russian Federation Article 21. Basic rights and obligations of an employee for violation of labor discipline.
If at some stage of the vacation registration the employer violated the rules, then he is obliged by the Labor Code of the Russian Federation Article 124 to postpone your vacation to another period agreed with you. To do this, you must submit a written application. Its text might look something like this:
According to the vacation schedule approved for 2021, my annual paid leave is scheduled for the period from December 1 to December 14. The employer did not notify me of the start of the vacation, which he should have done in accordance with Article 123 of the Labor Code of the Russian Federation.
In accordance with Article 124 of the Labor Code of the Russian Federation, I ask you to postpone my vacation to the period from February 1 to February 14, 2021.
If there is no vacation schedule at all, then the employer not only violates the law, but also loses leverage and cannot force the employee to go on vacation.
Can an employer force you to take leave without pay?
Often in practice there are cases when, due to financial difficulties, an employer cannot pay employees wages. Failure to pay wages threatens the employer with fines and other liability, so in such a situation, it is beneficial for him to send employees on unpaid leave. This is what he is trying to do by asking the employee to write a statement “at his own expense.”
Such actions by the employer are unlawful and extremely disadvantageous for the employee. So, for example, if wages are delayed, the employee has the right to suspend his work, but at the same time expect to retain his average earnings for the entire period of forced absence.
Also on the topic: Responsibility for unreasonable refusal when applying for a job in 2021
How to do things your way without breaking the law
There are 4 options for how you can manage your vacation in your own way, but within the framework of the law. You can discuss them with management and choose the most optimal one.
- Civil contract
You are free to spend the time intended for relaxation on anything, so you have the right to draw up a GPC agreement with your own or a third-party organization for this time. Just keep in mind that such an agreement is drawn up for a specified type of work and has a deadline within which a certain result must be obtained. If the subject of the GPC agreement is your usual duties, then it acquires the status of an employment contract. You will again find yourself in an unlawful situation with the replacement of vacation with monetary compensation and subsequent administrative consequences.
- Dismissal
This method does not violate the law, but it carries a great risk for the employee. If you did not go on vacation, then upon termination of the employment contract, the employer must compensate you financially. Having complete confidence in your boss, agree that you will quit and receive compensation payments, and then re-employ him.
There is a possibility that you may not be reinstated. Therefore, this method is possible with complete trust in the employer and confidence that you will be hired again, under a contract and on the same terms.
- Bonuses
If your boss doesn't mind rewarding you for your success, ask for a bonus. You work harder for this conditional vacation week, you can work from home or part-time, and the employer will pay you a bonus. This way, the tasks will be completed, the documents will be in order, and you will receive additional funds.
- Internal part-time job
If your organization practices replacing other employees on vacation or illness, you can use this option. Your boss must agree to pay you money to replace another person for whom you will perform duties in your free time from your main job. The downside is that you can only do this before or after your main job, but not on vacation itself.
Sending an employee on compulsory leave
The law allows for the possibility of changing vacation time or dividing it into parts. In this case, one part of the vacation must be provided for no less than 14 days. If an employee wants to change the rest time, he can agree with management or exchange the periods specified in the schedule with another employee. Also, a member of the workforce has the right not to take vacation during the year.
Also on topic: Complete list of documents upon dismissal
But the employee does not have the right not to go on vacation during a two-year period, since according to labor legislation, rest days must be used in full within a year after the end of the previous annual working period.
But the employer does not have the right to force employees to go on vacation at their own expense, even if a member of the workforce is part of a group of employees who have the right to take days off without pay at any time.
If an employer violates this requirement, a fine may be imposed on him, the amount of which is determined by the norms of administrative legislation and depends on the person at fault and the number of similar violations.
If an employee refuses to sign a vacation order or a corresponding notice, the employer must draw up a statement in the presence of two witnesses about the refusal of a member of the workforce to sign the document.
In this case, a disciplinary penalty may be imposed on the employee for violation of labor discipline.
An employer has the right to force an employee to go on vacation only in exceptional cases. In this case, the employee must either stay on schedule or not rest for a year from the beginning of the new working period after the previous vacation.
Is it possible to take a vacation from Monday if it is scheduled on a day off?
Theoretically, an employee can be assigned leave starting from a day off. But, since weekends are included in the number of vacation days, this may be disadvantageous for the employee, because the number of rest days for him may be reduced.
At the same time, assigning leave from a day off is not a violation of the law on the part of the employer. Therefore, if you want to go on vacation on Monday, the employee needs to contact the employer with a request to postpone the vacation date to the first working day following the day off.
What to do if I don’t want to go on vacation at the appointed time
Faced with a situation where vacation is completely inopportune, an employee may try to change the time of its provision.
To do this, he needs to draw up and submit an application addressed to the manager with a request to postpone the vacation to another date, or divide it with the transfer of part to another time. The application must contain the rationale for the request, that is, the reason why the employee makes such a request. The application must be submitted to the manager against signature.
What to do if vacation is granted at an inconvenient time
Many workers want to go on vacation in the summer. This is a great time for trips to the sea. And most workers have children who have summer holidays. But, unfortunately, the employer does not have the opportunity to send all employees on vacation only in the summer. And some workers must go on vacation at other times of the year.
But what to do if leave is granted at a completely inconvenient time for the employee? In this case, the only way out is to agree with management to reschedule vacation dates to another time.
How vacation dates are set
Every employer is required by law to allocate vacation dates for the calendar year no later than 14 days before the start of that year. For this purpose, a certain document is created and approved - a vacation schedule. Management is not obliged to take into account the opinions of employees when compiling it. The law establishes the need to take into account only the opinion of the trade union organization.
Thus, initially, employees cannot influence what time they go on vacation. True, this does not apply to all employees. Some employees have the right to go on vacation at a time convenient to them. This right can be used, for example, by an employee whose legal spouse is on maternity leave.
Also on topic: The postponement of holidays in 2021 has been approved
