Minimum number of vacation days that can be taken (according to the Labor Code)

Vacations never expire

The Constitutional Court of the Russian Federation considered the complaint of four citizens who were not paid compensation for unused vacations.

Employers indicated that the maximum period for payment of compensation is 18 months. These one and a half years are counted from the end of the year for which the full-time employee was entitled to leave. The fact is that the ILO Convention on Paid Holidays states that the remainder of the leave should be used no later than the specified period.

The courts supported this position, adding another three months to the appeal period.

Thus, the judges concluded, if 21 months have passed since the end of the specified year, then the employee loses the right to receive monetary compensation.

Based on this position, one of the citizens who applied, for example, was denied compensation for vacation that he did not take for fifteen years: from 1997 to 2012. For the other three applicants, the situations were similar, although not as extensive.

The Constitutional Court of the Russian Federation decided that this approach is erroneous. Although not all courts in our country adhere to it. Others think completely differently. They're right, and here's why.

The 18 months mentioned above is the maximum period for using vacation during the employment relationship. But the data for a year and a half is not limited in any way by the regulated Art. 127 of the Labor Code of the Russian Federation, the scope of the dismissed employee’s right to vacation pay for unused legal rest time.

Upon dismissal, compensation must be paid for all vacations that were not taken by the employee during his employment with the company. In other words, the time that has passed since the year for which the leave was granted does not matter.

Moreover, from October 2021, the period for going to court to recover such compensation is not three months, as before, but a year, which is counted from the moment of dismissal.

The Constitutional Court of the Russian Federation ordered that the cases of citizens be reviewed and prohibited anyone from giving a different interpretation to the described issue and trying to apply it in practice.

Resolution of the Constitutional Court of the Russian Federation dated October 25, 2018 No. 38-P “In the case of verifying the constitutionality of part one of Article 127 and part one of Article 392 of the Labor Code of the Russian Federation in connection with complaints from citizens M.V. Danilova, K.V. Kondakov and others"

You cannot go on vacation without permission during the May holidays.

The employee wrote an application for leave from May 10 to May 12, 2021 and went on vacation. However, according to the vacation schedule in 2021, he was entitled to annual paid leave from May 15 to 28, as well as from November 13 to 26. Thus, going on vacation on May 10–12 was arbitrary. In this regard, the company issued an order to dismiss him for absenteeism (clause “a”, clause 6, part 1, article 81 of the Labor Code of the Russian Federation).

The court where the employee appealed only supported the organization.

The employee was explained that, in accordance with Art. 123 of the Labor Code of the Russian Federation, the vacation schedule is mandatory for both the employer and the employee. Therefore, you need to go on vacation during the periods indicated in it.

Having written an application for leave on other dates, the employee had no reason to believe that such leave was granted to him. It was necessary to ensure that a leave order had been issued. No order about this was issued.

Thus, the employer had grounds to regard the plaintiff’s absence from work on May 10, 11 and 12, 2021 as a gross violation of labor discipline - absenteeism, and to apply disciplinary action to him for this offense in the form of dismissal on appropriate grounds.

Appeal Ruling of the Moscow City Court dated 02/08/2018 No. 33-1730/2018

Editor's note:
In fact, taking a vacation in May is extremely unprofitable. The fact is that due to holidays there are much fewer working days this month. Therefore, the cost of one working day in May is higher than in those months in which there are no holidays. Consequently, the more working days of May an employee took as vacation, the less salary he will receive compared to the salary he would have received if he had rested these days in another full-time working month, say, in July.

Example.

The employee has a salary of 50 thousand rubles. This means the cost of a vacation day (if he worked the entire pay period): 50 thousand rubles. x 12 months / 12 months x 29.3 = 1,706.48 rubles.

In May 2021 there are 18 working days, that is, the cost of 1 working day = 2,777.77 rubles, and, for example, in August 2021 there are 22 working days, that is, the cost of 1 working day = 2,272.72 rubles. It turns out that if you go on vacation in May and not in August, the difference between the cost of a working day and a vacation day will be noticeable, in other words, the employee will lose more money.

In this way, you can compare the entire year by calculating the cost of working days and comparing them with the cost of a vacation day.

TABLE: “Comparison of monetary losses when going on vacation in different months”

Months of 2019	Number of working days	Salary amount	Price working day	Vacation day cost	The difference, that is, the amount of loss per day
January	17	50 000	2 941,17	1 706,48	1 234,69
February	20	50 000	2 500,00	1 706,48	793,52
March	20	50 000	2 500,00	1 706,48	793,52
April	22	50 000	2 272,72	1 706,48	566,24
May	18	50 000	2 777,77	1 706,48	1 071,29
June	19	50 000	2 631,57	1 706,48	925,09
July	23	50 000	2 173,91	1 706,48	467,43
August	22	50 000	2 272,72	1 706,48	566,24
September	21	50 000	2 380,95	1 706,48	674,47
October	23	50 000	2 173,91	1 706,48	467,43
November	20	50 000	2 500,00	1 706,48	793,52
December	22	50 000	2 272,72	1 706,48	566,24

Conclusion: in 2021, it is most expensive to go on vacation in January and May, and the most profitable time off will be in July and October.

Summary

What is the minimum number of vacation days for which health benefits are paid?
What is the minimum number of days that can constitute a vacation?
Number of vacation days
How to calculate the number of vacation days
Number of vacation days per year
Number of unused vacation days
Calculation of the number of vacation days

Questions

1. What is the minimum number of vacation days for which health benefits are paid?

1.1. The number of vacation days does not matter; payments are made at the request of the person, usually with annual vacation in part or in full.

2. What is the minimum number of days that can constitute a vacation?

2.1. Dear Tatyana! In accordance with Article 115 of the Labor Code of the Russian Federation, the annual basic paid leave is 28 calendar days. Vacation is provided within the time frame determined by the vacation schedule, which is mandatory for the employee and the employer (Article 123 of the Labor Code of the Russian Federation). In accordance with Art. 125 of the Labor Code of the Russian Federation, by agreement between the employee and the employer, annual paid leave can be divided into parts, and at least one part of the leave cannot be less than 14 calendar days. The amount of the remaining parts of the leave is determined by agreement between the employee and the employer, while the minimum amount of the remaining parts of the leave is not established by law.

3. Please explain whether an employee is required to take basic leave (28 calendar days) if the last 2 days fall on weekends, i.e., for example: vacation from 07/01/2019 (Monday) to 07/26/2019 (Friday) + 07.27.2019 (Sat.) and 08.28.2019 (Sun.)? What is the minimum number of vacation days an employee can take? I would like to receive links to articles from official documents of the Russian Federation. Thank you.

3.1. Good afternoon In accordance with Article 125 of the Labor Code of the Russian Federation, 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. According to Art. 122 of the Labor Code of the Russian Federation, paid leave must be provided to the employee annually. The right to use vacation for the first year of work arises for the employee after six months of continuous work with this employer. By agreement of the parties, paid leave may be granted to the employee before the expiration of six months. Leave for the second and subsequent years of work can be granted at any time of the working year in accordance with the order of provision of annual paid leave established by a given employer.

3.2. Hello, they have no right to force you, you can write an application for leave until the 26th inclusive.

4. The cancer patient’s sick leave ends on July 21, 2021; further courses of chemotherapy are required; to open the next sick leave, you need to take a break from taking leave from work. What is the minimum number of vacation days required to be taken at work?

4.1. In accordance with the labor legislation of Russia, there are no restrictions on the minimum period of leave without pay. The issue of the duration of leave is resolved only by agreement with the employer.

5. The area in which I work is equivalent to the regions of the Far North. What is the minimum number of days I can take vacation in the summer?

5.1. How many days are specified in the agreement with the employer. Labor Code of the Russian Federation, Article 122. The procedure for granting annual paid leave. A guide to personnel issues. Questions of application of Art. 122 Labor Code of the Russian Federation

Paid leave must be provided to the employee annually. The right to use vacation for the first year of work arises for the employee after six months of continuous work with this employer. By agreement of the parties, paid leave may be granted to the employee before the expiration of six months. (as amended by Federal Law No. 90-FZ of June 30, 2006) (see the text in the previous edition) Before the expiration of six months of continuous work, paid leave at the request of the employee must be provided to: women - before maternity leave or immediately after it ; employees under eighteen years of age; employees who adopted a child (children) under the age of three months; in other cases provided for by federal laws. Leave for the second and subsequent years of work can be granted at any time of the working year in accordance with the order of provision of annual paid leave established by a given employer. (as amended by Federal Law No. 90-FZ of June 30, 2006)

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6. I am a civil servant, according to the law, when I go on vacation, I am entitled to financial assistance. Now our company is being liquidated. I have the right to vacation, but I don’t want to go on it in winter. Upon final payment upon dismissal, they will give me financial assistance or I will need to leave for a minimum number of days and write a statement for swearing. help.

6.1. Hello! Financial assistance will not be paid if you do not use your vacation. For payment rules, see the Regulations on Remuneration.

7. What is the minimum number of vacation days an employer can give me per year in an area equivalent to the north, our vacation is 44 days.

7.1. Good day! In accordance with the Labor Code of the Russian Federation, 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. If during the year at least one part of the vacation is 14 days, the remaining days can be divided into at least 1 (by agreement with the employer)

8. I have a disabled child. If I take 4 paid days off at the beginning of the month, and then a vacation. And it turns out that there will be no working days in the month. Is it possible to do this or not? Or should there be a minimum number of days worked per month? Thank you in advance.

8.1. You can do this. There is no minimum number of days worked per month.

9. From 02/03/2016 I have a full vacation according to the vacation schedule of approximately 57 days, after the vacation I have taken, I want to quit as quickly as possible and with a minimum amount of costs, that is, how much money can they ask me for for unworked vacation?

9.1. It depends on how long you work and when you go on vacation. The accounting department will make the calculations.

The Ministry of Labor of the Russian Federation prohibited employers from providing vacations on weekends

Officials believe that providing vacations starting from Saturday or Sunday does not contradict the norms of the Labor Code of the Russian Federation. But if an employee’s vacation falls exclusively on weekends, then the company will face an administrative fine of 50 thousand rubles.

Letter of the Ministry of Labor of the Russian Federation dated December 7, 2018 No. 14-2/OOG-9754

Editor's note:
One can argue with the position of the Ministry of Labor of the Russian Federation. The fact is that the code allows you to split your vacation into parts. The main thing is that one of them is at least two weeks old. Workers have the right to take the remaining days as they wish.

According to the Labor Code of the Russian Federation, vacation is given in calendar days. In this regard, a citizen can use it on weekends.

Let us note that workers do not take vacations in this way because they have a good life. Thus, they receive vacation payments for the weekend, depriving themselves of rest days.

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The duration of annual labor leave is calculated in calendar days, excluding holidays, regardless of the applied working hours and shift schedules. When calculating the total duration of vacation, additional paid vacations are added to the main ones.

An employee may be recalled if a production need arises, but with the consent of the employee. The part of the paid annual leave unused in connection with the recall, by agreement of the parties, is provided during the current working year or in the next working year at any time or is added to the paid annual leave for the next working year.

Ministry of Labor: how to provide leave to employees with many children

Thanks to the amendments introduced by Federal Law No. 360-FZ of October 11, 2018 to the Labor Code of the Russian Federation, parents with many children have the opportunity to go on vacation at any time convenient for them. Condition: having three or more children under 12 years of age.

However, the code does not establish a special procedure for granting leave for this category. Therefore, in addition to preferences in the order of vacations, parents with many children go on vacation like everyone else. That is, the right to vacation appears to employees who have been working in the company for at least 6 months. However, by agreement with the employer, they can go on vacation earlier than the established period.

Letter of the Ministry of Labor of the Russian Federation dated November 20, 2018 No. 14-2/OOG-9211

Editor's note:

The age of children is calculated based on the year of leave granted (Letter of the Ministry of Labor of the Russian Federation dated November 20, 2018 No. 14-2/OOG-9166).

Extended and additional leave

Some categories of citizens, according to the norms of the Labor Code of the Russian Federation and other legislative acts, have the right to rest longer than others. For them, the management does not establish additional time by its local acts; it is already prescribed in the legislation. Thus, an extended period of paid rest is provided:

The Ministry of Labor of the Russian Federation explained in what cases annual leave is not required

The Labor Code of the Russian Federation allows a woman to go on maternity leave for up to three years. This right can also be exercised by the child’s father, grandmother, grandfather, and other relatives who care for the child. During this time, the employee or her relatives caring for the baby have the right to go to work or work at home on a part-time basis.

Workers who work according to this schedule are subject to all labor laws. That is, they can, like other employees, go on annual paid leave. The number of vacation days does not depend on the time worked per year. This means that if a citizen worked for a year on a part-time schedule, then he has the right to rest for all the required 28 calendar days. Therefore, if an employee combined child care with work, then this period will be included in the length of service giving the right to basic paid leave.

However, the Ministry of Labor of the Russian Federation warns that the provision of two labor holidays at the same time is not provided. Thus, in order to take advantage of annual leave, children's leave must be interrupted. By the way, it can be resumed later.

Letter of the Ministry of Labor of the Russian Federation dated October 25, 2018 No. 14-2/OOG-8519

Editor's note:
Let us note that the court allows interruption of “children’s” leave for the sake of annual leave (Resolution of the Arbitration Court of the Far Eastern District dated November 27, 2018 No. F03-4742/2018). The Federal Social Insurance Fund of the Russian Federation refused to offset the child care benefits paid to the employee. The inspectors were dissatisfied with the upward recalculation of benefits, the reason for which was the specialist’s annual paid leave, for which the main “children’s” leave was interrupted for 6 days.

However, from the first verdict in the case, the courts sided with the company, and the legality of such a suspension of parental leave was confirmed in Resolution of the Plenum of the Armed Forces of the Russian Federation dated January 28, 2014 No. 1.

The fund's arguments that this position is correct only for part-time workers were rejected by the district cassation, emphasizing the universal nature of the clarifications of the RF Armed Forces.

A child’s illness is not a reason to extend a parent’s vacation

If an employee falls ill during his vacation, then it should be extended or the rest days transferred to another time (by agreement with the employee). However, if the illness overtakes the child, then the parent’s leave is not extended, because such a right is not enshrined in the Labor Code of the Russian Federation.

However, due to its financial capabilities, the employer has the right to extend vacation in such a situation, if this is enshrined in a local act.

Editor's note:

Similar conclusions are contained in the Letter of Rostrud dated 06/01/2012 No. PG/4629-6-1.

When do you need to pay vacation pay to avoid being fined?

The Labor Code of the Russian Federation requires payment for vacation three days before it starts. The employer does not have the right to adjust this period downward. Moreover, this is a minimum period of time. Therefore, money can be issued even earlier.

The majority of workers go on vacation on Monday. Employers are wondering: when in this case should they pay their employees?

According to the Ministry of Labor of the Russian Federation, the deadline for issuing vacation pay here is Thursday of the previous week.

Letter of the Ministry of Labor of the Russian Federation dated September 05, 2018 No. 14-1/OOG-7157

Editor's note:
If the employer delays the payment of vacation pay, he faces administrative liability under Art. 5.27 Code of Administrative Offenses of the Russian Federation. Please note: the absence of the employer’s fault in violating the deadline for paying vacation pay does not relieve him of this responsibility, since there are no exceptions to the rules provided for in Part 9 of Art. 136 of the Labor Code of the Russian Federation (Letter of the Ministry of Labor of the Russian Federation dated August 26, 2015 No. 14-2/B-644). Let’s say an employee, due to family reasons (for example, a close relative is sick), asks to be given paid leave for several days starting tomorrow. The employer does not object; the accountant calculates and pays him vacation pay on the day on which the application is dated. In this case, the company violates the rule on payment of vacation pay three days before the start of the vacation, established by Art. 136 Labor Code of the Russian Federation. After all, this norm is imperative and has no exceptions. Therefore, in this case, a fine may be imposed on the employer under paragraph 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation - from 30 to 50 thousand rubles.

Let us note that a number of judges support this position of the department (Resolution of the Perm Regional Court dated March 15, 2018 No. 44a-318/2018, rulings of the Chelyabinsk Regional Court dated September 17, 2015 No. 11-11043/2015, Rostov Regional Court dated September 16, 2013 No. 33- 11864).

What bonuses are included in the calculation of average earnings when calculating vacation pay?

Question. What bonuses are included in the calculation of average earnings for calculating vacation pay? Over the past year, our organization paid: a bonus based on work results for 6 months (payment in July 2021) and a bonus based on work results for the year (payment in January 2019). Also, some employees were paid a bonus based on the results of their work for the month.

Answer. When calculating average earnings, various types of bonuses can be taken into account. To do this, they must be provided for by the organization’s remuneration system, fall within the appropriate billing period (with the exception of the annual bonus, which is taken into account regardless of the accrual period), and must also be taken into account once on each basis (or for one indicator).

As is known, to pay for the period while on vacation, amounts are taken from the calculation of average earnings, the general procedure for calculating which is contained in Art. 139 Labor Code of the Russian Federation. In accordance with this article, to calculate the average salary, all types of payments provided for by the remuneration system and applied by the relevant employer are taken into account, regardless of the sources of these payments.

Similar provisions are contained in Decree of the Government of the Russian Federation dated December 24, 2007 No. 922. In paragraphs. “n” clause 2 indicates the need to include in the calculation bonuses and remunerations provided for by the remuneration system.

These standards establish the main criterion for answering the question of whether certain types of bonus payments should be included in the calculation of average earnings. That is, in order to account for bonuses, they must initially be provided for in labor, collective agreements or the organization’s local regulatory act on bonuses. In other words, payments must be provided for by the current wage system.

The second important criterion for taking into account the bonus in calculating average earnings: it must be actually accrued in the billing period (clause 15 of the Decree of the Government of the Russian Federation of December 24, 2007 No. 922). An exception is made for the annual bonus; the accrual period does not matter for it.

In accordance with clause 15 of the Regulation on the specifics of the procedure for calculating average wages No. 922, when determining average earnings, bonuses and remunerations are taken into account in the following order:

monthly bonuses and rewards - actually accrued in the billing period, but not more than one payment for each indicator of each month of the billing period;
bonuses and remunerations for a period of work exceeding one month - actually accrued in the billing period for each indicator, if the duration of the period for which they are accrued does not exceed the duration of the billing period, and in the amount of the monthly part for each month of the billing period, if the duration of the period for which they are accrued exceeds the duration of the billing period;
remuneration based on the results of work for the year, a one-time remuneration for length of service (work experience), other remunerations based on the results of work for the year, accrued for the calendar year preceding the event, regardless of the time the remuneration was accrued.

The third essential point follows from the provisions of clause 15 - this is the one-time accounting of bonuses for each of the indicators for which they were accrued.

It should be noted that if the bonus period does not fall completely into the calculation period, then, according to the clarifications of the Ministry of Health and Social Development of the Russian Federation in letter No. 2337-17 dated June 26, 2008, the bonus can be taken into account in its entirety when calculating vacation pay only if it is accrued for the months that fall within the calculation period. period. Otherwise, it must be distributed in proportion to the time worked in the billing period.

To calculate average earnings, social payments and other payments not related to wages (material assistance, payment for the cost of food, travel, training, utilities, recreation, etc.) are not taken into account.

How vacation is granted in 2021 according to the Labor Code of the Russian Federation

In accordance with this article of the code, employees whose working conditions are recognized as dangerous to life and health are entitled to days of additional rest in accordance with this article of the code. The degree of danger is established through a special assessment of the workplace. This category includes conditions for carrying out professional activities of the second, third or fourth degree of harm, or presenting a danger to life. The duration of this rest cannot be less than a week. There are no exceptions to this rule. The right to additional rest and its duration must be specified in the employment contract or agreement. The same document should reflect the results of the job assessment. By agreement with the employee and the employer, if additional days for rest are provided to the employee in an amount greater than one week, all days (except for the mandatory seven) can be compensated in cash. In this case, there are no discrepancies with the Labor Code of the Russian Federation or other labor legislation. This means that there are no facts of violation of laws either on the part of the employee or on the part of the employer. For any incomprehensible point in the process of studying this article, you can contact the consultants of our website.

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Labor legislation establishes the right to periodic annual paid leave. Every worker, after working for eleven months, must go to rest. The minimum period an employee can count on is twenty-eight days. The worker receives payment for these days into his salary account or receives it personally at the company’s cash desk. In the Labor Code, this right is prescribed by Article 71. It is better to view any articles with comments to it. Even if it is the Labor Code. This makes it much easier to understand all the nuances of the legislation.