What is administrative leave and how to apply

Conditions for granting administrative leave at the employee’s initiative

There could be any reason why an employee might ask management to give him a few days without pay. But in Art. 128 of the Labor Code of the Russian Federation spells out cases when management has an obligation to let a person go for a few days and not pay him a salary.

These include:

• registration of marriage relations;
• death of close relatives;
• birth of a child.

Important! Administrative leave at the initiative of the employee is granted on request. To confirm a valid reason for his absence, he can attach a copy of the supporting document to the application. For example, marriage certificates.

If there are such reasons, the duration of leave may be 5 calendar days.

Maximum vacation period and amount of payments

Since one of the names of the vacation is free, we can conclude that you are not entitled to receive any payments for it.
However, this only applies to cases where the initiator is an employee, since the employer has no right to force him to do this. If we are talking about downtime, during which the company’s work is suspended for some reason, then this period must be paid. The amount of payments is 2/3 of the average salary (salary, rate) for the actual downtime.

However, an important condition for receiving these payments is the presence of the employee at the workplace. To confirm this, a working time sheet is used with data entered on it about the duration of the employee’s daily work.

The maximum duration of administrative leave at the initiative of the employer is also not regulated, since the current legislation does not provide for its provision in this way.

The duration of downtime will be the period of time necessary to restore normal operation of the company (to troubleshoot problems, install equipment, obtain permits, etc.).

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Providing administrative leave by decision of the employer

In addition to the reasons for which management is obliged to provide administrative leave at the initiative of an employee, Art. 128 of the Labor Code of the Russian Federation specifies categories of employees who have the right to receive a certain number of unpaid days at any time of the year. These include:

• WWII participants can register without accruing wages for up to 35 calendar days;
• those who receive an old-age pension – up to 14 days;
• immediate relatives of employees of law enforcement agencies, executive power who died in the performance of their duties or due to wounds and injuries received during this period - 14 days a year;
• those who are the holder of a disability certificate - up to 60 days per year;
• those entering universities, colleges, technical schools - 15 and 10 days, respectively;
• parents raising 2 or more children who are under 14 years old, a child with a disability under 18 years old, or a single parent with one child under 14 children – 14 days a year;
• Heroes and Knights of the Orders of the USSR, Glory and other titles - 21 days a year.

Important! When filing an application for administrative leave, you must indicate the basis for it. For example, “family circumstances.” But in order to be guaranteed to receive several days without accrual of salary, specifics are needed.

How to get

It is easy to get a day off on account of vacation by agreement with the manager. In general, there are two ways to get such additional days of rest.

1. One day's leave on account of long-term leave, as well as the required day off from work provided for work during weekends and holidays, can be obtained by notifying the administration in advance and agreeing on the date. This must be done in writing, with an appropriate order, so that all rights of the parties are guaranteed.
2. One-day allowances can be included in the schedule in accordance with the wishes of the employee and by agreeing on the date of their provision with the employer.

The procedure for registration and provision has much in common with that provided for long-term vacations, because time off is a small part of them, provided in accordance with established rules. Documentation is also required: the employee’s application for time off and the employer’s consent. Only days taken as part of an extended holiday or provided as compensation, for example for donation, are paid.

But you can take one day at your own expense at any time if the manager agrees. This is an inalienable right, as situations vary.

Compare 2 sample applications for time off: the first - at your own expense, the second - at the expense of your vacation.

Providing administrative leave on the basis of legislation

In Art. 128 of the Labor Code of the Russian Federation states that every employee has the right to receive unpaid leave, if necessary. In cases where its provision is not the responsibility of management, its duration and the possibility of execution are discussed with management.

If there are no reasons for the mandatory provision of several days without accrual of wages, it will be enough to indicate “for family reasons” in the application. If there are supporting documents, it is recommended to rely on them. For example, a parent needs to go with their child to an appointment with a “specialty” doctor on a weekday in another city. The trip will take 2 days, you have bus tickets and a referral to a doctor for a specific date. When a parent writes an application to provide him with a certain period without accrual of wages, he can attach a copy of the direction.

Can an employer refuse?

According to the Labor Code, any person can request additional unpaid leave if he has a significant reason. But this requires the consent of the employer. The main advantage is that it is impossible to fire a citizen if he is on a well-organized vacation.

If a specialist has the right to rest based on his status, then he does not need permission from the employer. The head of the company cannot refuse to issue this type of leave. But at the same time, vacation payments are not assigned, so the company does not incur material costs.

Grounds for receiving administrative leave

There can be many of them. In addition to those specified in Art. 128 of the Labor Code of the Russian Federation, there may be “family circumstances” and “good reasons”. It is not necessary to provide the exact wording.

Important! Providing administrative leave is the right of management, and not its obligation, except for the cases prescribed in Art. 128 Labor Code of the Russian Federation. If it is not possible to let a person go on unpaid leave, then you don’t have to do it. For example, there is no one to replace him because his partner is on vacation.

How long can you take unpaid leave?

The duration of the leave depends on the reason for taking it and the consent of the enterprise management. Moreover, with the consent of the authorities, the legally guaranteed right to unpaid time off can be increased, for example, when registering a marriage from 5 days to two weeks or more. The duration of free rest is limited to the time for which the employer agrees to let his employee go and depends on the reason for taking it.

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Before planning a long forced vacation, it is important to consider that days off without pay can significantly affect the main, paid vacation. Thus, days off from the fifteenth are not included in the calculation of vacation pay.

Forced administrative leave at the initiative of the employer

It is not allowed to send an employee to rest at his expense at the request of management. If management insists on compulsory registration, it is necessary to contact supervisory authorities dealing with violations in the labor sphere. According to Art. 5. 27 Code of Administrative Offenses of the Russian Federation, guilty persons will be punished, they will have to pay fines.

In compliance with the law

It often happens that management cannot provide a sufficient amount of work for its employees, so it insists on taking unpaid leave. According to the provisions of Art. 157 of the Labor Code of the Russian Federation, the absence of the required amount of work due to the fault of management is called downtime and should be paid in the amount of 2/3 of the average earnings of a particular employee per day.

In violation of the law

If you “pressure” and force them to take a vacation without accruing wages, then you won’t have to pay anything. But this is already a violation of labor laws. Workers have the right to complain to the labor inspectorate. The complaint will be investigated.

If the complaint is a collective one, then the employer will not be able to “hide” the fact of the violation. He will be held accountable in accordance with current legislation.

Consequences of violation for the employer

Forcibly sending employees on unpaid leave is fraught with prosecution under administrative law. This article says that when an offense is discovered for the first time, the employer faces:

• a fine to an official in the amount of 1 to 5 thousand rubles;
• entrepreneurs who have employees on their staff and commit such illegal actions will be fined the same amount;
• employers registered as a legal entity of any organizational and legal form will have to pay a fine in the amount of 30 to 50 thousand rubles.

If a repeated offense is registered on the same basis, the amount of the fine will be significantly higher:

• a fine to an official in the amount of 10 to 20 thousand rubles;
• employers registered as individual entrepreneurs will pay the same amount to the treasury;
• employers registered as a legal entity of any organizational and legal form will have to pay a fine in the amount of 50 to 70 thousand rubles.

Important! The fine may be replaced by disqualification of the official for up to 3 years.

Forced rest time

Simple

This is a temporary suspension of the enterprise. The reasons may be different: they may be technological, economic or organizational in nature. A typical situation is that due to the discovery of a defect in one of the car parts, their production is temporarily suspended until the nature of the fault is clearly established and it is eliminated.

It is important that downtime, if it occurred due to the fault of the employer, must be paid, albeit not in full - as the law establishes, it is necessary to pay at least two-thirds of the average salary of the employee (or another amount provided for by local regulations, but it may be only increased compared to indicated). The same applies if downtime occurs for reasons beyond the control of either the employer or the employee. However, in this case there is a nuance: if the employer himself did not know about the start of the downtime, and the employee did not warn him, then payment may not be made.

Downtime will not be paid even if it was due to the fault of the employee himself.

Most often, such downtime is caused by equipment malfunction due to its actions. If the parties disagree as to whose fault the downtime is, it will be necessary to involve the labor inspectorate in the proceedings.

Payments for downtime will be made only if the employee was on site every day, otherwise the employer may refuse this.

Suspension from work

But it happens precisely at the initiative of the employer. However, there must be a reason for this in the law; you cannot simply remove an employee. During suspension, he is not allowed to perform his duties, and accordingly, he will not receive earnings for the period of suspension.

It is important not to confuse suspension and release - the latter is carried out at the request of the employee himself. Upon release, he is guaranteed to retain his position and salary; it is fulfilled if he:

• must fulfill public or state duties;
• became a donor;
• the employee is pregnant, and it is necessary to release her in order to avoid adverse effects on the course of the pregnancy.

Suspension is completely different; it is carried out if there is fault on the part of the employee. Cases in which this is possible are described in Article 76 of the Labor Code. Please note that the suspension applies to the period of time until the circumstances are verified or their effect ends and the employee can return to his duties or is dismissed. No wages are accrued during this time, although there are exceptions. For example, a civil servant who has committed official misconduct is subject to suspension for a period of up to a month in accordance with the Federal Law on Civil Service, but his maintenance is retained.

Let us note that the cases in which an employee may be suspended are not limited to those described in Article 76. Some are described in other codes and legislative acts, and apply only to certain areas of activity.

Forced absenteeism

Forced absenteeism will be considered if the employee did not have the opportunity to work because of the employer. The most common cases that qualify as such are:

• unjustified dismissal;
• unreasonable removal from duties;
• delay in issuing a work permit after dismissal.

As is clear from the list of these cases, if the employer is found guilty, he will have to bear responsibility. To do this, the employee should go to court - and if he wins the case, he will be able to receive both wages for the entire period of forced absence in full and compensation; in addition, a decision may be made to reinstate him in his position.

To confirm the forced nature of an employee’s absence, you can contact the labor commission; however, it cannot force the employer to pay money.

All the same, her decision may turn out to be a serious lever to force him to do this, but if he does not make concessions, then the judicial path to resolution will remain the only one. A sample statement of claim is attached to the article.

Procedure for applying for administrative leave

In order to get several paid days to rest or solve problems, you must:

• contact management in writing;
• provide evidence of necessity;
• wait for the order to be issued, familiarize yourself with it;
• leave for a few days.

The entire procedure may take one business day.

Analysis of the validity of an application for leave

Those categories of workers, the list of which is given in Art. 128 of the Labor Code of the Russian Federation and other regulations, may apply for administrative leave at any time. But it is recommended to notify management of your intention in advance. This is necessary in order for a replacement to be found for this period.

If there are no legitimate reasons, but there is a need, you need to talk to management and give a full explanation. For example, you need to visit a doctor or submit documents to register ownership of a newly purchased apartment. As a rule, management takes the position of its employees and gives them the opportunity to take a few unpaid days off.

Determining the duration of vacation: sample

Typically, the employee himself determines the duration of his absence from the workplace. But it is necessary to talk with management and discuss this point. After the parties come to an agreement, the employee writes a statement in which he indicates the period of his absence. For example, like this:

Application for leave

You must specify:

• position and full name of the head of the enterprise;
• abbreviated name of the enterprise;
• position and full name of the applicant;
• request for leave;
• period of absence;
• reason for absence;
• date and signature.

It is recommended that you complete the application by hand. If necessary, supporting documents can be attached. For example, a referral to a doctor or a death certificate for a close relative.

Important! If the leave is taken out due to a wedding or the birth of a child, it is recommended to bring copies of documents. Certificates are not issued immediately, but only after registration of the fact. Therefore, when writing an application, these papers may not be on hand.

Consideration and acceptance of the application

If the duration of unpaid leave is not discussed in advance, the employer has the right not to accept the application. An exception is the circumstances and categories of workers prescribed in Art. 128 Labor Code of the Russian Federation.

Based on the application, an order is issued for the enterprise. The employee must familiarize himself with it against signature. When this happens, the HR employee will need to note this on the time sheet.

Providing leave

After the order has been signed and the employee has read it, there is no need to go to work. If the procedure is not followed, the employer may count these days as absenteeism. If there is a supporting document, dismissal will not follow, but there will be a trial.

Dismissal while on vacation

First of all, it is worth saying that any employer does not have a single official reason to fire an employee who is on any type of leave.

If such attempts are made, then, on the basis of the sixth paragraph of Article 81 of the main labor law of the Russian Federation, you can contact the labor inspectorate or court.

However, there is one exception to the rules and laws. It concerns the situation when an enterprise or individual entrepreneur undergoes a liquidation or bankruptcy procedure. In this case, termination of the current employment agreement can be carried out, since this situation is recognized by labor legislation as a natural circumstance. This wording allows the manager to terminate all contracts with hired employees.

Regarding individual entrepreneurs, this legal right also applies to situations where the activity is not liquidated, but is suspended for a long period of time.

We recommend you study! Follow the link:

How to correctly write and submit an application for leave without pay

Of course, the employer is obliged to notify each employee in advance that the employment agreement will be terminated. At the same time, the employer must prepare all material compensations due in this case to each employee. Payment of compensation must be made regardless of whether the citizen is on any type of leave or is performing his official duties.

Accrued payments must include:

• compensation for each unused vacation period;
• severance pay;
• salary.

If the boss wants to terminate the employment contract with one of his subordinates who is currently on vacation, he will have to wait until the day when this person returns to work. There are no other options for the employer.

The situation is identical with persons who are financially responsible and due to whose negligent actions a shortage occurred at the enterprise. If such a person is on vacation, the boss will have to expect him to return on the first day after the vacation.

Only after this can you begin to prepare documents for terminating the employment agreement.