Last modified: January 2021
The right to rest is provided for by labor legislation simultaneously with the right to work. The minimum duration of vacation time is strictly regulated, in contrast to the maximum, which is set by the employer without restrictions. Non-vacation leave is an earned and unused right, non-burnable over time, implemented in the current or future periods in whole or in parts, compensated in cash upon termination of the employment contract.
In what cases can you replace vacation with money?
The right to rest, including during the period of annual paid leave, is established by the Labor Code of the Russian Federation. The duration of rest must be at least 28 days a year (Article 21, 115 of the Labor Code of the Russian Federation). The right to rest is at the same time the employee’s responsibility: he cannot receive cash equivalent instead of vacation while continuing to work.
At the same time, some categories of employees are entitled to longer or additional annual leave.
For example, disabled workers have the right to rest for a longer period - at least 30 days a year (FZ-181 dated November 24, 1995), and workers with irregular work hours working in the Far North have the right to additional leave ( Article 116 of the Labor Code of the Russian Federation).
Such additional days off may be established by local regulations of the company, provided and paid at the initiative of the administration.
The difference between the established norm of vacation days (28) and the longer vacation granted to the employee can be compensated at his request. Vacation of 28 days or part thereof is not replaced by monetary compensation, except in the case where an employee quits without having time to go on vacation for the previously worked period.
However, the law does not allow replacing additional leave with compensation in all cases.
There are situations when an employee, having not taken vacation for 2 years, expects to receive money for this entire period or part of it: for example, take 28 days off, and receive money for the remaining time that the company “owes” him. However, compensation cannot be awarded to him in this case.
The legislator allows you to “take with money” all the same additional days for each year, all at once or in parts, and a period of 28 days for each year - to rest (paragraph 2 of Article 126 of the Labor Code of the Russian Federation). Of course, this is only possible if he is entitled to these days by law. Let us analyze these situations in more detail and consider the procedure for obtaining monetary compensation for vacation.
Additional rest
Additional leave (similarly, longer leave) for certain categories of employees is one of the opportunities to replace rest time with a cash payment. The administration is authorized to recalculate the employee's rest period exceeding 28 days and pay only upon his application.
It should be borne in mind that even if the employee wishes, it is prohibited to compensate for additional leave or part of it for the following categories of citizens:
- pregnant women;
- minors;
- working in harmful, hazardous industries and workplaces (Article 126 of the Labor Code of the Russian Federation, paragraph 3).
They can receive money instead of vacation in the only case - upon dismissal.
What working conditions are considered harmful and dangerous, is stated in Art. 117 Labor Code of the Russian Federation, paragraph 1. Regarding the “harmful” people, we must remember that the minimum additional leave they are entitled to is 7 days. This period cannot be compensated, as stated above. However, Art. 117 of the Labor Code of the Russian Federation provides for the possibility of longer additional leaves for this category of workers.
They can be enshrined in (inter)industry agreements, collective agreements, additional agreements to the contract with the employee. The portion exceeding the minimum amount of additional leave can be compensated. The amount of compensation and the mechanism for its calculation are also established by industry and inter-industry agreements and collective agreements.
On a note! Based on the meaning of Art. 126 of the Labor Code of the Russian Federation, payment of part of the vacation to the employee is not the obligation of the employer, but only his right.
An order for calculating compensation is issued based on the employee’s application. Vacation compensation is based on average earnings for the year, as when calculating compensation at the time of dismissal.
How to replace vacation with cash compensation
To replace part of your vacation with monetary compensation, you need:
— receive a statement from the employee with a corresponding request;
- issue an order;
— make an entry about replacing vacation with compensation in the employee’s personal card;
— enter information about vacation replacement into the vacation schedule.
Let's look at these steps in more detail.
Step 1. Employee application. Replacement of vacation with monetary compensation is carried out at the request of the employee, which he reflects in his application. It should be written to the head of the company (individual entrepreneur). The law does not establish the form of such an application, so the employee can draw it up in any form.
Step 2. Employer's order. If you agree to replace part of the employee’s vacation with monetary compensation, you must issue an appropriate order.
There is also no unified form for such an order. Therefore, compose it in any form. Indicate in it the full name and position of the employee, the number of days of the billing period and vacation to be replaced by monetary compensation. Also reflect the basis for issuing this order - details of the employee’s application.
Step 3. Employee’s personal card. After completing the order, information about replacing part of the paid leave with monetary compensation must be reflected in the employee’s personal card. This information is reflected in section VIII “Vacation”.
Step 4. Vacation schedule. You should also reflect information about replacing part of the vacation with monetary compensation in the vacation schedule. To do this, make an entry in column 10 “Note”. Be sure to indicate the number of vacation days to be replaced and the details of the order. The entry in column 10 of the vacation schedule may be as follows: “Part of the additional paid leave in the amount of 4 (four) calendar days was replaced by monetary compensation based on order No. 136-ls dated July 29, 2014.”
Dismissal
Dismissal is one of the cases when a cash payment replaces previously unused vacation for all categories of employees. It is accrued for the entire period of unused annual vacation, in total (paragraph 1 of Article 127 of the Labor Code of the Russian Federation).
Important! An employee can receive compensation regardless of the reason for which he was fired (even if it is, for example, a violation of labor discipline).
Vacation compensation is provided only to citizens who have worked for the company for more than 1⁄2 months. Let us remind you that vacation as such is granted to an employee only after 1⁄2 years of work (letter No. 5921-TZ of Rostrud dated 10/31/08).
Compensation is calculated for a full year if a citizen has worked for 11 months. If an enterprise is liquidated, there is a reduction in staff, the volume of work is reduced, etc., and the employee is forced to resign, he should be accrued compensation for a full year already with work experience from 5 1⁄2 to 11 months (rule No. 169 on vacations from 04/30/1930 paragraph 28).
In other cases, compensation is calculated taking into account length of service - 2.33 days per month of work. A period of less than 1⁄2 months is not taken into account, but more is taken as a full month. The employee may have already used part of the vacation before dismissal. These days must be subtracted from the calculation. Next, the average earnings per day are calculated.
If the year before dismissal has been fully worked, wages are divided by 12 and by the average number of days of the month - 29.3 (Article 139 of the Labor Code of the Russian Federation, Part 4).
If there were months worked incompletely, the calculation is carried out according to a different scheme:
- The number of days in fully worked months is determined by multiplying by 29.3.
- Count the number of days in months not fully worked. To do this, 29.3 is divided by the number of days of a certain month according to the calendar. Then the resulting value is multiplied by the actual number of calendar days worked. All values for months not fully worked are summed up.
- Determine the total period worked.
- The salary is divided by the resulting value.
Average daily earnings are multiplied by the calculated number of calendar days of vacation due. When calculating, periods and amounts should be excluded (according to the text of Regulation No. 922 dated 12/24/07, approved by the Government of the Russian Federation), when a person:
- did not work, but according to the law his average earnings were retained (for example, he was on vacation);
- was on sick leave;
- could not work due to downtime;
- could not work due to a strike, etc.
Compensation is issued on the day of dismissal, and if a person was absent according to schedule, the next day after his request for money (Article 140 of the Labor Code of the Russian Federation).
The citizen does not receive compensation for leave when working under the GPA, since in this case he is not entitled to leave - there is no fact of labor relations, such an agreement does not fall under the Labor Code of the Russian Federation.
On a note! Issuing a compensation payment for unused vacation to a dismissed employee is the responsibility of the company (Article 127 of the Labor Code of the Russian Federation).
Documentation
As mentioned earlier, compensation can be received by an employee based on his application. It must contain the following information:
- reference to the Labor Code of the Russian Federation, Art. 126;
- for what period of leave is granted;
- for how many days does the employee want to receive compensation payment?
If a citizen resigns, he is immediately compensated for the period of rest that he did not have time to use. Fill in f. T-61, note-calculation. The application is not processed. If he decided not to receive money, but to go on vacation and quit, he needs to write a statement (Article 127 of the Labor Code of the Russian Federation). Then they issue a personnel order and issue compensation.
How to make an application correctly?
There is no officially established application form for vacation compensation. However, it must comply with the norms of official document flow. The application consists of several parts:
- Introductory:
- name of the organization/business;
- Full name of the head;
- employee's position;
- Employee's full name.
- Main:
- Goal of request;
- amount of days;
- link to the legal act.
- Final:
- date of;
- signature.
As a rule, within the company in the personnel department there is a sample application for vacation compensation.
Application form
The application can be written manually or printed using special means. In the first case, it is recommended to use black or dark blue ink. The text of the document should not contain:
- errors;
- blots;
- corrections;
- obscene statements.
An application for financial compensation for vacation time taken is drawn up in two copies: one for the enterprise/entrepreneurship, the second for the employee. The applicant’s copy is signed to confirm acceptance of the document. If the personnel department refuses to accept and register the document, then it can be sent via postal services by registered mail. Then the employee will be able to prove that the document was submitted.
Briefly
- It is possible to replace vacation with a cash payment to a working citizen only to the extent that it exceeds 28 mandatory days of annual rest.
- Citizens who work at harmful and dangerous facilities receive compensation also taking into account the days of additional rest that are obligatory for them (7). If the additional leave is longer than one week, it is possible to obtain compensation for this period.
- You can ask in your application for compensation for all vacation days at once, taking into account the requirements of the law, or part of them.
- The employer has the right to pay compensation, but he has no such obligation.
- If a citizen resigns, the company is obliged to pay compensation for vacation without an application.
- Compensation is calculated based on average earnings for the year, taking into account the actual time worked. The length of service that gives the right to vacation is also taken into account. Having worked for the company for more than half a month, an employee can already count on compensation for 2.33 earned vacation days.
Sample
A sample document might look like this:
To the Director of Omega LLC
Gribov Nikolai Semenovich
sales manager
Sakharov Stepan Arkadevich
Statement
I ask you to replace the vacation for 2015 in the amount of 8 calendar days with monetary compensation. According to Art. 126 of the Labor Code.
10.20.2016 signature Sakharov S.A.
Example of an application for compensation for unused vacation
