May or may not refuse
According to Art. 128 of the Labor Code of the Russian Federation, leave without pay (also at your own expense or administrative) can be granted to an employee for family reasons or other valid reasons. Unless otherwise provided by law, the duration of absence from work is determined by agreement between the employee and the employer. Thus, as a general rule, the employer can refuse leave at his own expense.
However, there are a number of exceptions when it is impossible to refuse and the employer is obliged to provide leave without pay:
- in connection with the birth of a child, registration of marriage, death of close relatives - no more than 5 calendar days (Part 2 of Article 128 of the Labor Code of the Russian Federation);
- working pensioners receiving an old-age pension - 14 calendar days per year (Article 128 of the Labor Code of the Russian Federation);
- for working disabled people – 14 calendar days per year (Article 128 of the Labor Code of the Russian Federation);
- for passing the final certification and entrance tests for employees who are students of preparatory departments of universities and admitted to entrance exams - no more than 15 calendar days (Article 173 of the Labor Code of the Russian Federation);
- employees studying full-time in accredited bachelor's, specialist's, and master's programs - 15 calendar days per academic year to pass the sessions, and up to 4 months to defend the final qualifying thesis, as well as 1 month to pass the final state exams (Article 173 of the Labor Code of the Russian Federation) ;
- employees - applicants and students of vocational educational institutions for full-time study - 10 calendar days for entrance examinations and sessions, as well as 2 months for final exams (Article 174 of the Labor Code of the Russian Federation, part 2);
- Heroes of Socialist Labor, Heroes of Labor of the Russian Federation and full holders of the Order of Labor Glory, Heroes of the Soviet Union, Heroes of the Russian Federation and full holders of the Order of Glory - up to 3 weeks a year (Federal Laws of January 9, 1997 No. 5-FZ “On the provision of social guarantees” ...”, and dated January 15, 1993 No. 4301-I “On the status”);
- for war invalids - up to 60 calendar days per year (Federal Law of January 12, 1995 No. 5-FZ “On Veterans”);
- combat veterans listed in the Federal Law of January 12, 1995 No. 5-FZ “On Veterans” - up to 35 calendar days per year;
- parents and spouses of military personnel, employees of internal affairs bodies, the federal fire service, customs authorities, employees of institutions and bodies of the penal system, who died or died due to a wound, concussion or injury received in the performance of official duties, or as a result of a disease received on service - up to 14 days a year (Article 128 of the Labor Code of the Russian Federation);
- in other cases, if the provision of days off at one’s own expense is approved by the collective agreement (Article 128 of the Labor Code of the Russian Federation).
Citizens who have the right to take leave at their own expense
The legislation establishes categories of citizens who can take leave without pay without specifying the reasons. Among them:
- Spouses of customs, armed forces, Federal Drug Control Service, Ministry of Internal Affairs, Ministry of Emergency Situations employees killed or injured in the line of duty.
- Employees who have reached retirement age and continue to work.
- Participants of the Second World War.
- Disabled people of groups I, II, III.
Spouses of killed or injured law enforcement officers may receive annual leave without pay for 14 days, together with the main rest period, part of it, or independently.
Working pensioners can claim 14 days of additional rest, without pay.
WWII participants have the opportunity to receive leave without pay for 35 days.
An employer does not have the right to refuse to provide a disabled person with at least 60 days of rest in addition to the main annual rest period. The disability group does not matter in this case.
Is it possible to refuse a pregnant woman
The Labor Code of the Russian Federation does not include among the preferential categories such grounds for providing rest as pregnancy. Therefore, a pregnant employee may be denied leave at her own expense.
However, with the consent of the employer, rest time without pay can still be granted. Its duration will depend on the agreements reached.
If an agreement could not be reached, the pregnant woman must take advantage of other guarantees provided to her by the Labor Code - for example, the right to issue a sick leave certificate if there are medical indications.
Is it legal to require the refusal to be put in writing?
Doctors do not have the right to refuse hospitalization to a person whose condition is the basis for providing such assistance. If, after refusing hospitalization, the patient’s condition worsens or he dies, the doctors will be punished under criminal law.
If the patient himself refuses to undergo hospitalization, even though there are grounds for this, doctors are obliged to explain to him the possible consequences. If he still refuses, then the emergency doctors should ask him to write a refusal. This document is necessary so that problems do not arise if the patient’s condition worsens, and doctors are then not accused of refusing to provide assistance to him.
The written refusal indicates the fact that the patient was informed about the possible consequences of refusing hospitalization, and that the patient takes responsibility for such consequences.
How to exercise your right
If the employee does not belong to preferential categories and providing him with leave at his own expense is not necessary for the employer, the registration process should begin with negotiations with immediate management. It will ultimately determine whether the employee is released or not. Based on the results of the agreement, it is necessary to write an application for a day off without pay, which (after receiving a visa from the immediate superior) must be submitted to the HR department.
If the employer is required to provide leave at his own expense, the employee must still write a statement indicating the reason and basis for providing unscheduled leave (i.e., the preferential category to which the employee belongs).
Based on the application received, the employer issues an order to provide leave at his own expense. There is no single mandatory form for such orders, so you can use the form usually used in the organization. The order must indicate:
- last name, first name, patronymic of the employee, position and structural unit;
- dates for granting leave at your own expense;
- grounds for providing it if the employee belongs to one of the categories that the employer cannot refuse. The reasons must be indicated so that the employee does not exercise his right a second time.
Sample application for leave at your own expense
to CEO
Alpha Minus LLC
From accountant A.P. Petrova
Application for leave at your own expense
In accordance with Art. 128 of the Labor Code of the Russian Federation, I ask you to grant me leave without pay for a period of 14 calendar days in the period from February 1, 2021 to February 14, 2021, as a working pensioner.
Date, signature
Visa for the immediate supervisor – chief accountant.
How to get unpaid leave?
To apply for such leave, you must contact management with a written application. The application must be completed in two copies and submitted against signature.
The legislation does not contain mandatory requirements for the preparation of documents of this kind, however, when drawing it up, you should still adhere to the general rules that have developed in business practice, and also include in it all the necessary information and information, including:
- Name of the organization - employer;
- Position and full name manager;
- Position and full name employee;
- The title of the document is “Application”;
- Please provide leave;
- The period and duration of leave required by the employee;
- The reason why the employee asks for leave;
- Date of application;
- Employee signature with transcript.
What is the deadline to submit an application?
The law does not limit an employee to any time frame for filing an application for leave without pay if there are mandatory grounds for its provision.
Expert opinion
Labor Lawyer Olga Smirnova
In judicial practice, there was a case when leave at one’s own expense in connection with marriage was requested a month after the wedding, and the court recognized this as lawful (Appeal ruling of the Kemerovo Regional Court dated August 17, 2012 in case No. 33-7790). The court indicated that the basis for provision is only the employee’s statement. The employer does not have the right to check any circumstances other than those giving the right to a benefit.
Cases at the discretion of the employer
Cases of granting and duration of unpaid leave not provided for by law remain at the discretion of the employer. However, there is no list of valid reasons in the Labor Code.
Each specific situation must be considered individually.
There may be cases when a citizen writes an application for days without pay due to family circumstances, and the manager refuses to provide them. After which, the employee is subject to dismissal under an article of the Labor Code due to absenteeism.
One of the controversial situations is an application for the provision of free days due to an employee visiting a medical institution.
At the court hearing, specialists brought certificates from the clinic or notes in outpatient records. After this, the dismissal was declared illegal.
If the employer does not let you go
In cases where an employer refuses to provide leave at his own expense to an employee who does not have the right to unconditionally provide it, it is impossible to force him to take this leave or simply not show up for work. Unauthorized use of rest time at your own expense will be considered absenteeism.
According to established judicial practice, dismissal of an employee for absenteeism is possible, including in the case where the employee took a day off without permission (clause 39 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.”
If the employee has the right to be granted leave at his own expense, regardless of the employer’s consent, he cannot be fired for absenteeism - but only if the employee has directly stated his right guaranteed by the Labor Code or other laws.
To do this, you must send an application to the employer with a directly stated intention to exercise your right, and keep a second copy of this application with a note indicating its acceptance by the employer. If the employee wrote a statement without indicating this circumstance, or did not leave a statement at all, he may still be fired.
Expert opinion
Labor Lawyer Olga Smirnova
The courts note that the dismissal of an employee can be considered lawful if he wanted to take leave without pay on a general basis, without using the benefits provided by the Labor Code (Appeal ruling of the Astrakhan Regional Court dated November 11, 2015 No. 33-3869/2015). For example, a retired employee may be fired for absenteeism if he does not return to work on the fifteenth day, i.e. after the expiration of the 14-day period guaranteed to him by the Labor Code of the Russian Federation, or if he did not indicate in the application that he was requesting unpaid leave specifically as a pensioner.
Grounds for refusal
It is not possible to challenge an employer’s refusal in the absence of legitimate reasons for leave.
In addition, one of the options for refusal may be the situation if there is no one to work.
A situation is possible when there were grounds for time off, the refusal was issued to a disabled person, a working pensioner or another person who has the legal right to provide it, but upon returning to the workplace, the employee was met with a dismissal order.
The employee must write an explanatory note addressed to the manager. Attach documents - grounds.
Important! If the order was signed anyway, the specialist can restore the violated rights in court.
The administration of the enterprise is obliged to provide days without pay only to certain categories of citizens. The remaining employees resolve this issue in accordance with the collective or employment agreement.
In the absence of valid reasons, the employer may refuse a period of rest without pay.
Your rating of the article
For health
Many organizations provide time off at their own expense for one or several days if an employee is not feeling well. Such leave is possible by agreement between the employee and the employer. There are no medical indications among the mandatory grounds for its provision - sick leave is intended for this. But, as practice shows, taking such time off is more useful for both the employee and the employer, since the employee gets the opportunity to quickly return to work.
We hope you found this article helpful. The materials provided are for informational purposes only and do not replace legal advice. If you have any questions, contact a specialist.
Where to go if hospitalization is refused
Refusal to hospitalize is the basis for applying:
- To the dispatcher (to call the ambulance again).
- To the hotline of the regional Ministry of Health.
- Contact the head physician of the hospital if you are refused a personal visit to the hospital.
The reason for refusal may be the lack of space in the hospital. In this case, the ambulance must transport the patient to another hospital.
The patient also has the right to contact the insurance company based on the policy or call Roszdravnadzor.
Responsibilities of the employee during downtime
During downtime, the employer has the right to oblige the employee to be at his workplace full-time or for several hours, or, on the contrary, you can indicate that the employee is not required to attend work during downtime.
The order to introduce downtime in a company must specify the payment procedure and other organizational issues.
The employer may also offer the employee a transfer to another position. If the employee agrees, transfer to another position can be carried out for up to 1 year. However, if an employee does not agree to move to another position, then he can be forcibly transferred only for a period of up to 1 month and only to a position equivalent to his qualifications.
