After how long does an employee have the right to receive vacation?
In Part 2 of Art. 122 of the Labor Code of the Russian Federation states that absolutely every employee has the right to receive the first leave after finding a job after 6 months of work.
To avoid misunderstandings between subordinates and management and to receive vacation on time, it is recommended to discuss this issue when applying for a job. Or this conversation should take place 2 weeks before the desired start date of the vacation.
Labor Code on granting leaves to employees
The procedure and basic rules for providing annual paid leave to employees are described in Article 122 of the Labor Code of the Russian Federation. Clause 1 states that in the standard case, the employee’s right to receive it is formed only after 6 months from the date of employment.
However, this rule can be leveled by agreement between the parties. If the employer agrees to a different procedure, the parties have the right to apply it.
The Labor Code of the Russian Federation also indicates the possibility of obtaining the right to rest at any time if the employee has worked for at least a year.
Employer risks when providing leave in advance
Providing an employee with leave in advance entails certain risks for the organization, so not all employers agree to this. If an employee decides to quit while on vacation, the company will withhold from the salary the amount paid for the vacation on the basis of Art. 137 Labor Code of the Russian Federation. If there is nothing to withhold from, or the employee refuses to pay “unearned vacation pay,” the employer will only have to file a lawsuit.
Is it possible to go on vacation without working for six months?
Newly arrived employees may wonder whether it is possible to take a vacation earlier than after 6 months of work.
This is often associated with the emergence of unforeseen circumstances, new plans, etc. The Labor Code of the Russian Federation allows it to be provided to an employee earlier than the due date. To do this, it is enough to reach a joint agreement.
However, employers are often wary of the risks associated with providing leave in advance. For example, such an employee may decide to quit, which will create some inconvenience in the final settlement. That is why it is not always possible to realize the possibility of resting ahead of schedule; it all depends on the specific situation.
How is the calculation period determined?
The time period for completing the calculations is the year that preceded the month the working citizen went on vacation. If he has worked for the employer for less than a full year, the calculation period is determined from the 1st day of the month after being hired until the 1st day of the month in which the employed citizen went on vacation.
Determining the period for vacation pay
The calculation interval cannot include periods of time during which the employee was absent from the workplace due to objective circumstances. In this case, the official salary for fulfilling the labor standard may be partially accrued or retained in an incomplete amount.
Cases of underpayment include the following situations:
- reduction of working days per week by decision of the employer;
- there was a temporary suspension of work at production due to the fault of an employee (the incident was documented);
- free vacation.
When is the first vacation due?
The first leave after the date of employment is due after 6 months of continuous work. This is the general procedure. In this case, we mean the length of service with the employer where the employee is currently working and where he plans to go on vacation.
Please note that vacations are provided in accordance with the approved vacation schedule. And vacation in the first year of work is not always included in the vacation schedule. This is primarily due to the fact that the employee may be hired later than the date of approval of this schedule.
More information about approving a vacation schedule can be found in our article “How to draw up a vacation schedule in 2021.”
It is important to know that some categories of employees have the right to go on paid leave earlier than 6 months of work have passed. For example, minor workers have this right.
It is also worth considering that certain categories of employees have the right to take annual leave without pay. For example, old-age pensioners are entitled to 14 calendar days of administrative leave. And disabled people can take leave without pay for up to 60 days.
An employee's right to vacation during the first year of employment with the employer
The rules for granting annual paid leave for the employee’s first working year and subsequent working years differ from each other. Vacation for the second and subsequent years of work is provided in accordance with the vacation schedule. When does the right to leave arise for an employee who has been working for a given employer for the first year?
The right to leave arises after 6 months of work
The right to use vacation for the first year of work arises for the employee after six months of continuous work with this employer (Article 122 of the Labor Code of the Russian Federation). Consequently, an employee can take a vacation in the seventh month of work, while the length of service with a particular employer must be continuous.
Is it possible to grant vacation before the end of 6 months of work?
By mutual agreement between the employee and the employer, paid leave can be granted to the employee before the expiration of six months of work.
Cases when an employer must provide leave before the end of 6 months of work
Before the expiration of six months of continuous work, the employer must provide paid leave:
- for women - before maternity leave or immediately after it (Part 3 of Article 122 of the Labor Code of the Russian Federation);
- workers under the age of eighteen (part 3 of article 122 of the Labor Code of the Russian Federation);
- employees who have adopted a child (children) under the age of three months (Part 3 of Article 122 of the Labor Code of the Russian Federation);
- to the husband - while his wife is on maternity leave (Part 4 of Article 123 of the Labor Code of the Russian Federation);
- in other cases provided for by federal laws.
For example, a woman worked for an employer for two months and announced that she was pregnant and was going to go on maternity leave. In this case, she has the right to take annual paid leave before going on maternity leave, despite the fact that she has not worked for this employer for six months.
In order to exercise his right, the employee must write a statement.
Leave is provided in full
Labor legislation does not provide for the provision of partial leave, that is, in proportion to the time worked. Thus, an employee, having worked for the employer for six months (and in some cases less than 6 months), has the right to use the vacation in full. In this case, the leave is granted to him in advance. In this case, the employee has the right to ask for a vacation not in full, but only part of it. In accordance with Article 125 of the Labor Code of the Russian Federation, the division of leave into parts is carried out by agreement between employees and employers, that is, the employer can refuse the employee this request and give the employee leave in full. When dividing vacation into parts, you must follow the rule - at least one of the parts of the vacation must be at least 14 calendar days.
Who is entitled to early leave?
Special categories of workers can go on vacation ahead of schedule - before the end of 6 months of continuous work. This is regulated by Part 3 of Art. 122 and part 2 of Art. 128 Labor Code of the Russian Federation.
The list of such employees is established by federal laws. In addition to minors, the following categories have the right to early paid leave:
- external part-time workers;
- spouses whose wives are on maternity leave;
- adoptive parents of babies under 3 months;
- women before/after maternity leave or after maternity leave.
This is enshrined in Part 3 of Art. 122, part 4 art. 123, art. 260, part 1 art. 286 Labor Code of the Russian Federation. These rules must be followed regardless of the employer’s ability to ensure the continuity of the production process.
The length of service with a particular employer does not affect .
In other cases, the employer has the right to take into account the employee’s personal circumstances and provide him with leave in advance.
Exceptions to the rules
The employer is obliged to provide leave before the end of the six-month period at the request of its employee only in exceptional situations in relation to certain categories of citizens, namely:
- employees who have not yet turned eighteen years of age;
- women who are on the verge of immediate leave due to pregnancy and childbirth and after them, including, and, in addition, upon completion of the required period of child care;
- employees who adopted infants under three months of age;
- husbands while their spouses are on leave due to pregnancy and childbirth;
- veterans;
- Chernobyl victims;
- wives of military personnel;
- part-time workers
conclusions
In order to receive payment on time, it is important to follow the algorithm of actions:
- apply for leave in the name of the employer;
- obtain the signature of the head of the enterprise;
- wait for accounting calculations and accrual of funds for vacation.
When determining the amount of vacation pay, both the average salary and additional amounts transferred to the employed person are taken into account. However, some of them involve separate accrual.
The vacation period can be granted either after six months or after 12 months of continuous work. Moreover, its duration depends entirely on the number of days actually worked.
Categories of employees who are entitled to vacation days in advance in any situation
The legislation provides for the possibility of obtaining leave ahead of schedule for certain categories of persons. Art. indicates this. 122 Labor Code of the Russian Federation, clause 2.
Holidays are required in advance:
- maternity leavers;
- adoptive parents of a child under 3 years old;
- minors.
Expert opinion
Irina Vasilyeva
Civil law expert
Pregnant women, women with children and minors have privileges in many aspects of labor legislation, including in terms of granting early rights to rest.
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Grounds for the right to leave
After what time does an employee become entitled to vacation? First of all, let’s look at what vacation is under labor law. The law understands vacation as the time of rest that is guaranteed to each employee under an employment contract. However, such guarantees do not arise from the first day of employment, but after completing at least 6 months of work experience.
Here are the rules for granting vacations regulated by Article 122 of the Labor Code of the Russian Federation:
- You can apply for leave only after working for 6 months in a row;
- the specified length of service must be in one place of work (if a citizen previously worked for 3 months at another enterprise, when applying for a new job he will have to wait six months again);
- Before the expiration of the specified period, the employer and employee can voluntarily agree on the provision of leave.
What is the reason for this requirement of the law to work for six months? The fact is that the norms of the Labor Code of the Russian Federation provide for the calculation of vacations for each calendar year of work. If an employee is given time off before the end of the calendar year, this will effectively be an advance. In order to protect the interests of employers, Article 122 of the Labor Code of the Russian Federation provides for a compromise rule - working for at least 6 months.
Since employers are required to comply with vacation schedules, employees who have worked 6 months may have problems. When applying for a job during the calendar year, they will obviously not be indicated in the vacation schedules (they are approved before the start of the next year). The management of the enterprise will have to solve this problem, since after working for 6 months, employees can demand the issuance of an order to grant vacations.
The standard rule of 6 months can be changed not only by agreement of the parties. In Art. 122 of the Labor Code of the Russian Federation indicates categories of employees who can go on vacation at any time, even if their continuous experience at the enterprise does not exceed 6 months.
How to provide?
Providing leave before the end of 6 months of work begins with the employee submitting a corresponding application. It is drawn up in a standard form addressed to the manager with a request to provide annual paid leave from a certain date.
The question of whether the employee will be given early rest is decided by the manager when considering the application. If he does not object, he puts his visa on the application with the note “agreed”.
If he refuses, he puts the appropriate signature on the application. The refusal must be communicated to the interested party. If the leave is agreed upon, then a corresponding order is drawn up and signed. From this date, the employee has the right to be on vacation. No additional agreement or other documents are drawn up in this case.
How is it paid?
Payment is carried out according to the same principle as in the standard case. When making calculations today, accounting uses programs that, if the data is entered correctly, independently calculate the amount of vacation pay.
When calculating manually, the amount of average earnings is multiplied by the number of vacation days. Payments are transferred 3 days before leaving for vacation.
