How to take a vacation outside of the vacation schedule in 2021

The order of granting paid vacations is established annually by the vacation schedule - this provision of Art. 123 of the Labor Code of the Russian Federation is remembered by almost all employers and in mid-December they already have a ready and approved vacation schedule. But it is not always executed as clearly as stated.

In many cases, neither the employee nor the employer can predict in advance the exact time for going on vacation. On the part of the employer, the decision to take an employee’s vacation unscheduled can be influenced not only by the employee’s requests and their own interests, but also by external circumstances. And the notorious “production necessity” may arise spontaneously and outside the plans of the employer himself, but in this case, the transfer of vacation is possible only with the written consent of the employee and no later than for the next working year (Part 3 of Article 123 of the Labor Code of the Russian Federation).

On the employee side, plans change for a variety of reasons.

Therefore, it is often possible to state at the end of the year that the vacation schedule was only partially fulfilled, while the bulk of vacations were not granted according to the schedule. And here the HR officer and accountant feel uneasy. First of all, it’s scary because it’s unclear whether the employer will face punishment for the fact that the schedule was executed so poorly, but at the same time everyone (both employees and employer) was satisfied. It’s even worse if the requirements for advance notice and payment three days before the vacation were not met.

But let's look at everything in order.

The need to adhere to the vacation schedule

Citizens engaged in labor activities are entitled to rest. When these rights are exercised, the interests of the enterprise should not suffer. For this reason, each enterprise, based on the characteristics of its activities, annually draws up a special act, through which the procedure for providing rest time is regulated. When creating a schedule, it is necessary to take into account the wishes of employees.

There is a single form of the act, the T-7 form is used. At the same time, it is possible to use your own sample. A mandatory requirement is the reflection of certain details. The obligation to implement the act in question rests with both the company’s management and employees.

It is important to take into account that there is a certain group of citizens for whom labor legislation and other regulations establish guarantees for the provision of rest time, regardless of the schedule.

Legislative regulation and nuances

An integral part of an organization's internal document flow is the vacation schedule. This document is useful in that it helps plan employees’ vacations without reducing productivity and with minimal inconvenience to the company’s activities.

Article 123 of the Labor Code of the Russian Federation regulates the timing of approval of the schedule - no later than fourteen days before the end of the year. It is quite logical that it is often not always possible to carry out a pre-planned vacation on the specified dates.

A reasonable question arises: what to do? Is it possible to change the date or refuse altogether and continue working? Let's take a closer look at when it is possible to deviate from the approved schedule.

Possible reasons

The schedule outlines the annual vacations of the entire team. As a plus, the document can reflect previously missed days. Obviously, special leaves (study leave, maternity leave, etc.) can be obtained according to the approved regulations, regardless of the schedule data, of course, upon presentation of the required documents.

Vacation days without pay are most often unplanned, and therefore, as a result, not included in the schedule.

The Labor Code gives certain groups of workers the opportunity to choose vacation days on the dates they wish. Accordingly, deviations from the schedule are possible.

This right can be exercised if desired by:

• minors;
• honorary donors;
• persons raising a minor child with a disability;
• mothers who have a child under twelve years of age and workers raising two or more children under twelve years of age without a mother;
• combat veterans;
• Chernobyl victims;
• persons awarded orders of glory, who are heroes of Russia, and so on.

It should be noted that the question concerns new employees who got a job after the schedule approved by the company. What can they expect?

They also have the right to rest, but only after they have worked for the organization for a full six months. It is possible for such employees to take leave earlier either with the permission of management or in cases approved by law.

In accordance with the Labor Code, vacation days are guaranteed to be given:

• before going on maternity leave or immediately after it;
• minors;
• who have registered the adoption of a child under three months of age.

The legislation also describes the circumstances under which it is also permitted to take vacation days. This is possible under the following conditions:

• the employee’s spouse is on maternity leave;
• accompanying a minor to study in another region, if his parent works in the Far North or equivalent areas;
• the spouse serving in the military was given leave.

In other cases, the transfer of vacation days is possible only with the permission of management.

If an employee has not taken a vacation for two years in a row, then postponing the vacation is unacceptable even with the mutual consent of both parties.

It is also possible not to leave on schedule at the request of the employer in the event of a production necessity, but with the obligatory consent of the employee, they cannot force him.

Sometimes urgent circumstances arise when an employee has to be called back from vacation. Article 125 of the Labor Code of the Russian Federation informs that the days that the employee did not have time to take off, he has the right to take later at any convenient time, again, regardless of the approved schedule.

Family care

Life is unpredictable, and often, when all the vacation days have already been exhausted or planned, it becomes necessary to take a few more days due to one reason or another.

Someone is giving birth to a child, someone has a relative who gets sick, someone wants to go to a wedding or just take care of their personal affairs - everyone has their own personal motives.

Legislation meets halfway and provides workers with the opportunity to take days without pay.

It was mentioned earlier that this type of leave is usually not reflected in the schedule. Most often it is associated with family circumstances. In most cases, managers meet halfway and allow employees to take days at their own expense beyond the schedule.

Of course, it happens differently when the bosses are against it. In such cases, the Labor Code comes to the rescue, namely Article 128.

The right to receive leave cannot be denied to the following persons:

• WWII participants;
• employees who have reached retirement age;
• parents and spouses of military personnel, employees of special services, etc., who died, were wounded or became ill as a result of their service;
• disabled people;
• at the birth of a child, marriage registration, death of close relatives.

The legislation establishes the maximum possible number of days; in fact, the employer decides on the spot how many days he will allow the employee to take and has the right to cut them.

In other cases, leaving for family reasons is possible only with the permission of your superiors.

Persons to whom the schedule does not apply

Some employees have the right to use vacation at a time convenient for themselves. When deciding whether a vacation is necessary, a person does not need to take into account the opinion of the company’s management on this matter. This category includes:

• persons under the age of majority;
• citizens who use vacation for the first year of work in the company;
• those who have the title of honorary donor of the country;
• persons raising children with disabled status (in this case, the child should not be older than 18 years);
• female representatives who have more than 1 child under the age of 12 years;
• citizens who are raising two children under the age of 12, but they do not have a mother;
• persons participating in the Second World War, disabled people;
• combat veterans;
• citizens who suffered during the Chernobyl tragedy;
• persons holding the title of Hero of the USSR or the Russian Federation, holders of the Order of Glory.

The length of leave depends on which category the person is classified into.

Providing unscheduled leave without pay

Providing leave for certain categories of employees is not a right, but an obligation of the employer. This is indicated by Part 2 of Art. 128 Labor Code of the Russian Federation. So, the employer is obliged, on the basis of a written application from the employee, to provide leave without pay to the following categories of citizens:

Family leave

In this case, the employer can pay for rest time or provide its employee with financial support. This happens when a person dies or is born in an employee’s family. Payment is also provided if a parent or child gets sick. However, this type of leave is often provided without pay. This indicates that payment is not due to the citizen. The process of registering such rest time is regulated by the provisions of norm 128 of the Labor Code of the Russian Federation.

It is provided that a citizen is not present at his workplace for a certain period, and his earnings are not retained. The length of rest time depends on the situation in a person’s life. It is necessary to coordinate the provision of rest days with the management of the enterprise. In practice, there are situations when the director refuses a request for leave. This happens if management considers the reasons unjustified.

The law indicates that such leave is a right, but not an obligation, of the company. Exceptions include situations where rest is requested by a person who is directly referred to in the law. These categories are listed above. It is established that it is not necessary to disclose the reason for going on vacation, however, indicating it will increase the chances of a positive response from management.

Registration procedure

The rules on how to register for unscheduled leave, regardless of the presence or absence of the right to rest without approval, require the implementation of a certain procedure clearly described in labor legislation.

• Compensation for unused vacation upon dismissal: calculation rules

If the need for care is unscheduled, the employee contacts management to discuss the possibility and notify of the need for temporary absence from the workplace. The employee’s appeal must be documented, in the form of an application for unscheduled leave, drawn up in accordance with the standard accepted by the organization.

The manager, when deciding on the legality and expediency of releasing an employee for the period specified in the application, proceeds from the current norms of the Labor Code. After the management’s resolution, the document is transferred for processing to the relevant departments of the enterprise. In case of refusal, the manager explains the reasons why the provision of leave not according to the vacation schedule cannot be agreed upon.

Considering employee requests. It is important to remember those categories that have the right to go on vacation at any time, without the need for approval (see Article 128 of the Labor Code of the Russian Federation, Part 2).

The personnel service prepares an order, which must then be familiarized to the employee. It is important to wait for the order to be issued and leave a signature on it confirming that you have read it, since otherwise the administration may accuse the employee of absenteeism and dismiss him under the article.

Sometimes it is necessary to suspend the order. In this case, they draw up an appropriate internal act, with its endorsement in the presence of witnesses from among other employees of the company.

Transfer of vacation - the right or obligation of the employer

The general rule provides that the employer has no obligation to provide the type of leave in question. In particular, this is the decision that was made by the Constitutional Court of the Russian Federation in 2009. It states that the rules on providing citizens with rest time upon subsequent termination of employment relations should only occur with the consent of both parties to these legal relations.

In a situation where an employee does not wait for a positive response to his application and does not go to his workplace, such behavior should be considered as absenteeism. The management of the enterprise has the opportunity to bring such a person to the established measures of responsibility, including severing the employment relationship. This conclusion can be made based on the Resolution of the Plenum of the RF Armed Forces of 2004.

It is also important to take into account that there are some exceptions to this rule. In this case, you need to take into account certain nuances:

1. The legislation lists categories of citizens who have the right to use recreation at any time when it is convenient for them. A separate clause indicates that a man can be given rest during the period when his wife is on leave related to pregnancy and childbirth. At the same time, the duration of continuous work in one company does not matter.
2. It is accepted that the rest time of a particular employee may be tied to a specific circumstance. For example, if a person works in several companies, then where he works part-time, he must be allowed on vacation when he rests at his main place of work.
3. Certain provisions in the legislation reflect situations in which a citizen must be provided with rest outside of the schedule. The basis for this is the employee’s statement. These rules apply to cases when a person has been working for the company for the first year. Vacation planning occurs only in the second year of work.
4. Also, subject to subsequent termination of the employment relationship, the citizen is given the right to rest before dismissal. You must write a corresponding application.

Vacation of a new employee

During the first year of work, employees have unscheduled vacations. According to the law, a person can receive it within six months after being hired. For individual people, this period can be reduced at their request. Naturally, the schedule for a beginner does not include rest time. Therefore, the issue can be resolved only by agreeing with the authorities on rest on days convenient for each of the parties. If an employee is hired to replace a fired employee, management may agree to provide vacation on the days on which it was planned for the previous employee. Then there will be no need to make additional personnel moves.

Documenting

In this situation, the company’s management needs to formulate an appropriate order and make clarifications to the employee’s schedule and personal documents. An order is formed using written form. It is worth noting that a unified format has not been developed; therefore, an arbitrary format is used.

This option is used when a long vacation duration is set, for example, several weeks or months. When deviations from the schedules are a couple of days, experts recommend using standard form No. T-6. The generated act is sent to the financial department of the enterprise so that payments can be accrued, provided that they are due to the citizen.

How to make changes to your vacation schedule

The legislation does not provide for a unified sample application for changing the vacation schedule, however, in practice, a list of data required to indicate has been developed:

• Full name, employee position;
• Full name, position of the head of the organization;
• the subject of the application is a request to transfer the dates established in the vacation schedule to new ones and the reason for the transfer;
• date, employee signature.

If the employer, having assessed the current state of affairs of the company and established the possibility of transferring vacation to other dates, satisfies the employee’s request, he issues an order to change the vacation schedule. Next, the HR department enters new data into the relevant documents.

Please note that the employee should wait for the official response from the employer and only then leave the workplace. Otherwise, absence from work without a vacation agreed by the employer may be regarded as absenteeism.

You will find additional information in the article “How to write an application for transferring vacation - sample.”

Warning about the start of vacation and payment

In the legislation, the requirement to warn an employee about an upcoming vacation is formulated using the imperative form. However, there are no exceptions to this rule. This indicates the extension of this norm to situations where the basis for granting rest time is a person’s statement. It is worth considering that such notification is not required in cases where a citizen independently determines the dates of rest.

In addition, no exceptions are provided for norm 136 of the Labor Code of the Russian Federation. This article establishes the need for payment three days before the employee goes on vacation. It is worth noting that if a notice is not sent, the legislation does not provide for liability for the employer, but in a situation with the provision of funds, it does. Liability measures are provided for in Article 236 of the Labor Code of the Russian Federation.

Vacation is considered to be used contrary to the schedule in a situation where it was postponed to another time. The consequences of these situations have different expressions. Company management has several options for behavior if an employee asks to go on vacation in less than three days:

• refuse to provide rest time;
• propose to adjust the date of going on vacation;
• indicate that it is permissible to write two applications (first, the application is drawn up for the use of unpaid vacation time, then immediately for paid vacation);
• agree to provide the rest time specified in the application.

In the latter case, it is provided that it is required to pay wages for time worked and compensation payments, provided that there are grounds for the person to receive them. When determining the date of vacation, it is necessary to take into account the employee’s wishes in this regard, but they do not need to be coordinated. This applies when:

• the citizen fell ill before using the rest time;
• During the vacation, the person will perform government duties, so exemption from work is necessary;
• other situations reflected in laws or local regulations.

It is necessary to agree on the dates if payment for vacation days is not provided in a timely manner or the citizen was sent notice of vacation later than a couple of weeks. In order to notify employees about the upcoming rest period, enterprise management can use several different methods.

In particular, it is allowed, against signature, to inform the employee about the schedule that was formed. You can also familiarize yourself with the order indicating specific vacation dates. This option should be used a couple of weeks before vacation.

Features of application

The work of arranging a vacation period for hired employees involves taking into account many nuances. Sometimes it is important for an employee not to receive days in excess of those required by law, but to take them off during a different period of time.

Then the employer is obliged to proceed from the provisions of Art. 124 of the Labor Code of the Russian Federation, which involves choosing a different period for rest on the occasion of:

• illness;
• pregnancy;
• childbirth;
• lack of transfers of vacation pay on the eve of departure;
• lack of notification of the start of the vacation period for the required 2-week period.

In exceptional cases, due to production needs, for the needs of the company, the employer has the right to recall a person from vacation. Other issues related to the registration of a person’s temporary absence, whether notification to the employer is necessary, are regulated by the provisions of the concluded employment contract.

Is a review possible?

There are no special rules in labor legislation regarding whether an employee can be recalled if the rest was not planned in the schedule. For this reason, it is recommended to adhere to the standard procedure defined for ordinary paid leave in accordance with Art. 125 Labor Code of the Russian Federation.

It is recommended to proceed as follows:

1. The manager agrees with the employee on the possibility of early termination of rest.
2. If the subordinate agrees, an order is issued indicating the basis for the recall and the first working day.

In the event of an early return to work duties after a leave without saving, the previously provided days are not saved and cannot be used later.

Taking leave on the eve of dismissal

Sometimes an employee, intending to leave the employer, asks for days off before formalizing the dismissal. In this case, before the official separation, the employee writes a leave application with subsequent dismissal.

Download the application form for leave followed by dismissal (27.5 KiB, 299 hits)

The administration is obliged to provide vacation duration according to the accumulated paid days. And the accounting department makes the final calculation taking into account the vacation provided.

To take the required days off outside the established schedule due to dismissal, it is recommended to apply Art. 127 labor legislation. According to the law, if a person does not use the allotted days, he receives compensation based on the average daily earnings. If the employee wanted to take days off on the eve of termination of the contract, the procedure for calculating paid leave is similar, and the last working day is considered the day the rest ends.

Transfer of paid leave

Sometimes circumstances in life change and days of paid leave are needed before the right to it becomes available. Such a vacation can only be agreed upon with the consent of the employer. To use this feature, you must consult the manual for clarification. If the reason is considered significant, and the employer does not mind, the relevant company services will formalize the days provided. For example, for a father with many children, it is easier to negotiate his temporary absence by explaining the need as the need for treatment or accompanying his children on a trip.

Download an example application for rescheduling a vacation (25.0 KiB, 860 hits)

If the absence of an employee causes a disruption in production or leads to commercial losses, the administration reserves the right to refuse the request without explanation. In this case, leaving work will be regarded as absenteeism, for which the employee has the right to be fired.

Transfer of leave at the initiative of the employer

In some situations, the need for granting leave contrary to the schedule arises from the management of the enterprise. In particular, here we can talk about enterprises with a large number of employees. Here production volumes depend on how many labor agreements are concluded.

If there are many orders, then management may decide to involve more citizens in the production process. Otherwise, profits will be lost.

A situation may also arise when difficulties arise with orders and the company loses the opportunity to provide all employees with the necessary volumes for work. The law indicates that in this case the company has an obligation to pay for the time while there is downtime. The amount is equal to two-thirds of your usual earnings. Then management understands that it is more profitable to provide employees with rest time.

It is worth considering that this option is allowed only if the employees express consent. When creating schedules, this factor should also be taken into account.

If the document is drawn up and all employees are familiar with it, then making adjustments is permissible if each employee is present. At the same time, it must be expressed in writing.

Is it necessary to write an application for unscheduled leave?

It is not always possible to go on vacation as scheduled - the document is approved 2 weeks before the new year, and over the next 12 months various circumstances may arise that do not allow the employee to rest at the planned time. The reason for postponing vacation may be a production necessity or a personal need of the employee.

Find out how to transfer leave at the request of an employee here.

In the first case, instead of an application, the employee will need to state in writing his consent to postpone the vacation (as a rule, an internal memo is drawn up with a request to postpone the employee’s vacation, on which he puts his signature and an “I do not object” visa).

In the second case, the employee can write an application to postpone the vacation, setting out the reasons why changes should be made to the schedule.

Sample applications for unscheduled leave, as well as in other non-standard situations, are available in ConsultantPlus. Having received trial access to the system, you can familiarize yourself with them for free.

Instead of such a statement, a memo may also be drawn up. In this case, the reasons why the employee’s vacation is postponed are stated by the head of the department where the future vacationer works. At the same time, the employee also puts his signature on such a document and the “I do not object” visa.

If the employer postpones vacation without the employee’s consent

When a citizen is not allowed to go on vacation or the vacation time is postponed without his consent, then the opportunity to protect his rights is provided. To do this, you need to use the following options for filing complaints:

• to a trade union organization, if one operates in the company;
• state labor inspectorate;
• to the prosecutor;
• judge.

These organizations have the right to organize a check as to whether a person has the right to such rest. If it is determined that a violation has occurred, the perpetrators will be held accountable. However, before you conflict with the company’s management, you can try to negotiate peacefully.

Sample applications for rescheduling vacation

Due to sick leave

With family circumstances

To transfer vacation in parts

With pregnancy

According to production needs

Is it possible to recall an employee from unpaid leave?

At the moment this issue is not covered by law. However, it is more appropriate to recall an employee from administrative leave in a similar manner to the procedure for recalling an employee from annual paid leave, the legal aspects of which are enshrined in Art. 125 Labor Code of the Russian Federation:

1. Obtain consent from the employee to terminate vacation at the employer’s suggestion.
2. After receiving it, issue an administrative document indicating the reasons for the recall and the date the employee returns to work.

A feature of the procedure for recalling an employee from unpaid leave is that the remaining unused rest days are not subsequently added to the main leave and are not provided at a convenient time for the employee during the current year.