Failure to provide vacation for more than 2 years in a row: what are the penalties?

The employee has not been on vacation for three years

Not often, but it happens that employees do not go on vacation for many years.
This article explains what to do with a three-digit number of unused vacation days. Labor legislation prohibits working without vacation for more than two years (Part 4 of Article 124 of the Labor Code of the Russian Federation). Vacation must be used no later than 12 months after the end of the working year for which it is provided (Part 3 of Article 124 of the Labor Code of the Russian Federation).

You can transfer your vacation to the next working year only if two conditions are met simultaneously:

• in exceptional cases when an employee going on vacation in the current working year may adversely affect the organization’s activities;
• with the consent of the employee.

If you had to take sick leave instead of vacation

Sometimes an employee presents a sick leave certificate before going on vacation. This is considered as a reason to postpone the holiday to another time. Such rules are reflected in Article 124 of the labor law. It happens that an employee manages to recover before going on vacation, but his payments are not calculated.

The rules for this are reflected in the same article. If a person gets sick or injured while on vacation, he or she extends or postpones the vacation. Similar provisions apply to cases when an employee does not have time to recover or falls ill before rest.

It is worth considering that Article 423 of the Labor Code reflects the rule according to which acts adopted in Soviet times can be applied today. The main condition is that the documents do not contradict the current provisions of the law.

Article 18 of the Rules on regular and additional vacations, which were approved by the People's Commissariat of Labor of the USSR under No. 169, states that if unforeseen circumstances arise before the start of the vacation, then a new start date for the vacation can be set.

It will be necessary to reach an agreement on this issue with the company management. The labor law reflects similar provisions on the transfer of vacations. If sick leave is closed during a vacation that is not rescheduled due to lack of agreement with the company, the employee can use the powers established in the Labor Code. This means that the leave will be extended for the period during which the person was incapacitated. The transfer of rest to another period can be used.

On vacation for three, no - for four years!

Does an employee who has not taken a vacation for several years have the right to take all unused vacations in the current year?

Punishing an employer for violating labor laws does not cancel his obligation to provide the employee with the opportunity to use all accumulated vacations.

The employee retains the right to take unused annual leave for previous working periods (Letter of Rostrud dated March 1, 2007 N 473-6-0). Moreover, during a calendar year he can use several vacations for different working years (Letter of the Ministry of Finance of Russia dated May 13, 2010 N 03-03-06/4/55). For example , the employee was not on vacation in 2005 (28 calendar days), 2006 (28 calendar days) and 2008. (28 calendar days). This means that in 2013 he can immediately go on vacation for 112 calendar days (28 calendar days x 4 years).

Can I take it every month?

When vacations are divided, the rules reflected in labor law and international acts must not be violated. This includes the ILO Convention, adopted in 2011 under No. 132. It stipulates that the duration of one of the parts of the rest should be equal to two weeks.

Calendar days are taken into account. Labor legislation does not say whether rest can be divided into days. In theory, there is an opinion that the second part of the vacation can last for any number of days. This could be one or a couple of days.

This type of division does not contradict the laws. It is necessary to take into account the position of the organization's management on this matter. This is primarily due to the fact that calculating benefits in a short period of time is problematic. For employees, vacation for a short time cannot be regarded as a full rest. When dividing vacations into several parts, you need to understand how many days the company will provide in this period.

If a person has worked for less than 12 months in an organization, the duration of rest will be less than 28 days. It may be that a person has privileges regarding the provision of vacation; there are days of rest left from previous years. There are different options available for splitting vacations. All of them meet the requirements of labor law.

Rest time includes days that are working days and weekends. A person is given the opportunity to write an application for use of leave within a five-day period. When taking into account the days off that preceded or followed it, the rest lengthens.

In fact, it turns out that the person will rest for several days more than what is written in the application. This rule must be applied to all periods into which the vacation is divided. The method helps to increase the duration of vacation by several days throughout the year. Payments are calculated only when taking into account specific days of rest, not including weekends.

In what order should you take vacations?

As a rule, employees do not use accrued vacation immediately, but gradually. Let's look at the procedure for using vacations in past years.

First of all, vacation for the current year. So, in the current period, the employee must first of all use the vacation for the current year. This follows from the norm of Art. 122 of the Labor Code: “Paid leave must be provided to the employee annually.” But all other unused vacations can be taken off partially or completely by agreement with the employer in the sequence that they agree on.

For old vacations - any order. Rostrud in Letter dated 03/01/2007 N 473-6-0 explains that annual paid leave for previous working periods can be provided:

• or within the framework of the vacation schedule for the next calendar year;
• or by agreement between the employee and the employer at any time (without including these days in the current schedule).

Vacation after getting a job

The legislator says that a person uses vacation in the first year of employment. It is established that all employees can require time to rest, and sometimes the duration of work is not taken into account. You can take vacations every year. This right is granted to citizens with whom an employment agreement has been concluded. The parties to the labor relationship are entitled to independently determine the conditions regarding rest for employees.

Such agreements include contract agreements, paid services, etc. Vacation is expressed in the form of a continuous period of compensatory leave. Lasts for several days. The employee retains his workplace. In addition, payment must be retained.

The general rule stipulates that the first vacation can be used after six months from the date of employment with the company. The specific moment for granting rest is not specified by the legislator. It is provided that the employee is entitled to declare his right immediately after the end of the specified period.

A person writes a statement regarding the provision of time for rest at any time convenient for him. Provided that he worked for six months at the company. In a situation where an employee does not take rest, the employer is responsible for compensating for such a period.

Vacation “tails” in the vacation schedule

The order of provision of paid vacations this year is determined in accordance with the vacation schedule (Part 1 of Article 123 of the Labor Code of the Russian Federation).

For ease of accounting, vacations not used for previous working years should be included in the schedule for the next (current) year. The document is kept for only one year, so it is important that these holidays are not lost.

In some organizations, such leave is recorded as follows. When drawing up a schedule, an additional column is added to Form N T-7 (it can be called, for example, “Period for which vacation is granted”). It indicates all periods for which the employee has unused vacations. And opposite each period the number of calendar days is indicated.

If one of the employees with unused vacations decides to take two or more vacations in the next year, then two or more vacations should be planned for him in the schedule.

To avoid confusion, we recommend that in the vacation schedule, past periods for which vacation is granted in the current year are indicated in chronological order.

Compensation instead of unused vacations

Is it possible to replace unused vacations with payment of monetary compensation? The answer to this question depends on whether the employee is entitled to additional leave or not.

Let us recall that, for example, workers employed in hazardous industries, workers with irregular working hours, and employees working in the Far North (Part 1 of Article 116 of the Labor Code of the Russian Federation) have the right to such leaves.

Note. How to find out if an employee has used accrued vacation time

Information on unscheduled leave for past working years, as well as on planned leave for the current year, is reflected in section. VIII “Vacation” of the employee’s personal card (Form N T-2) or section. IX “Vacation” of the personal card of a state (municipal) employee (Form N T-2GS (MS)).

Several holidays in a row

116 of the Labor Code of the Russian Federation, clause 8 of the Instruction approved by the Resolution of the State Committee for Labor of the USSR, All-Union Central Council of Trade Unions dated November 21, 1975 N 273/P-20).

Note. The fact that the Instruction is subject to application is stated in the Ruling of the Supreme Court of the Russian Federation dated November 1, 2012 N APL-12-651.

Monetary compensation can only replace a part of each vacation exceeding 28 calendar days, or any number of days from this part (Part 2 of Article 126 of the Labor Code of the Russian Federation).

Note. If old vacations are planned in the current schedule

In order to reflect the fact of replacement in the vacation schedule, you need to make a note that part of the annual leave (indicating the number of days) was replaced by monetary compensation. You should also indicate the details of the order to replace vacation with compensation.

Example. Employee of CJSC RusInvest A.S. Linnik has an irregular working day. In this regard, he has the right to annual paid leave of 31 calendar days (28 calendar days of annual leave + 3 calendar days of additional leave) (Article 119 of the Labor Code of the Russian Federation). The employee has not been on vacation for three years. When planning vacations for 2013, he expressed a desire to take the entire vacation for 2008, and for 2009 and 2010. receive compensation. How many days of vacation can he be compensated for? And how to reflect the provision of vacations to him in the schedule?

Solution. By 2013, the employee had accumulated 93 days of unused vacation (31 calendar days x 3 years). But you can only receive compensation for days exceeding 28 calendar days of annual leave. At the request of the employee, he will be given 87 calendar days of vacation (31 calendar days + 28 calendar days + 28 calendar days) and paid compensation for 6 calendar days (3 calendar days x 2 years). See the graph fragment on the next page.

Sample

Unified form N T-7

———¬ ¦ Code ¦ +——-+ Form according to OKUD ¦0301020¦ CJSC “RusInvest” +——-+ ———————————————— according to OKPO ¦ ¦ name of the organization L ——— Opinion of the elected trade union body APPROVED by the general from “__” ________ 20__ N ___ taken into account director Head ————— position ———-T————T——¬ Raetsky P.S. Raetsky ¦ Number ¦ Date ¦ On ¦ ——- ——————- ¦document¦drawing up¦ year ¦ personal transcript of signature +———+————+——+ signature VACATOR SCHEDULE ¦ 5 ¦ 12/11/2012 ¦ 2013¦ L———+————+—— December 11, 12 “—” ——— 20—

Head of Department Head of HR Barsukov N.N. Barsukov service ———— ——— ——————— position personal transcript signature signature

By Sergey Mashkov / 2nd June, 2021 / Insurance Law / No Comments

When filling out the schedule, do not forget to consider the following points:

• You cannot make corrections to the document, or cross out what is written;
• any changes are made only after their approval by the employee’s immediate superior and receipt of a permit visa from the head of the company;
• if an employee postpones his vacation more than once, all information about this must be reflected in the schedule. (Also see “Carrying over vacation to next year.”).

Also see “How to properly make changes to your vacation schedule.”

If after 6 months of work they do not give vacation

Questions often arise as to how many days of rest a person who has been employed by a company for more than six months is entitled to. They are also interested in whether the management of the enterprise is obliged to provide vacations or is it their right. All citizens who have entered into an employment agreement need to know the answers to these questions. The law reflects the rules regarding the provision of vacations.

You can note Article 21 of the Labor Code. It states that all people have the right to personal rest. For this reason, the company management must provide vacation every year and pay for this period. The legislator gives employers the obligation to strictly follow the provisions of regulations. We are talking about the labor sphere. This also applies to other acts that include provisions on employee rest.

The legislator provides that when providing rest, the employee does not have to worry about his job. It remains with him while he rests. The average wage is subject to preservation. The legislator sets the total duration of rest at 28 days.

Based on the above, we can come to the conclusion that providing rest to an employee is the company’s responsibility, not a right. The employee needs to fill out a statement and send it to the manager. In the general situation, an employee gets the opportunity to take a break from work after he has worked for a six-month period. The company cannot refuse this.

How long after vacation can you take vacation? The answer is reflected in the law. The date of going on vacation is subject to agreement with the company management.

If the provisions of the law are violated, the person appeals the decision made by management in the proper manner. You must contact the competent authority.

Annual vacation is provided in calendar days according to the schedule, but can be extended or postponed to another time. Watch the video about this:

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Attention

Do not interfere with staff rest, plan annual rest for employees by drawing up a schedule for the next year. An employer whose employees do not rest for more than two years in a row may be fined, the amount of the fine can reach 50 thousand.

rub. In this case, the employee does not incur any losses, no punishments are provided for him, his unfilled vacation does not expire, and the right to compensation is retained for all days. How to calculate the number of allotted vacation days can be found in this article, where examples explain the procedure for determining the working year and the corresponding number of vacation days. Does unused vacation expire under the International Convention? Since the end of 2011, the Russian Federation has taken into account the provisions of the ILO convention, which, regarding paid vacations, states that the employee’s right to compensation for unused vacation days remains for 21 months.

After maternity leave

First of all, you need to know the concepts and not confuse them. The legislator has determined that regular vacations and time provided for child care are different periods. They are not interconnected with each other. Provision occurs at different times, payment is calculated according to different rules. You need to pay attention to how long the rest is. Speaking about vacations issued every year, the number ranges from 28 to 56 days. The duration of maternity leave ranges from 140 to 194 days. The legislator allocates from 1.5 to 3 years for child care.

Female employees are entitled to annual leave. They cannot limit themselves to this. This right arises six months after a woman is hired by the company. When on maternity leave, a woman automatically receives the right to another vacation.

The period she worked in the company is not taken into account. This suggests that after returning from maternity leave, a woman can use the rest she is entitled to. Provisions for compensation for such a period do not apply to persons returning from maternity leave.

To apply for leave, you need to fill out an application and send it to the company management. The document is written in any form. You can write an application for three years. During this period, the employee takes care of the children. The registration of the paper is carried out by the secretary.

The act is then sent to the finance department to calculate the payment. If a woman wants to use two vacations at once, she will need to write a couple of applications at the same time. From the moment you contact the accounting department, the law allows a ten-day period for calculating benefits. Payment occurs on the first salary after receipt of the application.

The payment is made on the day the employee begins to rest or some time before that. After returning from leave related to childcare, a woman has the right to use another leave. To do this you will need to write an application.

If the company's management commits violations in this area, it is held accountable. It is expressed in a penalty. Other types of punishment are also applicable. It is required to strictly follow the established procedure for providing rest.

After watching this video, you will find out whether an employee returning from maternity or child care leave can take another annual leave:

When does the main leave expire?

Is this acceptable? Will vacation not taken be forfeited? In 2017, vacation not taken, according to the labor code, does not expire. Vacation days are transferred to future periods; upon dismissal, the employer is obliged to pay monetary compensation for all unfilled vacation days.

The reason for working without a vacation break may be related to both the desire of the employee himself and the peculiarities of the organization of the labor process in the company. Many workers do not want to rest so as not to lose wages, intending to receive monetary compensation for vacation pay for all days not taken off.

Does unused vacation expire in 2017?

HR department employees are required to deal with these issues. If the enterprise is not large, then perhaps the accounting department deals with such things.

Info

The employee has the legal right to inform management of his intention. He can choose either to receive a cash payment or to rest for the prescribed period.

In this case, leave is granted upon request. Management's arguments about production necessity and indispensability are unjustified.

The reality is somewhat different from the “letter of the law”.

Rules for registering unused vacations

If desired, last year's vacation can be added to the current one. This conclusion follows from the provisions of Art. 124 Labor Code of the Russian Federation. In other words, if an employee has 10 calendar days left unused from last year, they transfer to the current year.

Important

Therefore, when going on vacation, an employee first takes last year’s part off, and only then the current one. In fact, it is not necessary to take vacation separately for the past and present periods.

In practice, rest days are usually provided at the same time. Situations where an employee has unused vacation for several years at once are unacceptable. It cannot be that the employee has 5 days of rest left for 2013, 2 days for 2014 and another 15 days for 2015. If such an error is detected, the HR specialist must make appropriate adjustments to the personal file and then assume that the employee did not use 22 days of vacation for 2015.

Rules

The legislator regulates rest time for employees in Chapter 19 of the Labor Code. Other acts of legal significance are also applicable in this situation.

The following documents are taken into account:

• different positions;
• delivery schedule;
• other local acts.

The general rule is that labor leave is granted once a year. That's why it got that name.

It continues for several days. The provisions are fixed in federal and local acts. Article 114 of the Labor Code talks about guarantees regarding the annual allocation of time for rest. Similar points are reflected in local documents and labor agreements.

Rules have been developed regarding the provision of rest to employees:

• requirements for minimum work experience in the company have been established;
• the sequence shown in the schedule must occur.

An employee must work for a six-month period before taking leave. This time includes illnesses, vacations related to child care, and time off. In the second situation, a boundary is established. A period of time not exceeding two weeks is taken into account. Days when a person did not work due to wrongful dismissal or suspension are taken into account when calculating vacation time.

When making a schedule, the company takes into account many subtleties. They relate to factors related to positions and areas of work of the company. It is worth taking into account the wishes of employees and their initiative. Regulatory documents reflect the rights of citizens to rest. All the subtleties that may arise are spelled out in detail. The main condition is not to contradict the labor law. The employee has the right to use vacation time in advance.

Non-vacation leave - subtleties of legislation on this matter

But reasonable questions arise - what happens to those vacations that the employee did not want or could not take before? If a person works for several years in a row in the same organization and in some years he did not go on vacation at all, and in others he used only part of it, then what will happen to the days he did not take off? If you can’t get monetary compensation for them, maybe you can take this vacation off this year, going on vacation for six months at once, and let the employer pay for it? This is also not possible. You need to take 28 calendar days off in the current year (by the way, the current year is not a calendar year that begins on January 1, but a year that begins from the date a person starts working); it will not be possible to transfer rest days to other years.

Does unused vacation from previous years expire - Labor Code of the Russian Federation

Vacation days accumulate. The question arises: will the accumulated vacation days burned out? Is it possible to receive monetary compensation for them or can you go on one long vacation of a duration equal to the total duration of all vacations not taken? Will unfilled vacation expire in 2021? The Labor Code does not change in this matter in 2021; the worker must still go on vacation every year. If this does not happen, then it is necessary to rely on Rostrud letter 1921-6, according to which an employee who has not rested for several years still has the right to all vacation days not taken.

Vacations have not expired before and will not expire in 2021 either. There are no changes in this matter. If an employee resigns, he must be paid monetary compensation for all vacation days not taken off.

People who are employed are often interested in the question of whether vacation time is lost or whether it can be used in the future. It is worth knowing the norms of the Labor Code in order to properly build relationships between a subordinate and a manager, including in matters of rest time.