Do I need to deduct unpaid vacation days when calculating the period for compensation for unused vacation?

basic information

Each employee can ask his employer for a short break from work. In order to take leave without saving income, the employee must explain to the boss the reason for his decision and write a statement. It is best to notify your manager about your absence, although there are emergency situations.

The employer can either agree or refuse the employee’s request. However, there is a category of persons whom the boss has no right to refuse. These are pensioners, WWII participants and disabled people. The duration of rest from work is determined by law. By agreement with management, the period is assigned individually.

Rights of working citizens

The legislation specifies a category of citizens who have the right to receive additional exemption from work for a good reason. These include:

• Members of a family that has recently welcomed a child.
• Participants of the Second World War.
• Disabled people.
• Working pensioners.
• Employees who have children or spouses of military personnel who become ill, injured, or die while on duty.
• Employees in whose families a relative has died or a wedding ceremony is taking place.
• University students have the right to administrative leave during the session.
• Mothers who have a child under 14 years of age and are raising him alone.

According to the law, the list can be expanded, and the necessary additions must be specified in collective agreements. Other categories of employees can count on additional exemption with the consent of the employer. The boss himself decides whether the reason for absence is sufficiently valid. Such circumstances may include: family difficulties, urgent departure, visiting a doctor.

It is worth noting that management does not have the right to force employees to take unpaid leave due to a decrease in work volume or production needs. However, this option is, of course, possible if there is mutual agreement between the parties.

In addition, an employer cannot refuse an unpaid vacation period to citizens who work part-time. If an employee has another place of work and in one company his paid leave is shorter than the duration of rest in the main organization, by law the employee has the right to receive compulsory time off without pay. In this case, the employee must write a statement. The holiday period must be such as to equalize both annual holidays.

Agreement of the parties

Providing unpaid time off is a right, not an obligation of the boss (unless we are talking about a certain category of citizens).
In other cases, the employee must prove that he has a valid reason for absence. These may include any urgent social needs (departure, treatment, etc.) or any emergency negative events. In a statement to the employer, the employee indicates for what reason he needs to be released from work. The manager reserves the right to make decisions. In this case, the information provided by the employee should not be disclosed to third parties. After the boss makes a decision, an order is issued to provide rest to the employee. According to the law, the following categories of citizens must be released upon first request:

• Heroes of labor.
• Persons who are currently participating in the election process at any level.
• Citizens who are proxies of the candidate taking part in the referendum.
• Spouses of military personnel whose vacation period does not coincide in duration with the rest of the wife or husband.
• Heroes of the USSR, Russian Federation.

The listed categories of citizens must also write an application for paid time off from work. However, they must indicate their status in their application, which will be considered as a valid reason.

When leave without pay is granted under the Labor Code of the Russian Federation

Leave without pay within the meaning of Art. 128 of the Labor Code of the Russian Federation is provided primarily in connection with the personal circumstances of the employee. Leave must be given in the following cases:

• birth of children;
• marriages;
• death of loved ones.

As for the employee’s other personal situations, the employer can give him leave himself if he deems it necessary.

In addition, the Labor Code of the Russian Federation provides for additional free time:

• for disabled workers;
• working pensioners;
• veterans.

Is it possible to send an employee on vacation at his own expense during non-working days declared by the president in connection with the spread of coronavirus infection, ConsultantPlus experts explained:

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Calculation and possible nuances

Employees should be aware of the impact of personal leave on separation compensation.
Today, not all personnel officers even think about this issue, since they rely on specialized computer programs in which records are kept. However, automation often fails, so knowledge of the theoretical basis will never be superfluous. In 121 art. The Labor Code states that 14 days of unpaid leave are not excluded from the length of service that must be calculated upon dismissal. Accordingly, everything greater than this number is excluded from the length of service. The duration of unpaid rest is taken into account separately for each working year. It is important to remember that when calculating, it is the working year that should be considered, and not the calendar year.

Example calculation

To determine whether personal leave is included in vacation compensation, we can look at an illustrative example.
Let's say a specialist was employed on January 12, which means his 1 month of work lasted until February 11, the next - from February 12 to March 11, etc. Only days of rest at his own expense for more than 14 days are excluded from this period. The employee used 30 days of unpaid leave, so 16 days (30−14) should be subtracted from his length of service. As a result, the specialist’s experience is 8 months and 8 days (24−16). Next, rounding is used. According to the law, the number of days less than 15 is discarded, and the number over 15 is rounded up to 1 month. Therefore, the employee is entitled to compensation for 8 months. The management must pay it in 18.67 days (28 days divided by 12 months and multiplied by 8 months).

Guarantees for employees

In addition to the question of whether unpaid leave is included in the calculation of separation compensation, employees are often interested in their guarantees during this period. The legislation guarantees every employed citizen protection of rights during his unpaid absence from the workplace. It is important to remember that:

• An employer does not have the right to remove an employee from his position while he is on unpaid days off.
• Also, management cannot transfer an employee to another facility within the organization during his absence. You need to wait until the employee returns to his workplace, and then inform him of further changes.

If a person gets sick while on leave at his own expense and has sick leave, management may not pay the due compensation. The reason for this is that benefits cannot be assigned while the employee is not working.

If the employee went on vacation and during this period she began maternity leave, all due payments must be made. In such a situation, unpaid leave immediately stops. If its manager refuses to make payments required by law, the employee has the right to complain to the labor inspectorate, and then to the prosecutor’s office. An inspection will be carried out, as a result of which the employer may be subject to administrative punishment.

Important information

There are certain points that are very important to consider after an employee has reached an agreement with his superiors and goes on a weekend without accrual of payments. Please remember that:

• You must take a document for time off at your own expense, filled out according to the template. If there is none, the manager may be held liable if the employee proves that he was forced to take days off without personal consent.
• The employer does not have the right to demand from the employee any papers indicating that he has a valid reason for taking time off. The employee can only provide them on his own initiative.
• The total duration of time off may be divided into several parts and they do not necessarily have to be of equal duration. In this case, you will need to carry out the entire registration procedure each time.
• Nowhere in the law does it indicate that the unpaid vacation period must be tied specifically to the year worked. But this type of vacation cannot be transferred to the next year. If for some reason an employee does not take advantage of the rest time without saving income, he loses this right in a particular working year.

Calculating compensation for unpaid time off is not difficult. It is also worth remembering that the total length of service in the company cannot include the time when the employee did not work. Vacation without payment cannot be included in the working period for which a pension is assigned.

Vacation at your own expense affects paid vacation, average salary and insurance coverage

If the unpaid leave is 14 days or more, then the next paid leave is granted at normal times. But if an employee takes it for more than 14 days, then all the time in excess the period of the next vacation is postponed by the number of days by which the period established by law has been exceeded.
For example, if it was 21 days, and the new vacation period was supposed to start on 02/15/2017, then it will start 7 days later, that is, 02/22/2017. Also, time off at your own expense is not taken into account when calculating the average salary, for example, when issuing 2-NDFL certificates, and is not included in the insurance period, which is considered for retirement. Rate the quality of the article. Your opinion is important to us:

Sample application for leave by agreement with the employer

Example

Employee Kovaleva I.K. is the mother of three school-age children. The enterprise's collective agreement provides for unpaid leave for up to 14 days for employees raising 2 or more children under 14 years of age (Article 263 of the Labor Code of the Russian Federation). According to the schedule, Kovaleva goes on her main vacation from 08/01/2020 to 08/28/2020 and wants to add 5 days to it at her own expense to prepare her children for school.

STATEMENT

I ask you to grant me additional leave without pay from 08/29/2020 to 09/02/2020 in connection with the preparation for school of children born in 2004, 2007 and 2009 (based on clause 10.12 of the collective agreement)

What payments are included in average earnings when calculating vacation?

In accordance with paragraph 2 of Resolution No. 922 and part 2 of Art. 139 of the Labor Code of the Russian Federation, the average earnings for calculating vacation pay include all payments that are provided for by the company’s remuneration system for the billing period.

If during the billing period the employee did not have wages or working days, then the average earnings are calculated for the 12 months that preceded the billing period. This situation may arise, for example, if the employee was on maternity or child care leave.

To calculate vacation pay 2021, you can use a note-calculation about granting vacation to the employee. This form combines both the vacation order and the calculation itself. The form of this calculation note can be downloaded for free here:

NOTE-CALCULATION ON PROVIDING LEAVE TO AN EMPLOYEE

The form of the order for the provision of leave or its calculation is not approved . The company has the right to develop it independently . Also, no one prohibits the use of unified forms.

In any case, the forms of accepted documents must be approved by order and included in the accounting policy.

The accountant calculates vacation days after signing the vacation order.

You can read about the preparation of this order in our article “Sample order for vacation in 2021.”

An employee can go on vacation according to the planned vacation schedule or in agreement with management.

For information about the schedule, see the article “How to draw up and approve a vacation schedule for 2020 ” (relevant in 2021).