When vacation pay is paid: deadlines for paying vacation pay by law

When should vacation pay be paid in 2021, taking into account the latest changes? Are calendar or working days taken into account? Let us explain taking into account the latest clarifications of Rostrud for 2021.

Pay for your vacation no later than three days before it starts. At the same time, the Labor Code does not prohibit paying vacation pay earlier (Part 9 of Article 136 of the Labor Code).

• The payment period for vacation pay is at least three calendar days before the start of the vacation . Look at the vacation start date in the vacation schedule or in the employee’s application. For example, an employee who goes on vacation on Monday must be paid vacation pay on Thursday. If the payment day falls on a weekend or holiday, issue vacation pay the day before (Letter of the Ministry of Labor dated September 5, 2018 No. 14-1/OOG-7157).
• Vacation pay can be issued along with your salary. The main thing is not to miss the payment deadlines. For example, the salary payment deadline is October 5. An employee who goes on vacation on October 6 must be paid vacation pay on October 2 and can transfer his salary. An employee who goes on vacation on October 9 can be given both salary and vacation pay on October 5.

Explanation on the Rostrud website

Rostrud on its website clarified the time frame for payment of an employee’s vacation: three calendar or working days before it starts.

According to the norms of Article 136 of the Labor Code of the Russian Federation, payment for vacation is made no later than three days before its start. This article does not define which days are taken into account in the calculation - calendar or working days.

Rostrud experts clarify that the deadlines for paying vacation are calculated in calendar days . Indeed, according to Article 14 of the Labor Code of the Russian Federation, the duration of the employment relationship is bound by calendar weeks or days.

This means that payment for an employee’s vacation is made at least three calendar days before the start of this vacation.

And if the day of payment of vacation pay coincides with a day off or a non-working holiday, payment for vacation is made on the eve of this day (Article 136 of the Labor Code of the Russian Federation).

The deadline for paying personal income tax on vacation pay is no later than the last day of the month in which vacation pay is paid, and if it is a day off, on the first working day of the next month (Letter of the Ministry of Finance dated January 17, 2017 No. 03-04-06/1618).

The main nuance of the timing of vacation pay in 2021 is how to count three days before it starts

Indeed, three days can be understood in different ways. This can be three calendar or three working days. The difference is sometimes very significant. If, for example, the vacation begins on January 10, then this is only the second working day of the year, and then payment should occur almost two calendar weeks before the start of the vacation, back in December.

But even in a normal situation, the period can increase to five calendar days, if we understand the norm of the labor code as three calendar days.

In fact, of course, we are talking about three calendar days, and this is how accounting departments always interpret it when paying vacation pay. However, even here there is not always a correct understanding of how to count these three days.

Most often, when paying vacation pay in Russia (provided that they are paid correctly at all, before the employee goes on vacation), accountants or heads of organizations are guided by the fact that the first day of vacation must be included in the three-day period before the start of the vacation.

For example, if an employee goes on vacation on August 10, then vacation pay is paid on August 7. Another common practice is for an employee to go on vacation on Monday, and then vacation pay is paid on the previous Friday.

Rostrud even gave approximately the same explanations, but in 2021 it finally became clear that such practices violate labor laws.

Violation of deadlines for payment of vacation pay in 2021

Failure to comply with the deadline for paying for the next vacation in 2021 may result in fines under the Code of Administrative Offenses of the Russian Federation. So, paragraph 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation provides for:

• for legal entities – from 30,000 to 50,000 rubles;
• for officials (for example, personnel officer, accountant, company director) - from 1000 to 5000 rubles;
• for individual entrepreneurs – from 1000 to 5000 rubles.

However, in the event of a single violation detected for the first time, the inspector, as a rule, confines himself to a warning. If non-compliance with labor legislation is systematic, and the company has already been given administrative responsibility, repeated sanctions by the State Labor Inspectorate are tightened, and fines increase significantly:

• for companies – from 50,000 to 70,000 rubles;
• for officials – from 10,000 to 20,000 rubles. or disqualification for a period of 1 to 3 years;
• for individual entrepreneurs – from 10,000 to 20,000 rubles.

An employee who has not been paid vacation pay on time may request to postpone the annual leave to another time (part 2 of article 124 of the Labor Code, paragraph 2 of the Constitutional Court ruling dated June 23, 2005 No. 230-O).

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05.12.2018

When should vacation pay be paid in 2021, taking into account the latest changes?

On January 23, 2021, the Perm Regional Court established the correct interpretation of Art. 136 of the Labor Code regarding the timing of vacation pay. Between the day the vacation starts and the day it is paid, 3 full calendar days must pass. If the vacation begins on Monday, then paying it on the Friday preceding it will constitute a delay in the payment of vacation pay, and a fine should be imposed on the organization.

This was the essence of the case considered by the Perm court at the beginning of 2018. The organization challenged the fine from regulatory authorities regarding the timing of payment of vacation pay. The employee’s vacation pay was paid in accordance with the usual understanding of the wording “3 days before,” which became a violation.

In addition, the organization additionally indicated that the agreement with employees specified a different period for payment of vacation pay. The court declared this part of the agreement illegal, since the company’s internal documents cannot violate the Labor Code.

Therefore, if an employee goes on vacation on Monday, he must be paid vacation pay no later than last Thursday. If the start date of the vacation is July 10, vacation pay should be paid no later than the 6th.

In general, if we keep in mind the everyday understanding of deadlines, vacation pay should be paid 4 days before the start of the vacation. There should be 3 full days between the date of payment and the 1st vacation day, since this is how the court now interprets it.

Calculation period for vacation pay

An employee gains the right to paid leave after 6 months of continuous work with one employer. After 12 months of work, he can take a full 28 days leave. It is the 12 previous months before the start month of the vacation that form the calculation period for accruing vacation pay to the employee.

The period giving the right to annual leave does not include the time when the employee (Article 121 of the Labor Code of the Russian Federation):

• was on maternity leave,
• was absent from work without a valid reason.

When determining the billing period, you should take into account how fully it has been worked out. An incompletely worked period affects the calculation procedure and the amount of vacation pay.

Types and conditions of provision

Rest is the right of citizens, enshrined in the Constitution of the Russian Federation (Part 5, Article 37). To implement it, the Labor Code of the Russian Federation introduced the concept of “vacation”, established its possible options, duration and rules by which it is provided (Chapter 19). At the same time, the maximum limits of rest are not specified. This means that organizations have the right to increase the number of days or establish additional vacation days. In order to introduce these rules, they need to be written down and approved in internal regulations, for example, in a collective agreement, agreements, PVTR, and for certain categories of employees they can be reflected in an employment contract. At the same time, we remember that local acts cannot worsen the conditions established by law. Let's figure out how vacation is calculated. In the article we will not consider all its types, but will talk only about annual paid ones (Article 114 of the Labor Code of the Russian Federation). These include:

• basic. Relies on all employees signed under an employment contract (this includes part-time workers, part-time workers, etc.), and is not subject to reduction;

Paid vacation is provided annually. A new employee has the right to use it if he has worked in the organization for six months. It is possible to go on vacation earlier than the specified period only with agreement with the employer. However, in Art. 122 of the Labor Code of the Russian Federation identifies cases in which, upon their application, employees must be provided with legal rest earlier than six months. For example:

• for women - before maternity leave or immediately after it;
• employees under the age of 18;
• employees who adopted a child (children) under the age of three months;
• in other cases provided for by federal laws.

All subsequent ones, starting from the second year of work, are provided at any time, in accordance with the sequence approved in the schedule. All this is important to remember before planning your vacation.

Use the free calculator if you need to calculate how much to pay an employee for a non-vacation period.

The vacation application was submitted less than 3 days before the expected vacation date

Most likely, such leave will not be issued: the employer will not have time to make calculations and pay vacation pay.

Although the Labor Code of the Russian Federation does not regulate the time for submitting an application for vacation, given that vacation pay must be paid 3 days before its start, the application must be submitted at least 4 days in advance. Otherwise, the employer simply will not have enough time to complete the registration and payment within the period established by law.

It is worth noting that in most cases it is not necessary to apply for annual paid leave. The fact is that enterprises draw up a vacation schedule, of which the employee is notified in advance, against signature.

When the deadline established by the schedule approaches, the director issues an order to grant vacation, and the accounting department calculates vacation pay based on it. The employee, having read the order, puts his signature on it as a sign of consent.

If an employee requires paid leave, but not at the time established by the vacation schedule, he must write an application at least 4-14 days before the expected date of departure.

Watch the video below about the timing of vacation pay:

Article 122 of the Labor Code of the Russian Federation. Procedure for granting annual paid leave

New edition of Art. 122 Labor Code of the Russian Federation

Paid leave must be provided to the employee annually.

The right to use vacation for the first year of work arises for the employee after six months of continuous work with this employer. By agreement of the parties, paid leave may be granted to the employee before the expiration of six months.

Before the expiration of six months of continuous work, paid leave at the request of the employee must be granted:

for women - before maternity leave or immediately after it;

employees under eighteen years of age;

employees who have adopted a child (children) under the age of three months;

in other cases provided for by federal laws.

Expert opinion

Polyakov Pyotr Borisovich

Lawyer with 6 years of experience. Specialization: civil law. More than 3 years of experience in drafting contracts.

Leave for the second and subsequent years of work can be granted at any time of the working year in accordance with the order of provision of annual paid leave established by a given employer.

Extended vacation

The Government of the Russian Federation has approved extended vacations for special persons and professions. These categories include:

• teaching staff with a vacation period of 42 days, and for higher educational institutions up to 56 days;
• medical workers have two weeks in addition to vacation, and for some categories of specialists from 42 to 56 days;
• for civil servants, vacation is 30 days with an increase in length of service from 5 to 10 years by 5 days, and from 10 to 15 years by 7 days, over 15 years by 10 days;
• for working minors, leave is assigned for at least 31 days;
• for working disabled people at least 30 days;
• for those working in working conditions that are recognized as particularly dangerous, an additional 7 days of vacation are provided;
• Leave may be increased according to industry norms or by collective agreement.

Calculation of the amount of vacation pay

Changes have been made to the calculation of paid leave provided for under the Labor Code of the Russian Federation in 2021. This is caused by innovations in the procedure for calculating average earnings.

To calculate vacation pay, a period of 12 months before the start of calculation is taken as a basis, and in 2021 it will consist of the employee’s earnings for 2021 plus 2021.

The minimum wage has been increased since 2021 and is equal to the minimum wage, a specific amount established by law and cannot be lower. This means that in 2021 the amount of vacation pay will increase equivalent to the minimum wage.

A number of other factors also influence the amount of vacation pay:

• established norms of additional days for calculating the total duration of vacation;
• the employee’s average monthly earnings for the entire vacation period;
• inclusion in the calculation of all remunerations that make up the total salary, including bonuses, allowances and other cash payments.

Vacation registration

The document also introduces other rules regarding vacation:

• the effect of restrictive measures and non-working days is not a reason to extend the vacation that fell during this period;
• part of the unused vacation or all of the vacation during the fight against the pandemic can be postponed to another period, but only by mutual agreement of the parties;
• quarantine sick leave is not a basis for extending or rescheduling vacation;
• employees during the period of restrictive measures, if they are subject to them, may be granted leave by agreement with the administration.

These rules are fully consistent with the previously given explanations of the Ministry of Labor regarding the non-working period.

1. Features of the procedure for calculating vacation pay
2. Extended vacation
3. Calculation of the amount of vacation pay
4. Calculation of average monthly salary
5. Days not included in vacation
6. Deadlines for payment of vacation pay in 2021
7. Delay in payment of vacation pay
8. Vacation scheduling
9. Inclusion of workers in preferential categories into the schedule
10. Conclusion

Citizens of the Russian Federation, according to labor legislation (Labor Code of the Russian Federation), are entitled to paid leave, accrued to employees in advance. In 2021, the Government of the Russian Federation introduced changes to vacation pay to ensure vacation pay in a new way.

• The innovations regulate the timing of accrual and payment of vacation pay to employees in organizations with any form of ownership. Every employee has the right to know how vacation payments are calculated and when they must be issued to employees according to the law.

Actions when calculating vacation money

In order to officially formalize the provision of leave to an employee of an enterprise, the employer must comply with all legal rules.

According to Article 123 of the Labor Code of Russia, the enterprise, no less than 2 weeks before the new calendar year, must draw up and approve a vacation schedule regulating each employee's annual paid vacation.

Two weeks before the start date of the vacation, the employer must notify the employee about this by providing him with a written notice against signature.

Next, three days or earlier before the vacation period, a corresponding order must be issued to grant the employee vacation and a calculation note must be drawn up in the T-60 form, which contains the calculation of vacation funds.

When calculating funds, the number of months actually worked (if the employee worked at the company for less than a year) and the actual total salary for this time or the annual amount of salary for the last 12 months worked are used.

Next, the average daily earnings are calculated by dividing the resulting amount by 12 (the number of months worked), and then by 29.3 (the average number of days in a month).

The resulting number is multiplied by the total number of vacation days , after which income tax is subtracted from it. The total amount is equal to the amount of vacation funds required to be issued to the employee.

The calculation may also take into account: a bonus for a specific month of work, unpaid wages, material compensation, temporary disability payments (if the employee was on sick leave before going on vacation) and other monetary payments in accordance with the current legislation of Russia.

Based on the calculations made, funds are paid to the employee going on annual paid leave.

Days not included in vacation

The vacation period does not include periods when the employee did not work but received the average salary required by law. The following are excluded from the calculation of the total number of days of rest:

• calendar leave, as well as maternity leave, child care leave confirmed by documents;
• sick days in the presence of certificates of incapacity for work for a specific period;
• time spent on a business trip by order of the organization;
• time when the employee did not perform job duties for reasons beyond his control.

Important! Holidays that coincide with vacation are not included in its total duration and are not included in the accrual of vacation payments.

When to take a vacation?

An employee has the right to use vacation after six months of working at the enterprise from the date of employment. He can take it in parts, provided that one part is at least 14 days according to the calendar.

The vacation period includes all weekend calendar days falling within it. The exception is holidays, so the number of these days falling on vacation is extended.

Rest is provided to employees in accordance with the established annual leave schedule. It is compiled on the eve of the coming year and approved by the organization’s management.

At the same time, the time allocated for rest for each employee is agreed upon with him under signature. Based on Part.

3 tbsp. 123 of the Labor Code of the Russian Federation, notifying employees of the start date of the vacation period according to the schedule is the responsibility of the enterprise management.

Features of the procedure for calculating vacation pay

A working person has a legal right to leave in the form of a well-deserved rest. It is enough to work in an organization for six months and, upon personal application, receive vacation pay for the period worked in the amount of up to 14 days.

In this case, it is assumed that 1 month of work is equal to 2.33 days of vacation. After one year of continuous work experience at the enterprise, it is not necessary to wait six months to be granted leave.

Important! Vacation pay is an employee’s salary in an equivalent amount to ensure the time of rest free from main work determined by law.

According to Art. 115 of the Labor Code of the Russian Federation, an employee is entitled to leave of 28 days during one year of work, excluding holidays and non-working days. The vacation period can be divided into parts, but provided that the duration of one of them is at least 14 calendar days.

Expert opinion

Zakharov Nikita Evgenievich

Practicing lawyer with 7 years of experience. Specialization: family law. Member of the Bar Association.

In the event of dismissal, the employee is calculated monetary compensation for unused vacation or part of it, and he can also postpone the scheduled vacation no more than 2 times in a row.

• Vacation may not be used in the current year, but accumulated, but not more than 2 years. Organizations that do not comply with the holiday regime are subject to an administrative fine in accordance with Art. 5.27 Code of Administrative Offences. An employee does not have the right to refuse leave unilaterally, only by mutual agreement with management due to business needs.