Article 128 of the Labor Code of the Russian Federation. Leave without pay (current version)

Labor Code of the Russian Federation leave for family reasons

According to the Law, an employee can take leave at his own expense for family reasons at any time convenient for him. If an employee has a good reason for taking a mini-vacation, the employer does not have the right to refuse. If a refusal is nevertheless received or the employee is subject to disciplinary action for absenteeism, he can challenge it. A lawyer will tell you how to behave correctly in such a situation. Contact an experienced lawyer in your city. For example, specialists from Kazan are here:

Providing rest at your own expense, according to Article 128 of the Labor Code of the Russian Federation, is carried out in connection with:

• Happy wedding.
• Death of a relative.
• Illness of a family member.
• Training - the employer must provide in accordance with the provisions of Articles 173-174 of the Labor Code of the Russian Federation.
• The birth of a child.

In addition, the list of additional reasons also includes:

• Possibility of obtaining up to two weeks of leave for a single mother raising a disabled child.
• A military employee can receive a report for extraordinary leave.

Based on the materials of the Legislative Framework and the Labor Code, the initiative to take leave at one’s own expense for family reasons primarily comes from the employee. However, it is supported by consent from the manager, in accordance with Article 128 of the Labor Code of the Russian Federation.

Who can take vacation at their own expense

By law, any employee can request such leave if family circumstances require it or he has other valid reasons. Which factors are considered valid is not regulated by law, so management decides for itself whether to approve the request or not.

Letting you go without pay for a period of time is the right, not the obligation of the employer.

That is, there are no guarantees. True, there are categories of workers who cannot be refused. For them, the law also defines the maximum period for which they are guaranteed to be allowed to take vacation at their own expense. This:

• participants of the Great Patriotic War and other combat Federal Law of January 12, 1995 No. 5‑FZ Actions - up to 35 days a year;
• working age pensioners - up to 14 days;
• parents and spouses of military personnel, police officers, firefighters, customs officers, bailiffs and other similar employees, as well as those who died during or as a result of military service - up to 14 days;
• working disabled people - up to 60 days;
• any employees in the event of the birth of a child, marriage registration, death of close relatives - up to five days;
• working part-time, Article 286 of the Labor Code of the Russian Federation - for the duration of vacation at their main job, if it is longer there;
• spouses Federal Law of May 27, 1998 No. 76-FZ of military personnel - for the period of leave of the husband or wife;
• working students or applicants - from 10 Labor Code of the Russian Federation, article 174 days to four Labor Code of the Russian Federation, article 173 months, depending on the educational institution and stage of study;
• proxies of political parties and candidates in elections to the State Duma Federal Law dated February 22, 2014 No. 20-FZ and other elections Federal Law dated June 12, 2002 No. 67-FZ - for the duration of the exercise of powers related to politics;
• disabled war veterans - up to 60 Federal Law of January 12, 1995 No. 5-FZ days;
• Heroes of Socialist Labor, Labor of the Russian Federation and full holders of the Order of Labor Glory - up to three Federal Law of January 9, 1997 No. 5-FZ weeks;
• Heroes of the USSR, the Russian Federation and full holders of the Order of Glory - up to three Law of the Russian Federation of January 15, 1993 No. 4301-I weeks.

To whom is the employer obliged to provide vacation at his own expense?

The employer must provide rest at his own expense:

• WWII veterans.
• Military spouses.
• Civil servants up to one year.
• Pensioners who work.
• For disabled people, duration - up to two months.
• Part-time workers.

These categories of persons are provided with extraordinary leave at their own expense without a decisive response from the employer. The manager must immediately sign documents authorizing the ward to go on a mini-vacation. An employee, based on certified documentation, can add vacation to annual leave or use part of the vacation pay or all of it. If an employee changes his mind about going on vacation for personal reasons, the issued extraordinary vacation pay cannot be transferred to the next year.

Unpaid leave at the initiative of the employer

Often, a situation may occur at an enterprise when, due to some reasons (financial difficulties, organizational, economic crisis, etc.), the employer is forced to ask employees to write an application for leave without pay. Sometimes the duration of such rest can be significant. The result of such a decision can be significant savings for the company without losing a valuable employee.

The financial insolvency of an enterprise is not a justification for sending staff on unpaid leave, since the legislation does not consider the concept of “forced time off”. The situation that has developed in the company is a business risk and should not affect the staff in any way.

Forcing employees to take unpaid leave by an employer is a violation of labor legislation and is punishable by an administrative fine (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Employees to whom these measures are applied have the right to complain to control and supervisory authorities. And if the results of inspections reveal a violation of personnel rights, the employer will have to pay the following fines:

• 1-5 thousand rubles – for officials;
• 1-5 thousand rubles – for individual entrepreneurs;
• 30-50 thousand rubles – for legal entities.

However, the employer has the right to stipulate in the employment contract other situations that are not provided for in the law, but do not contradict it, in which employees will be provided with unpaid leave at the initiative of the employer. For example:

• for an employee with two or more children under 14 years of age;
• for an employee whose working conditions are unfavorable or dangerous;
• for a single mother or father raising a minor child.

If a situation arises in production where, through no fault of their own, personnel are sent on downtime, the company is obliged to pay everyone 2/3 of their salary monthly during the entire period of downtime.

How to take leave at your own expense for family reasons?

Registration by the employee of rest at his own expense is done on the basis of an application. The document states how much vacation pay is needed and the basis for taking the vacation. Most often, the reason is not described in detail, but is simply stated: due to family circumstances. You must also provide a supporting document with your application.

Based on the application, the employer issues an order as evidence of agreement to allow the ward to take additional leave.

Application for family leave - sample

Leave at your own expense must include a properly completed application. To avoid problems filling out the document, you can ask for a sample from the accounting department. It is worth noting that filling out documentation is done only in writing.

An example of a correctly completed application includes:

• In the upper right corner you need to indicate: full name of the manager, your data, full name of the organization.
• In the middle of the document, with the words: “Please,” you need to describe the reason for filing the application and indicate the number of days of vacation pay.
• The date and signature are placed at the bottom.

Sample order for leave without pay for family reasons

The order will establish the legalization of the employee’s absence from the place of work. The order is filled out in form T-6, taking into account:

• Information about the organization, information about the employer is indicated. You must write the serial number of the document.
• The essence of the document: the reasons and duration of the vacation.
• Dates and signatures.

The order is valid only after it has been reviewed and signed by the employee. The order must be provided to the employee no later than 14 days before the start of vacation pay.

How to apply for leave at your own expense

In general, an application for unpaid leave is quite close in text to a similar application for annual paid leave. Only here you still have to indicate the reasons, so the contents of the document will be something like this:

I ask you to grant me leave without pay for 10 days from February 5 due to the need to organize my grandmother’s move from Vladivostok to Moscow.

If you belong to a preferential category, the reason may not be specified. But the application must be accompanied by an original or a copy of a document according to which the employer is obliged to let you go. For example:

I ask you to grant me leave without pay for 10 days from February 5 as a working disabled person. I am attaching a certificate of disability.

If you have papers that do not impose obligations on the employer, but can help management make a decision in your favor, then it is also better to demonstrate them. For example, this could be an invitation to a specialized conference where you have long dreamed of going.

Can they be denied leave at their own expense for family reasons - what to do?

Each employee has the right to take additional leave at his own expense. The employer does not have the right to refuse to provide vacation pay without good reason. The only reason why a manager can refuse is the liquidation of the enterprise. It is worth paying attention to whether the employee is included in the list of persons who, according to the Law, under any circumstances, must submit vacation pay at their own expense.

If the employer refuses, the employee may apply to a judicial institution until the matter is clarified. For violating the procedure for issuing extraordinary vacation pay, the manager faces administrative liability for failure to fulfill official duties to the ward.

What else you need to know about leave without pay

Holidays do not increase the number of days of unpaid leave. This rule applies only to annual paid vacations (Article 120 of the Labor Code of the Russian Federation).

Thus, leave without pay can begin on any day, even on a holiday.

If an employee falls ill during unpaid leave, he will not be entitled to benefits. This follows from Part 1 of Art. 9 of the Federal Law of December 29, 2006 No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity.”

Also, the rule on extending leave for periods of illness will not apply.

During leave without pay, the employee cannot be dismissed at the initiative of the employer, with the exception of the liquidation of the organization (Part 6 of Article 81 of the Labor Code of the Russian Federation).

The length of service for annual paid leave includes only 14 days of leave without pay (Part 1 of Article 121 of the Labor Code of the Russian Federation).

Days of unpaid leave in excess of 14 in a calendar year shift the working year by the corresponding number of days.

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Attention!

Due to recent changes in legislation, the legal information in this article may be out of date! Our lawyer can advise you free of charge - write your question in the form below.

Grounds for granting leave

Taking leave at one's own expense is recognized as the legal right of any employee. However, the latter will need to prove the need for such time off by stating the reason. Moreover, it must be respectful. There is an explanation regarding this point in the Labor Code. Article 128 spells out comprehensive reasons for using leave without saving earnings.

Rest days are provided in the following situations:

• birth of a child;
• marriage registration;
• death of a family member or close relative.

Important! If these circumstances exist, the employer does not have the right to refuse the employee’s request. Such actions will be considered a violation of the Labor Code of the Russian Federation.

In addition, unpaid leave is granted to certain categories of citizens whose status is recognized as special. Such persons have fixed labor privileges and cannot be denied time off without paying them. Such actions are also regarded as non-compliance with the provisions of the Labor Code and disregard for the rights of workers.

We are talking about employees of the following categories:

• WWII participants;
• persons who have reached retirement age but continue their professional activities;
• disabled workers;
• immediate relatives (parents, spouses) of military personnel, as well as employees of the internal affairs department, fire service, customs, and employees of criminal enforcement agencies who died due to injury, concussion or illness related to the performance of duties.

In addition to the main cases, leave at your own expense can be assigned for other reasons, if their list is contained in the collective agreement. The norm applies to employees caring for children. The basis is Art. 263 Labor Code of the Russian Federation.

The right can be used by:

• employees raising 2 or more children whose age does not exceed 14 years;
• parents of minor children with disabilities;
• persons raising children without a second parent, but provided that the child’s age is not more than 14 years.

Expert commentary

Shadrin Alexey

Lawyer

If we are talking about citizens with many children, then the provision of unpaid leave is carried out solely at the discretion of the employer. Moreover, the latter has the right to establish various local privileges regarding this category of employees. When introducing additional conditions into the regulations of an enterprise, the opinion of a representative of the trade union body is always taken into account.

Another category entitled to leave without pay are persons combining study and work. The procedure for assigning time off is regulated by Chapter 26 of the Labor Code of the Russian Federation.

In general, employers do not refuse to provide unpaid time off even if the reason does not relate to the grounds outlined above. For example, this could be some serious family problems or other arguments. Usually it is enough to voice your desire to your manager. In the event that the work process does not stop due to the absence of an employee, the request will be approved.

However, one should not forget about the limitations. If the reason is not included in the list of legitimate reasons for taking leave at your own expense, then management may refuse. Such actions would be completely legal.