Is it possible to take leave after sick leave later than required according to the vacation schedule?
The possibility of extending or postponing paid leave is provided for in paragraph 1 of Art. 124 Labor Code of the Russian Federation. In this case, whether the end date of the vacation will be changed or the short-term vacation will be transferred to another period is determined by agreement between the employee and the employer. But general cases are described in quite ancient, but still valid Rules on regular and additional leaves, which were approved by the People's Commissariat of Labor of the USSR on April 30, 1930 No. 169 and are as follows (clause 18):
- if the employee falls ill before the start of the vacation, then a new rest period is determined by agreement of the parties;
- if the start of sick leave falls during a period when the employee was already on vacation, then the end date of the vacation is automatically postponed to the number of days for which the certificate of incapacity for work was issued.
Important! If an employee falls ill during the period of time off, which he was granted for working on weekends, then the employer is not obliged to postpone the rest period to another time.
We recommend rescheduling vacation days that fall during the period of self-isolation declared by the President of the Russian Federation in connection with the spread of coronavirus infection, as well as quarantine measures for people over 65 years of age and for those returning from abroad, to another date in agreement with the employee.
ConsultantPlus experts explained the procedure for postponing such leave:
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General provisions
Article 114 of the Labor Code of the Russian Federation Training (unpaid) assigns each employee the right to leave. At the same time, the employee retains his job and salary. Its minimum duration is 28 calendar days. Depending on working conditions and social category, citizens can have both extended (for example, a teacher has 56 days) and additional leaves (for example, a single mother can take 14 days extra).
If an employee has worked for the organization for less than six months, he is not entitled to leave. After 6 months, he can receive part of the vacation, lasting at least 14 days, and take it off.
It is worth noting that some categories of citizens have the right to receive leave earlier than six months later. This:
- women going on maternity leave have the right to take full leave before or after childbirth;
- minor employees under 18 years of age;
- who have adopted a child under 3 months into their family.
Regardless of the type, it is provided on the basis of an application drawn up in the name of the employer.
Read more: Power of attorney for participation in the meeting of LLC participants
How to postpone the period of the next paid vacation while on sick leave?
If an employee falls ill before a vacation or during a vacation, he has two options:
- extension of leave by the corresponding number of calendar days for sick leave;
- transferring leave due to sick leave to a later period (either the entire leave can be postponed if the incapacity for work occurred before the start date of the holiday, or the part not taken off if the employee fell ill while already on leave).
If an employee wishes to extend his leave, he must immediately notify the employer of his illness in any available form. In this case, the employee also notifies management of his intention to extend the vacation, and provides the certificate of incapacity for work at the place of work after returning from vacation.
Important! It is necessary to correctly calculate the number of days of vacation transfer. The transfer is carried out for the number of calendar days that fell on sick leave. In this case, according to the rules for calculating vacation days, weekends should be taken into account, but holidays should be excluded.
This means that if the initial vacation ended on Friday, but the employee expected to go to work on Monday, then even if he has two days of sick leave on hand, it will not be possible to postpone the time of going to work; he will still have to start performing his job duties on Monday. It should also be taken into account that the transfer of weekends (for example, during the New Year holidays) does not apply to holidays.
To learn how not to make mistakes when calculating vacation days, read the material “Calculating the number of vacation days in 2021 - an example.”
If an employee wishes to postpone his vacation to a later time, this can only be done in agreement with the employer. It should be noted that if production needs do not allow the employer to let the employee go on vacation at the desired time outside the vacation schedule, then this employee will have to think about other dates.
How to reflect information about the transfer of vacation in the vacation schedule? How to reflect the transfer on an employee’s card? Should the employee be notified of the start time of the rescheduled vacation? The answers to these and other questions are in the ready-made solution “ConsultantPlus”. If you don't already have access to the system, get a free trial online.
But at the same time, the Labor Code allows a maximum period for using vacation - 12 months from the end of the working year (non-calendar) for which this right to vacation is due.
Important! Extension or postponement of leave during sick leave is possible only if the employee himself falls ill. If a certificate of incapacity for work was issued to care for a child or other family member, then the employer does not have an obligation to change the rest period. This is confirmed by judicial practice (for example, the appeal ruling of the Tyumen Regional Court dated August 10, 2015 in case No. 33-4702/2015).
General rules for writing applications
The application is drawn up in handwritten or printed form on an A4 sheet. It is best to submit it for consideration a week to 10 days before your intended vacation. In this case, the manager will have time to review it, and the accountant will have time to calculate the amount of payment.
A vacation application consists of the following mandatory components:
- A cap . At the top right is the position, surname and initials of the person for whom the application is being made. Often this is the director of the enterprise. This information is written in the genitive case. For example: Director of Yasen LLC, A. I. Antonov.
Below is the surname, first name and patronymic of the person making the application in the genitive case. For example: Ivanova Irina Gennadievna.
Please note, full name. the applicant is always written in full. The reason is that there may be namesakes at the company whose initials are the same as yours.
- The word “ Statement ” is located in the center with an indentation from the header.
- The body of the application , which states the request. For example: I ask for leave from 31.10. 2021 to 02.11. 2016
- Date and signature.
Often, in the personnel department you can familiarize yourself with a sample application and, based on it, draw up your own. In addition, a number of organizations put forward their own requirements for registration. For some, it is important to write the application exclusively by hand, while others offer their employees special forms or require them to complete the paper on the computer and only sign it.
What information must be included in an application to postpone leave due to illness?
An application for transferring leave due to sick leave must contain all the facts that served as the reason for such transfer:
- initial vacation dates according to the approved vacation schedule;
- period of incapacity for work and details of sick leave;
- desired dates to which you want to reschedule your vacation.
A sample application for transferring leave due to sick leave can be downloaded from the link below.
Based on the employee’s application, the employer, if he agrees with the terms of the transfer, issues an order to amend the vacation schedule and recalculate vacation pay. To avoid having to rewrite the application several times, it is advisable to first agree on the period of the new vacation with the employer.
A sample vacation order can be downloaded from the material “How to arrange a transfer of vacation at the request of an employee.”
If production needs do not allow the employee to go on vacation, then the planned dates will have to be changed. The same situation will occur if the desired transfer dates coincide with the vacation dates in the approved vacation schedule for the employee who must replace the employee requesting the transfer. Priority in this situation goes to the one whose vacation is approved by the schedule.
In the case where an employee wishes to extend leave due to illness, it is not necessary to write a statement, but some personnel services still require the desire to change the end date of the leave to be recorded in writing.
What leave can be extended
Important! An employee has the right to extend only annual leave for sick days; the law does not provide for the extension of other leaves.
In addition to the annual leave provided to absolutely all employees, employees also take other leaves, such as educational or administrative leave. However, the employee has the right to extend only annual leave. In addition, by agreeing with the employer in advance, the employee can reschedule these days to another time. It is prohibited to extend educational or administrative leave for sick days (Order of the Ministry of Health and Social Development No. 624n dated June 29, 2011).
Is it permissible to postpone unpaid leave due to illness?
The Labor Code does not contain rules that would indicate the possibility of changing the terms of unpaid leave. Art. 124 of the Labor Code of the Russian Federation applies only to annual paid vacations. But existing judicial practice gives reason to believe that postponing vacation without preserving earnings is also permissible in some cases.
The Supreme Court of the Russian Federation, in its ruling dated October 4, 2013 No. 69-KG13-4, recorded its interpretation of the norm of the Labor Code of the Russian Federation. This litigation involved unpaid leave following paid leave. The employee was fired for absenteeism because the employer refused to extend unpaid leave due to illness. But the court sided with the employee and confirmed the right to transfer vacation days due to sick leave.
But there is one more nuance. According to clause 22 of the Procedure for issuing certificates of incapacity for work (approved by order No. 624n dated June 29, 2011) and clause 1 of Art. 9 of Law No. 255-FZ, sick leave is not issued during the period of unpaid leave. That is, if an employee brings a sick leave certificate issued during such a vacation, it means that he did not notify the medical institution that he was on vacation. The Social Insurance Fund will most likely refuse to reimburse benefits for such sick leave.
How to check the authenticity of a sick leave is described in the article “Actions of an employer with a fake sick leave.”
In such a situation, the accountant and HR person must make a separate decision, which may have to be defended in court.
In the Guide to HR Issues from ConsultantPlus, experts step by step consider all the possible nuances associated with the next vacation, incl. and transfer due to sick leave.
Having received trial access to the system, you will be able to familiarize yourself with expert materials for free.
What does the law say?
Art. 124 of the Labor Code of the Russian Federation, in the event of temporary disability of an employee on vacation, allows the vacation to be extended or postponed at the discretion of the worker. Only he has the right to decide how to dispose of unused vacation days due to illness. The only difference is in the procedure for processing such a transfer or extension.
Attention! Sick leave is paid separately from vacation pay, exactly the same as if the illness occurred during everyday work.
Is vacation always extended if there is official sick leave? It should be noted that there are cases when labor leave is not transferred or extended. There are two such cases:
- If it is necessary to care for a sick family member. Here, a certificate of incapacity for work is still issued, but it indicates a special code that contains information about who exactly was sick: the employee himself or another family member. According to Art. 124 of the Labor Code of the Russian Federation, being on sick leave to care for a family member is not a basis for extending or postponing the time of rest.
- In case of going on vacation followed by dismissal. According to Art.
127 of the Labor Code of the Russian Federation, an employee has the right to take off all accumulated unused vacations. But if an employee falls ill during the specified period, then the vacation cannot be extended, much less postponed, because the employer must make a final settlement with the employee the day before the vacation, as well as draw up documentation related to the dismissal. In other words, in fact, the employment relationship ends with the beginning of the labor holiday, and legally – after its end.
Results
Leave may be extended or postponed due to employee illness. But in order to exercise the right to change the duration of vacation, the employee must show good faith and promptly notify the employer that he fell ill during his vacation. New vacation periods should satisfy the employee’s wishes, but also take into account production needs.
Sources:
- Labor Code of the Russian Federation
- Rules on regular and additional leaves, approved. NKT USSR 04/30/1930 No. 169
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How to properly issue an order?
The order is drawn up on a standard sheet of office paper or on letterhead. The order can be drawn up by hand or typed on a computer. The last option is used most often. It is important to remember that signatures must be original. Electronic analogues are prohibited from being used. It is recommended to adhere to a certain structure when placing an order.
The components of the order are given below:
- a cap . Located at the top of the sheet. The first line contains the name of the organization and its legal form. Below in the center is the name of the document and its number. Under the name, note the place and date of the document;
- main part . The basis on which the vacation is extended is given. On a new line, the word “I ORDER” is written in capital letters. The director's instructions to officials regarding the extension of leave are listed. The documents on the basis of which the order is issued are provided;
- final block . Signatures with transcripts and dates of review are provided.
When writing an order, you must use a business style and avoid making mistakes. If there is a seal, it is recommended to put its imprint on the order.
Expert opinion
Irina Vasilyeva
Civil law expert
Leave is extended automatically by the number of days of incapacity.
Vacation at your own expense
Unpaid leave is a period during which a person is absent from the workplace, but at the same time retains his position. His salary is not transferred to him; this time does not count towards his seniority. Another name for days off without saving, which is often used in the Pension Fund of the Russian Federation, is administrative leave.
If we are talking about a general case, the application indicates the reason why the specialist needs to be absent from the workplace on certain days. At his discretion, the employee can specify it or make do with general wording. The employer reviews the appeal and makes a decision. He has the right to express consent or refuse, citing production necessity.
Vacation at your own expense followed by dismissal
Leave at your own expense followed by dismissal can be used to resolve personal issues. Let's consider how vacations at one's own expense are issued with subsequent dismissal , for which categories of employees their provision is mandatory.
If an employee falls into one of the specified categories of workers or if there is one of the listed reasons, the administration of the organization is obliged to provide him with leave. In this case, the employee himself has the right to determine the duration within the above framework.
Sample application at your own expense for one day
In your application for unpaid leave (also called administrative leave), you must indicate the exact dates on which you plan not to see your colleagues. Before you start writing an application, you should find out how many days you personally can count on.
- Parents and spouses of those who were wounded, maimed or died in the process of military service, as a result of an illness associated with military service. These people have the right to have an additional 14 days of rest per year.
- Pensioners who continue to work. Management must approve their applications at their own expense for one or more days. Workers of retirement age can use 14 additional days for rest.
- Participants of the Second World War. They can rest 35 days a year.
- Disabled people who work. Citizens with disabilities can afford to write requests for a day off at their own expense 60 times a year.
