23.08.2019

Almost all companies have an internal document that contains information about the duration and date of employee rest periods - the vacation schedule.

It must be completed prior to the start of the new calendar year. For example, the schedule for 2020 should be prepared in December 2019.

When changing dates, it is necessary to make adjustments to the current schedule -.

For this reason, it is necessary to apply to the employer with a request to transfer the vacation to the next year as early as possible.

Transfer is not allowed for the following persons:

• underage workers;
• persons carrying out their labor activity in hazardous production or in hazardous conditions.

The management of the company, to which these employees addressed with a request to move the rest for the next year, is obliged to refuse them. This need is related to labor safety rules.

Who cannot be denied transfer:

• men who plan to combine their vacation with the spouse's decree;
• military wives;
• women planning to take annual paid leave before or immediately after the decree;
• adoptive parents who have taken custody of a child under the age of 3 years;
• collaborators.

For these categories of citizens in the vacation schedule, it is necessary to make a note on the approximate date of their vacation. In any situation, making changes to the document is considered a mandatory procedure and is carried out on the basis of.

How to apply?

The first action that must be taken by an employee to transfer unused vacation days for the next year is the provision of an appropriate statement to the head.

There is no unified form for writing it, so it is filled in free form.

Company letterhead may be used. The narration style is businesslike.

The following information must be included in the application:

• Company name;
• Name and position of the head;
• Name and position of the employee;
• document's name;
• main part. It indicates the established and desired vacation date, the number of unused days in the current year, as well as the reason for its transfer to the next year;
• Date of preparation;
• applicant's signature.

If there is documentation confirming the need to transfer to the next year, it should be attached to the application.

After receiving the document and getting acquainted with the information contained in it, the employer makes his decision. If it is positive, an appropriate order is issued. It contains the following information:

• Name of the organization;
• Title of the document;
• assigned serial number;
• date and place of publication;
• main part. It implies the presence of a reference to the Legislation - Article 124 of the Labor Code of the Russian Federation and the text of the order, beginning with the word “I order”;
• Name and position of the employee;
• the date on which the vacation is postponed, its duration;
• appointment of an employee who must make adjustments to the vacation schedule;
• responsible person who controls the execution of the order;
• grounds for transferring vacation;
• Full name and signatures CEO and an accountant.

Is it allowed at the initiative of the employer?

Article 123 of the Labor Code of the Russian Federation regulates the right of the employer, according to which, in the presence of significant circumstances, he can postpone the vacation of a subordinate to the next year.

This action is possible only if there are no objections from the employee.

The initiative may come from the employer for the following reasons:

• by necessity. It implies the occurrence of negative consequences for the company, in the event of the absence of an employee in a specific period of time;
• the need to fulfill government tasks.

Upon receipt of consent from the employee to transfer vacation time to the next year, you must go to documentation this action. To do this, you should prepare a number of papers similar to the previous case - an application and an order. Their filling is carried out according to the same rules as when transferring leave at the initiative of the employee.

Only in the application, the employee does not express a request, but consent to changing his vacation dates and transferring them to the year following the current one.

Sample order to transfer to the next year according to production needs -:

Is it possible for additional unused days under the Labor Code?

Some categories of employees are entitled to apply for additional leave. For persons who are entitled to this rest time, the fact of its availability is indicated in the labor agreement. Basically, such a period is present in people working in hazardous enterprises with harmful working conditions.

The presence or absence of the possibility of transferring additional unused vacation to the next year must be indicated in the employment agreement.

Some employers allow the transfer, others - against this action.

To obtain detailed information for a particular case, it is necessary to familiarize yourself with the information noted in the employment contract. In addition, conditions of this nature may be specified in collective agreements or other local regulations.

Useful video

Does unused vacation burn out, or can it be carried over to the next year - see the answer in the video:

Annual leave not used by an employee in the current year does not expire and can be carried over to the next one. The initiative can come from both the employee and the employer. An important condition is that the mutual agreement of both parties must be reached.

To process the transfer, the employee needs to write a statement with a request or consent, and the employer must draw up an order and make changes to the schedule.

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It's good when employees go on vacation strictly according to the schedule - everything is predictable and understandable. And if the employee asks to transfer his vacation to another period? Or, due to production needs, the manager asks the employee to go on vacation at another time? Or did the employee fall ill during the vacation or before the vacation? In all these cases, it will be necessary to issue a postponement of the vacation and, possibly, recalculate the amounts already paid.

Vacation transfer: when is it possible and how to apply

How to reschedule or cancel a vacation?

Neither the employer nor the employee has the right to change the date already planned in the schedule for granting leave unilaterally without the consent of the other party. th Appeal ruling of the Moscow City Court dated January 20, 2016 No. 33-1792/2016. However, upon agreement, the vacation can be postponed to another time even in a situation where the employee and the employer have agreed on such a transfer on the eve of the planned vacation. After all, this is not contrary to the provisions labor law and does not violate the rights of the employee a Decision of the Supreme Court of the Udmurt Republic dated January 25, 2016 No. 7-8/2016.

Attention

You can't completely cancel your vacation. But it can be transferred by mutual agreement, for example, in case of illness, an employee a Art. 124 Labor Code of the Russian Federation.

If the initiator of the postponement of the vacation is an employee, he must write an application for such a transfer, indicating the new vacation dates. If the head agrees with such a transfer, on the basis of the employee’s application, an order must be issued, which is signed by the head.

If the initiator is an employer, then it is necessary to obtain the written consent of the employee to postpone the vacation. In particular, it is possible to issue an appropriate order in which the employee will sign in the "Agree" line.

In exceptional cases, when granting leave to an employee in the current working year may adversely affect the normal course of the organization's work, with the consent of the employee, leave can be transferred to the next working year. In the event of such a postponement, leave must be used no later than 12 months after the end of the working year for which it is granted. I Art. 124 Labor Code of the Russian Federation.

Attention

When drawing up a vacation schedule, the employer may take into account the wishes of the employee about the vacation period. Once approved, the vacation schedule becomes mandatory for both the employer and the employee. The employer is not obliged to postpone the leave at the request of the employee, except in cases established by Labor Code of the Russian Federation Part 1, 2 Art. 123, art. 124 Labor Code of the Russian Federation. So the organization has no obligation to adapt to the employee. The manager may refuse to transfer the vacation.

Making a transfer

The details of the order to postpone the employee's vacation must be indicated in column 8 of the vacation schedule. Also in the schedule it is necessary to indicate a new start date for the vacation (column 9).

If information about the vacation has already been entered in section VIII "Vacation" of the employee's personal card, then it is necessary to cross out the start and end dates of the vacation (columns 5 and 6) and enter new ones. In this case, in column 7 it is necessary to indicate the details of the order to transfer the vacation.

Sick leave is open before vacation - what to do?

The most common reason for changing the vacation date is an employee's illness. Let's consider such a situation. The employee is on sick leave. Received 2 weeks advance notice. But on the start date of his vacation sick leave still not closed. There is no application from the employee to postpone the vacation. What are the actions of the employer?

In the general case, in case of temporary disability, annual paid leave must be extended or postponed for another period determined by the employer, taking into account the wishes of the employee. a Art. 124 Labor Code of the Russian Federation.

In the situation under consideration, the period of temporary disability of the employee came before the start of the annual paid leave. And the procedure in this case is not legally defined. The best way- contact the employee and find out what the employee wants: to reschedule the vacation for another period or extend it for days of illness. If rescheduled - agree with the employee on the rescheduling period a clause 18 of the Rules on regular and additional holidays, approved. NCT USSR 30.04.30 No. 169.

If the employee is not going to postpone the vacation, then the vacation is extended by sick days. That is, the employee's vacation will be counted from the day following the day the sick leave ends, and the number of calendar days for which the start date of the vacation was shifted will last. The same should be done if it was not possible to contact the employee and find out his plans to postpone the vacation.

Suppose an employee was going on vacation for a week, but fell ill before the vacation.

August
Mon	Tue	Wed	Thu	Fri	Sat	Sun
30	31	1	2	3	4	5
6	7	8	9	10	11	12
13	14	15	16	17	18	19
20	21	22	23	24	25	26
27	28	29	30	31	1	2

Commentary on the calendar

day of onset of illness.

period of illness.

Estimated start date.

new date vacation start.

Vacation period due to extension.

As for the payment of vacation pay, in any case, vacation pay must be paid at least 3 calendar days before the start of the actual vacation. In our example - 3 days before August 10, that is, no later than August 6.

Will I have to recalculate vacation pay when an employee is sick?

In general, if an employee falls ill while on vacation and the vacation is extended, there is no need to recalculate. But there are exceptions.

Situation 1. Vacation pay was paid on the basis of the full salary for the month preceding the vacation, excluding days that the employee did not complete due to illness. For example, an employee was going on vacation from July 2. On June 25, he was paid vacation pay (the full salary for June was included in the calculation of average earnings), but from June 27, the employee took sick leave. Then the salary for June 27-29 should be excluded from the calculation. It is also necessary to remove the excluded sick days when calculating.

Situation 2. An employee has been ill for more than a month, and his vacation is postponed to the next month. For example, an employee planned to go on vacation from July 2, but fell ill all of July and went on vacation only from August 3. As a general rule, vacation pay should be recalculated taking into account a different settlement period: August 2017 - July 2018. Since this moment is not regulated by law, we specified it in Rostrud. Read the answer in the next issues.

How to reflect a decrease in vacation pay in 6-personal income tax

If an employee falls ill on vacation and part of the vacation is rescheduled, part of the overpaid vacation pay can be credited against sickness benefits.

The Federal Tax Service for Moscow explained that if the amount of vacation pay decreases during recalculation, then in section 1 of the updated calculation of 6-NDFL for the period in which vacation pay was accrued, the total amounts are reflected, taking into account the reduced amount of vacation pay X Letter No. 20-15/049940 dated March 12, 2018 from the Federal Tax Service Department for Moscow.

But the Federal Tax Service indicated that when recalculating vacation pay in the current calendar year, it is not necessary to submit updated calculations of 6-NDFL, all recalculations must be done in the current period. And this is logical, because section 1 of the calculation of 6-personal income tax, which is filled in on an accrual basis from the beginning of the year, reflects the total amounts, taking into account the recalculation a Letters of the Federal Tax Service of October 13, 2016 No. BS-4-11 / [email protected], dated May 24, 2016 No. BS-4-11/9248.

At the same time, neither the Federal Tax Service nor the Federal Tax Service gave clarifications on how to reflect the downward recalculation of vacation pay in section 2 of the calculation of 6-NDFL.

Let's figure it out. In principle, the entire amount of vacation pay paid to the employee, as it was his income, remained. Only it partially turned into another type of income - sickness benefit. Moreover, the date of receipt of these incomes is the same - the day of payment the employee at sub. 1 p. 1 art. 223 of the Tax Code of the Russian Federation. And personal income tax was withheld from the amount of income paid and transferred to the budget in a timely manner.

By the way, the deadline for transferring personal income tax from these incomes is also the same - no later than the last day of the month in which vacation pay and sick leave are paid e paragraph 6 of Art. 226 Tax Code of the Russian Federation.

Given this, we believe that in section 2 of the calculation of 6-personal income tax it is possible to show only the operation for paying the initial amount of vacation pay and that's it.

On the reflection in the calculation of 6-personal income tax of overpaid vacation pay, credited to the salary, it is written:

But in order for the calculation data of 6-NDFL and 2-NDFL certificates to converge at the end of the year, you will have to show sick leave in the 2-NDFL certificate, against which previously paid vacation pay was credited, as income of the month when vacation pay was paid. Even if in fact the set-off occurred next month. That is, you will have two types of income:

by code 2012 - holiday pay;

by code 2300 - sick leave.

Numerical example of the reflection in 6-personal income tax of overpaid vacation pay, offset against benefits:

→ Conferences → Calculation of vacation pay in 2018: rules and nuances → Illness during vacation

The tax authorities will not be able to make claims about the fact that personal income tax was incorrectly calculated or paid to the budget on time. That is, they will not be able to fine for non-withholding and non-payment of tax. But there is a possibility that they may consider that you incorrectly filled out the 6-NDFL calculation and the 2-NDFL certificate. Since income in the form of sick leave must still be shown in the calculation of 6-personal income tax separately, moreover, on the date of offsetting overpaid vacation pay towards benefits. And, given the position of the Moscow Federal Tax Service, the tax authorities may require you to clarify, which will need to reflect the reduction in the amount of vacation pay after recalculation and the amount of benefits.

Penalty for false information in the calculation of 6-NDFL and in the certificate 2-NDFL - 500 rubles each. for father t paragraph 1 of Art. 126.1 of the Tax Code of the Russian Federation; Letter of the Federal Tax Service No. GD-4-11/14515 dated August 9, 2016 (p. 3). But this penalty can also be challenged. After all, the procedure for filling out the 2-NDFL certificate and section 2 of the 6-NDFL calculation in our case is not regulated in any way - neither by the Procedure for filling out the certificate and calculation, nor by the explanations of the tax authorities. And in this case, all fatal doubts, contradictions and ambiguities of legislative acts on taxes and fees are interpreted in favor of the tax agent a paragraph 7 of Art. 3 Tax Code of the Russian Federation.

If the vacation is fully or partially transferred to another month, then the vacation pay for the new vacation is calculated taking into account the new billing period.

The employee has been working in the company since March 1, 2015. Until February 28, 2016, he was not on vacation. In the period from March 1, 2016 to the present, he rested only 14 days. In October, he has 14 more calendar days according to the schedule, but he wants to reschedule his vacation for 2017. Question: If the Employer does not mind, he can reschedule his vacation or he must take it off without fail or can be rescheduled, but on the condition that he takes these 14 days off until March 1, 2017, in order to by the end of his 2 years of work there was a total of 28 calendar vacation days used. Thank you!

Answer

Answer to the question:

According to Part 1 of Art. 122 of the Labor Code of the Russian Federation, paid leave must be provided to the employee annually. In this case, the employee must use the vacation during the working year for which he is granted. Those. for the working year from 03/01/2015 to 02/28/2016, the employee had to use leave until 02/28/2016.

By virtue of h. 3 Article. 124 of the Labor Code of the Russian Federation in exceptional cases, when the provision of leave to an employee in the current working year may adversely affect the normal course of work of an organization, an individual entrepreneur, it is allowed, with the consent of the employee, to transfer the leave to the next working year. At the same time, leave must be used no later than 12 months after the end of the working year for which it is granted.

Those. in exceptional cases and with the consent of the employee, leave for the working year from 03/01/2015 to 02/28/2016 can be transferred to the next working year and must be used during this working year, i.e. from 03/01/2016 to 02/28/2017. Thus, the unused part of the vacation in the amount of 14 calendar days for the working period from 03/01/2015 to 02/28/2016 must be used until 02/28/2017.

At the same time, leave for the working period from 03/01/2016 to 02/28/2017 must also be used until 02/28/2017.

The systematic transfer of annual leave to the next working year can be regarded as a violation of labor legislation, because. Part 3 Art. 124 of the Labor Code of the Russian Federation speaks of exceptional cases of transferring vacation to the next working year.

Details in the materials of the System Personnel:

1. Answer:When should an employee be granted annual paid leave?

Vacation entitlement

When does an employee become entitled to leave?

The employer is obliged to provide leave before the end of the 6-month period at the request of the employee only in exceptional cases in relation to certain categories employees:

• employees under the age of 18 (, Labor Code of the Russian Federation);
• women before and after maternity leave, as well as at the end of parental leave (, Labor Code of the Russian Federation);
• employees who have adopted children under the age of three months ();
• husbands while their wives are on maternity leave ();
• one of the parents, including a foster parent, guardian or caregiver who is raising a disabled child under the age of 18 ();
• veterans ();
• Chernobyl ();
• military wives ();

Vacation for the second and subsequent ones can be granted to an employee at any time in accordance with (), and for - taking into account their wishes, regardless of the schedule.

Vacation after six months of work

Question from practice: is the employer obliged to provide leave to the employee after six months of work

Yes, it is required if the employee submits a relevant application.

Employees admitted to the organization after the approval of the vacation schedule go on vacation not according to the vacation schedule, but. In the general case, after six months of work, the employee has the right to leave, and the employer has the obligation to provide it if the employee applies with a corresponding application.

At the same time, the law does not say that leave should be granted on demand and solely at the discretion of the employee, without coordinating the time of leave with the employer. Therefore, when granting such leave, the parties must take into account mutual interests and opportunities and agree on the start date of the leave. In general, an employee is not entitled to independently determine the date of going on vacation and arbitrarily go on vacation. Exceptions are those who have the right to use leave without taking into account the opinion of the employer. In the case of unauthorized use of vacation, the employer may.

Such conclusions follow from the totality of the provisions of the articles and the Labor Code of the Russian Federation. Similar explanations are given in. This is also indicated by the courts, see, for example, appeal rulings, rulings of the Sverdlovsk Regional Court,.

Leave in advance against next year

Question from practice: is it possible to provide leave in advance for the next working year

You can, only if the employer himself does not mind. The employer is under no obligation to provide such leave.

The employer is obliged to provide employees with vacation annually: for each (). The provision of leave before the start of the working year for which it is provided is not provided for by labor legislation. The courts also point to this, see, for example,.

This rule applies even to those employees who have the right to leave at any convenient time, for example, for employees before or after. They do have the right to demand a vacation, but it only works in relation to unused vacations for the current and earlier years.

Tip: it is not recommended to provide full leave on account of the next working year.

First reason. If an employee decides to quit without having worked off the used vacation, the employer will not always have the opportunity.

The second reason. The employer is generally obliged to provide leave annually (). By providing full leave in advance, the employer himself finds himself in a situation where he formally cannot fulfill the requirement of the legislation on annual provision, so that the employee really has the opportunity to rest during the year, or he will have to provide leave in advance again.

Question from practice: is the employer obliged to provide the employee with leave immediately before the start of the maternity leave, if the employee has already fully used the leave for the current working year

No, not required.

At the request of the employee, immediately after the maternity leave or before it, the employer is obliged to provide annual paid leave (). At the same time, the employee uses the vacation for the current (). Labor legislation does not provide for the provision of leave before the start of the working year for which it is granted. The courts also point to this, see, for example,.

Thus, if the employee has already fully used the leave for the current working year, then the employer is not obliged to provide the next leave in advance immediately before the start of the maternity leave.

Question from practice: is the employer obliged to provide the employee with annual leave immediately before the start of parental leave or after it, if the employee has already fully used the leave for the current working year, and the right to leave for the new working year has not yet come

No, not required.

At the request of the employee, immediately before or after parental leave, the employer is obliged to provide annual paid leave (). At the same time, the employee uses the vacation for the current (). Labor legislation does not provide for the provision of leave before the start of the working year for which it is granted. The courts also point to this, see, for example,.

Thus, if the employee has already fully used the vacation for the current working year, then the employer is not obliged to provide the next vacation in advance immediately before the start of the parental leave or after it.

Question from practice: can an employee request an unscheduled annual leave if she returned to work after parental leave and worked for several days

Yes maybe.

An employee's annual leave, at her request, is granted only immediately after (i.e., the day after the end) of maternity leave. There is no "immediately after" clause for parental leave. According to the general rules, annual leave for an employee who was on parental leave is granted outside the schedule at the end of such leave, that is, both immediately after and some time later: before the date of the employee's leave specified in. If the employee has not used the right to extraordinary leave before the specified date, then in the future she uses the leave in the general manner, that is, according to the schedule.

Thus, an employee, if she returned to work after parental leave and worked for several days, has the right to demand annual leave outside the schedule.

This conclusion follows from the provisions of the articles, the Labor Code of the Russian Federation.

Attention: employer annual leave after parental leave, if the employee has already used up all rest days for the current and previous working years.

A question from practice: is an employee entitled to annual leave outside the schedule after the end of parental leave. The employee is not the mother of the child

As a general rule, it does not.

Annual leave outside the schedule at the end of parental leave is granted to the woman - the mother of the child upon her application (). In addition to the mother, the right to use annual leave after parental leave is granted to fathers raising children without a mother, as well as guardians (custodians) of minors (). In all other cases, the caregiver is not entitled to unscheduled annual leave after the end of parental leave.

Attention: employer annual leave after parental leave, if the employee has already used up all vacation days for the current and previous working years.

Question from practice: can an employer refuse to provide a pregnant employee with unused annual leave before going on maternity leave

No, she can't, provided she really has unused days vacation for the current and previous working years.

At the request of a pregnant employee, the employer is obliged to provide her with annual paid leave before or immediately after maternity leave (). There are no exceptions to this rule in the legislation.

Wherein Labor Code The Russian Federation does not establish what kind of annual leave an employee can claim: main or additional, for the current calendar year or for the previous one. Based on the above, we can conclude that if a pregnant employee has several unused vacations, she has the right to claim each of them, including several vacations at the same time. Replacement of annual basic holidays monetary compensation not allowed. This conclusion follows from Article 123, Article 126 and the Labor Code of the Russian Federation.

But the obligation to provide leave on account of future periods from the employer.

A question from practice: is the employer, at the request of the husband, obliged to provide him with annual paid leave during the period of maternity leave granted to the wife. The couple adopted a baby

Yes, I must.

One of the spouses who have adopted a child is granted leave lasting from the date of adoption until the expiration of 70 days (110 days in the case of adoption of two or more children) from the date of birth of the adopted child (part , article 257 of the Labor Code of the Russian Federation). At the same time, the employee has the right to choose, at her discretion, either the provision of the specified leave, or the provision of maternity leave (). When an employee who has adopted a child chooses maternity leave, her spouse has the right to require her employer to provide him with annual paid leave for the period the spouse is on maternity leave (). The employer has no right to refuse this requirement.

It should be remembered that if the employee’s spouse, when adopting a baby, did not take maternity leave, but the leave granted to the adoptive parent in accordance with Article 257 of the Labor Code of the Russian Federation, the employee does not have the right to demand annual leave during such leave.

A question from practice: is it possible for a reinstated employee to be granted leave in full. Upon dismissal, he was paid compensation for unused vacation

Yes, you can.

Since reinstatement means returning the employee to their previous legal status, which existed before the dismissal, his right to leave is also restored.

The Labor Code of the Russian Federation does not provide for the provision of incomplete (partial) annual leave. The provision of part of the leave (sharing the leave) is possible only at the request of the employee.

Thus, if the reinstated employee wishes to use the vacation in full, provide this vacation with offset payments made as compensation for the unused part of the vacation, making a recalculation of the payment for the unused part of the vacation.

Such a conclusion follows from the totality of the provisions of articles, article 127, of the Labor Code of the Russian Federation. Rostrud v. holds a similar position.

Working year and length of service for the appointment of the main leave

The employee is granted leave for each year of work (). At the same time, each employee has his own individual working year for which he is granted vacation. This year is reflected in in the column "For the period".

The working year, as a rule, does not coincide with the calendar year. Because the beginning of the first working year is counted from the moment the employee is hired. For example, if an employee got a job on December 1, 2014, then his first working year in general is the period from December 1, 2014 to November 30, 2015. Second working year - from December 1, 2015 to November 30, 2016, etc.

In some cases, the employee's working years must be calculated in. Such a need arises if the employee has periods that are not included in the length of service that gives the right to leave.

So, the length of service giving the right to the main leave does not include:

• the time the employee is absent from work without good reason, including in the cases provided for;
• parental leave until the child reaches three years of age. Except when ;
• time provided at the request of an employee, exceeding a total of 14 calendar days in a working year.

The rest of the time is included in the length of service giving the right to the main vacation. Including this:

• time of actual work, including on conditions;
• the time when the employee did not actually work, but in accordance with the law, the place of work was retained for him (illness, annual paid leave, holidays, physical examination, etc.);
• time of forced absenteeism in case of illegal dismissal or removal from work and subsequent reinstatement at the previous job;
• the time of suspension from work of an employee who did not pass a medical examination through no fault of his own;
• time provided at the request of the employee, not exceeding 14 calendar days in a working year;
• other periods of time provided for by the local act of the organization, labor or collective agreements.

In such a situation, the employee's graduation date is shifted by the number of calendar days that are required for the appointment of annual paid leave. This follows from the provisions of the Labor Code of the Russian Federation. Similar explanations are given in.

Advice:

An example of determining the working year if an employee had a long unpaid leave

Accountant V.N. Zaitseva joined the organization on January 11, 2011. Accordingly, her first year of employment ran from 11 January 2011 to 10 January 2012 inclusive. The employee used the vacation for this year in full.

From February 1 to February 22, 2012 (22 calendar days), the employee, on the basis of her application, was granted leave without pay.

Of the 22 calendar days of leave at their own expense, only 14 days in the working year are included in the length of service, giving the right to annual paid leave. The remaining 8 calendar days (22 days - 14 days) are excluded from the length of service giving the right to leave.

In October 2012, the employee was granted basic annual paid leave. At the same time, her working year, which the HR specialist reflected in the vacation order, was the period from January 11, 2012 to January 18, 2013. That is, the end of the working year did not fall on January 10, 2013, but shifted by 8 calendar days, which were not included in the length of service giving the right to leave.

An example of determining the working year if the employee was on parental leave

Cashier A.V. Dezhneva was hired on December 20, 2011. That is, initially its working year is equal to the period from December 20, 2011 to December 19, 2012. However, before the end of this period, the employee went on parental leave, which lasted 2 years 9 months and 21 days.

To calculate the new working period, Dezhneva needs to add the duration of parental leave to the original end date of the working year:

Thus, the extended working year of an employee is equal to the period from December 20, 2011 to October 10, 2015. This means that her next working year will generally be from October 11, 2015 to October 10, 2016, if there are no other days in this period that are not included in the length of service that gives the right to leave.

Question from practice: is the period of maternity leave included in the length of service giving the right to annual basic leave

Yes, it's included.

The list of periods that are taken into account when determining the length of service giving the right to the next vacation is contained in Article 121 of the Labor Code of the Russian Federation. In particular, it states that the time when the employee did not actually work, but in accordance with the law, the place of work was retained for him is subject to accounting. falls under this condition, since it refers to a period of temporary incapacity for work, in which the employee retains his place of work (). The legitimacy of this position is confirmed, as well as Article 5 of the Convention of the International Labor Organization of June 24, 1970 No. 132.

In addition, maternity leave, unlike parental leave, is not included in the list of periods that should be excluded when calculating vacation experience ().

Thus, the period the employee is on maternity leave is included in the length of service giving the right to annual basic leave.

Advice: quickly and without errors to calculate the working years and vacation balances will help the unique calculator of the Personnel System from the "Services" section. It is enough to enter the date of admission, the number of days of rest, information about excluded periods - and the calculation is ready.

Practical question: is the period of part-time work during parental leave included in the length of service giving the right to annual basic leave

Yes, it's included.

As a general rule, the time of leave to care for a child until he reaches the age of three is not included in the length of service giving the right to grant annual leave (). At the same time, the length of service giving the right to leave includes the time of the employee's actual work (). The current legislation directly allows for the possibility of an employee working on a part-time basis during parental leave (, Labor Code of the Russian Federation). At the same time, part-time work does not entail any restrictions for employees on the duration of the annual basic paid leave, the calculation of seniority and other labor rights ().

Thus, part-time work during parental leave is included in the length of service that gives the right to annual basic paid leave.

Advice: quickly and without errors to calculate the working years and vacation balances will help the unique calculator of the Personnel System from the "Services" section. It is enough to enter the date of admission, the number of days of rest, information about excluded periods - and the calculation is ready.

Question from practice: is the period of downtime due to the fault of the employee included in the length of service giving the right to annual basic leave

Yes, it's included.

Thus, downtime due to the fault of the employee is included in the length of service, which gives the right to provide annual basic paid leave.

Advice: quickly and without errors to calculate the working years and vacation balances will help the unique calculator of the Personnel System from the "Services" section. It is enough to enter the date of admission, the number of days of rest, information about excluded periods - and the calculation is ready.

A question from practice: is the period of an employee's detention included in the length of service giving the right to annual basic leave. Employee was released, case dismissed

The legislation does not provide a clear answer to this question.

On the one hand, a closed list of periods of time that are not taken into account when determining the length of service giving the right to the next vacation is presented in Article 121 of the Labor Code of the Russian Federation. In particular, when calculating the vacation period, the time of absence of an employee from work without good reasons, including in connection with suspension from work at the request of government agencies or officials(, Labor Code of the Russian Federation). On the indicated grounds, the employer may suspend the employee from work if the court decides to apply a measure of criminal procedural coercion to him in the form of temporary suspension from office ().

Therefore, if the organization removes the employee in custody in accordance with Part 1 of Article 76 of the Labor Code of the Russian Federation, then, starting from the moment of such suspension, the time spent in custody will not be included in the vacation period.

On the other hand, the list of periods that are taken into account when determining the length of service giving the right to the next vacation is given in Article 121 of the Labor Code of the Russian Federation. In particular, the time when the employee did not actually work, but in accordance with the law, the place of work was kept for him (). In this case, the time spent in custody falls under this condition. Since the Labor Code of the Russian Federation does not contain such a basis for dismissal as detention, and therefore, for the period of detention, the employee retains his place of work and accumulates vacation experience.

Therefore, an employee in custody, only after the entry into force of a court verdict, according to which he will be sentenced to a punishment that precludes further continuation of work ().

Thus, if a staff member who has been taken into custody is released without a conviction, then the time spent in custody should be included in the leave. At the same time, it is important that the employee be released on a rehabilitating basis, for example, due to the lack of corpus delicti. Only in this case, the reason for his absence from work can be considered valid and include the corresponding period in the length of service giving the right to leave.

The legality of such a position is also confirmed by the courts (see, for example,).

However, a staff member may be released on non-rehabilitative grounds, such as due to the expiration of a detention limit. In this case, his absence from work cannot be considered due to valid reasons, and therefore, the period of detention cannot be taken into account in the vacation period.

Taking into account the absence of direct legislative regulation on the issue under consideration, employers should independently determine in which cases to attribute the time of detention of an employee to the length of service giving the right to annual leave. The organization can establish the relevant rules for calculating vacation experience in a collective or labor agreement or in a separate local act, for example, in (, Labor Code of the Russian Federation).

Advice: quickly and without errors to calculate the working years and vacation balances will help the unique calculator of the Personnel System from the "Services" section. It is enough to enter the date of admission, the number of days of rest, information about excluded periods - and the calculation is ready.

Question from practice: is the period of leave for participation in the election campaign included in the length of service giving the right to annual basic leave

Yes, it is included, but only a part of it, not exceeding 14 calendar days.

Certain categories of persons participating in election campaigns are provided for the duration of elections or a referendum. These persons, in particular, include members of election commissions, candidates for deputies and their proxies in elections to local self-government bodies, proxies in elections to state authorities, etc. (see, for example, the Temporary Regulation established by Art., Law of June 12, 2002 No. 67-FZ).

At the same time, the Labor Code of the Russian Federation does not distinguish between unpaid leave granted for family or other valid reasons, and targeted leave without pay, provided, for example, for participation in an election campaign.

Thus, if an employee participating in the election campaign was granted leave without pay, then the time of such leave is not subject to inclusion in the length of service giving the right to annual basic paid leave.

This conclusion follows from the totality of the provisions of the articles, the Labor Code of the Russian Federation.

Advice: quickly and without errors to calculate the working years and vacation balances will help the unique calculator of the Personnel System from the "Services" section. It is enough to enter the date of admission, the number of days of rest, information about excluded periods - and the calculation is ready.

Accumulated seniority, giving the right to leave, when transferring an employee from one organization to another (). The former employer upon dismissal in the order of transfer (). Accordingly, from the date of transfer to new organization the worker starts counting down. In the general case, the employee will have the right to leave ().

After the reorganization of the staff . Therefore, it is not required to renew employment contracts with them (). Thus, the seniority that gives employees the right to annual paid leave is not interrupted. After all, it must be calculated based on the duration of the employee's work in the organization with which he entered into an employment contract ().

The specified procedure applies to all forms of reorganization: , ().

Advice: quickly and without errors to calculate the working years and vacation balances will help the unique calculator of the Personnel System from the "Services" section. It is enough to enter the date of admission, the number of days of rest, information about excluded periods - and the calculation is ready.

Question from practice: is the time of a long vacation included teacher in the length of service, giving the right to annual paid leave

Yes, it's included.

Pedagogical employees of an educational organization can go on a long vacation of up to one year once every 10 years (). The procedure and conditions for granting, as well as the possibility of paying for such leave, must be determined by the charter or local act of the educational organization. For the period of being on a long vacation, the teacher retains the place of work and the study load.

Question from practice: is the length of service that gives the right to additional leave for harmful conditions work, annual leave, parental leave and periods of illness

The length of service, which gives the right to additional leave for work with harmful and dangerous working conditions, includes only the time actually worked under the appropriate conditions (Article 121 of the Labor Code of the Russian Federation, Article 121 of the Labor Code of the Russian Federation. The courts take a similar position (see, for example, decision of the Supreme Court of the Russian Federation of April 15, 2004 No. GKPI04-481).

Question from practice: what periods are included in the length of service for providing additional leave for irregular working hours

The issue of length of service for granting leave for irregular working hours is not regulated by law. There are two opposing views on this issue.

Supporters of one of them believe that the length of service for granting leave for an irregular working day should be determined in the same way as for annual leaves, since an exception to this rule is made only for additional leaves for work in harmful (dangerous) working conditions (). At the same time, the length of service for other holidays should be calculated in the same manner as for the main holidays, and it is logical to take into account the excluded time even with an irregular schedule. Since during these periods the employer, for reasons beyond his control, does not have the opportunity to involve the employee in irregular work, therefore, there is no need to provide leave for irregular work for such periods.

Proponents of the opposite point of view believe that, according to the Labor Code of the Russian Federation, all periods without exception should be included in the length of service for leave for an irregular working day. With this approach, the right to leave is granted regardless of whether the employee worked irregularly or not, leave is given for the very fact of the opportunity to attract an employee irregularly.

It should be noted that budget organizations has the right to establish the procedure for granting additional leave for irregular working hours independently in their local acts, taking into account the requirements of regulations adopted by higher authorities ().

Thus, in view of the above and in the absence of official clarifications and judicial practice on this issue in order to avoid disputes and litigation commercial organization it is recommended to fix a specific procedure for calculating the length of service for granting leave for an irregular working day in a local act.

Failure to grant leave

Can an organization not provide annual leave to employees

It is forbidden not to provide annual paid leave:

• for two consecutive years;
• employees under the age of 18;
• employees engaged in work with harmful (dangerous) working conditions.

Such requirements are provided for in Article 124 of the Labor Code of the Russian Federation.

If necessary, the employee's annual leave ().

Responsibility for not granting leave

What is the responsibility for not providing leave to employees

For failure to provide vacations, administrative liability may be applied:

• a fine in the amount of 30,000 to 50,000 rubles. - for the organization;
• a fine in the amount of 1000 to 5000 rubles. - for officials of the organization (for example, the head).

And for the commission of a repeated violation, the following administrative penalties may be applied:

• for an organization - a fine in the amount of 50,000 to 70,000 rubles;
article 5.27 of the RF Code of Administrative Offences.

Labor inspectors can learn about the offense when or from a complaint by an employee.

Unused vacation

What to do if an employee has accumulated unused vacations for several years

Vacation Convention

How to apply the rules of Convention No. 132 when granting leave to employees

In addition to the requirements of the Labor Code of the Russian Federation, the procedure for granting annual paid leave to employees is given in the international one (adopted in Geneva on June 24, 1970), which Russia also joined (, the Instrument of Ratification of the Russian Federation was registered with the International Labor Office on September 6, 2010). Since the norms of the Labor Code of the Russian Federation do not contradict the provisions, its ratification did not entail any changes in the rules for granting annual paid holidays to employees.

Nina Kovyazina,

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  In the magazine "Personnel Business" you will find an up-to-date plan on how to create a safe vacation schedule for 2020. The article contains all the innovations in laws and practice that must now be taken into account. For you - ready-made solutions to situations that four out of five companies face when preparing a schedule.
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Olga, good afternoon.

Will the violation transfer the vacation to the next year at the request of the employee?
Olga

No, there will be no violation, but certain conditions must be met.

Art. 114 of the Labor Code of the Russian Federation.

Employees are granted annual leave while maintaining their place of work (position) and average earnings.

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

Paid leave must be granted to the employee annually.

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

Leave for the second and subsequent years of work may be granted at any time of the working year in accordance with the order of granting annual paid leaves established by the employer.

Art. 123 of the Labor Code of the Russian Federation.

The sequence of granting paid holidays is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization no later than two weeks before the start of the calendar year in the manner prescribed by Article 372 of this Code for the adoption of local regulations.

The vacation schedule is mandatory for both the employer and the employee.

The employee must be notified against signature of the start time of the vacation no later than two weeks before the start of the vacation.

Art. 124 of the Labor Code of the Russian Federation.

Annual paid leave must be extended or postponed for another period determined by the employer, taking into account the wishes of the employee, in the following cases:

Annual paid leave must be extended or postponed for another period determined by the employer, taking into account the wishes of the employee, in the following cases:

Temporary disability of the employee;

Performance by the employee during the annual paid leave of state duties, if the labor legislation provides for exemption from work for this;

-in other cases provided for by labor legislation, local regulations.
- If the employee was not paid on time during the annual
paid vacation or the employee was warned about the start time
this leave later than two weeks before its start, the employer
at the written request of the employee, he is obliged to postpone the annual paid leave for another period agreed with the employee.

In exceptional cases, when granting leave to an employee in the current working year may adversely affect the normal course of work of the organization, individual entrepreneur, it is allowed, with the consent of the employee, to transfer the leave to the next working year. At the same time, leave must be used no later than 12 months after the end of the working year for which it is granted.

Forbidden

failure to provide annual paid leave for two years
in a row, as well as not providing annual paid leave
workers under the age of eighteen and workers employed in
work with harmful and (or) dangerous working conditions.

Vacation is due to every working citizen in accordance with the requirements of labor legislation, while the time of vacation for each of the employees must be determined before the start of the new working year.

Changing the vacation schedule is allowed at the initiative of the employer, if there are sufficient grounds for this, or at the initiative of the employee, if he is sick or some circumstances have arisen that do not allow him to work during this period of time. At the same time, if the reason for postponing the vacation is not valid or does not meet the interests of the organization, then the employer has the right to refuse to transfer the employee's vacation.

Features of the transfer of holidays are regulated by Art. 124 of the Labor Code of the Russian Federation, which determines the reasons and grounds for changing the vacation schedule of employees, and also establishes categories of employees who cannot take vacations at all. A prerequisite the transfer of the rest schedule for employees is the existence of an agreement between the employee and the employer on changing the vacation time.

At the same time, it is noted that changing the vacation time becomes impossible in the event of a number of circumstances. These circumstances include:

• a warning about the need to change the vacation time less than two weeks before the start of the employee's next vacation;
• payment of vacation pay to the employee, which must be provided no later than three days before the start of the rest time.

A change in the term or time of vacation most often occurs at the initiative of the employee himself, since the vacation schedule is approved in advance, and all employees of the enterprise follow it unconditionally. The basis for changing the schedule for a particular employee must be weighty and valid, since the employer has every right to refuse to satisfy the request of an employee of the organization.

Changes to the vacation schedule may occur:

1. At the initiative of the employer, in which insurmountable circumstances must arise that do not allow the employee to go on vacation at the time indicated by the schedule. Most often, this is the reorganization of the enterprise, as well as the introduction of new technologies and systems in production.
2. At the initiative of the worker. In this case, the employee must prove that he has good reasons for demanding the postponement of the vacation - these may be family circumstances or illness.

Specialists single out some of the grounds that require the mandatory execution of the employee's request in full or in part, however, the application must be generated on time and not contain the requirements "to go on vacation from tomorrow".

The reasons for changing the time of the vacation period are:

1. An illness of an employee, which is confirmed by a certificate of temporary disability. Illness of relatives, including children, is not the reason for changing the vacation schedule.
2. Violation of labor legislation by the employer, which consists in violating the rights of an employee of the organization.
3. Fulfillment by an employee of public duties that require exemption from work. Most often, the main methods of performing public duties are appearing in court as a witness, a representative of one of the parties or a juror, as well as in the case of military training, which must be attended by an employee of the enterprise.
4. Other circumstances that the employer may consider important for a particular employee if he applies.

In each case, the employer independently determines the importance of the reason for the postponement of the vacation, so it is better for employees to have stable business relationship with your employer.

Postponement of family leave

The legislation provides for the possibility of postponing family leave if the employee has not yet been paid vacation pay, and has not been notified of the imminent vacation time. The employer has every right to establish in the organization its own procedure for replacing vacation time, based on reasons that are considered valid.

Family circumstances are not a valid reason for changing the vacation time, however, in some situations, the management of the organization may meet the employee halfway if circumstances force him to take an urgent vacation. An example of such a situation is a sudden illness of a close relative or one's own illness, which is difficult to cure and leads to disability in the future or today.

It will not be possible to obtain the right to change the start date of the vacation due to one's own wedding or the wedding of relatives, since this is not a serious and compelling circumstance, and if collective agreement allows employees to take unpaid leave for several days due to such celebrations, then the employee can take the day off without touching or changing the annual paid leave.

In accordance with Art. 123 of the Labor Code of the Russian Federation, the order of vacations is provided based on the corresponding schedule, which is accepted no later than two weeks before the new calendar year. At the same time, the execution of the schedule is mandatory for each party. labor relations, therefore, any modification to the existing plan must be formalized by mutual agreement of the parties.

Transfer of vacation to the next vacation

The legislation prohibits the postponement of vacation for the next vacation, if the next vacation is not part of the next paid vacation, divided into two parts.

Under such circumstances, vacation can be postponed, however, only if both the employee and the employer agree to such changes, and this will not entail any difficulties and problems for the organization as a whole.

In the event of circumstances requiring a change in the start time of the holiday, an increase in the duration of the holiday is allowed if the employer and the employee jointly determined such a decision as the most beneficial way out for both parties.

Also, vacation is transferred to another vacation or time if the employer has not fulfilled the conditions for sending employees on vacation, which include:

1. Notification of employees at least two weeks before the start date of the vacation.
2. Holiday pay no later than three days before the start date of the holiday.

If any of the conditions is not met, the employee cannot be sent on vacation.

Transferring vacation to next year

Paid annual leave cannot be replaced by either a compensation payment, except in cases of dismissal of employees, or the transfer of vacation time to the next year. However, like any rule, this rule has exceptions.

The regulation of the appointment of leave occurs in accordance with Art. 122 of the Labor Code of the Russian Federation, which establishes that an employee is entitled to 28 calendar days of vacation for each working year. An important provision indicates that it is not the calendar year that is taken into account, but the working year, which is calculated from the date the employee began to work. The working year is 12 calendar months from the date of registration of labor relations, after which the employee is entitled to annual paid leave. At the same time, it is specified that leave can be granted at any time of the working year, regardless of the "convenience" or "wishes" of the employee of the enterprise.

If, for some serious reason, the employee was unable to take advantage of the opportunity to rest for the past working year, due to his retraining or reorganization of the enterprise, etc., then the vacation can be postponed to any time within the next 12 months, and also combined with the vacation of the next working year in full or in part.

It is impossible to replace an unspent vacation with compensation, so you can only take it off. It is allowed to go on vacation several times a year, if the employee thus uses all the days of rest in full. Compensation may only be paid for the part of the leave that exceeds established by law 28 calendar days.

How to apply for a vacation transfer

The transfer of vacation is made upon submission of an appropriate application from the employee or upon issuance of an order of the same name, when the date of vacation changes at the will of the employer. In this case, only the employer is responsible for the unlawful use of the possibility of transferring the leave without the will of the employees.

Employees of the organization are entitled to the following types holidays:

1. Annual basic and additional, which are provided in view of the employee's working one year at the enterprise.
2. Study leave, which is provided most often for a session or exams for student employees.
3. Maternity leave, which is a leave for medical reasons, which includes periods of rest for the employee in the period before and after childbirth.
4. Parental leave granted until the child reaches the age of three. The legislator clarifies that the employee can leave it at any time convenient for himself, as well as extend the vacation for a short period.

It is impossible to replace the leave or transfer it to certain categories of employees, as this is prohibited by the mandatory norms of the law.

These workers include the following categories of citizens:

• workers who are employed in hazardous and hazardous industries;
• employees who have not reached the age of majority.

The employer will not be able to change vacations for such employees even if they apply and request, since this rule labor law is imperative and subject to full enforcement in accordance with the law.

Leave transfer order

To formalize the postponement of vacation, an employee of the organization must receive an appropriate application or the company must have compelling circumstances that exclude the departure of any employee in a certain period. In each case, an appropriate order is issued.

The document must contain the following information:

1. Name of company.
2. Data about the head of the enterprise.
3. Title of the document.
4. Grounds and reasons for the postponement of vacations.
5. Responsibility for postponing holidays.
6. A person who must generate an updated vacation schedule if it is not the employer.
7. Signatures for familiarization with the document of all participants in the order.
8. Date of compilation and signature of the head.

The legislation establishes that the employer has no obligation to draw up such an order, however, drawing up such a document may be convenient for further business management at the enterprise. Thus, confusion and loss can be avoided. necessary documents, as well as protect both parties from illegal actions.

Leave application

An application from an employee to postpone a vacation is drawn up in a free form, however, it must fully reflect the situations in which there is a need for “shifts” in the established rest schedule for employees of the organization.

The application must:

• be drawn up in the name of the head of the organization;
• have personal information about the employee, as well as his position;
• contain a request to postpone the vacation;
• install good reason postponement of the vacation schedule, since the wording “for family reasons” is not respectful;
• contain the date and signature of the applicant.

The application must be submitted to the employer or other authorized person under the appropriate signature. It is best to draw up a document in two copies, one of which the employee can keep for himself, with the signature of the head of the acceptance of the document for consideration.

Download

You can download a sample Application for the postponement of vacation in .doc format
by this link

Download

You can download a sample Order on the postponement of vacation in .doc format