Labor legislation leave at own expense. Holidays at own expense (without pay)

Almost every employee has a case for which it is necessary to leave the workplace. But the main rest is provided once a year. But for this there is an unpaid leave that the employee is entitled to take. He will be discussed in the article.

Legislative framework

Each employee, according to the norms of the law, is granted the right to work and rest. According to Art. 114 of the Labor Code of the Russian Federation during this time, the employee retains the position, earnings. Administrative leave is provided without payment, it is provided for solving personal problems. For example, when a relative is ill or the need to draw up documentation. This period is provided after agreement with the management. No salary will be paid for him.

According to Art. 128 of the Labor Code of the Russian Federation, an employee can submit an application with a request for release from duties for the consideration of management. The director must accept it and provide an answer based on the operational need and the reason for the release. Under federal law, exemption from work in the form of a benefit is granted to some workers. This is established by Federal Law No. 79. In this case, the maximum vacation period at your own expense applies.

Grounds and conditions

Unpaid leave is provided upon agreement with the management, but some citizens on privileges are granted an exemption from work automatically and at any time. According to Article 128 of the Labor Code of the Russian Federation, these advantages can be obtained:

1. WWII veterans.
2. Working pensioners.
3. The widows and parents of the dead soldiers.
4. Disabled people.
5. Afghans.
6. Social heroes labor.
7. Teachers with over 10 years of experience.
8. State municipal employees.
9. Liquidators of the consequences of the Chernobyl NPP.
10. Labor veterans.

Employers should take into account that there are the above categories of workers who are granted additional leave at their request.

Other cases

Release from work is provided for the untimely death of a relative, marriage or the appearance of a child. Additional unpaid leave can be obtained in the following cases:

1. Admission to a university for passing exams, defense of a diploma (Art. 173-174 of the Labor Code of the Russian Federation).
2. Covering the difference between annual leave from the main and additional work (Article 286 of the Labor Code of the Russian Federation).
3. Joint rest with a spouse, who is considered a military one, if the planned rest is long (Article 11 of the Federal Law No. 76).
4. Parents of a disabled child can also receive exemption from work duties (Article 263 of the Labor Code of the Russian Federation).

Restrictions

According to Art. 128 of the Labor Code of the Russian Federation, the vacation period at its own expense is established on the basis of agreements with the employer. He necessarily takes into account that there is no maximum vacation period at his own expense.

But in Art. 121 of the Labor Code of the Russian Federation on administrative leave determines the duration of the annual leave, for the calculation of which only a 14-day absence during the year is accepted. It turns out that the maximum vacation period at your own expense can be six months, only the main vacation will last less minus 2.33 days for 30 days of absence.

And for beneficiaries, the law establishes the duration of the administrative leave. It is taken into account that this exemption is for rest, so the organization cannot reduce it even on the basis of production processes. The maximum vacation period at own expense for all categories of citizens is different:

1. WWII veterans - up to 35 days (according to Federal Law No. 4301-1 Art. 8).
2. Working pensioners - up to 2 weeks (Article 128 of the Labor Code of the Russian Federation).
3. Military parents and widows - up to 2 weeks.
4. Disabled people - up to 60 days.
5. Afghans - up to 35 days.
6. Upon the appearance of a child or marriage - up to 5 days.

Holidays at their own expense for disabled people and other above-mentioned categories of citizens are guaranteed by law, so the employer cannot refuse this. It is enough just to arrange it correctly. In other cases established by law, exemption from work is granted for the following time:

1. Admission to a university - 15 days (Art. 173-174 of the Labor Code of the Russian Federation).
2. The difference in the duration of annual vacations, which, according to Article 286 of the Labor Code of the Russian Federation, are provided to part-time workers at the same time.
3. The difference in the length of the leave of the military and their wives under Art. 11 ФЗ №76.
4. Teachers with at least 10 years of experience receive the maximum vacation at their own expense - 12 months.
5. Civil servants have the right to long-term exemption from work to engage in scientific activities (Article 46 of the Federal Law No. 79).
6. Parents of disabled children can receive an additional 14 days.

Each category of citizens has its own law on vacation at its own expense. Employees have the right to receive the stipulated period on demand. In this case, everything must be documented.

Disease

According to the law, each employee receives good rest for 28 days or more, which refers to annual and additional vacations. If during absence from work a person falls ill, then according to Art. 124 of the Labor Code of the Russian Federation, the rest period is extended by the number of days of incapacity for work.

This rule is valid for the main rest time and does not apply to other situations, whatever the exemption and category of the person may be. Therefore, if an employee falls ill on vacation without pay, then this period is not extended, because it is taken into account that it is provided to solve personal problems.

According to Art. 9 of the Federal Law No. 255, the duration of sick leave not only does not affect the duration of the rest at its own expense, but is also not paid, which is why employees do not need to receive an exemption from work duties. If the sick leave is also at the end of the free release from work, the time of incapacity for work falling on working days is paid.

Registration

If you need to be absent from work for some time, then this must be properly formalized. You should write a statement. If the management made a positive decision, then an internal order is drawn up for the enterprise or firm. The employee must familiarize himself with it.

The order indicates the period for which the vacation is granted. It should be indicated that the day off is issued without pay. Since orders of this type are related to the personnel of the organization, the information on leave should be entered in the timesheet. An employee should go to work during the period specified in the document. This procedure for obtaining leave is valid for everyone in the same way.

Calculation of experience

The seniority of employees is counted from the conclusion of a work contract until the termination of these legal relations. Moreover, this does not depend on the duration of annual and administrative leave, as well as other cases of exemption from duties. But staying on admin vacation is taken into account when calculating other periods, for example, annual rest and privileged length of service.

According to Art. 121 of the Labor Code of the Russian Federation, when calculating the time of employment, only 2 weeks without payment per year are taken into account to calculate the number of days of annual leave. Other days of exemption are excluded. With the calculation of preferential length of service, all periods of work are determined during which the employee performed duties in harmful or special conditions, excluding other periods in which not only days of disability and annual rest, but also administrative ones were listed.

Outcome

It turns out that the administrative leave will be in the total length of service, no matter how long the agreed vacation is. But it does not count towards the preferential length of service, because this period requires the time when the employee was busy. The employer can provide some time on account of the vacation, which is required to resolve personal issues. The terms of the additional period provided without payment are different for everyone, so you should take into account the norms of the law.

Labor legislation gives every worker the right to paid leave annually. It is obligatory to provide and the manager has no right not to let the employee rest. The situation is different with vacation at own expense. There are several nuances here. Next, we will analyze in detail whether the employer can refuse leave at his own expense?

Determination of vacation at your own expense

Vacation at own expense is also called unpaid leave. The correct name given in official acts sounds like unpaid leave. As the name suggests, this vacation is a non-payable vacation.

The employer lets the employee go to rest, but the wages for this period are not charged. The salary accrued for the month is reduced in proportion to the working days on which the employee rested, unless he has a piece-rate form of remuneration. In this case, he is paid the entire amount earned.

When vacation at your own expense falls on weekends, then, accordingly, it does not affect the amount of payment, since the number of working days will remain unchanged.

Vacation types at own expense

There are several types of self-paid vacations. There are mandatory ones, in the provision of which the administration of the enterprise cannot respond with a refusal without violating human rights, but there are those that the employer can provide by his decision, but on condition that the employee expresses a desire to go on such a vacation.

It is illegal to send an employee on unpaid leave without his consent in the form of a statement.

Mandatory

The following types of leave are compulsory:

1. leave for old-age pensioners who continue to work;
2. vacation for disabled employees;
3. leave to veterans and combatants;
4. employees combining study and work;
5. employees who work part-time for the employer.
6. employees for special family reasons (birth, marriage, death).

Let's take a closer look at the mechanism for providing these vacations.

In order for the employer not to refuse to grant leave, the employee must indicate in the application what type of unpaid leave he wants to receive, and provide evidence that he has such a right.

For certain categories of citizens, leave at their own expense is established by federal laws and has different duration. For example, people with disabilities can receive up to 60 calendar days of unpaid leave per year, and combatants in Afghanistan for two weeks.

The vacation period is considered to be calendar years, not work years, that is, from January 01 to December 31. The legislation does not spell out what to do when an employee comes in the middle of the year and wants a vacation. According to the established practice, he is provided with a proportion proportional to the months worked. For example, if in the current year he works for six months, he will receive half of the due vacation. Such vacations are not carried over to the next year, and if they were not used in the current period, then they are automatically canceled. This applies to all types of vacations at own expense.

If the employee combines work and the educational process, the employer is obliged to provide him with leave at his own expense (unless, of course, he is entitled to paid educational leave) in the amount indicated in the certificate - a call from the place of study. All days exceeding this number must be agreed with the administration.

Employees who are part-time workers are granted leave at their own expense on a mandatory basis only if the leave at the main place of work exceeds the part-time leave. Also, an employee has the right to ask for a part-time vacation for the entire period of paid vacation from the main employer, if, for example, he has just got a job for a part-time job and does not want to take a vacation in advance. But the provision of vacation at their own expense in this case is already at the discretion of the employer.

An employee can receive up to five calendar days in the event of a child's birth, marriage registration or death of close relatives.

These vacations are prescribed by law and the employer cannot refuse to grant them to the employee.

Also, he will not be able not to provide vacation to employees if the grounds are spelled out in the local regulatory documents of the enterprise.

Very often, the Collective Agreement prescribes the obligatory provision of leave at their own expense for employees who have several children under 14 years old, single parents with children under 14 years old, or with disabled children under 18 years old.

Thus, if the employee's right to receive leave at his own expense is spelled out in general or local legislation, the employer cannot fail to provide such leave to the employee without violating the Labor Code of the Russian Federation.

It's another matter if the employee wants a number of days that exceeds his allotted. In this case, the employer may refuse him.

As agreed with the employer

In all other cases that are not listed in the previous paragraph, the consent of the administration of the enterprise is required to obtain leave at their own expense. If the manager does not agree to grant leave to the employee, then the latter has no right to go on it on his own. In this case, it can be counted as absenteeism and, on this basis, dismiss the employee.

Other nuances when making a vacation at your own expense

When granting a vacation at your own expense, you need to take into account some of the nuances:

• in order to keep track of the vacation days for certain categories of employees, prescribed by law, in order to track the total amount of days off already.
• according to the law, if during the year the employee has spent more than 14 calendar days at his own expense, then the vacation period is shifted by this number of days.

Calculation example

A. A. Novikov got a job at LLC "Romashka" on April 10. Accordingly, the estimated period of annual paid leave will be from April 10 of the current year to April 09 of the next year. In this billing period, he walked 19 days at his own expense. This means that an employee of the HR department calculates this and automatically shifts the period by 5 days, that is, until April 14. This means that the next vacation period of A.A. Novikov will be calculated from April 15 this year to April 14 next.

1. Compulsory unpaid leave can be included in the vacation schedule at the request of the employee. In this case, the employee of the personnel department must notify him of the beginning no later than 2 weeks, as is the case with the main vacation.
2. If an employee who is entitled to a compulsory vacation at his own expense does not want to use it, the employer has no right to force him, unless the vacation is included in the vacation schedule.

Thus, it can be concluded that the employer is obliged to provide unpaid leave only in cases specified by law and in the amount specified for each category of employees.

Moreover, the employee, without the consent of the employer, has the right to take less days than he is given by law. And the employer can deny the employee the desire to receive more vacation days.

Even the most inveterate workaholics sometimes find themselves in a situation where work fades into the background. But whatever the circumstances, it is unlikely that someone will dare to risk losing their job, taking up the solution of personal problems during business hours. The way out of the situation is provided by the Labor Code of the Russian Federation - this is the possibility of obtaining leave at your own expense.

Grounds for granting unpaid leave

Leave without pay, or, as it is commonly called, without pay, is granted only if the employee has a good reason. Therefore, the corresponding statement must necessarily contain a reference to specific circumstances that do not allow the employee to be at the workplace for a certain time.

At the same time, deciding whether the reason indicated by the employee is sufficiently valid for granting him leave is entirely the prerogative of the employer, assigned to him by Article 128 of the Labor Code of the Russian Federation.

According to the established practice, in addition to the registration of marriage, the birth of a child or the death of a close relative, circumstances requiring a leave may be recognized as the need to send a son off to undergo military service or send a child to a summer vacation.

Holidays at their own expense are formalized by an order or order issued on the basis of the employee's own handwritten statement. Despite this, an employee can return to the performance of his official duties at any time by notifying his manager in writing.

The employer's obligation to grant unpaid leave

Part two does not allow refusal to grant unpaid leave in cases where it is required by parents of minor children, workers holding the title of Hero of the Soviet Union or Russia, as well as holders of the Orders of Glory or Labor Glory, veterans of military operations and labor.

Students of higher educational institutions who study full-time and combine it with work also have a legal right to such leave. Few people know, but in case of illness, any employee can get a vacation at his own expense for a period of three days without providing a certificate of incapacity for work or other medical documents.

Vacation duration

Unlike the Labor Code of the Russian Federation, which previously operated in Russia, the current Labor Code of the Russian Federation does not know the concept of "short-term leave without pay." Therefore, today its duration is determined by agreement with the employer. The lower and upper limits of the term are not legally regulated, however, they may be reflected in the local regulations of the enterprise.

The exception is the cases prescribed in part two of Article 128 of the Labor Code of the Russian Federation, which provides for the right of participants in the Second World War to receive leave at their own expense for a period of up to 35 days in each calendar year of working pensioners, as well as spouses and parents of military personnel and persons equated to them who died during the execution call of duty - up to 14 days.

Persons with disabilities, according to the same norm, can count on unpaid leave for 60 days a year, and newly-made parents, newlyweds or workers who have lost a close relative - up to 5 days.

Protects the rights of parents of minor children. Thus, up to 14 days of unpaid leave at any time during the year is entitled by law to employees who have more than one child under the age of 14 or a disabled minor child. Single fathers and mothers are entitled to this leave even if they have only one child under the age of 14.

Heroes of Russia or the Soviet Union, as well as full holders of the Order of Glory, enjoy the right to annual leave without pay for up to three weeks, granted to them by part three of Article 8 of Law No. 4301-1 of January 15, 1993. A similar length of leave is established for Heroes of Socialist Labor and full holders of the Orders of Labor Glory in accordance with the provision of part two of Article 6 of Law No. 5 of January 9, 1997.

When can you take a vacation at your own expense?

Leave at own expense is an employee's initiative to take several unpaid days in order to solve some of their questions or problems. During such rest, wages are not charged, but the job is retained. In addition, if an employee draws up less than 14 calendar days a year, then this break does not in any way affect the calculation of his working year for registration of annual leave.

To release or not to release an employee on unpaid leave is the employer's right, not his obligation. You can take a few days at your own expense after an agreement is reached with the authorities. But there are cases when the management has no right to refuse its employee to issue several unpaid days.

For example, the Labor Code of the Russian Federation indicates the circumstances under which the management is obliged to give up to 5 calendar unpaid days. These are cases such as:

• registration of marriage of the employee himself;
• the birth of his child;
• death of a close relative.

To arrange a vacation at your own expense, in the presence of such circumstances, you must write an application addressed to the management and attach supporting documents to it. But since all certificates of a change in civil status are drawn up a little later after the event occurred, a copy of the confirming document can be brought later. The employer has no right to refuse to apply for such a leave on such grounds, but it is better to come up in advance and discuss the dates of the "time off" so that later there will be no overlaps.

In addition, there are still categories of workers for whom the employer is obliged to provide several days of rest "at his own expense" during each working year. The Labor Code of the Russian Federation states that you can take these days at any time convenient for the employee, having previously coordinated your vacation with the management. The duration of rest of some categories of citizens is regulated not only by the Labor Code of the Russian Federation, but also by other laws, including federal ones. For example, Federal Law No. 5-FZ of 21.01.1995 "On Veterans" stipulates the duration of unpaid leave for working veterans of all wars.

The categories of workers to whom the employer is obliged to provide unpaid leave at a convenient time for them after agreement with the management is presented in the table below:

To receive unpaid leave, you must write an application, and attach a document confirming such a right to it. For example, a working pensioner must attach a copy of his pension certificate to receive a vacation of up to 14 calendar days a year.

Registration of leave without pay

If the employee needs to take several days at his own expense, he must notify his management about this. The notification is submitted in writing in the form of an application written in the name of the head of the structural unit or in the name of the head of the enterprise. The document can be drawn up by hand or fill out a template that is available in the HR department. Nothing complicated! It is necessary to indicate the period during which the applicant plans to be absent from the workplace and the reason.

The latter does not always need to be specified. If you reach an agreement with the boss, then the reason can be voiced orally, and in the application simply ask for a few unpaid days. If the employee is a “beneficiary” and it is the employer's responsibility to provide him with such leave, then the reason must be indicated in the application. In addition, documents confirming the benefit must be attached to it.

It is necessary to make sure that the application is accepted for consideration. It is recommended to fill out 2 identical applications, transfer one to the HR department, and keep the other. Your copy should have a mark that will be put by a staff member. The mark should include the date of registration, the number of the incoming document, as well as the signature of the employee who accepted it.

After that, if there are no objections from the employer, it is necessary to issue an appropriate order. This is done by an employee of the personnel department, and the signature is put by the boss. Only after the employee reads the order against signature, he can safely be absent from the workplace, without fear that these days will be counted as absenteeism.

A corresponding entry must also be made in the personal card of the absent employee. This is necessary in order to track whether unpaid leave will not affect the length of the working year. This is important to consider when granting annual paid leave.

The timesheet also needs to reflect these days. This is done like this:

The period of such leave includes both holidays and weekends. This is its main difference from the main paid vacation.

Guarantees for an employee on vacation at his own expense

When an employee is actually absent from the workplace, the employer has no right to fire him. The only exception is the complete liquidation of a legal entity. Therefore, the employer cannot terminate the employment contract at will, while his employee is on unpaid leave. If an employee falls ill during such a vacation, then the sick leave will not be paid. An exception is going to work the day before the onset of the illness. Then the allowance will be paid in accordance with the current legislation, based on the length of service of the employee and his average earnings.

But if during the vacation a woman goes on maternity leave at her own expense, it will be paid in the amount of 100% of her average earnings. In this case, unpaid leave must be interrupted one day before the start of maternity leave.

A woman can spend many months on unpaid leave, and the employer will not have a basis for calculating the "maternity" benefit for her. Then payments should be calculated in the amount of 100% of the average earnings, from the tariff rate or other material value, in which labor is paid at this enterprise.

That is, the management has no right to fire a person who is absent from work for their money. Therefore, the workplace is saved for him. But someone has to do the job for the absent worker. As a rule, the bosses draw up a combination for another person and pay him extra for this. As soon as the "vacationer" returns to work, the surcharge will be charged. If an employee is absent from work for several months, then it will be more difficult for the management to get out of the situation. Therefore, the issue can be resolved in a different way!

You can take as many unpaid days as you like, but having previously agreed with the management. If such leave lasts more than 14 calendar days, this will affect the correct calculation of the working year for the granting of annual leave.

Can the employer send on vacation at his own expense

No, vacation at your own expense is exclusively the goodwill of the employee himself. The employer has no right to send a person to rest and at the same time not pay him a day.

If the employer cannot provide his workforce with a working process, then it will be downtime due to the fault of the employer. The management can dismiss employees to their homes, but these days will be paid. Downtime is paid at 2/3 of the average earnings of each employee.

If the bosses send employees on unpaid leave, it is a violation of rights. Therefore, employees can complain to the labor inspectorate. An inspection of the employer's activities for violations of labor laws will be initiated. If violations are identified, the employer will be held accountable in accordance with Art. 5.27 of the Code of Administrative Offenses of the Russian Federation. The sanction under this article is a fine:

• for officials of the organization (head) - a warning or a fine from 1,000 to 5,000 rubles. If the employer commits such an offense again, this will entail a fine in the amount of 10,000 to 20,000 rubles. or disqualification for a period of one to three years;
• for entrepreneurs - a fine from 1,000 to 5,000 rubles. If the employer commits such an offense again, it will result in a fine in the amount of 10,000 to 20,000 rubles;
• for an organization - a fine from 30,000 to 50,000 rubles. Repeated violation entails a fine in the amount of 50,000 to 70,000 rubles.

A complaint can be written to the labor inspectorate or to the prosecutor's office.

Dismissal on vacation at your own expense

The person himself can express a desire to quit at any time, including on vacation, which he took at his own expense. And the employer has no right to fire him. The exception is the complete liquidation of the enterprise. In this case, even pregnant women are subject to dismissal. If an employee decides to quit during an unpaid vacation, he needs to write a statement and give it to the HR department. This can be done with a personal visit to the employer or by sending an application by mail. Holidays at own expense will not be interrupted.

The time that the employee will be on unpaid leave will be counted as working off, provided that he will be on vacation for all 2 weeks. If the employee wishes, he can interrupt his rest and go to work for these 2 weeks. Then the employer, when he makes a full calculation, will have to pay for these 2 weeks.

The procedure for dismissing an employee who is on unpaid leave is no different from the procedure for dismissing an employee who is actually at the workplace:

• the employee writes a statement and sends it to the personnel department in an accessible way. It must be ensured that it is properly registered;
• on the basis of the application, a dismissal order is issued. This happens closer to the end of the term of service. The employee must be familiarized with the order against signature;
• on the last working day of the resigning person, they must fully calculate, issue him a work book with a record and other "labor" documents.

Difficulties arise in determining the last working day, since the employee does not actually work. When will it be correct to hand over all the money and documents?

This must be done on the last day of the detention. That is, on the actual day of dismissal.

How vacation is formalized at your own expense

It must be reflected in personnel documents. All records are made on the basis of an order to provide a specific employee with several days of rest without payment. But the entry in the report card will depend on the basis on which this leave is granted:

• if leave is granted in agreement with the management, then you should make a mark "TO" or indicate the digital code 16;
• if leave is provided according to the norms of legislation, then the mark must be "OZ" "or digital code 17.

When writing an application for the provision of unpaid leave on a legal basis, documents must be attached to the application.

The provisions of the current Russian labor legislation do not provide for an employee with unpaid leave on the initiative of the employer. However, as the established practice shows, this one, informally called forced leave or at one's own expense, is used very widely.

In this way, employers try to reduce the costs associated with paying for labor. And workers, in turn, take it quite calmly, considering this state of affairs to be preferable to, for example, using such a procedure as terminating an employment contract.

Is unpaid leave the norm?

As provided for in Art. 128 of the Labor Code of the Russian Federation standards, leave without payment of earnings can be granted to an employee on the basis of his written due to the presence of certain family circumstances or other reasons that can be considered valid.

The duration of such leave is established by an agreement that is concluded directly between the employer and the employee.

In addition, the provisions of this article impose on the employer the obligation to provide, on the basis of the relevant application, unpaid leave to such categories of employees as:

• Persons who are participants in the Second World War - up to 35 days (in calendar terms) per year;
• Pensioners in labor activity - up to 14 days (in calendar terms) per year;
• Spouses, as well as parents of military personnel who died or died in the line of duty - up to 14 days (in calendar terms) per year;
• Persons with disabilities engaged in labor activity - up to 16 days (in calendar terms) per year;
• Common in the presence of such reasons as the birth of children, registration of marriage relations, the death of one of the closest relatives - up to 5 days (in calendar terms).

Also, the employer is obliged to provide the aforementioned leave in other cases that are directly provided for by labor legislation, other legislative acts, as well as collective agreements.

Anchored in Art. 72.2 of the Labor Code of the Russian Federation, the provisions define simple, as a temporary suspension of labor activity arising from the presence of factors that are of an economic, technological, organizational, and also technical nature.

The period of inactivity is not included in the stipulated in Art. 107. The Labor Code of the Russian Federation and an exhaustive list of varieties of rest time, in connection with which, in the event of downtime, all employees must be in their workplaces without fail. Accordingly, working days should be recorded for all personnel in the organization's time sheets.

According to the provisions of Art. 157 of the Labor Code of the Russian Federation to the provisions, payment for the entire period of downtime should be made as follows:

• If there are circumstances that are the result of the employer's fault - the amount of payment is 2/3 of the employee's average earnings.
• In the presence of factors that do not directly depend on the employer or the employee, the amount of payment is 2/3 of the salary or tariff rate, calculated in proportion to the downtime.
• If there are circumstances that are a consequence of the employee's fault, payment for the entire period of downtime is not made.

Leave without pay

Based on modern judicial practice, all circumstances related to the employer's lack of financial resources (even for reasons such as non-fulfillment of obligations by counterparties, market fluctuations, falling prices, etc.) should be attributed to the employer's fault.

This is due to the fact that circumstances of this kind fall under the concept of entrepreneurial risk, which is an integral part of that carried out by the employer. The latter is defined by the provisions of clause 2 of the Civil Code of the Russian Federation as an activity carried out by the subject independently and at its own risk and with the aim of systematically obtaining economic profit.

In addition, fixed in paragraph 3 of Art. 401 of the Civil Code of the Russian Federation, the provisions stipulate that a subject that has not fulfilled certain obligations in the conduct of an entrepreneurial activity is liable if it does not provide evidence that the failure was caused by the presence of force majeure circumstances, nevertheless, the aforementioned cases cannot be counted as such.

Thus, downtime resulting from the occurrence of the circumstances in question is payable in the amount of 2/3 of the employee.

A responsibility

The employer's actions, initiated by him independently and related to sending employees on vacation without preserving their salary, are qualified as labor law standards. For the commission of this offense, the employer is subject to liability established by the provisions of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, which provides for the application of an administrative fine of the following amount to the guilty subject:

• in the range from 1000 rubles to 5000 rubles - for officials;
• in the range from 30,000 rubles to 50,000 rubles - for;
• in the range from 1,000 rubles to 5,000 rubles - for entities carrying out entrepreneurial activities without forming a legal entity.

According to the provisions of paragraph 3 of Art. 2.1 of the Code of Administrative Offenses of the Russian Federation, the application of administrative sanctions to a legal entity does not entail automatic release from responsibility for the aforementioned offense of the guilty individual and vice versa.

Due to the fact that the provisions contained in the Code of Administrative Offenses of the Russian Federation in these cases do not establish any restrictions in determining the punishment, the judge is entitled to use any of the prescribed punishment measures (including the maximum one) against the guilty subjects within the framework of the sanction established by the relevant article. , taking into account the circumstances that have both mitigating and aggravating effects on the guilt.

Detection of offenses

Proof of offenses is possible if there is documentary evidence

It is possible to hold the employer accountable for providing employees with vacations on his own initiative without paying the salary due to them is possible only if there is documentary evidence of this violation of labor legislation. This kind of confirmation can be:

• Orders executed in writing, or the employer's proposals for the execution of applications by employees for granting them leave at their own expense.
• Employee applications for the said leave, containing reasons such as the inability to pay wages, a decrease in the overall productivity and profitability of the company, etc.

Almost every employer at least once had to receive an application from an employee for unpaid leave or, in another way, leave at his own expense, for example, for family reasons. What is the maximum period in 2019 for unpaid leave, and how can I get it? About this - in the article.

In this article, you will find:

• the maximum period of leave without pay in 2019 (Labor Code of the Russian Federation)
• how unpaid leave is granted
• who is entitled to vacation without fail
• what documents to issue unpaid leave
• how to include unpaid leave in seniority

This is one of the types of leave provided by the Labor Code, in particular Article 128. In most cases, these are leaves that are granted at the request of employees. In certain situations and for certain categories of employees, the employer is obliged to provide leave without pay. In the article you will find out who this applies to.

Urgently need to go on vacation: are you obliged to let go?

What if you need a vacation from tomorrow? Is the employer obligated to let go? How to pay for the rest in this case?

Who is entitled to unpaid leave without fail

The employer is obliged to give the employees who are listed in part 2 of article 128 of the Labor Code of the Russian Federation, this:

• participants of the Great Patriotic War;
• working pensioners;
• parents and wives (husbands) of military personnel who died or died as a result of injury, concussion or mutilation received in the performance of military service duties or as a result of an illness associated with military service;
• disabled people;
• workers in cases of childbirth, marriage registration, death of close relatives.

The labor code, other federal laws, or a collective agreement may provide for other cases when the employer is obliged to provide unpaid leave. For example, in part 2 of article 173 of the Labor Code of the Russian Federation, the categories of employees to whom the employer must provide unpaid leave in connection with admission to educational institutions of higher professional education and training in them, these are:

• employees admitted to entrance examinations in educational institutions of higher professional education;
• employees - students of preparatory departments of educational institutions of higher professional education;
• employees studying in state-accredited educational institutions of higher professional education on a full-time basis, combining study with work.

Part 2 of Article 174 of the Labor Code of the Russian Federation lists the employees to whom the employer must provide unpaid leave in connection with admission to educational institutions of secondary vocational education and training in them, these are:

• employees admitted to entrance examinations in state-accredited educational institutions of secondary vocational education;
• employees studying in state-accredited educational institutions of secondary vocational education in full-time education, combining study with work, to undergo intermediate certification.

In part 2 of Article 286 of the Labor Code of the Russian Federation, it is determined that if at part-time work the duration of the employee's annual paid leave is less than the duration of the leave at the main place of work, then the employer, at the request of the employee, grants him unpaid leave of the corresponding duration.

The current legislation does not determine the grounds for refusing to grant unpaid leave to the above categories of employees.

Granting leave by agreement of the parties to any employee

For family reasons and other valid reasons, the employee, upon his written application, may be granted unpaid leave, the duration of which is determined by agreement between the employee and the employer (part 1 of article 128 of the Labor Code of the Russian Federation). Here is a sample of such a statement.

When considering applications, attention is drawn to the specific circumstances that caused the need for such a vacation. After all, granting leave without pay on the basis of part 1 of article 128 of the Labor Code of the Russian Federation is a right, not an obligation of the employer, therefore he has the right to refuse to provide it to an employee. In this case, the employer must take into account both the validity of the reasons indicated by the employee in the application, and the possibility of causing harm to the organization in the event of a vacation.

In cases where the employer is obliged to provide unpaid leave, the employee is also required to submit a statement

It is compulsory to indicate in the leave application without a valid excuse, although this affects the employee's privacy. The information that has become known to the employer is the personal data of the employee. Therefore, their storage, processing and use must be carried out in accordance with the requirements of Chapter 14 of the Labor Code of the Russian Federation, Federal Law of 27.07.06 No. 152-FZ "On Personal Data" and other federal laws

Family circumstances and other respectful target = "_blank" mean certain events and social needs that have arisen in the employee's personal life. An employer cannot send an employee on unpaid leave on his own initiative.

Persons caring for children may be granted additional unpaid leave, if provided for by the collective agreement (Article 263 of the Labor Code of the Russian Federation)

In addition to the Labor Code, the employer's obligation to grant unpaid leave to certain employees is established in the following federal laws:

• dated 26.11.96 No. 138-FZ - to individual participants in the electoral process at the time of elections to local self-government bodies;
• dated 09.01.97 No. 5-FZ - to Heroes of Socialist Labor and full holders of the Order of Labor Glory;
• dated 12.06.02 No. 67-FZ - to the candidate's proxies during the referendum;
• dated 10.01.03 No. 19-FZ - to individual participants in the election process of the President of the Russian Federation (proxies of the candidate, members of the election commission with an advisory vote);
• of May 18, 2005 No. 51-FZ - to individual participants in the election process of deputies of the State Duma (proxies of the candidate, members of the election commission with a deliberative vote);
• from 27.05.98 No. 76-FZ - to the spouses of military personnel in respect of a part of the leave that exceeds the duration of the annual leave at their main place of work;
• dated 01/15/93 No. 4301-1 - Heroes of the Soviet Union, Heroes of the Russian Federation and full holders of the Order of Glory (additional leave for up to three weeks a year at a convenient time for them)

Vacation documentary registration

Unpaid leave is granted to an employee on the basis of an application. In it, he indicates the start date and duration of the vacation, as well as the circumstances due to which he needs this vacation. Together with the application, you can submit documents (copies) confirming the circumstances indicated in it.

The employer's consent to the granting of such leave is formalized by order (decree) in the form No. T-6. The employee must be familiarized with it against signature. The order (instruction) should indicate:

• surname, name, patronymic of the employee;
• the reason for the vacation;
• start date and duration of the vacation.

Information about the leave provided is entered into the employee's personal card (form No. T-2 1) and the time sheet (form No. T-12 or T-13 1).

1: These unified forms are approved by the decree of the Goskomstat of Russia dated 05.01.04 No. 1.

In the report card, the time of leave without pay is marked with the code "DO" if the leave is granted according to the employer's permission, or the code "OZ" if the employee goes on vacation on the basis of the provisions of the current legislation of the Russian Federation 2.

2: Such symbols are given in the time sheet according to the form No. T-12.

Vacation duration

The duration of unpaid leave for family reasons and other valid reasons is determined by agreement between the employee and the employer.

The duration of unpaid leave, if the employer is obliged to provide it, is determined by federal law, which provides for such leave. The maximum period of leave without pay in 2019 according to the Labor Code of the Russian Federation we have given in the table below.

An employee can interrupt leave without pay at any time. In addition, such leave is granted without linkage to other holidays.

Unpaid leave and paid annual leave

Time provided at the request of the employee unpaid leave, not exceeding 14 calendar days during the working year is included in the length of service, which gives the right to an annual basic paid leave (Article 121 of the Labor Code of the Russian Federation). And if the duration of unpaid leave exceeds 14 calendar days during the working year, then this period is not included in the specified length of service. This means that the end date of the working year for which the employee is granted annual paid leave will be postponed by the corresponding number of days of unpaid leave.

The employer, on his own initiative, cannot send employees on vacation at his own expense due to the lack of work, as specified in the employment contract. Indeed, according to article 128 of the Labor Code of the Russian Federation, such leave is granted only on the basis of an employee's statement, which indicates exclusively personal reasons.

Forced sending to administrative leave is a violation of labor legislation, for which, according to article 5.27 of the Code of Administrative Offenses of the Russian Federation, an administrative fine is provided:

• for officials - in the amount of 1,000 to 5,000 rubles;
• persons engaged in entrepreneurial activity without forming a legal entity - from 1000 to 5000 rubles. (or administrative suspension of activities for up to 90 days);
• legal entities - from 30,000 to 50,000 rubles. (or administrative suspension of activities for up to 90 days).

Violation of labor and labor protection legislation by an official who was previously subjected to administrative punishment for a similar administrative offense shall entail disqualification for a period of one to three years.

If the employer is unable to provide the labor collective with work, he is obliged to fix the downtime, the time of which, according to article 157 of the Labor Code of the Russian Federation, the employee must be paid. Moreover, the downtime due to the fault of the employer is paid in the amount of at least two-thirds of the employee's average wage. And the downtime for reasons beyond the control of the employer and the employee is paid in the amount of at least two-thirds of the tariff rate, salary (official salary), calculated in proportion to the downtime

Example 1
Suppose, for the purpose of granting annual paid leave, the working year of employee V.V. Petrova lasts from November 1, 2018 to October 31, 2019. During the working year, the employee took vacations without pay four times: from 6 to 10 April, from 18 to 27 May, from 15 to 17 June and from 6 to 9 July - only 22 calendar days. If he did not go on vacation at his own expense, he would have received such a right to another paid vacation from November 1, 2019. But since the duration of unpaid leave during the working year exceeded 14 calendar days, the date of its end was shifted by 8 calendar days (22 days - 14 days). Therefore, the right to annual paid leave for this employee will arise from November 9, 2019. The next working year for I.I. Ivanova will start not from the 1st, but from November 9, 2019.

Thus, if the total duration of unpaid leave during the working year for an employee is more than 14 calendar days, then when calculating the length of service, which gives the right to annual paid leave, calendar days starting from the 15th are not taken into account.

The time of unpaid leave granted at the request of the employee can be included in the work experience that gives the right to an annual basic paid leave within 14 calendar days during the working year (Article 121 of the Labor Code of the Russian Federation)

Example 2
Manager I.I. Ivanov has been working at Delta LLC since February 20, 2019. Vacation at his own expense in 2013 was provided to him four times: from 6 to 10 April, from 18 to 27 May, from 15 to 17 June and from 6 to 9 July - only 22 calendar days. And on August 10, 2019 I.I. Ivanov resigned of his own free will.
The Delta LLC accountant determined the number of days of paid leave for which compensation is due as follows.
The manager worked in the organization from February 20 to August 10, 2019, which is 5 months 19 days. On unpaid leave during the specified period, he was 22 calendar days, while 8 calendar days (22 days - 14 days) should be excluded from the length of service, which gives the right to leave. Therefore, the length of service, giving the right to leave, will be 5 months 11 days.

When calculating the terms of work that give the right to proportional additional leave or compensation for leave upon dismissal, surpluses of less than half a month are excluded from the calculation, and surpluses of at least half a month are rounded up to a full month. This is established by clause 35 of the Rules on regular and additional vacations, approved by the National Committee of the USSR on April 30, 30 No. 169 (applied in the part that does not contradict the Labor Code of the Russian Federation). Taking into account this rule, as well as the provisions of Part 1 of Article 423 of the Labor Code of the Russian Federation, compensation must be paid 5 months in advance.

The number of vacation days not used during work in the organization is determined based on the calculation of 2.33 vacation days per 1 month (Rostrud letters dated 07.26.06 No. 1133-6 and dated 06.23.06 No. 944-6).

In the situation under consideration, the number of vacation days for which compensation is due is 11.65 days (2.33 days x 5 months).

Table. Vacation without pay: the maximum period in 2019 according to the Labor Code of the Russian Federation.

Days unpaid leave are completely excluded from the billing period when calculating the average earnings, regardless of its duration. The basis is sub-clause "e" of clause 5 of the Regulation on the specifics of the procedure for calculating the average wage, approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922 (hereinafter - the Regulation).

Example 3
Let's use the data of example 2. Salary of the manager of LLC "Delta" II. Ivanov for the period from February 20 to July 31, 2019 amounted to 92,000 rubles. The employee worked on a five-day workweek schedule. The average daily earnings for the payment of compensation for unused vacation are calculated for the last 12 calendar months (parts 2 and 3 of article 139 of the Labor Code of the Russian Federation and paragraphs 2 and 4 of the Regulations). In this case, the amount of wages accrued for the billing period is divided by 12 and by 29.4 (the average monthly number of calendar days) (Article 139 of the Labor Code of the Russian Federation and clause 10 of the Regulations). However, I.I. Ivanov in the billing period was on leave without pay. Therefore, his average daily earnings are calculated in the following order. The amount of actually accrued wages for the billing period must be divided by the amount of the average monthly number of calendar days (29.4) multiplied by the number of calendar months fully worked, and the number of calendar days in not fully worked calendar months. Moreover, the number of calendar days in an incompletely worked calendar month is calculated by dividing the average monthly number of calendar days (29.4) by the number of calendar days of this month and multiplying by the number of calendar days falling on the time worked in this month (paragraphs 2 and 3 p. . 10 Provisions).
Thus, the average daily earnings of a Delta LLC manager will amount to RUB 679.77. , where 28 days, 30 days, 31 days, 30 days, 31 days - the number of calendar days in February, April, May, June and July 2009, respectively, and 9 days, 25 days, 21 days, 27 days, 27 days. - the number of calendar days worked in February, April, May, June and July, respectively.
The amount of compensation for unused vacation for 11.65 days amounted to 7919.32 rubles. (679.77 rubles? 11.65 days).

Unpaid leave, which is mandatory for certain categories of employees on the basis of Part 2 of Article 128 of the Labor Code of the Russian Federation, are included in the length of service, which gives the right to annual paid vacations, regardless of the duration.

Inclusion of unpaid leave in the length of service taken into account when assigning a pension

The period when the employee was on unpaid leave cannot be included in his insurance record taken into account when assigning a pension. Indeed, the length of service includes the periods of work for which insurance premiums were paid to the Pension Fund of the Russian Federation (clause 1 of article 10 of the Federal Law of December 17, 2001 No. 173-FZ "On labor pensions in the Russian Federation").

If the employee was on vacation at his own expense, did not work, did not receive a salary, the employer cannot calculate and pay insurance premiums to the Pension Fund for this period.

Guarantees for an employee on leave without pay

Usually, an employee cannot be fired at the initiative of the employer during his stay on such leave. Since, according to article 81 of the Labor Code of the Russian Federation, an employee cannot be dismissed at the initiative of the employer during his stay on vacation, except in the case of the liquidation of the organization or the termination of activities by an individual entrepreneur.

During unpaid leave, the employee, as a rule, retains the place of work (position) (Article 81 of the Labor Code of the Russian Federation)

If an employee of the organization, while on unpaid leave, got sick and brought a sick leave, then the organization is not obliged to pay him a temporary disability allowance... After all, this benefit is not assigned to the insured person for the period of his release from work with full or partial retention of wages or without payment in accordance with the legislation of the Russian Federation. Of course, with the exception of cases of employee disability due to illness or injury during the period of annual paid leave. This is stated in subparagraph 1 of paragraph 1 of article 9 of the Federal Law of December 29, 2006 No. 255-FZ.

If during vacation without pay the employee went on maternity leave, then the employer is obliged to pay maternity benefits to her, since the employee belongs to the insured persons. Moreover, unpaid leave should be interrupted from the moment the maternity leave begins. The maternity allowance is paid to the employee in the amount of 100% of the average earnings (clause 1 of article 11 of the Federal Law of December 29, 2006 No. 255-FZ).

If the employee does not have actually accrued wages and actually worked days in the billing period and before it, the average earnings should be calculated based on the official salary, the tariff rate of the category established for the employee, the official salary, and pay (remuneration). The basis is clause 11 of the Regulations on the specifics of the procedure for calculating benefits for temporary disability, for pregnancy and childbirth to citizens subject to compulsory social insurance, approved by Decree of the Government of the Russian Federation of 15.06.2007 No. 375 4.

During the time when the employee was on unpaid leave, he is entitled to standard tax deductions provided for in article 218 of the Tax Code of the Russian Federation. After all, these deductions are provided to the taxpayer for each month of the tax period by reducing the tax base in each month of the tax period by the corresponding established amount of the deduction. If in some months the taxpayer had no income at all, standard tax deductions are accumulated from the beginning of the tax period.