In what amount (in full or in proportion to the time actually worked in harmful working conditions) are annual paid additional holidays associated with harmful working conditions? In our situation, the main vacation is provided in advance: for some employees - for the first year of work, for others - for the second and subsequent years work.
According to Art. 92, 117 of the Labor Code of the Russian Federation to employees in connection with their employment in work with harmful and (or) hazardous conditions labor state guarantees the establishment of:
1) reduced hours of work;
2) the minimum duration of annual additional paid leave.
PROVISION OF ADDITIONAL HOLIDAYS
Currently, the Decree of the Government of the Russian Federation of November 20, 2008 No. 870 “On the establishment of reduced working hours, annual additional paid leave, increased wages for workers engaged in heavy work, work with harmful and (or) dangerous and other special conditions labor” (hereinafter referred to as Resolution No. 870), according to which compensations for those working in harmful or dangerous working conditions are established only according to the results of certification of workplaces. In particular, such employees are entitled to an annual additional paid leave of at least seven calendar days. When granting additional holidays to employees employed in work with harmful and (or) dangerous working conditions, the employer can be guided by the following documents :
Note! Decree No. 870 takes precedence over the Instruction on the Application of the List, since the regulations of the USSR are applied only to the extent that they do not contradict the current legislation.
The above normative acts of the USSR shall remain in force until a decision is made on their merits. This issue was specifically considered by the Supreme Court of the Russian Federation, which clarified that Decree No. 870 does not exclude the application of regulatory legal acts of the USSR establishing lists of industries, workshops, professions and positions with harmful working conditions, since at present there is no other regulatory legal act, replacing these acts of the USSR.
Note that in the List, the duration of additional leave is set in working days. Depending on the profession, position held and type of production, an employee may be granted additional leave lasting from 6 to 36 working days. However, the document provides for a schedule of a six-day working week, respectively, an additional vacation of six working days actually corresponds to seven calendar days specified in Resolution No. 870.
The employer has the right to increase the duration of the additional leave granted, fixing it in labor, collective agreements or local regulations (for example, in the regulation on wages, the regulation on the procedure for granting holidays in the organization, orders, instructions).
WORK EXPERIENCE TO PROVIDE ADDITIONAL HOLIDAYS
Of particular relevance in practice are the issues of calculating the length of service for obtaining additional leave. The length of service, giving the right to additional annual leave for work with harmful and (or) dangerous conditions, includes only the time actually worked under these conditions(part 3 of article 121 of the Labor Code of the Russian Federation), but only those days when the employee actually worked in these conditions should be taken into account at least half a day established for employees of a given production, workshop, profession or position (clause 12 of the Instructions on the application of the List). Full additional leave provided to workers, engineering and technical workers and employees, if they actually worked in industries, workshops, professions and positions with harmful working conditions during the working year at least 11 months(clauses 8, 9 of the Instructions on the application of the List) (example 1).
Example 1
The employee has been with the organization for a long time. He is currently granted basic leave in advance. Let's say that the annual main vacation is 28 calendar days, additional vacation for harmful conditions labor - 14 calendar days. The billing period has been worked out by the employee in full, another vacation in the billing period was not provided to the employee. AT this case in harmful working conditions, the employee worked for more than 11 months, so the number of calendar days of vacation will be 42 calendar days (28 + 14).
In the event that the period of work in harmful conditions was interrupted, the duration of the additional leave should be determined in proportion to the time actually worked under the specified conditions (example 2). It should be noted that when calculating compensation for unused vacation rounding off the number of calendar days of such leave is not provided for by law. Therefore, if an organization decides to round up, for example, to whole days, then such rounding, according to the recommendations of the Russian Ministry of Health and Social Development, should be done not according to the rules of arithmetic, but in favor of the employee (see example 2).
Example 2
We calculate the duration of additional leave for two employees who have worked for different amounts of time. Let's say a full additional vacation for harmful working conditions is 14 calendar days, and the annual basic paid vacation is 28 calendar days.
1. The hired employee worked in hazardous conditions for 7 months. He is granted the main vacation in full. Additional vacation will be.
In what cases is it provided for the provision of additional leave for work in harmful conditions? What is the minimum duration of such leave? Is it possible to replace additional vacation with monetary compensation? How is the length of service calculated, giving the right to additional annual paid leave for work with harmful and (or) dangerous working conditions? What conclusion did you come to Supreme Court in Decision No. AKPI16-1035 of January 26, 2017, when considering a case on determining the length of service giving the right to additional leave for harmful working conditions, when working at a quarter of the rate?
According to Part 1 of Art. 116 of the Labor Code of the Russian Federation, one of the grounds for granting additional paid leave is employment in jobs with harmful and (or) dangerous working conditions. In this case, leave is intended to compensate for the impact of adverse factors on the health of the employee in the process of work.
Article 117 of the Labor Code of the Russian Federation contains a clarification, according to which it is provided for the provision of annual additional paid holidays to employees employed at work:
note
The minimum duration of the annual additional paid leave for harmful working conditions is seven calendar days. The specific duration of the leave is established by the employment contract with the employee on the basis of an industry (inter-sectoral) agreement and a collective agreement, taking into account the results of a special assessment of working conditions (SAUT).
It should be remembered that the provisions on the provision and duration of the annual additional paid leave of a particular employee for harmful and (or) dangerous working conditions must be fixed in the employment contract (Article 57 of the Labor Code of the Russian Federation). In the absence of such information in the employment contract, the labor inspectorate has the right to hold the employer liable for violation of labor laws.
An example is the Appellate Ruling of the Supreme Court of the Republic of Karelia dated February 12, 2015 in case No. 33-633/2015. The judges supported labor inspection, which issued an order to bring employment contracts with employees in line with the requirements of the law (employment contracts do not reflect the amount of additional payment and the duration of the annual additional paid leave for work in harmful conditions, indicating the characteristics of working conditions at the workplace). In turn, the organization insisted that such conditions could be reflected in local acts, and reference was made to these acts in the employment contract. In the decision, the court indicated that labor contracts with employees should contain specific guarantees and compensations for work in hazardous working conditions, taking into account the degree of harmfulness.
In Letter No. 657-6-0 dated March 18, 2008, Rostrud clarified that at present the main acts regulating the procedure for granting additional paid leaves for work in harmful and dangerous conditions are:
In addition to the above regulatory documents, the Supreme Court recommended that employers use the Model Regulations on the assessment of working conditions at workplaces and the procedure for applying sectoral lists of jobs where additional payments to workers for working conditions can be established, approved by the Decree of the USSR State Labor Committee, the Presidium of the All-Union Central Council of Trade Unions dated 03.10.1986 No. 387/22 ‑78, and other applicable regulatory legal acts that establish the appropriate amount of compensation, to the extent that it does not contradict the Labor Code of the Russian Federation.
In this case, the employer is not obliged to take them into account. He has the right to establish the duration of the annual additional paid leave of a particular employee by an employment contract on the basis of an industry (inter-sector) agreement and a collective agreement, taking into account the results of the SAUT.
Note
Documentation of the provision of additional holidays is carried out in the same manner as documenting provision of regular annual leave.
Is it possible to replace additional leave for harmful working conditions with monetary compensation? Yes, it is possible under the simultaneous fulfillment of three conditions:
the norm on replacing a part of additional leave with monetary compensation, including the procedure, amount and conditions for such a replacement, is fixed in an industry (inter-sectoral) agreement;
available written agreement an employee, drawn up by concluding a separate agreement to an employment contract, for the appropriate replacement of part of the additional leave with monetary compensation;
the norm on replacing part of the additional vacation with monetary compensation, including the procedure, amount and conditions for this replacement, is fixed in the collective agreement.
At the same time, only a part of the annual additional paid leave that exceeds the minimum duration of this leave (seven days) can be replaced.
For violation of labor legislation and other regulatory legal acts containing labor law norms, administrative liability is established in the form of a warning or the imposition of an administrative fine under Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation:
It should be remembered that the length of service, which gives the right to additional annual paid leave for harmful working conditions, includes only the time actually worked in harmful and (or) dangerous conditions (part 3 of article 121 of the Labor Code of the Russian Federation). If the employee was ill, was on vacation or for other reasons did not work in harmful and (or) dangerous working conditions, this time is not included in the length of service for granting additional leave.
Note
The instruction provided for the inclusion of periods of temporary disability, etc., in the length of service, but this provision was declared invalid from February 1, 2002 by the Decision of the Supreme Court of the Russian Federation dated April 15, 2004 No. Thus, the length of service giving the right to receive additional leave does not include periods:
At the same time, the department's specialists recalled that the procedure for granting additional leave for work in hazardous working conditions is determined by the Instruction.
According to clause 8 of the Instruction, additional leave is granted to the employee in full if in the given working year he actually worked in harmful conditions for at least 11 months. If the employee has worked for less than 11 months, additional leave is granted to him in proportion to the time worked (clause 9 of the Instruction).
The length of service giving the right to leave is calculated separately for the annual basic leave and additional leave for harmful working conditions. When calculating the length of service that gives the right to additional leave or payment of compensation for it in proportion to the hours worked, the number of full months of work in production, in workshops, for professions and positions with harmful working conditions is determined by the following formula:
The remainder of days, which is less than half of the average monthly number of working days, is excluded from the calculation, and the remainder of days, which is half or more of the average monthly number of working days, is rounded up to a full month (clause 10 of the Instruction).
How to determine the number of days of additional vacation due to the employee if, as a result of the calculation, the duration of the vacation is not an integer number of days? Leave is granted to employees full days. The legislation does not provide for special rules for rounding vacation days. By general rule it is always recommended to round in favor of the employee. At the same time, it should be remembered: if an employee actually worked in a working year in harmful and (or) dangerous working conditions for at least 11 months, he must be granted additional leave for harmful working conditions in full.
The number of working days for a working year according to the production calendar is 247 days, while the average monthly number of working days is 20.58 days (247 working days / 12 months). Let us determine the length of service that gives the right to additional leave for work with harmful and (or) dangerous working conditions, if during this period the employee actually worked 185 working days.
The length of service giving the right to additional leave for work with harmful and (or) dangerous working conditions will be 10 months and 9 days (185 / 20.58 = 8.989, according to the rounding rules - 10).
After determining the length of service, the number of days of additional leave due to the employee is calculated.
Let's use the conditions of example 1. Let's assume that the employee in the employment contract establishes an additional paid leave for work with harmful working conditions for a duration of nine days. Determine the duration of the additional leave of this employee.
First, we will establish how many days of vacation the employee is entitled to for each month of service. This figure will be 0.75 days for each month of service (9 days / 12 months).
So, with the duration of a full additional vacation for harmful working conditions, which is 9 calendar days, in the example under consideration, the duration of the vacation will be equal to 7 days (0.75 days x 9 months = 6.75, taking into account rounding - 7).
In some cases, additional holidays are still defined in working days. In particular, it is in working days that the duration of additional leave is set in the List of industries in which work gives the right to additional leave. In such cases, business days must be converted to calendar days. To do this, from the start date of vacation for harmful working conditions, you need to count the corresponding number of working days of vacation according to the schedule of the six-day working week (Letter of the Ministry of Labor of the Russian Federation of 01.02.2002 No. 625-BB).
The Supreme Court on the inclusion in the length of service for calculating the duration of leave for harmful working conditions of periods of work at 0.25 rates
According to the rules of par. 1 item 12 Instructions only those days in which the employee was actually employed in these conditions for at least half of the working day established for workers of this production, workshop, profession or position are counted towards the time worked in industries, workshops, professions and positions with harmful working conditions.
In the aforementioned Letter No. 14-2 / B-1045 of October 18, 2016, the Ministry of Labor also drew the attention of employers to the norm of this paragraph and recommended that it be taken into account when determining the length of service for granting additional leave.
It should be noted that earlier the Supreme Court did not challenge the provisions of the Instruction. Thus, in the Determination of May 16, 2002 No. KAS02-200, the cassation board of the RF Armed Forces indicated: The instruction complies with the requirements of the law and does not contradict the norms of international law.
However, in Decision No. AKPI16-1035 of January 26, 2017, the Supreme Court of the Russian Federation came to a completely different conclusion: work in harmful conditions at 0.25 of the rate is included in the length of service for calculating the duration of additional leave.
Thus, by its decision, the Supreme Court invalidated the provision that allows counting in the work experience in harmful conditions only those days when the employee was employed in harmful working conditions for at least half of the working day.
What motivated such a conclusion? The court pointed out that the norm provided for back in 1975 does not comply with the Labor Code. From the provisions of Art. 117 and part 3 of Art. 121 of the Labor Code of the Russian Federation it follows that the duration of the annual paid leave for work with harmful working conditions is determined taking into account the time actually worked in these conditions, regardless of whether the employee is employed full-time or part-time, including when he works less than 0.5 of the rate .
Thus, the contested norm of para. 1 clause 12 of the Instruction does not comply with the provisions of the Labor Code of the Russian Federation, since it introduces restrictions on the duration of the period of work to be taken into account in harmful working conditions in order to provide annual paid additional leave and, accordingly, its payment in the amount established by labor legislation.
The court ruled: in the presence of the current legal regulation of labor relations related to the provision of annual paid holidays for work with harmful working conditions, the procedure for their calculation and payment, the requirements of par. 1 clause 12 of the Instructions when calculating the duration of annual paid additional leave for work with harmful working conditions and accrual of vacation pay are not subject to application. The procedure for calculating wages, paying for holidays, taking into account the presence of additional holidays and combining work, is regulated by the provisions of Art. 60.2, 139, 149 and 151 of the Labor Code of the Russian Federation. In order to exclude the application of the disputed provisions in practice, the court came to the conclusion that they were declared invalid from the date the court decision entered into force.
The days worked in the billing period are considered to be all working days according to the calendar of the six-day working week, with the exception of days when the employee (clauses 5, 11 of the Procedure for calculating average earnings) was on vacation, on sick leave, on a business trip, or for other reasons was released from work with maintaining average income.
The base for calculating vacation pay takes into account the salary and other payments accrued to the employee for the days he worked, with the exception of (clauses 2, 3, 5 of the Procedure for calculating average earnings):
The employee was granted basic leave (28 calendar days) from March 20 to April 16, 2017 and additional paid leave for work with harmful working conditions from April 17 to April 29, 2017 (12 working days).
In the billing period, the employee was on vacation (from July 1 to August 11, 2016), on a business trip (from October 3 to October 7, 2016) and on sick leave (from December 19 to 22, 2016). Thus, according to the calendar of the six-day working week, the number of days worked in the billing period was 255 days (300 - 36 - 5 - 4).
For the billing period, he was charged:
The basis for calculating vacation pay will be 630,000 rubles. (525,000 + 105,000), other payments are not included in the calculation.
The average daily earnings for calculating vacation pay is 2,470.59 rubles. (630,000 rubles / 255 days).
The amount of vacation pay for additional leave for harmful working conditions will be equal to 29,647.08 rubles. (2,470.59 rubles x 12 days).
The cost of additional leave granted to an employee employed in work with harmful working conditions is included in the cost of wages (Letter of the Ministry of Finance of the Russian Federation dated May 31, 2016 No. 03‑03‑06/3/31323). The Tax Code establishes that expenses that reduce taxable income include, in particular, expenses in the form of average earnings retained by an employee during vacation, provided by law RF. Annual additional paid holidays are assigned to certain categories of workers on the basis of Art. 116 of the Labor Code of the Russian Federation. Therefore, if additional leave is granted to an employee employed in work with harmful and (or) dangerous working conditions, on the basis of Art. 116 of the Labor Code of the Russian Federation, the costs of such additional leave are taken into account when calculating income tax.
So, additional paid leave for work in harmful working conditions should be provided within the time limits established for each employee by the vacation schedule, and the duration of such leave should be proportional to the time actually worked in harmful conditions. When determining the number of calendar days in the event that an employee is granted additional leave for work in hazardous working conditions, the number of calendar days of additional leave is rounded in favor of the employee. Taking into account the Decision of the Armed Forces of the Russian Federation of January 26, 2017 No. AKPI16-1035, the length of service for calculating the duration of leave for harmful working conditions should include the time of work in harmful conditions, regardless of whether the employee is employed full-time or part-time, including when he works less than than 0.5 rates.
The employee is obliged to take additional leave for harmfulness along with the main one, however, the main one will be displayed in the accounting first and the additional one the next day after its end. Despite the fact that in the Labor Code of the Russian Federation Art. 120 states that all basic and additional holidays must be paid in calendar days, in the calculation of additional leave for harmfulness, some deviations from this norm of the law are possible.
Article 120 of the Labor Code of the Russian Federation. Calculation of the duration of annual paid holidays
The duration of the annual basic and additional paid holidays of employees is calculated in calendar days and is not limited to a maximum limit. Non-working holidays falling on the period of the annual main or annual additional paid leave are not included in the number of calendar days of leave.
When calculating the total duration of annual paid leave, additional paid leaves are added to the annual basic paid leave.
The calculation of the amount of additional leave for harmful and dangerous working conditions is slightly different from the payment of annual rest.
Reference. However, the enterprise should pay attention to the fact that days of this type of vacation are given only for going out when the employee was engaged in hazardous work.
When calculating the average daily wage for vacation for harmful labor the following indicators are taken into account:
When determining the amount for additional leave, you need to pay attention to the fact that the days when calculating the daily average will differ from the days of the compensation itself. So, for example, when the average daily salary is calculated, the work schedule for a six-day working week should be taken into account, and when determining how many days an employee is entitled to for a certain period, we take into account the actual hours worked in hazardous production.
For example, for sick days or for the period when the employee was temporarily transferred to another safer work site, additional leave will not be accrued. This requirement is spelled out in Instruction No. 273 / P - 20 of November 21, 1975.
If for Last year before granting such leave, the employee has worked completely (in fact, more than 11 months have been worked in hazardous production), then the employee is entitled to the number of days that is prescribed in the law, the collective agreement or in labor agreement. In another case, it is necessary to calculate exactly how many days of additional leave the taxpayer has earned.
KPM = DVR / (RDG / 12),
The next step is calculation of the number of days when the employee will be on legal rest due to harmful conditions:
DDO \u003d KPM x DOG / 12 - DPI,
It should be noted that the value of the CPM does not have to be an integer, in contrast to the DDO value - it is impossible to send an employee to stay at home for 6.73 days. This indicator, in accordance with the Letter of the Ministry of Labor No. 14 - 2 / B - 1045 of October 18, 2016, must be rounded in favor of the employee.
If additional leave for harmful conditions is accrued in working days, it is calculated on the basis of a six-day working week, as indicated in the Letter of the Ministry of Labor No. 625-BB of 02/01/2002. In this case, the average daily allowance should also be calculated based on a six-day working week. With this calculation, it is best to use the production calendar.
The formula for calculating the amount of leave for harmfulness will look like this:
O \u003d SDP x BWW,
In this case it will be different average daily earnings in working days:
SDZ = ZPG / CODE,
When calculating the value of CODE and GPG, one should not take into account the days of illness, various financial assistance and everything that is not charged insurance premiums, as well as various distractions from the work process (blood donation, business trip, participation in competitions). If these payments are accrued in calendar days, they must be converted into working days at six days in accordance with the production calendar.
How to calculate days and their number? Consider the example of calculating rest days. Employee Vinokur V.V. from 05.02.2017 was transferred to a workshop with harmful working conditions. According to this profession and in this workshop, he is entitled to 11 days of additional leave for harmfulness. However, from June 22 to July 3, Vinokur was ill. Let's calculate how many days of additional leave he is entitled to on 01/01/2018.
Let's calculate Vinokura V.V. the number of shifts worked by him for the billing period from January to December 2017. They will make up:
We calculate the working days according to the schedule for its last 12 months of work (see table above).
Now let's calculate the CPM:
Thus it is worker Vinokur The.The. as of 01.01.2018 can count on 10 days of additional rest for harmful and dangerous working conditions.
Let's say an employee Tikhmanov V.S. going to rest. He writes an application for granting him a basic vacation from March 1 to March 20, 2017 and an additional one for harmfulness for 8 working days. At the production of the 3rd degree of harmfulness, employee Tikhmanov has been working for 3 years and annually fully uses his right to this type of rest, he is entitled to 10 calendar days of additional leave per year.
For the last calendar year, he received a salary in the amount of 620,300.00 rubles, including sick leave from January 18 to January 27 in the amount of 10,700.00 rubles, a business trip from November 29 to December 2, 2016. in the amount of 7,700.00 and financial assistance for treatment in the amount of 20,000.00 rubles.
Calculate the compensation i.e. the amount that the company is obliged to pay him for additional leave:
620,300.00 - 10,700.00 - 7,700.00 - 20,000.00 = 581,900.00 rubles
In 2017, according to the schedule, with a six-day working week from January to February 2017, there are 42 days. Because the employee was on sick leave - these days we are filming. A six-day worker was sick for 9 days. The days worked by him in 2017 are the total number of days worked by Tikhmanov, transferred to a six-day working regime, will be:
$581,900.00 / 286 \u003d 2,034.62 rubles.
2,034.62 x 8 = 16,276.96 rubles.
How to calculate additional leave when working with harmful (dangerous) working conditions:
The calculation of additional leave in connection with work with harmful and / or dangerous working conditions is slightly different from the payment of the main one. It requires more attention, since it can be provided not only in calendar days, but in business days.
Also Special attention it should be noted that this type of accrual should be calculated exclusively for the days when the employee was in fact in hazardous work. If you know all these nuances, then you will not have any difficulties with this type of recreation.
For workers employed in hazardous working conditions, the legislation provides for special guarantees. In particular, they may receive additional rest or monetary compensation.
In 2013, 421-FZ was put into effect, which amended certain legal acts in connection with the adoption of the law regulating the special assessment of labor (FZ No. 426). The adjustments also affected TK.
The provisions of 421-FZ fix changes in article 117, which defines the conditions under which labor activity gives employees the right to receive additional leave, its minimum duration. Let's take a closer look at the current rules.
They are mentioned in part 1 of Art. 117 of the Labor Code of the Russian Federation. According to the norm, additional leave may be granted to persons who are classified as harmful 2-4 degrees or dangerous.
We are talking about mining, underground and open, including labor activity associated with the negative impact on health of harmful biological, physical, chemical and other factors. Professions and positions with harmful working conditions are fixed by a special List approved by the USSR State Labor Committee of 1974, additional leave is due to employees directly performing activities enshrined in the relevant sections of the List.
As established by part 2 of Art. 117 of the Labor Code of the Russian Federation, the minimum duration of the period of additional rest, as well as the rules for granting, are determined in the manner approved by the Government, taking into account the opinion of the tripartite commission for the settlement of social and labor relations.
Government Decree No. 870 of 2008 provides guarantees for persons performing professional duties in hazardous conditions:
Some employees additional leave for harmful working conditions is provided not according to the List, but in accordance with other regulations.
In particular, we are talking about the provisions of the Decree of the Council of Ministers of the USSR of 1990. According to them, the industrial and production personnel of the shale, coal, mining industries and a number of other basic industries, except additional leave for harmful working conditions may receive days of rest for the performance of work in underground conditions in quarries, cuts. Its duration can be 4-24 days.
Both of these holidays are received by employees on the basis of a List specially approved as an Appendix to the Decree of 1990. This List contains types of work, industries, job titles, professions, for each of which the duration of the rest period for labor activity in underground conditions is indicated, and also the duration limit leave for harmful working conditions. Number of rest days in last case determined depending on the presence of harmful factors of production. Each of them is compensated by additional rest of a specific duration.
If there is an impact of several production factors, the duration of the holidays is summed up. However, in general, it cannot exceed the maximum duration specified in the List.
According to the provisions of this regulatory act, additional days of rest are due to citizens engaged in labor activities in territories contaminated radioactive substances as a result of the Chernobyl accident. In fact, they are installed unfavourable conditions work, although provided to staff as a supplement to leave for harmful working conditions.
The duration of these days of rest varies depending on which zone this or that territory belongs to, the duration of residence / work.
Employees of health care institutions that diagnose and treat people suffering from HIV, employees of organizations whose activities are related to biomaterials containing this virus, additional days of rest are included in their annual leave. Its duration has been increased to 36 days.
The list of employees entitled to such leave, as well as the rules for granting, are determined in the Decree of the Ministry of Labor No. 50 of 1996.
Veterinary, medical and other workers who directly provide anti-tuberculosis care, as well as employees of organizations engaged in the production and storage of animal products, providing services to farm animals infected with tuberculosis, are also entitled to. It is enshrined in Article 15 of the Law regulating the procedure for preventing the spread of tuberculosis.
The duration of rest provided for in the List for a particular job or position should be considered as a minimum guarantee for an employee of any organization involved in the relevant activity.
According to Article 117 T of the Ore Code, leave for harmful working conditions may be longer than specified in the regulations. Relevant provisions should be enshrined in a collective agreement or a local document of the organization.
In accordance with established order, to determine the duration of rest, it is necessary to set the number of days worked in harmful conditions, convert them into whole months and multiply by the vacation days that rely on 1 year.
If the year has not ended, you need to calculate the number of days since the beginning of the year or since the date of employment. At the same time, the employee must work in appropriate conditions for more than half a shift per day. If a citizen constantly works in hazardous production, the calculation includes all the days he has worked in full.
To determine the number of months, the number of days in which the subject worked in the relevant conditions is divided by the average monthly number of days. The resulting value is rounded up to 1.
Annual additional leave for harmful working conditions an employee can receive if he works for at least 11 months. If the working time is less than the specified period, rest may be granted, however, its duration will be reduced in proportion to the hours worked.
For calculation vacation use the formula:
DO \u003d DOd / 12 x Chpm, wherein:
If in the current period the employee has already rested for several days from additional leave, they are subtracted from the value obtained by the above formula.
As Article 117 of the Labor Code establishes, the duration of rest should be at least 7 days. If the employer has set a longer duration, the law allows the payment of monetary compensation for days that exceed the legal minimum.
After determining the number of days worked in hazardous conditions and for the year as a whole, the number of months is set according to the formula:
Mv \u003d Dvr / (Dyear / 12), wherein:
If it turns out 11 months, then the employer must provide the employee for a full year.
After that, the duration of the rest period is determined by the following formula:
O \u003d Mv x Dnorm / 12 - ID, wherein:
When calculating the length of service giving the right to additional rest, the time is not taken into account:
Some employees of healthcare institutions may count on excess leave based on the provisions of Article 350 of the Labor Code. The categories of health workers and the duration of additional leave for them are presented in the table.
Rest duration (in days) |
|
All employees working in hazardous conditions | |
Employees who come into contact with HIV-infected patients | |
Medical workers who treat mentally ill citizens | 14, 21, 28 or 35 |
Employees of anti-tuberculosis institutions | |
Personnel working with biomaterial containing HIV |
If a citizen carries out labor activity in hazardous work part-time, he can also count on additional leave.
For calculation, the total number of hours on the days when the employee worked more than half of the shift is first determined. The resulting indicator is divided by the average length of the working day (8 hours).
In accordance with Article 126 of the Labor Code, additional rest for harmful conditions cannot be replaced by payment. Compensation to employees can only be provided for unused vacation upon termination of an employment contract with them. However this rule does not apply to cases of transferring an employee to another position, since in such situations the employment relationship does not end.
Article 117, however, provides for the possibility of replacing days with compensation, the number of which exceeds the minimum established by law. That is, if the employer has set 15 days of rest instead of seven in the collective agreement or the local document of the enterprise, the employee takes a vacation for 7 days, and can receive money for the rest.
The conditions, procedure, amount of compensation are determined in a collective agreement or a local document. At the same time, the establishment of a longer vacation, as well as the possibility of replacing part of it with a cash payment, should be reflected in an additional agreement to the employment contract.
Additional leave for work under harmful conditions is paid. For the calculation, the indicator of average earnings is used. It is determined in the manner enshrined in paragraphs 3, 4 of Article 139 of the Labor Code and paragraph 10 of the Regulation, approved by government decree No. 922 of 2007.
Total duration annual leave is formed from the number of days of the main and additional periods of rest. The settlement period is 12 months preceding the month the employee goes on vacation.
Mandatory budget payments are deducted from the payment of additional rest time in the same way as from payments for the main vacation. The legislation establishes the obligation of the employer to accrue, withhold and deduct personal income tax and contributions to the Social Insurance Fund.
The cost of rest for labor activity on harmful conditions is attributed to the cost of wages. Average earnings is retained by the employee during the entire period of vacation.
If the enterprise provides for more days of maternity leave than established by law, the costs may be included in the costs that reduce the taxable base.
As follows from the information above, additional rest is due to employees by law or by decision of the employer. On a mandatory basis, additional days are provided to employees involved in labor activities in hazardous production. At the same time, the law establishes a minimum number of them, which can be increased at the discretion of the employer.
The calculation of the duration of leave for work in hazardous conditions is based on the time actually worked by the employee. The minimum duration of the rest period cannot be less than 7 days. For certain categories workers, the normative acts set a higher minimum. In particular, special rules apply to certain medical staff.
The employer is not entitled to replace the minimum duration of additional leave with monetary compensation. Otherwise, it will be a violation of the constitutional right of citizens to legal rest. During the entire additional vacation, the employee retains his position and salary. For violation of the instructions enshrined in federal legislation and the provisions of other regulations, measures of civil liability may be applied to the manager.
Every citizen has the right to a holiday offered annually. It lasts at least 28 days. But at the same time, some specialists can count on additional leave for harmful working conditions. The employer cannot refuse them such a vacation, as this would be a significant violation of the law. But at the same time, there must be really harmful conditions in which citizens must perform labor tasks.
Leave for harmfulness is assigned only to those citizens whose work is in any way connected with the danger that significant harm will be caused to the health of the employee. Usually harmful conditions are associated with dangerous ones. In this case, it is said that significant loads affect the specialist, and they can be physical or emotional.
Working conditions according to the degree of harmfulness are divided into four classes. All citizens who work under conditions of the second, third or fourth degree of harmfulness can count on additional rest during the year. Such rest must be paid by the employer under article 117 of the Labor Code of the Russian Federation. Every citizen can apply to his employer to find out if his work is harmful. If the conditions belong to the first degree of harmfulness, then it will not be possible to count on additional days for vacation.
To identify a specific degree of harmfulness, a special check is carried out in the company, the main purpose of which is to assess all the conditions and parameters of the work of employees. Such an assessment is carried out by all industrial organizations or other companies whose work is in one way or another connected with harmful effects on the body.
After the assessment, employers are required to notify all employees about whether any degree of hazard has been established at the enterprise. Information must be communicated in writing.
Harm is available at different enterprises. Providing additional leave for harmful working conditions is mandatory in companies specializing in:
Additionally, this includes work in the North. Each company has its own unique conditions, so the number of days added to the standard vacation will be different. Who is entitled to leave for harmful working conditions? All people performing labor functions at enterprises where the hazard class is set from 2nd to 4th can count on additional rest.
Under such conditions, it is not possible to offer employees monetary compensation instead of additional leave. Annual additional paid leave for employees engaged in work with harmful or dangerous working conditions should be provided subject to the following conditions:
If holidays fall within this period, they are not included in vacation days. If a citizen is on leave for harmful working conditions, then the employer is not allowed to call him to work. This is regulated by law.
The personnel department of each enterprise must independently ensure that the provisions of Article 117 of the Labor Code of the Russian Federation are not violated. Rest is offered only after a suitable order or instruction has been issued. This document should contain information on the date on which a particular employee goes on vacation, as well as its duration. If there are violations in the duration of leave for harmful working conditions, then each specialist can seek help from the labor inspectorate or court.
In Art. 117 of the Labor Code contains all the necessary information that makes it possible to understand how the additional rest is correctly calculated. It states here that it cannot extra days to leave to be less than seven per year. The exact figure is determined by the employer, for which the results of an earlier assessment are taken into account. Company owners are allowed to increase the duration of such rest, but they cannot reduce it.
If the employers themselves decide to increase the duration of the vacation, then the cost of paying all the days that exceed the norm cannot be used to reduce the tax base for income tax.
The calculation of leave for harmful working conditions involves the use of a standard formula, which is also used to calculate standard rest. If the employee's length of service does not exceed 12 months, then it is required to divide the standard number of days of vacation for harmfulness by 12 months, after which the resulting value is multiplied by the number of days actually worked in the company.
An example of calculating additional leave for harmful working conditions is considered simple. For example, a man works in a company for 8 months. The employer has established that each employee can count on additional rest, which lasts 7 days. For the calculation, the above formula is taken into account: 8/12 * 8 \u003d 5.33. Therefore, a man can count on an increase in standard leave by 5 days.
PP No. 482 lists all the specialties of medical workers for which a specialist can use benefits. For this, an appropriate evaluation is required. If a certain profession is not on the list, then the employer himself may provide additional rest.
For health workers, the same conditions and requirements apply, so the duration of rest for harmfulness cannot be less than 7 days. The management of the medical institution has the authority to extend this period by any number of days. Such a benefit is necessarily assigned to citizens working in the field:
All people working in such conditions can count on extra days off. If the employer refuses to provide them, then this is the basis for bringing him to administrative responsibility.
There is more and more information that, as a result of changes in labor law and the abolition of certification of workplaces, additional leave for harmful working conditions may be canceled. But this information is false, since, as before, all people who are forced to work under such difficult conditions can count on increased rest.
All medical workers and people working in numerous industrial enterprises can count on this indulgence.
Each employer must correctly arrange additional leave. To do this, it is optimal to draw up a special schedule, which includes standard holidays and additional ones. For this, the following actions are performed:
The calculation of days is usually done by a specialist in the personnel service. Payments are calculated by the accounting department.
Additional days of rest are paid by the employer in the same way as the standard leave to which every officially employed citizen is entitled.
The basis for the calculation is average salaries of a particular specialist. To do this, you need to focus on the provisions of Art. 139 TK. Funds must be transferred three days before the moment when a person goes on vacation. Funds can be issued at the cash desk of the enterprise or transferred to the employee's card.
Many citizens working in harmful conditions want to receive compensation in the form of a certain amount of money instead of additional leave. But at the same time, the legislation clearly states that it is not allowed to replace such a vacation with monetary compensation.
If the company assigns a rest period exceeding 7 days, statutory, it is allowed to provide compensation for these exceeding days. Therefore, if an employee can take 12 days off, then he must definitely use seven days, but the remaining five days can be replaced by a certain payment. This method of using additional rest can be used only with the consent of the employee himself.
For many employers, the need to provide additional days of rest for employees is considered unprofitable, so they try to different ways relinquish this obligation. The reasons for the absence of additional leave for harmful working conditions may be as follows:
If an employee understands that labor legislation is being violated, then he can file a complaint with the labor inspectorate. If work is performed with harmful working conditions, but additional rest is not provided for this, then the employer, on the basis of a complaint from employees, is held liable. The amount of the fine depends on the damage done.
If the law is repeatedly violated, then the employer is brought to administrative responsibility, and the size of the fine increases significantly. In this case, the head of the enterprise may be completely removed from his position for a period of one to three years.
Additional rest is issued only after calculating the amount of time that the specialist actually worked in the company. Therefore, it is not allowed to issue it in advance.
If a citizen draws up an application for registration of more days of rest than he is entitled to in the company, then this is the basis for refusing to provide such a long vacation.
Each employee who has the right to use additional leave must independently write an application for its registration. Work in the North or in different medical organizations is the basis for obtaining a long rest. When preparing an application, the following recommendations are taken into account:
It is allowed to use a computer to write an application, but the signature is put manually by a citizen.
To send a company employee on additional leave, it is required to issue an appropriate order to the head of the enterprise. For this you need to use unified form T-6.
It is formed on the basis of an application drawn up by the employee, and the vacation schedule approved at the beginning of the calendar year can also be used for this.
The company must maintain a time sheet, for which it is used standard form No. T-12. This document must reflect additional holidays. For this, the letter code OD and the number 10 are used.
It is taken into account that holidays under Art. 120 of the Labor Code, therefore, if holidays fall on the employee's rest, then they should be indicated by code B26. The literacy of the calculation of days and payments depends on the correctness of filling out this document.
Vacation pay should be paid to employees not only when they go on annual standard leave, but also when using additional vacation days. Such payments are salaries, therefore, personal income tax is certainly levied on them, and certain payments are also paid to various insurance funds.
The calculation is carried out in the same way as when paying a standard salary. Therefore, personal income tax is charged at a rate of 13%. Incorrect calculations are the basis for bringing the accountant to responsibility.
Based on the above information, several significant points can be distinguished for each person planning to work in an enterprise with harmful conditions. These include:
Thus, all people working in hazardous conditions may require by law the provision of additional rest. It is appointed annually, and citizens must have a minimum rest of 7 days, but employers can increase this period on their own.
It is important to know how such a long day off is properly drawn up, what documents employers and employees should prepare for this, and also how vacation is paid correctly. If the employer, without good reason, refuses employees such rest, then this is the basis for holding him accountable.
