The employee has the right to receive annual paid leave (basic and (or) additional) for the current and all previous working years.
Paid leave must be granted to the employee in each working year. In exceptional cases, with the consent of the employee, the transfer of vacation to the next working year is allowed. At the same time, leave must be used no later than 12 months after the end of the working year for which it is granted. Annual leave for previous working periods may be granted either as part of the vacation schedule for the next calendar year, or by agreement between the employee and the employer.
In cases not related to the dismissal of an employee, and in the absence of the circumstances specified in Part 3 of Art. 126 of the Labor Code of the Russian Federation, only part of the vacation can be replaced by monetary compensation: the employee must actually use at least 28 days of the total vacation for each working year, the remaining days of vacation can be replaced by monetary compensation.
Recall that employees are provided with annual leave while maintaining their place of work (position) and average earnings (Article 114 of the Labor Code of the Russian Federation). As a general rule, the duration of the annual basic paid leave of employees is 28 calendar days. Certain categories of employees are granted extended basic leave lasting more than 28 days in accordance with the Labor Code of the Russian Federation and other federal laws (Article 115 of the Labor Code of the Russian Federation). In addition to the annual basic paid leave, some categories of employees are granted annual additional paid holidays (the conditions for granting such holidays are specified in Articles 116-119 of the Labor Code of the Russian Federation).
In accordance with Art. 120 of the Labor Code of the Russian Federation, when calculating the total duration of the annual paid vacation, additional paid vacations are added to the annual main paid vacation. Thus, annual paid leave includes both basic leave (Article 115 of the Labor Code of the Russian Federation), including extended, and additional holidays (Articles 116-119 of the Labor Code of the Russian Federation), when such holidays are granted to the employee. The term "annual paid leave" is a general term.
In accordance with Art. 122 of the Labor Code of the Russian Federation, paid leave must be provided to the employee in each working year. Only in exceptional cases is it allowed, with the consent of the employee, to transfer the leave to the next working year. At the same time, leave must be used no later than 12 months after the end of the working year for which it is granted (part 3 of article 124 of the Labor Code of the Russian Federation).
According to part 4 of Art. 124 of the Labor Code of the Russian Federation prohibits the failure to provide annual paid leave for two consecutive years, as well as the failure to provide annual paid leave to employees under the age of 18 and employees engaged in work with harmful and (or) dangerous working conditions.
Note that the presence of this prohibition does not deprive the employee of the right to unused vacation for two years, but only is the basis for bringing the employer to administrative responsibility under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation. An employee who did not use his annual leave (basic and (or) additional) in the corresponding working year is not deprived of the right to use it in the future under any circumstances. By virtue of Art. 114, 122 and 124 of the Labor Code of the Russian Federation, the employee retains the right to use all holidays that were not provided to him in a timely manner. Annual leave for previous working periods can be granted either as part of the vacation schedule for the next calendar year, or by agreement between the employee and the employer (see also letters from Rostrud dated 08.06.2007 No. 1921-6 and dated 01.03.2007 No. 473-6-0 ).
Thus, the employee has the right to use all the annual paid holidays "accumulated" during the time of work with this employer.
The possibility of replacing part of the vacation with monetary compensation in cases not related to the dismissal of the employee is provided for by Art. 126 of the Labor Code of the Russian Federation. In accordance with part 1 of this article, at the written request of the employee, part of the annual paid leave in excess of 28 calendar days may be replaced by monetary compensation.
Part 2 of Art. 126 of the Labor Code of the Russian Federation establishes that when summing up annual paid holidays or transferring annual paid holidays to the next working year, a part of each annual paid holiday exceeding 28 calendar days, or any number of days from this part, can be replaced with monetary compensation.
This means that 28 calendar days is the minimum number of days off from work that an employer must provide an employee for rest during each year of work. Accordingly, in the course of work, the employee whose each annual leave individually exceeds 28 calendar days can claim compensation for part of the vacation (the employee has the right to extended basic leave and (or) annual additional paid holidays). Replacement of part of the vacation with monetary compensation greater than that provided for in Art. 126 of the Labor Code of the Russian Federation (except in the case of dismissal), is a violation of labor legislation and may entail administrative liability under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.
The provisions for the replacement of annual basic paid leave and additional annual paid holidays with monetary compensation do not apply to pregnant women and employees under the age of 18. It is also not allowed to replace the annual additional paid leave with monetary compensation for employees employed in work with harmful or dangerous working conditions for work in appropriate conditions (except for the payment of monetary compensation for unused leave upon dismissal, as well as cases established by the Labor Code of the Russian Federation) 3 article 126 of the Labor Code of the Russian Federation).
Note that the days of annual paid leave, the replacement of which is allowed by law, can be replaced by monetary compensation only upon a written application from the employee (part 1 of article 126 of the Labor Code of the Russian Federation). At the same time, the law does not require the employee to use 28 days of the main vacation. You can use additional leave, and replace the days of the main one with compensation, you can use the main vacation, and compensate for the additional one with money. The main thing is to actually use at least 28 days of the total vacation time for each working year. At the same time, in order to replace part of the vacation with monetary compensation, it is not necessary to wait until the end of the working year or the actual use of 28 days of vacation for the corresponding working year.
We also note that the use of Art. 126 of the Labor Code of the Russian Federation, the words “may be replaced” means that the payment of monetary compensation while continuing the employment relationship is the right, and not the obligation of the employer (see the above-mentioned letters of Rostrud dated 08.06.2007 No. 1921-6 and dated 01.03.2007 No. 473-6 -0 and). Therefore, the employer has the right to refuse the employee's request for compensation and insist on the actual use of the entire vacation.
In a situation where vacations for previous years will not be granted or compensated until the termination of the employment contract, the employee is entitled to monetary compensation for all unused vacations upon dismissal, which is paid within the time limits specified in Part 1 of Art. 140 of the Labor Code of the Russian Federation (part 1 of article 127 of the Labor Code of the Russian Federation).
Employees with unused vacations should find out if unused vacations for previous years burn out, and also what is the procedure for compensation for missed legal vacations. Employers - what threatens not to provide leave, even with the consent of citizens who have not rested.
According to Art. 122 of the Labor Code of the Russian Federation, annual paid leave of at least 28 calendar days is mandatory.
Workers in Russia not only have the right to take vacations while receiving vacation pay, they must do so. If employees do not have to be afraid of an administrative penalty for refusing annual leave, then the employer is threatened with a charge of infringing on the labor rights of citizens.
The problem arises when some of the staff do not take vacations for several years, hoping to receive monetary compensation for unused vacations.
If the employee did not use the vacation only once last year, then he has the right to postpone the vacation to the current year.
Note: article 124 of the Labor Code obliges to take off the missed annual paid leave no later than 12 months following the end of the fully worked calendar year.
Important nuances:
Should be ordered. If the initiator is an employee, his application is required. Both documents must contain a good reason, provided for in Art. 124 TK.
Even if there are such reasons, the manager is not entitled to leave the subordinate without paid rest for more than 2 years in a row.
To figure out whether unused vacation in 2019 burns out or not is prompted by the ratification by Russia of the convention of the International Labor Organization, which provides for the preservation of the right for an employee to annual paid vacation only for 21 months.
Additionally
Upon dismissal, the employee is entitled to all previously unused vacations. You can exercise this right by providing the employee with monetary compensation for the entire accumulated period. If there are few unused days, then the employer can send the employee on vacation, and only after that - dismiss him.
This ratification did not lead to the adoption of amendments to the Labor Code of the Russian Federation and other regulations that do not provide for any burning of non-vacation holidays.
According to the letter of Rostrud dated June 8, 2007 No. 1921-6, employees who have not taken vacation for several years are still entitled to use all accumulated vacation days.
According to the norms of the Labor Code, the employer is obliged to provide each employee with an annual vacation of at least 14 calendar days. The remaining days - both for the current year and the previous ones - are split up arbitrarily (Article 125 of the Labor Code). Find out how you can divide vacation according to the labor code. This allows the employee to periodically take 1-2-day "days off" without leaving the workplace for a long time, and the employer to eliminate violations of labor laws regarding paid holidays.
Does unused vacation expire? - the answer is in the video
The above-mentioned ILO convention does not allow the replacement of guaranteed paid rest with compensatory cash payments.
The subordinate has the right to demand from the employer to compensate for unused vacation for previous years with money only upon dismissal (how compensation for unused vacation is considered, read in the article). By law, until the employment relationship is terminated, this amount cannot be received.
Note: persons who continue to work, monetary compensation is due exclusively for non-vacation, added to 28 calendar days or another period of the main one.
If, upon dismissal, the employer decides to compensate the employee for unused vacation only for the last 21 months on the basis of the same international convention, the citizen will apply to the State Labor Inspectorate. As a result:
If you challenge the decision of the GIT in court, it is not a fact that he will take the side of the employer - often judges make decisions in favor of employees.
To avoid problems with the law and / or large payments to those leaving, it is recommended to send employees on legal vacation in a timely manner in accordance with the Labor Code and the vacation schedule.
Ask your question and get free legal advice
The legislation establishes a certain number of days of rest for working citizens. They are provided annually to permanent employees or 6 months after the employment of a new candidate.
What happens if a person continuously performs work duties? Does unused vacation expire?
The Labor Code states that employees have the right to use rest days not used in the previous year.
By agreement with the employer, they can be added to the main vacation or used separately.
When the employment contract is terminated, and such days are listed for the dismissed person, it is impossible to burn out the vacation.
Based on Art. 127 of the Labor Code of the Russian Federation, he has the right:
Hard-working employees who rarely rest can accumulate a fairly large number of such days.
This situation is disadvantageous for employers for two reasons:
The main document regulating these issues is.
We have already found out that over the past year, days of rest must be taken into account. And can leave granted in earlier periods burn out?
We present the answers to the question posed in the form of a table:
| Vacation type | Characteristic | Does it burn or not? | |
| upon dismissal | in case of reorganization, liquidation, staff reduction | ||
| Annual | The number of days fixed at the legislative level and provided to employees who have worked in the organization for more than 6 months. | No | management can offer monetary compensation or take time off before the procedure begins. Otherwise, the days "burn out". |
| Additional | It is provided to certain categories of citizens working in dangerous conditions, in the regions of the Far North or performing special assignments. | No | 100% cash compensation is paid |
When going on maternity leave and after it, an employee who has accumulated a lot of vacations can do this:
It is worth noting that situations should not be allowed when an employee has “time off” for several years, since this is a mistake. The personnel officer must make adjustments in the personal file by summing up the periods for several years.
Example:
An employee of Artemis LLC K.V. Petrov revealed unused days of rest:
In such a situation, the number of "days off" for 2016 will be 24 days. Cash compensation for all periods K.V. Petrov can receive upon dismissal.
Human resources employees must correctly reflect unused rest days in.
Non-vacation days are added to the annual leave, which is planned for the current year.
When filling out the schedule in column No. 5, you must specify the duration, taking into account the main and additional holidays.
In column No. 10, you can make a note on the number of additional days provided.
Example:
Leading engineer of the Artemis company - K.V. Skvortsov plans to go on 04/14/2017 on the main vacation. In 2016, an employee took 10 days off. What are done in the schedule?
Solution:
In column No. 5, it is necessary to indicate not 28, but 36 calendar days (28 days + 18 days), and in No. 10 - a mark on the number of added days: “28 days + 18 days. for 2016".
"Time off" for past periods can be provided:
In the second case, the document is drawn up in the same way as for the main vacation. The employee does not need to specify that days from previous years are provided.
Application example:
Since it is unprofitable for the management of organizations that employees have many days of unused rest, in practice they often offer different ways to get rid of them. As a result, conflicts arise.
Let's consider the most common questions.
Such actions are a violation of paragraph 2 of Art. 127 of the Labor Code of the Russian Federation.
The management of the organization must pay money upon termination of the contract, regardless of the basis and total duration of unused days, or provide a certain number of days of rest with subsequent dismissal.
In case of non-compliance with the requirement, it is necessary to file a claim in the world court.
According to Art. 125 of the Labor Code of the Russian Federation, separation is possible only by agreement of both parties.
Putting pressure on a subordinate in this case is a violation of the law, for which an administrative fine is imposed on the employer.
To solve the problem, you need to contact the GIT.
Labor legislation states that annual leave is provided according to the schedule, and unpaid leave is at the request of the employee.
A request to take a vacation, and even work during this period, is a violation of rights. It is necessary to contact the labor inspectorate, the prosecutor's office or the court.
The rules of law do not contain conditions under which the rule prescribed by Art. 127 of the Labor Code of the Russian Federation.
According to Part 3 of Art. 70 of the Labor Code of the Russian Federation, during the period of passing the test, the candidate is subject to the same provisions of the law and norms as for other employees.
Therefore, a person dismissed during a probationary period can count on compensation for unused vacation. The condition is a vacation period of at least 15 days.
If an enterprise does not provide employees with vacation for 2 years, management may incur administrative liability.
Violation qualifies under Art. 5.27 of the Code of Administrative Offenses.
The following punishment is provided:
For the first violation, the penalties are small, but the leaders try to comply with the norms of the law, since a repeated violation threatens disqualification. It is also possible to stop activities up to 90 days.
If, upon dismissal of an employee, the organization partially pays compensation for unused vacation, the same liability is provided as in case of refusal to provide funds - the missing amount is issued with interest in the amount of at least 1/150 of the current rate of the Central Bank of the Russian Federation (Article 236 of the Labor Code of the Russian Federation).
In case of violation of rights, the employee must apply to the court with a written statement.
It must indicate:
You can also indicate the contact of the plaintiff or his representative (telephone, e-mail, fax). It is allowed to enter other information that is important in resolving the conflict.
The application form can be found here:
The question of whether the days of unused vacation burn out often remains open due to the fault of retired citizens. The fact is that in order to recover compensation, it is necessary to comply with the deadlines for applying to the court.
As a general rule, this is 3 months from the day the employee learned about the offense. Specific periods are regulated by Part 1 of Art. 392 of the Labor Code of the Russian Federation - 1 month from the date of submission of a copy of the Order to terminate the contract or the issuance of a work book.
If the deadlines for applying were violated for good reasons (for example, the dismissed person was on sick leave), the court may restore them.
In this case, the plaintiff will need to provide documentary evidence of the forced absence.
The application of the provisions of the law in practice is another reason why the question remains relevant: “does unused vacation burn out?”
There are court decisions, based on which part of the rest or compensation is lost. It's all about the different interpretations of the norms of domestic and international legislation.
Example:
N.V. Kurnosova, who worked as an accountant at ZAO Star G, had 58 unused calendar days of vacation. After the termination of the employment contract, she received compensation for 31 days in the amount of 122,335.3 rubles. She applied to the court for the payment of the balance in the amount of 106,550.1 rubles to CJSC Star G. and compensation for moral damage - 15,000 rubles.
What decision was made:
When considering the case, the court referred to the provisions of the Convention No. 132 of the International Labor Organization “On paid holidays”, where N.V. Kurnosova was entitled to issue annual paid leave for the relevant period within 18 months after the year for which the leave was granted.
Please make a decision on the basis of the provisions of Art. 127 of the Labor Code of the Russian Federation was ignored, since the court considered the plaintiff's understanding of the law to be incorrect.
Note: if, when resolving a conflict in court, an unfair decision was made based on an incorrect interpretation of the law, you can apply to the Supreme Court of the Russian Federation.
Employees may take annual leave in the current or next year, but compensation is usually provided for additional leave.
The accumulated days of annual rest “do not burn out”, money is paid for them, but only upon dismissal.
Now the main question that worries accountants in connection with the change in legislation on vacation pay is whether unused vacations will burn out from January 1, 2019? Let's answer this question.
Suppose an employee has not been on vacation for two years in a row. Leaves expire?
In this case, the employer violates labor laws. For this, the organization can be fined from 30,000 to 50,000 rubles. or suspend its activities for up to 90 days (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).
But there will be no punishment for the employee. And the days of non-holiday vacation will not burn out. Vacation for these days is due to the employee in full.
Leave cannot be replaced by compensation. Even the vacation in which the employee has not been for more than two years. The employee can only take these days off on vacation. At the same time, vacation pay is paid for vacation, which can be calculated on our calculator .
Some employees are entitled to additional vacation days in addition to these 28 days. This:
These extra days can be replaced by compensation. Compensation is calculated in the same way as regular vacation pay.
Also, vacation is replaced by money if the employee quits. This case has been considered in a special article on our website .
In this way, unused vacations- these are the same holidays that the employee did not use on time at one time, that is, he was not on the prescribed vacation.
The transfer of vacation is possible, but only for a year. That is, unused vacation can only be used during the next working year, if more time has passed, then the vacation cannot be used.
Employers are prohibited from not letting employees go on vacation for two consecutive years.
Many people wonder whether unused vacation burns out or not. In accordance with applicable law, an employee is entitled to 28 days of annual paid leave. It is also called the main. However, some professions and regions still have additional leave.
According to the Labor Code, the main vacation must be taken during the current year. By agreement with the employee, leave can be divided into several parts, one of which must be at least 14 days. If the employee did not use the prescribed vacation during the year (for good reason), then its unused part can be transferred to the next year (Article 124 of the Labor Code of the Russian Federation). At the same time, according to the law, not granting vacation within 2 years is prohibited. That is, the debt in the amount of 56 days of vacation is a gross violation of the law.
Thus, we can conclude that the unused vacation by the employee does not disappear anywhere and does not burn out. Upon dismissal for the entire vacation period not taken by the employee, the employer is obliged to pay vacation pay.
As it became known that unused vacation does not burn out and does not go anywhere.
Days that have not been used do not disappear anywhere. But the law forbids them to accumulate more than necessary. The Code also establishes that the manager cannot refuse to provide time for rest. Such a violation can lead to a fine of at least 50 thousand rubles.
More recently, it was possible not to go on vacation, but to get money for it. Currently, only those who have more than 28 days of leave per year can receive holiday compensation - these are, for example, extended or additional holidays. If an employee is only entitled to a vacation of 28 calendar days, then part of this vacation or the entire vacation cannot be replaced with money! Holidays generally cannot be postponed for more than 24 months. And the management ceased to be profitable for vacation days to accumulate.
This is due to several reasons:
But employers often try to reduce rest time anyway. For this purpose, several methods are used:
These methods cannot be called effective. The management of the enterprise convinces that an employee can receive two payments at once - this is wages and vacation pay. And in this case, the employee loses the right to legal rest.
If an employee leaves, but he still has a vacation left, he has the right to take several actions:
| stage number | Indicator | Calculation algorithm |
| Stage 1 | Determination of seniority in months | Only those months in which the professional activity was more than 15 days are taken into account |
| Stage 2 | Determining the number of vacation days for one month worked | the total duration of the annual rest is divided into 12 months (28/12) |
| Stage 3 | Determine the total number of vacations for the entire length of service | the length of service in full months is multiplied by the number of vacation days for 1 month |
| Stage 4 | Definition of unused vacation | From the total amount of vacation takes away the already used vacation |
The peculiarity of the calculation of vacation compensation is that not calendar months, but working months are taken into account. The working year begins to be counted from the date of employment.
If for one full working year 28 calendar vacation days are required, then for 1 full month 2.33 days.
Example: Sokolov was hired on February 1, 2014. Retired on 02/28/2017. The length of service for calculating the vacation period is 3 years 1 month. During this period, Sokolov was on annual paid leave 2 times, 28 days each. Only 56 days. It is required to calculate the days of compensation for unused vacation upon dismissal.
3 years and 1 month is 37 full months.
If 28 calendar days are required for 1 year, then for 37 months - 37 * 2.33 \u003d 86.21 days.
Sokolov managed to take 56 days off, which means that the number of days of unused vacation is 30.21 days.
30.21 days can be rounded up to 31 or not rounded at all.
for these days, you need to pay monetary compensation, for which the average earnings for the year are multiplied by the number of unused days. The result of the calculations will be the monetary compensation for vacation paid upon dismissal.
The law allows pregnant women to extend the period of maternity leave by increasing its duration due to unused holidays:
Question number 1. Does unused vacation expire?
No, unused vacation never expires. There is only one thing, however, that an employee can receive compensation for unused vacation only upon dismissal.
Question number 2. Is it possible to receive compensation for unused vacation without dismissal?
Yes, but only for extra leave.
The Labor Code states that the employer can independently establish additional holidays - the procedure for granting such holidays should be determined by the collective agreement. But for some categories of employees, an additional period is legally enshrined in Article 116 of the Labor Code of the Russian Federation.
This includes workers:
