May I not go on vacation. The employee does not want to go on vacation - the right decisions

Answer: There are situations when an employee, due to a difficult financial situation, needs to work tirelessly, without vacation. The Labor Code of the Russian Federation does not prohibit (and, therefore, allows) the following. Can negotiate with the employer and transfer (with the consent of the employee) the vacation to the next working year, citing this as a production need.

At the same time, it must be borne in mind that the law prohibits not granting vacation for 2 consecutive years.

That is, not in this - so in next year you still have to take at least part of the prescribed employment contract vacation days.

However, some do this: before the second annual paid leave, the employee quits on own will, having received monetary compensation for all unused vacation days. And then, a day or two later, he gets the same job. It is clear that such schemes occur by the "conspiracy" of the employee and the employer. If this option suits both you and the employer, then it can be used, from the point of view of the law, you are not violating anything.

In general, with regard to vacation, the right of an employee (of any private firm or state organization) to rest is enshrined in the Constitution of the Russian Federation, which guarantees (sic!) The right of an employee to paid annual leave, and the Labor Code of the Russian Federation also obliges the employer to keep the place of work and average earnings. It follows that the employer is obliged to provide the employee with paid leave every year and, if you want, “force” the latter to go on vacation, in accordance with the schedule.

In practice, this is done in the following way. At the end of each calendar year, the employer collects applications from all employees with wishes (and only!) About the time for granting vacation, in accordance with which the vacation schedule for the next year is drawn up. I emphasize that the employer only takes into account the wishes of the employee, but may, in the interests of, for example, production, leave them (wishes) without satisfaction and actually “force” the employee to go on vacation in accordance with the vacation schedule.

Only wishes about the time of granting vacation are necessarily taken into account underage workers, pregnant women, beneficiaries of Chernobyl and some others.

The specified schedule is subject to agreement with the trade union, if one exists in the organization, and is approved by the head of the organization no later than December 16 of the current year. Further, all employees should be familiar with the schedule. The employee is familiarized with the vacation schedule, for example, by means of a notification (2 weeks before the start of the vacation), on which the employee signs, or by means of an order issued in advance (2 weeks before the start of the vacation), on which the employee also puts his signature. If the employee was not familiarized with the vacation schedule no later than 2 weeks before the start of the vacation, and if he was not paid vacation pay less than three days before going on vacation, then, upon the written application of the employee, the employer is obliged to postpone the vacation for another period in agreement with worker.

Vacation can be postponed for another period (taking into account the wishes of the employee) and in the event of, for example, temporary disability of the employee.

If these conditions are not met, the employer cannot force the employee to go on vacation at the time specified in the vacation schedule.

It is possible to make changes to the vacation schedule, but only with the mutual consent of the employee and the employer. If an agreement is not reached, then the employee must go on vacation. An employee's refusal to go on vacation can be regarded as a disciplinary offense, which entails disciplinary liability, in accordance with labor legislation.

From all of the above, it follows that with regard to your vacation, various options are possible, you need to negotiate with the employer.

Do you have questions about the topic? Ask in the comments. Send new questions to the address marked “Question to the lawyer”.

What is the main document for granting leave to employees? What to consider when scheduling vacations? What are the features of the transfer of vacation and for how long can it be transferred? How long do employees have the right not to take annual leave? In what order are non-holiday holidays used? What should an employer do if an employee refuses to take vacation? What documents should be drawn up? Can an employee be recruited disciplinary responsibility?

07.09.2017

Right to rest at least 28 calendar days have all, without exception, permanent employees. And if one of such a number of days is not even enough, then others do not go on vacation for years. But this is not only inconvenient for the employer and, in particular, for personnel officers, but is also fraught with administrative responsibility. About how many years an employee may not go on vacation and what the employer should do if some employees do not use their annual vacation, we will talk in the article.

BASIS FOR VACATION.

According to Art. 123 of the Labor Code of the Russian Federation, the order in which paid holidays are granted is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization not later than 2 weeks before the start of the calendar year in the manner prescribed by Art. 372 of the Labor Code of the Russian Federation.

At the same time, the vacation schedule is mandatory for both the employer and the employee.

Scheduling vacations is a rather responsible matter, especially if the organization has a large staff of employees. In such cases, first, as a rule, graphs are drawn up in structural divisions, and then a summary graph is generated. The drafting of the vacation schedule of the unit can be entrusted to the heads of these units. Based on the schedules presented by them, the personnel department draws up a consolidated vacation schedule. Moreover, the duty of the heads of departments to draw up a draft schedule is best fixed in the corresponding order.

If such powers are not granted to managers, they can simply collect their wishes from employees, on the basis of which and taking into account the requirements of labor legislation personnel worker already draw up a unified vacation schedule.

Note:

When scheduling vacations, account should be taken of the right certain categories employees on vacation at any time and length of service to provide such a vacation. Do not forget to include in the schedule and unused vacations from previous years.

In addition, when drawing up the schedule, it will be necessary to take into account the wishes of other employees, and the order of vacations in the previous year, and the intensity of the labor process during the year, and the specifics of the organization's activities. We will have to try so that neither the interests of employees nor the interests of the employer are infringed. To avoid disputes, you can prescribe the procedure for granting holidays in the local normative act and familiarize employees with it.

After drawing up the schedule is signed by the head personnel service and approved by the head of the organization or an authorized person (signed). If the enterprise has a trade union, then the schedule must be agreed with it. Despite the absence of an obligation to familiarize employees with the approved schedule against signature, this must be done.

We repeat that all these activities must be completed no later than 2 weeks before the start of the new calendar year.

We recall that, in accordance with Art. 693 of the List of typical managerial archival documents generated in the course of activities government agencies, bodies local government and organizations, indicating the periods of storage, approved by the Order of the Ministry of Culture of the Russian Federation of August 25, 2010 No. 558, the vacation schedule must be stored in the organization for 1 year. Moreover, the calculation of the period is made from January 1 of the year following the year of completion of office work. That is, the vacation schedule for 2017, approved in December 2016, expires on December 31, 2017. Therefore, you need to keep it for the whole of 2017.

HOLIDAY POSTPONED TO NEXT YEAR.

Annual paid leave can be carried over to the next working year. If such a transfer is carried out at the initiative of the employer in accordance with Part 3 of Art. 124 of the Labor Code of the Russian Federation, two conditions must be met:

granting an employee a vacation in the current working year may adversely affect the normal course of the organization's work;
the employee agreed to carry over the vacation to the next working year.

The employee himself may apply to postpone the vacation for another period, including the next year. If the employer does not object, an order for such a transfer should be issued and changes should be made to the vacation schedule.

Leave postponed at the initiative of the employer must be used no later than 12 months after the end of the working year for which it was granted.

By virtue of h. 1 Article. 125 of the Labor Code of the Russian Federation, by agreement between the employee and the employer, annual paid leave can be divided into parts, one of which must be at least 14 calendar days. The question arises: how many such parts should be in the next working year, if the vacation was completely transferred to this year? That is, should the employee use two vacations of 14 days, and the remaining 28 days in installments, or one vacation in the amount of 14 days, and the remaining 42 days in installments?

From the provisions of Art. 125 of the Labor Code of the Russian Federation, regardless of how many vacation days an employee uses during the year, it can be concluded that one of the parts of the vacation should be at least 2 weeks continuously, and the rest of the vacation time for both years can be divided into parts as agreed between the employee and employer.

Note:

Unused days of annual paid leave for previous periods, the employer must take into account when drawing up each new vacation schedule.

FOR HOW MANY YEARS HOLIDAYS MAY NOT BE USED?

In accordance with Art. 124 of the Labor Code of the Russian Federation prohibits the failure to provide annual paid leave for 2 consecutive years, as well as the failure to provide annual paid leave to employees under the age of 18 and persons employed in work with harmful and (or) dangerous working conditions.

That is, if by general rule employees may not use annual leave for at least 2 years, then employees under the age of 18 and employed in work with harmful and (or) dangerous working conditions must use leave every year.

Note:

Failure to provide annual paid leave for more than 2 years in a row, as well as failure to provide the unused part of annual leave when it is transferred within 12 months after the end of the working year for which it is granted, is a violation of labor legislation and, in case of verification labor inspectorate a fine may be imposed on the organization in accordance with Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.

If, nevertheless, it turned out that the employee did not use vacation for 2 years and he has accumulated 56 calendar days of vacation, should the employer give him 84 days next year or do they “burn out”? Of course, nothing "burns out", such a concept in labor law no. You will either have to give the employee a vacation of 84 days, or pay compensation for these days upon dismissal.

According to the Letter of Rostrud dated 08.06.2007 No. 1921‑6, if an employee has unused annual leave for previous working periods, then he retains the right to use all due annual paid holidays. 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.

For your information:

Earlier doubts on this issue arose in connection with the ratification of the Convention international organization Labor No. 132 “On paid holidays” (hereinafter referred to as the Convention) in accordance with Art. 9 of which the continuous part of the annual paid leave (at least 2 working weeks) is granted and used no later than within a year, and the remainder of the annual paid leave - no later than within 18 months after the end of the year for which the leave is granted.

On the basis of the Convention, some courts refused to recover compensation for unused vacations from those who retired. True, the reason for the refusal was that the employee missed the statute of limitations. Thus, the Supreme Court of the Republic of Karelia in the Appellate Ruling dated March 27, 2015 in case No. 33-1227/2015 noted that the period for claims for compensation for unused vacations is 21 months after the end of the year for which the vacation is granted (18 months (period in during which leave must be granted) + 3 months (the period for the employee to apply to the court)). The fact that the vacation in the calendar year is not granted in full size and compensation was not paid, should have been known at the end of each year of work, as a result of which the due leave was not granted.

The situation is simpler if the employee used the main part of the vacation every year in the amount of 14 days, and he accumulated the remaining unused parts of the vacation. Here, the Convention establishes that any part of the annual leave in excess of the established minimum duration may be postponed with the consent of the employee for a period exceeding 18 months, but not going beyond separately established limits (clause 2, article 9).

Thus, the remaining holidays can be used by the employee within the terms (periods) agreed with the employer. And in the event of dismissal, the employer will be required to pay compensation for all unused (accumulated) vacations (Article 127 of the Labor Code of the Russian Federation).

Nevertheless, the employer should not allow arrears on employee vacations - primarily because work without vacation affects both the physical and psychological state of the employee, as a result, labor productivity and immunity fall, the employee often goes on sick leave. Problems are possible, up to the point that an accident at work may occur.

In addition, when paying compensation upon dismissal, the employer may overpay if for Last year the employee was given a salary increase, since compensation for unused vacation is calculated based on the average earnings for 12 months (Regulation on the peculiarities of the procedure for calculating the average wages, approved by the Decree Government of the Russian Federation dated December 24, 2007 No. 922).

For your information:

To avoid problems with unused vacation and payment of compensation, some employers, after 2 years without vacation, formalize the dismissal of the employee with the payment of compensation to him, and then again hire him. From a legal point of view, there seems to be no violations. But if this option is used constantly, then the inspectors may see a violation of the rights of employees: firstly, their length of service is interrupted for the next annual paid leave, and secondly, the employee may lose the rights to guarantees or payments established in the organization, for example, for continuous work experience.

ACTIONS OF THE EMPLOYER IF THE EMPLOYEE REFUSES TO HOLIDAY.

So, what to do if the employee does not use the vacation or does not use it in full, accumulating the remaining parts with the permission of the employer, and for what liability may come, figured out. But what if an employee doesn’t want to leave for either this or next year, and he has either one reason or another? Of course, you can enter the situation once or twice, but then the problems will have to be solved both directly by the personnel officer and the employer. Therefore, it is not worth letting everything go by itself. The employee should be brought to disciplinary responsibility, for example, to start with a remark, then a reprimand.

But for such punishment to be legal, certain requirements must be met.

1. There must be a vacation schedule signed by the head of the personnel department, approved by the head of the organization and agreed with the trade union, if any. It is also desirable that there be a signature of the employee confirming his familiarization with the schedule.

2. 2 weeks before the start of the vacation, according to the schedule, the employee must be notified of the start time of the vacation. Receipt of the notification must be confirmed by the employee's signature. If the employee refuses to sign the document, an act should be drawn up about this.

3. An order is needed to grant annual leave, which the employee is familiar with. If he refuses, this fact must be recorded.

4. Not later than 3 days before the start of the vacation, vacation pay must be paid to the employee (Article 136 of the Labor Code of the Russian Federation).

Note:

Do not forget that if the employee was not paid on time for the annual paid vacation or the employee was warned about the start time of this vacation later than 2 weeks before it began, then the employer, at the written request of the employee, is obliged to postpone the vacation for another period agreed with the employee .

5. The exit of the employee to work during the vacation must be recorded by acts.

6. Bringing to disciplinary responsibility is carried out in accordance with Art. 192 and 193 of the Labor Code of the Russian Federation.

Well, if the employee still continues to go to work during his vacation, give him a written notice that the time he is at work is not payable, since he is on annual leave according to the approved vacation schedule.

It is clear that attraction to administrative responsibility for refusing to go on vacation - this is an extreme measure intended for those who "maliciously" evade their right to take a vacation, creating problems for the employer. In normal cases, you can meet the needs of an employee who asks to reschedule his vacation, if any. good reasons. Then the employee must write a statement and indicate these reasons in it.

If there is no longer an opportunity to postpone the vacation, and the employee’s refusal to take a vacation suits the employer, then by sending the employee on vacation, for this period, conclude with him civil contract.

* * *

Summarize. If your employees flatly refuse to go on vacation, you can:

postpone the vacation, except for the case when the employee did not go on vacation at all for 2 years;
dismiss the employee, paying him compensation, and then accept (we do not recommend abusing this method);
to issue a vacation, and to conclude a civil law contract for work or the provision of services with the employee;
issue a vacation, and bring the employee to disciplinary responsibility.

Some employers give employees vacation time. This, in principle, does not contradict the law, but it will provide unnecessary questions for inspectors.

We also remind employers that you cannot refuse to provide scheduled leave, except in cases of production necessity and if written consent worker. And if the employer illegally refuses to leave the employee on vacation and he went on vacation without permission, he cannot be fired for absenteeism (paragraph “e”, paragraph 39 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts Russian Federation Labor Code Russian Federation").

V. V. Danilova

expert of the magazine "Personnel department of a state (municipal) institution"

All permanent employees without exception have the right to rest for at least 28 calendar days. And if one of such a number of days is not even enough, then others do not go on vacation for years. But this is not only inconvenient for the employer and, in particular, for personnel officers, but is also fraught with administrative responsibility. About how many years an employee may not go on vacation and what the employer should do if some employees do not use their annual vacation, we will talk in the article.

Reason for leave

According to Art. 123 of the Labor Code of the Russian Federation, the order in which paid holidays are granted is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization no later than 2 weeks before the start of the calendar year in the manner prescribed by Art. 372 of the Labor Code of the Russian Federation.

At the same time, the vacation schedule is mandatory for both the employer and the employee.

Scheduling vacations is a rather responsible matter, especially if the organization has a large staff of employees. In such cases, at first, as a rule, schedules are drawn up in structural divisions, and then a consolidated schedule is formed. The drafting of the vacation schedule of the unit can be entrusted to the heads of these units. Based on the schedules presented by them, the personnel department draws up a consolidated vacation schedule. Moreover, the duty of the heads of departments to draw up a draft schedule is best fixed in the corresponding order.

If such powers are not granted to managers, they can simply collect their wishes from employees, on the basis of which and taking into account the requirements of labor legislation, the personnel worker will already draw up a single vacation schedule.

note

When drawing up a vacation schedule, one should take into account the right of certain categories of employees to leave at any time and the length of service to provide such a vacation. Do not forget to include in the schedule and unused vacations from previous years.

In addition, when drawing up the schedule, it will be necessary to take into account the wishes of other employees, and the order of vacations in the previous year, and the intensity of the labor process during the year, and the specifics of the organization's activities. We will have to try so that neither the interests of employees nor the interests of the employer are infringed. In order to avoid disputes, it is possible to prescribe the procedure for granting holidays in a local regulatory act and familiarize employees with it.

After drawing up the schedule, it is signed by the head of the personnel service and approved by the head of the organization or an authorized person (signed). If the enterprise has a trade union, then the schedule must be agreed with it. Despite the absence of an obligation to familiarize employees with the approved schedule against signature, this must be done.

We repeat that all these activities must be completed no later than 2 weeks before the start of the new calendar year.

We recall that, in accordance with Art. 693 of the List of typical managerial archival documents generated in the course of the activities of state bodies, local governments and organizations, indicating the storage periods, approved by Order of the Ministry of Culture of the Russian Federation dated August 25, 2010 No. 558, the vacation schedule should be stored in the organization for 1 year. Moreover, the calculation of the period is made from January 1 of the year following the year of completion of office work. That is, the vacation schedule for 2017, approved in December 2016, expires on December 31, 2017. Therefore, you need to keep it for the whole of 2017.

Transferring vacation to next year

- granting an employee a vacation in the current working year may adversely affect the normal course of the organization's work;

- the employee agreed to postpone the vacation to the next working year.

Leave postponed at the initiative of the employer must be used no later than 12 months after the end of the working year for which it was granted.

note

Unused days of annual paid leave for previous periods, the employer must take into account when drawing up each new vacation schedule.

How many years can holidays not be used?

That is, if, as a general rule, employees may not use annual leave for at least 2 years, then employees under the age of 18 and employed in work with harmful and (or) dangerous working conditions must use leave every year.

note

Failure to provide annual paid leave for more than 2 consecutive years, as well as failure to provide the unused part of annual leave when it is postponed within 12 months after the end of the working year for which it is granted, is a violation of labor law and, if checked by the labor inspectorate, a fine may be imposed on the organization in accordance with Part. 1 Article. 5.27 of the Code of Administrative Offenses of the Russian Federation.

If, nevertheless, it turned out that the employee did not use vacation for 2 years and he has accumulated 56 calendar days of vacation, should the employer give him 84 days next year or do they “burn out”? Of course, nothing “burns out”, there is no such concept in labor legislation. You will either have to give the employee a vacation of 84 days, or pay compensation for these days upon dismissal.

For your information

Previously, doubts on this issue arose in connection with the ratification of the International Labor Organization Convention No. 132 “On paid holidays” (hereinafter referred to as the Convention) in accordance with Art. 9 of which the continuous part of the annual paid leave (at least 2 working weeks) is granted and used no later than within a year, and the remainder of the annual paid leave - no later than 18 months after the end of the year for which the leave is granted.

On the basis of the Convention, some courts refused to recover compensation for unused vacations from those who retired. True, the reason for the refusal was that the employee missed the statute of limitations. Thus, the Supreme Court of the Republic of Karelia in the Appellate Ruling dated March 27, 2015 in case No. 33‑1227/2015 noted that the period for claims for compensation for unused vacations is 21 months after the end of the year for which the vacation is granted (18 months (the period in during which leave must be granted) + 3 months (the period for the employee to apply to the court)). The fact that the vacation in the calendar year was not granted in full and compensation was not paid should have been known after the end of each year of work, as a result of which the required vacation was not granted.

Nevertheless, the employer should not allow employee vacation debts - primarily because work without vacation affects both the physical and psychological state of the employee, as a result, labor productivity and immunity fall, the employee often goes on sick leave. Problems are possible, up to the point that an accident at work may occur.

In addition, when paying compensation upon dismissal, the employer may overpay if the employee’s salary has been increased over the past year, since compensation for unused vacation is calculated based on the average earnings for 12 months (Regulation on the peculiarities of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation of 12.24. 2007 No. 922).

For your information

To avoid problems with unused vacation and payment of compensation, some employers, after 2 years without vacation, formalize the dismissal of the employee with the payment of compensation to him, and then hire him again. From a legal point of view, there seems to be no violations. But if this option is used constantly, then the inspectors may see a violation of the rights of employees: firstly, their length of service is interrupted for the next annual paid leave, and secondly, the employee may lose the rights to guarantees or payments established in the organization, for example, for continuous work experience.

Actions of the employer if the employee refuses to leave

But for such punishment to be legal, certain requirements must be met.

3. An order is needed to grant annual leave, which the employee is familiar with. If he refuses, this fact must be recorded.

4. Not later than 3 days before the start of the vacation, vacation pay must be paid to the employee (Article 136 of the Labor Code of the Russian Federation).

note

5. The exit of the employee to work during the vacation must be recorded by acts.

6. Bringing to disciplinary responsibility is carried out in accordance with Art. 192 and 193 of the Labor Code of the Russian Federation.

It is clear that bringing to administrative responsibility for refusing to go on vacation is an extreme measure intended for those who “maliciously” evade their right to rest, creating problems for the employer. In normal cases, you can meet the needs of an employee who asks to reschedule his vacation, if there are good reasons. Then the employee must write a statement and indicate these reasons in it.

If there is no longer an opportunity to postpone the vacation, and the employee’s refusal to take a vacation suits the employer, then it is possible, by sending the employee on vacation, to conclude a civil law contract with him for this period.

Summarize. If your employees flatly refuse to go on vacation, you can:

- postpone the vacation, except for the case when the employee did not go on vacation at all for 2 years;

- dismiss the employee, paying him compensation, and then accept (we do not recommend abusing this method);

- to issue a vacation, and to conclude a civil law contract for work or the provision of services with the employee;

- issue a vacation, and bring the employee to disciplinary responsibility.

Some employers give employees vacation time. This, in principle, does not contradict the law, but it will provide unnecessary questions for inspectors.

We also remind employers that you cannot refuse to grant scheduled leave, except in cases of operational necessity and with the written consent of the employee. And if the employer illegally refuses to leave the employee on vacation and he went on vacation without permission, he cannot be fired for absenteeism (paragraph “e”, paragraph 39 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” ).

Summer did not work out, and ice cream had to be washed down with mulled wine so as not to sting.

- All normal people bask somewhere under the southern sun, and only personnel officers plow like damned all summer, - Masha grumbled. In addition to the cold, her mood was spoiled by the rapidly cooling non-alcoholic mulled wine - she and Katya had no one to leave the children with, and they wanted to eat and drink the same as their parents.

- I wonder if accountants, in your opinion, also have a rest? By the way, in addition to calculating vacation pay according to your orders, we also submit a semi-annual report!

- Okay! Everyone has a rest, except for accountants and personnel officers!

- By the way, do you really have a rest?

- Well, yes! You also have to make sure that you don’t take a vacation for the second time in a year or leave it a week after the end ...

- That is, you have not encountered refusals from vacation?

Masha almost choked.

- What is it like?!

- Well, so - a person does not take a vacation. I tell him - I need to rest, and he tells me: “What will I do at home - lie on the couch and drink vodka?”

- In fact, what he will do, you should not worry. She said: “It is necessary,” and let him go.

- I've said that more than once! Does not work.

- Talk to the director, explain that annual leave is not a right, but an obligation of an employee, issue an order more than 2 weeks in advance and let the employee sign it.

- And if he refuses?

- Then get acquainted with the order in front of witnesses. Refuses to sign - draw up an act, write a report.

- And this is an idea! Thanks!

Crib

The vacation schedule is mandatory for both the employer and the employee - part two Art. 123 Labor Code of the Russian Federation.

It is prohibited not to grant vacation for 2 consecutive years Art. 124 TK. It also lists the situations in which the postponement of the vacation date is possible.

The legality of blocking the pass for the period of vacation was confirmed by the decision of the Central district court Kemerovo dated March 9, 2016 No. 2-1632/2016.

Responsibility for not granting leave is regulated by the first part of Art. 5.27 of the Code of Administrative Offenses. In the event of a primary violation, liability ranges from a warning to 50,000 rubles, in case of a repeated violation - executive may be disqualified for up to 3 years, and a fine for legal entity increases to 70,000 rubles.

If you allow an employee to go to work during vacation, this violation may open with an unscheduled or prosecutor's office, or if a "resting" employee happens. Then the violation will be qualified already under Art. 5.27.1 of the Code of Administrative Offenses - “Violation of state regulatory requirements for labor protection contained in federal laws and other regulatory legal acts Russian Federation”, for which liability is higher and punishment is applied separately for each similar violation.

GIT inspectors are required to study for the last year in order to find out the presence and number of processing, as well as the timeliness of the use of annual and additional holidays for the entire period of work in the organization (p / p 1 and 2 of clause 3.2 methodological recommendations on the investigation of accidents of Rostrud of May 15, 2017).

An accident is the basis for carrying out unscheduled inspection(clause 7.1 of the Guidelines).

Express your opinion about the article or ask the experts a question to get an answer

" № 9/2017

Reason for leave.

According to Art. 123 of the Labor Code of the Russian Federation, the order in which paid holidays are granted is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization no later than 2 weeks before the start of the calendar year in the manner prescribed by Art. 372 of the Labor Code of the Russian Federation.

At the same time, it is mandatory for both the employer and the employee.

If such powers are not granted to managers, they can simply collect their wishes from employees, on the basis of which and taking into account the requirements of labor legislation, the personnel worker will already draw up a single vacation schedule.

Note:

When drawing up a vacation schedule, one should take into account the right of certain categories of employees to leave at any time and the length of service to provide such a vacation. Do not forget to include in the schedule and unused vacations from previous years.

In addition, when drawing up the schedule, it will be necessary to take into account the wishes of other employees, and the order of vacations in the previous year, and the intensity of the labor process during the year, and the specifics of the organization's activities. We will have to try so that neither the interests of employees nor the interests of the employer are infringed. In order to avoid disputes, it is possible to prescribe the procedure for granting holidays in a local regulatory act and familiarize employees with it.

We repeat that all these activities must be completed no later than 2 weeks before the start of the new calendar year.

Transfer of vacation to the next year.

granting an employee a vacation in the current working year may adversely affect the normal course of the organization's work;

the employee agreed to carry over the vacation to the next working year.

Leave postponed at the initiative of the employer must be used no later than 12 months after the end of the working year for which it was granted.

Note:

Unused days of annual paid leave for previous periods, the employer must take into account when drawing up each new vacation schedule.

How many years can holidays not be used?

That is, if, as a general rule, employees can not use at least 2 years, then employees under the age of 18 and employed in work with harmful and (or) dangerous working conditions must use vacation every year.

Note:

Failure to provide annual paid leave for more than 2 consecutive years, as well as failure to provide the unused part of annual leave when it is postponed within 12 months after the end of the working year for which it is granted, is a violation of labor law and, if checked by the labor inspectorate, a fine may be imposed on the organization in accordance with Part. 1 Article. 5.27 of the Code of Administrative Offenses of the Russian Federation.

If, nevertheless, it turned out that the employee did not use vacation for 2 years and he has accumulated 56 calendar days of vacation, should the employer give him 84 days next year or do they “burn out”? Of course, nothing “burns out”, there is no such concept in labor legislation. You will either have to give the employee a vacation of 84 days, or pay compensation for these days upon dismissal.

According to the Letter of Rostrud dated 08.06.2007 No. 1921-6, if an employee has unused annual leave for previous working periods, then he retains the right to use all due annual paid holidays. 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.

For your information:

Previously, doubts on this issue arose in connection with the ratification of the International Labor Organization Convention No. 132 “On paid holidays” (hereinafter referred to as the Convention) in accordance with Art. 9 of which the continuous part of the annual paid leave (at least 2 working weeks) is granted and used no later than within a year, and the remainder of the annual paid leave - no later than 18 months after the end of the year for which the leave is granted.

On the basis of the Convention, some courts refused to recover compensation for unused vacations from those who retired. True, the reason for the refusal was that the employee missed the statute of limitations. Thus, the Supreme Court of the Republic of Karelia in the Appellate Ruling dated March 27, 2015 in case No. 33-1227/2015 noted that the period for claims for compensation for unused vacations is 21 months after the end of the year for which the vacation is granted (18 months (period in during which leave must be granted) + 3 months (the period for the employee to apply to the court)). The fact that the vacation in the calendar year was not granted in full and compensation was not paid should have been known after the end of each year of work, as a result of which the required vacation was not granted.

For your information:

To avoid problems with unused vacation and payment of compensation, some employers, after 2 years without vacation, formalize the dismissal of the employee with the payment of compensation to him, and then hire him again. From a legal point of view, there seems to be no violations. But if this option is used constantly, then the inspectors may see a violation of the rights of employees: firstly, their length of service is interrupted for the next annual paid leave, and secondly, the employee may lose the rights to guarantees or payments established in the organization, for example, for continuous work experience.

Actions of the employer if the employee refuses to leave.

But for such punishment to be legal, certain requirements must be met.

3. An order is needed to grant annual leave, which the employee is familiar with. If he refuses, this fact must be recorded.

4. Not later than 3 days before the start of the vacation, vacation pay must be paid to the employee (Article 136 of the Labor Code of the Russian Federation).

Note:

Do not forget that if the employee was not paid on time for the annual paid vacation or the employee was warned about the start time of this vacation later than 2 weeks before it began, then the employer, at the written request of the employee, is obliged to postpone the vacation for another period agreed with the employee .

5. The exit of the employee to work during the vacation must be recorded by acts.

6. Bringing to disciplinary responsibility is carried out in accordance with Art. 192 and 193 of the Labor Code of the Russian Federation.

Summarize. If your employees flatly refuse to go on vacation, you can:

postpone the vacation, except for the case when the employee did not go on vacation at all for 2 years;

dismiss the employee, paying him compensation, and then accept (we do not recommend abusing this method);

issue a vacation, and conclude a civil law or provision of services with an employee;

issue a vacation, and bring the employee to disciplinary responsibility.

Some employers give employees vacation time. This, in principle, does not contradict the law, but it will provide unnecessary questions for inspectors.