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Non-vacation leave will burn out the labor code. If the employee did not use the additional or next vacation, then after what period of time does the unused vacation “burn out”? Where are the rumors coming from

Every year we go on legal paid leave. But every time we have a lot of questions related to the long-awaited vacation. When should vacation pay be transferred, do old vacations expire, is it possible to receive compensation for unused vacation? For clarification, the portal turned to the State Labor Inspectorate in the Altai Territory. Read the answers in our regular section "Question-Answer".

How much do you need to work to go on vacation?

According to the Labor Code of the Russian Federation, a person can count on vacation after he has worked without interruption for at least six months. But there are categories of citizens to whom the employer is obliged to provide leave earlier if the employee requires it. It's about:

Employees under the age of 18;

Women - before maternity leave or immediately after it;

Employees who have adopted a child under the age of three months;

A man while his wife is on maternity leave;

One of the parents (guardian, guardian, foster parent) who is raising a disabled child under the age of 18.

An employee who has worked a full year can count on a paid vacation of 28 calendar days. Such leave must be provided to the employee annually in accordance with the vacation schedule established by the employer. If the company does not maintain a vacation schedule, then the question of when exactly you can relax is decided by agreement between the employee and the employer.

Is it true that old vacations "burn out"?

No. Even if, for some reason, a vacation was not granted to an employee for several years, no “burning out” of vacations occurs. The employer must provide the employee with all unused vacations.

Can I replace vacation with cash compensation?

Only those employees whose vacation exceeds 28 days can replace part of the annual paid vacation with monetary compensation. This can be done by written application and if the employer does not object to it.

Pregnant women, employees under the age of 18 cannot count on replacing the annual basic paid and additional holidays with monetary compensation, and employees engaged in work with harmful and dangerous working conditions for work in appropriate conditions cannot count on annual additional paid leave.

“According to Article 127 of the Labor Code of the Russian Federation, upon dismissal, an employee is paid monetary compensation for all unused vacations. That is, compensation is paid for vacations accumulated over the entire period of work with a particular employer,” Elena Sukhonos, Acting Deputy of the State Labor Inspectorate in the Altai Territory, explained to the portal.

What to do if you are not allowed to go on vacation?

If the manager refuses to provide annual paid leave for any reason or does not provide this leave in due time, then the employee has the right to apply to the State Labor Inspectorate, as well as to the court.

The transfer of annual paid leave is possible only if the employee himself agrees to this. For example, its absence will adversely affect the work of the organization. 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. Failure to grant annual paid leave for two consecutive years is prohibited.

Does an employer have the right to split vacation into parts?

This issue is resolved by agreement between the employee and the employer. But, if you decide to break the annual leave into parts, one of them must be at least 14 calendar days. The rest of the vacation you can take at least one day or two weeks in a row.

It is important to note that it is better to decide how exactly you will rest in advance and indicate this in the vacation schedule. You can declare this even after drawing up a vacation schedule, whether or not to satisfy such an application is the right of the employer.

How long does an employer have to pay holiday pay?

Vacation pay must be paid to an employee no later than three days before the start of the vacation (part 9 of article 136 of the Labor Code of the Russian Federation). Note that two weeks before the vacation, the employer is obliged to notify the employee in writing about the upcoming vacation.

If the employee was not timely paid for the annual paid leave or the employee was warned about the start time of this leave later than two weeks before it began, then the employer, at the written request of the employee, is obliged to postpone the annual paid leave for another period agreed with the employee (Article 124 of the Labor Code of the Russian Federation).

Despite the specifics of the company's employment, each worker, in accordance with the law, has the right to be provided as part of the priority schedule.

At the same time, both the employee and the employer have the right to another time, given that family problems, as well as production needs, make their own adjustments, which are also taken into account by the norms of the Labor Code of the Russian Federation.

Labor Code Norms

In accordance with the provisions of the law, namely Article 123 of the Labor Code of the Russian Federation each institution draws up a schedule for the order of vacations until December 15, based on the establishment of planned rest periods for the next year.

At the same time, given that the agreed document is a local act approved by both the head and the chairman of the trade union committee, the schedule is subject to obligatory observance by both parties of legal relations, which in this case are the employee and the enterprise.

Also, given that it is not realistic to foresee all possible problems, both industrial and personal, a year in advance, the law gives the right to amend the schedule with the transfer of rest time to another time. After all, an employee cannot know in advance that he may need sanatorium treatment due to deteriorating health, and a manager cannot predict the same industrial accident or other circumstances.

That is why for such situations the law and possibility of transfer previously planned rest period for another period, especially if the absence of a worker at the workplace may adversely affect the production process.

At the same time, in pursuance of the norms of Article 124 of the Labor Code of the Russian Federation, it is possible to move the main vacation not just like that, but only subject to several conditions, in particular:

the consent of the worker;
a good reason for changing the period of use of the legal holiday;
provision of unused vacation time at another time, namely until the end of the current year or no later than the next.

But next year is fine. Article 114 of the Labor Code of the Russian Federation the worker will be entitled to one more vacation, which must also be implemented in accordance with the period specified in the schedule, which, in fact, leads to the fact that the vacation for the last year remains outside the schedule, while the annual vacation is currently used, thus, accumulating vacation days.

How much can "accumulate"

Based on Article 124 of the Labor Code of the Russian Federation it is forbidden not to provide rest for two years in a row, which, in principle, is being fulfilled, given that employees throughout the year, as a rule, use part of the rest, while the remaining days are transferred to later.

At the same time, next year a similar situation develops, which ultimately leads to a fairly large number of unrealized rest days for several years in a row.

And since the employer cannot provide all the days of legal vacation for two years, given that a rather long absence of the worker is expected, they prefer not to remember unused vacations, until the termination of labor relations. At the same time, if an employee works for a sufficiently long time in a company that, for the purpose of production needs, practices the separation and transfer of vacations, by the time the employee leaves, a fairly substantial number of days of unrealized vacation accumulates, which can only be compensated in two ways, or by providing vacation.

It should be noted that this situation arises because the law does not establish a limit on the duration of unrealized vacations, because it is assumed that employees rest on time based on the priority schedule or use the unsold part in the next two years.

Options for "getting rid" of unused rest periods

In fact, implement unused Accumulated rest can be accumulated in the prescribed period in only two ways, namely:

in monetary terms, by receiving;
providing part of the unused vacation by adding it to the main vacation in subsequent years.

At the same time, regardless of which method of paying off unrealized days of rest is chosen, it is worth considering some legislative nuances. So, in particular, in accordance with Article 126 of the Labor Code of the Russian Federation replacement of vacation in full cash compensation for the current year is not allowed. But the parts of the vacation remaining over the past years can be repaid in this way, but on condition that the company has sufficient funds and the management of the institution agrees to a similar equivalent of rest.

Also, one should take into account the fact that replace in monetary terms you can only those holidays that are basic and only in the part exceeding 28 days. While those provided for the restoration of health, they are not subject to replacement in the form of material compensation, especially when it comes to rest periods provided in connection with employment or for work in the northern regions.

The procedure for providing periods for previous years

In fact, a vacation that was not realized at one time is no different from the main vacation that is provided annually, therefore, registration procedure non-holiday period will be similar, with some exceptions.

In particular, in accordance with Article 123 of the Labor Code of the Russian Federation, when granting annual leave, a notice is supposed to be given two weeks before the vacation, if the vacation is not provided according to the schedule and at the request of the employee notification is not required.

In such a situation, the worker submits an application for consideration by the management, which actually reflects the request to use the unrealized part of the vacation for the past years in the form of rest from a certain date or material compensation. At the same time, given that the unused parts are not included in the schedule, the employer has the right to refuse to provide rest exactly at the time required by the employees, but again with the condition of its use at a later date, for example, after the quarterly report is submitted.

If manager doesn't mind against the sale of vacation balances from previous years, a resolution is imposed on the application, on the basis of which an order has already been issued to provide legal rest in full or only part of it, followed by implementation in another period.

Moreover, if the employee wishes to use the unrealized parts of the vacation not in the form of rest, but in monetary terms, the application is also submitted, on its basis, again, an order is issued to pay compensation, but only if the institution has sufficient funds.

Compensation calculation

In accordance with Article 114 of the Labor Code of the Russian Federation, for the period of using the annual rest, the employee retains not only the position, but also average earnings, the calculation procedure of which is carried out with the norms Article 139 of the Labor Code of the Russian Federation. So, in particular, all accrued amounts for the last 12 months are taken into account, including salaries, sick leave and allowances, not to mention incentive payments.

The agreed charges are summed up and divided by 12, thus calculating average monthly income. Then, from the amount received, it is already calculated daily wage by dividing the average monthly wage by a factor of 29.3, which, in fact, is an average indicator of the number of days in a month.

Upon completion of the calculations, the amount of daily earnings received multiplied by the number of days provided leave and transferred to the employee already as vacation pay.

If the worker does not plan to use the accumulated vacation days in kind, that is, through rest and wants to receive the agreed vacation in the form of monetary compensation, vacation pay is calculated in a similar way.

What to do before the decree

On the basis of Article 260 of the Labor Code of the Russian Federation, a pregnant woman on the eve of childbirth, as an additional support measure, was granted the right to use the main vacation outside the schedule and length of employment. At the same time, an employee of her choice can use the agreed type of vacation both before leaving at, and after, immediately after the end of the sick leave or.

In the event that a pregnant worker does not have enough experience to use the rest in full, leave is provided to her in advance. If a woman’s vacation is not used, moreover, additional days of rest have accumulated over the past years, the period of release from work is still provided only in the amount of annual leave, given that the agreed rate is enshrined in law and the employer does not have the right to refuse.

At the same time, the issue of providing additional days of rest that were not used at the time set by the schedule is already decided in agreement with the company's management, due to the fact that the obligation to implement them before or after the decree is not established by law. That is, in fact, the question of the use of non-vacation leave in relation to a pregnant woman solved in working order and taking into account production processes.

Upon dismissal

In accordance with Article 127 of the Labor Code of the Russian Federation, upon termination of labor relations, the company must pay the employee compensation for all days of unused vacation, which by the time of dismissal had not been realized.

That is, in fact, regardless of whether the annual leave was used at the scheduled time or not, and also regardless of how many days were accumulated, employer must pay compensation for all days in the amount of the average wage, calculated taking into account the norms enshrined in Article 139 of the Labor Code of the Russian Federation.

Employer's responsibility

In fact, within the framework of the law, the formation of unused vacation time is not a violation, but only if the worker had the opportunity to rest for at least two weeks a year with a prerequisite for the implementation of the transferred rest over the next two years.

At the same time, if, in violation of the norms of Article 124 of the Labor Code of the Russian Federation legal rest was not provided at all, moreover, for more than two years in a row, the company's management will be punished in the form of an administrative penalty, which is expressed in penalties on the basis of Article 5.27 of the Code of Administrative Offenses of the Russian Federation in the amount of 30 to 50 thousand rubles.

Of course, every employer strives to ensure that his employees work, and therefore make a profit all the time, which is why the vacation debt for the past years is formed.

But, nevertheless, no money, as well as production necessity, can replace a good rest, which is provided by law for a reason, but in order to preserve the health and working capacity of workers.

For unused statutory time off work, see the following video:

After considering the issue, we came to the following conclusion:
Employees who did not use their annual leave in previous years are not deprived of the right to use them in the future.

Rationale for the conclusion:
Paid leave must be provided to the employee annually (Article 122 of the Labor Code of the Russian Federation).
The sequence of granting paid holidays is determined by the schedule, which is approved by the employer, taking into account the opinion of the elected body of the primary trade union organization no later than two weeks before the start of the calendar year (part one of article 123 of the Labor Code of the Russian Federation). The vacation schedule is mandatory for both the employer and the employee.
In exceptional cases, leave can be postponed to the next working year with the consent of the employee, when the provision of leave in the current working year may adversely affect the normal course of work of the organization, individual entrepreneur. 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. It is prohibited not 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 eighteen and employees employed in work with harmful and (or) dangerous working conditions (parts three and four of Article 124 of the Labor Code of the Russian Federation).
Establishing periods for the use of leave does not mean that if the leave is not used during this period, the employee loses the right to it. On the contrary, this period is necessary for the employee to exercise his right to leave in the near future, so that the grant of leave is not postponed indefinitely.
Violation of the terms for granting leave is the basis for bringing the employer to administrative responsibility under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.
The fact that employees retain the right to use all due annual paid holidays that were not used for any reason in previous working periods is also noted in the letter of Rostrud dated 01.03.2007 N 473-6-0.
Employees do not lose the right to receive unused vacation days even after the ILO Convention No. 132 on paid holidays (hereinafter referred to as Convention No. 132), ratified by Federal Law No. 139-FZ of July 1, 2010, comes into force.
According to paragraph 1 of Art. 9 of Convention N 132, the continuous part of the annual paid leave is granted and used no later than within one year, and the balance of the annual paid leave - no later than within eighteen months from the end of the year for which the leave is granted.
It does not follow from this provision of the Convention that if an employee has not exercised his right to leave within the prescribed period, then he is deprived of this right.
We would like to draw your attention to the materials of the press conference of Alexander Safonov, Deputy Minister of the Ministry of Health and Social Development of Russia, published in Rossiyskaya Gazeta. To the question “won’t the days remaining from vacations two or three years ago burn out now?” Alexander Safonov answered unequivocally: “They won’t burn out.” Now in Russian legislation there are no restrictions on the terms for accumulating and taking vacations. Most likely, they will not appear in the future either. This press conference material can be found by following the link on the Internet: http://www.rg.ru/2010/07/07/rabota.html.

Prepared answer:
Legal Consulting Service Expert GARANT
Arzamastsev Alexander

Response quality control:
Reviewer of the Legal Consulting Service GARANT
candidate of legal sciences Kuzmina Anna

The material was prepared on the basis of an individual written consultation provided as part of the service

It often happens that the employer refuses to let employees in. This phenomenon has various reasons, both good and not so good. Therefore, many people are concerned about the topic related to unused vacations. It is worth talking in more detail about what exactly employees can expect.

The Labor Code says that any person can expect to receive 28 days of vacation throughout the calendar year. This rest time is called the main. But for some regions, professions, additional time has been introduced.

According to the law, the standard is the situation when the vacation is used throughout the year. If necessary, this time is divided into parts. The main thing is that at least one of them should be at least two weeks old. The rest time must be used no later than one year after the start of the period for which the vacation is accrued.

There must be good reasons for moving and splitting apart. Without them, the employer has the right to refuse to make changes to the standard scheme.

Not a single day that remains unused does not burn out. In the current year, you can use the remaining free days, which were formed in a maximum of 18 months of the previous period.

Compensation for holidays not used before

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. This can lead to a fine of at least 50 thousand rubles.

Previously, employees had the right to refuse vacation, and in return receive monetary compensation. Since 2011, our country has become a member of the International Convention, which regulates this issue in a slightly different way. Now it is impossible to replace days of rest with monetary compensation. Holidays generally cannot be postponed for more than 24 months. And the management ceased to be profitable for vacation days to be accumulated. This is due to several reasons:

The labor inspectorate may ask more questions when the inspection is in progress.
The more such days are accumulated, the more compensation the employee can count on.

But employers often try to reduce rest time anyway. For this purpose, several methods are used:

Leave is given, but issued from Friday. That is, legal days are added to rest days.
The employee is not allowed to rest at all, but is asked to write a statement, for example, on weekends.
Vacation is issued, but in fact the employee continues to perform his duties.

None of these options can be called effective. Managers convince everyone that the second party can receive the basic salary at the same time as vacation pay in such situations, but in any case, the legal right to rest is lost. There are several legal ways to spend time that has not yet been used.

If an employee leaves, but he still has a vacation left, he has the right to take several actions:

Drawing up a leave application. Then the dismissal occurs after its completion. In this case, there is no need to wait and spend two weeks working off. But this happens if there are 14 days of rest or more.
Receipt of monetary compensation for the time that is left over.

Pregnant women can act according to the same rules as everyone else. They cannot receive compensation in a normal situation, and the manager does not have the right to deprive such employees of the right to go on vacation at all.

Unused days can be added to or to parental leave. Advance booking is allowed.

It doesn't matter how the holiday is arranged. A pregnant woman must receive vacation pay in any case. Such payments are sometimes perceived as compensation for those who have not received an accounting education.

We issue an application for unused days

Employees are required to draw up so that they are allowed to use vacation days from the previous period. Such a document has little difference from standard papers issued when granting regular holidays:

What difficulties can arise with compensation?

Some employees do not seek to arrange regular leave according to the usual rules. They do not know how much the legislation has changed recently. This is especially true for those who live in a difficult financial situation. Such people often count on payment from their superiors, but in the end they are left without any help at all.

And managers take advantage of this situation, trying to save on costs. It must be remembered that the law allows you to postpone the time of rest no later than 18 months from the moment the right to rest appeared. And then the transfer is possible only if there are good reasons. If by the end of this period there is a dismissal, then it may be impossible to obtain compensation even through the courts.

Legislation generally establishes that the court for the protection of rights must be applied three months after it became known about the violation of rights. This rule is rarely observed by those who continue to work. Therefore, when they are fired, they face a refusal. When they go to court, they find out that the statute of limitations has expired.

How to reflect holidays in the schedule?

Usually completed using Form T-7. The head, for example, for the next period must approve it no later than December 17, 2017. The number of days of rest due for the next working year is indicated in the fifth column of the document. Here they write information on both the main and additional holidays. It does not matter whether they are provided for by Russian legislation in general or only by regional acts.

There are other points to consider when filling out the schedule:

Strikethrough entries or other types of corrections are not allowed.
If it is necessary to make changes, then this is done only after prior agreement with those who directly manage this or that employee. The head of the company must issue a so-called permissive visa.
All information must be shown on the chart. Including in situations where the employee transfers his rest more than once.

Unused vacation days can be provided in two ways in connection with the execution of this document:

According to the standard schedule. Then the unused time is added to the total time indicated in column 5.
Based on an application from an employee, after agreement with the second party.

The main thing is that the employee tries to avoid when drawing up a document. It is good if you have a ready-made sample of a document at hand, which is made in accordance with standard requirements. And the leader himself must ensure that the right to rest is necessarily realized. Otherwise, the inspectors will have additional questions. Which, in turn, leads to additional checks and other troubles.

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Articles, comments, answers to questions: Last year's vacation

If the employee has accumulated unused annual leave for previous periods of work, then he retains the right to use them. The employer can include such holidays in the vacation schedule for the next calendar year or provide them by agreement with the employee (see Letter of Rostrud dated 01.03.2007 N 473-6-0).

Open a document in your ConsultantPlus system:
When summing up annual paid holidays or postponing annual paid holidays to the next year, only a part of each such holiday exceeding 28 calendar days, or any number of days from this part, can be replaced by monetary compensation. Suppose an employee, according to a collective agreement, has the right to an additional vacation of four calendar days. For operational reasons, he did not use his annual paid leave in 2009, and therefore the leave was postponed to the following year. Consequently, the employee has the right to use 64 calendar days of vacation (32 days for 2009 and 32 days for 2010). In this case, he can write an application for the replacement of monetary compensation for each part of the vacation that exceeds 28 calendar days, i.e. eight calendar days (four days for the previous year and four days for the current one). The employee may also ask to replace him with monetary compensation for any number of days from the part of each vacation exceeding 28 calendar days (part 2 of article 126 of the Labor Code of the Russian Federation).

Regulations: Last year's vacation

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