What to do if an employee does not want to go on vacation. The nuances of sending an employee on vacation if he does not want to. Is the employee obliged to go on vacation?

Limitation of deductions from wages Article 138. Limitation of the amount of deductions from wages To determine the order of vacation periods, employers maintain special schedules. The procedure for drawing up the next vacation schedule for the coming year is established by Art. 123 Labor Code of the Russian Federation. The document is drawn up, agreed upon and approved two weeks before the end of the current calendar year. Article 123. Sequence of granting annual paid leave What to do with new employees if the vacation schedule has already been drawn up? There are no restrictions for either the employee or the employer in this situation. The vacation schedule is not adjusted retroactively. Upon written application of a new employee, he is granted the first leave at the time prescribed by law, unless other agreements are determined by the parties to the employment relationship.

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Therefore, in 2018, the last day for its signing is December 17. At an enterprise that has a trade union body, it is mandatory to take its opinion into account when drawing up the document.

Attention

If it is necessary to transfer vacation days, the changes must be agreed upon with the employees affected by them. Attention! The employer is required to give each employee summer leave at least once every four years.

Info

If, at the time of drawing up the vacation schedule, the organization has employees who have not worked for six months, it is necessary to plan the time when they can be given compulsory rest after employment for the next calendar year. If an employee has the right to use the first vacation before six months of work and has expressed a desire to take advantage of it, it is necessary to include his vacation in the general schedule.

Can an employer force you to go on vacation?

Important

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 an organization or individual entrepreneur, it is allowed, with the consent of the employee, to transfer the leave to the next working year. In this case, the leave must be used no later than 12 months after the end of the working year for which it is granted.

It is prohibited to fail to provide annual paid leave for two years in a row, as well as to not provide annual paid leave to employees under the age of eighteen and employees engaged in work with harmful and (or) dangerous working conditions. 3. The procedure for calculating vacation days in calendar days is directly enshrined in Art.

120 Labor Code of the Russian Federation:4. An employee has the right not only to be granted leave. but also to replace it with monetary compensation (decided at the discretion of management).

What should an accountant and HR officer do if an employee does not want to go on vacation?

The entire salary of the vacationer is divided into the required number of months (12 or 3) and divided by 29.6 - the average monthly number of calendar days established by law. The total amount is determined by multiplying the number of vacation days provided by the average daily earnings.

Monetary compensation for unused annual leave is calculated in a similar way in the event of an employee’s refusal or dismissal. To receive compensation, you must submit an application.

The Labor Code obliges employers to transfer vacation payments three days before the actual start of the vacation period (Article 136). If the last day falls on a weekend, the transfer must be made in advance.
It is prohibited to postpone payment to the next working day. For violation of these rules, the employer bears administrative liability. Article 136.

What to do if an employee does not want to go on vacation

Article 122 establishes that the first paid vacation period is due to an employee after 6 months of continuous cooperation with the employer. He can apply for leave in the 7th working month.

In accordance with Art. 115 the total duration of rest is 28 days. Article 115. Duration of annual basic paid leave With the approval of the employer, the first leave may be granted before six months of work. Article 122.

The employee divides the vacation into parts of less than 14 days

The commission of an administrative offense provided for in Part 6 of this article by a person who has previously been subjected to administrative punishment for a similar offense, if these actions do not contain a criminal offense, shall entail the imposition of an administrative fine on officials in the amount of twenty thousand to thirty thousand rubles or disqualification for a period from one year to three years; for persons carrying out entrepreneurial activities without forming a legal entity - from ten thousand to thirty thousand rubles; for legal entities - from fifty thousand to one hundred thousand rubles. 2) According to Art.

If the employee does not want to go on vacation

As a general rule, the total duration of the annual vacation period is 28 calendar days. Certain categories of workers have the opportunity to receive additional days of rest:

working under hazardous or difficult conditions;
employees of kindergartens, institutions of basic, secondary special and higher education;
minor workers;
workers working irregular days.

There may be other cases of providing additional days, provided for by federal laws or local regulations.

The employer gives his consent to the employee going on vacation if he has a replacement with another specialist or can do without him temporarily. If a specialist has worked for 6 months, he can receive vacation days in advance, i.e.

greater volume than he actually earned. Previously, such a possibility was out of the question.

Lawyer Alexander Arutyunov: is it possible not to go on vacation?

The procedure for granting annual paid leave to certain categories of employees, regardless of the duration of work at a particular enterprise:

citizens under the age of 18;
employees who are expecting the birth of a child;
employees who adopted children under 3 months of age;
other personnel who have privileges granted by federal laws (veterans, spouses of military personnel, part-time workers, etc.).

Attention! Designated categories of employees are given leave based on personal applications indicating and officially confirming their rights to early leave. The employer does not have the right to refuse, even in the event of an urgent production need for them.

Some employers are inclined to take partial vacation after six months of work. However, such a position is misleading.
According to the law, the employer has no grounds to force an employee to take advantage of the right to maternity leave. That is, if a woman has not written a corresponding statement, thereby expressing a desire to continue working, the employer cannot prevent her from doing so.
Maternity leave is a woman’s right, not her responsibility, so she herself has the right to determine when she is ready to use it. At the same time, we must not forget that if a woman goes on maternity leave later than the date indicated on the sick leave, then its period automatically becomes shorter, which entails a reduction in the legal benefit for this circumstance.

Is an employee required to go on vacation for 2 weeks?

Since the first vacation after getting a job can be taken in full, the calculation is based on the number of days the vacationer needs. Payment is made after notifying the employee and before the first day of vacation. The enterprise issues an order containing information about the number of vacation days provided and their dates. The vacationer must familiarize himself with it and sign it. If it is not possible for the employee to familiarize himself with the order in person, a special notification is sent to him. The amount of vacation payments is calculated by the accounting department based on average earnings for the last year of work. The calculation may use the previous three working months. Earnings include not only the basic salary, but also all bonus payments, remunerations, and allowances.
Naturally, employers try to avoid such privileges, since the risk that the employee will not return after receiving payment in advance is very high. To protect the employer, the law provides for the possibility of collecting debt from a subordinate for used, paid, but not worked vacation days.

But limiting the amount of the penalty to 20% of earnings does not guarantee full compensation for the damage incurred. The procedure for registration and payment in 2018 The official local document of the organization regulating the procedure for employees going on vacation is the vacation schedule.

It helps ensure the efficient operation of the enterprise and prevents missed legal holidays. After all, the responsibility for monitoring the use of vacation days by staff rests with employers. The schedule is drawn up annually two weeks before the end of the year (Article 123 of the Labor Code of the Russian Federation).

What document is the main one for granting employees leave? What to consider when creating a vacation schedule? What are the features of transferring vacation and for how long can it be postponed? How long are employees entitled not to take annual leave? In what order are vacation days used? What should an employer do if an employee refuses vacation? What documents should I fill out? Can an employee be subject to disciplinary action?

All permanent employees without exception have the right to rest for at least 28 calendar days. And while some people don’t even have that many days, others don’t go on vacation for years. But this is not only inconvenient for the employer and, in particular, for personnel officers, but also fraught with administrative problems. We will talk in the article 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.

Reason for vacation.

According to Art. 123 of the Labor Code of the Russian Federation, the priority for granting paid vacations 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 specified in Art. 372 Labor Code of the Russian Federation.

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

Drawing up a vacation schedule is quite a responsible matter, especially if the organization has a large staff of employees. In such cases, first, as a rule, schedules are drawn up in structural units, and then a consolidated schedule is formed. Drawing up a draft unit vacation schedule can be entrusted to these units. Based on the schedules they submit, the HR department draws up a consolidated vacation schedule. Moreover, the responsibility of department heads to draw up a draft schedule is better fixed in the appropriate 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 employee will already draw up a unified vacation schedule.

Note:

When drawing up a vacation schedule, the right of certain categories of employees to vacation at any time and the length of service required to provide such vacation should be taken into account. Don’t forget to include unused vacations from previous years in your schedule.

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

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

Let us remind you that in accordance with Art. 693 of the List of standard management archival documents generated in the course of the activities of state bodies, local governments and organizations, indicating storage periods, approved by Order of the Ministry of Culture of the Russian Federation dated August 25, 2010 No. 558, the vacation schedule must be stored in the organization for 1 year. Moreover, the deadline starts 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, ends on December 31, 2017. Therefore, it needs to be stored throughout 2017.

Transfer of vacation to next year.

Annual paid leave can be carried forward 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:

Providing an employee with leave in the current working year may adversely affect the normal course of work of the organization;

the employee agreed to transfer the vacation to the next working year.

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

Leave transferred 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 Part 1 of Art. 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 there 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 parts, or one vacation of 14 days, and the remaining 42 days in parts?

How many years can vacations 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 years in a row, 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, 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 jobs 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 provided, is a violation of labor legislation and, in the event of an inspection by the labor inspectorate, a fine may be imposed on the organization in accordance with Part 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation.

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

According to Letter of Rostrud dated 06/08/2007 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 leave. Annual leave for previous working periods can be provided either as part of the leave schedule for the next calendar year, or by agreement between the employee and the employer.

For your information:

Previously, doubts about this 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 in which a 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 to those who resigned. True, the reason for the refusal was that the employee missed the statute of limitations. Thus, the Supreme Court in the Appeal 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 during which vacation must be granted) + 3 months (the period for the employee to go to court)). The fact that leave in a calendar year was not provided in full and compensation was not paid should have been known after each year of work, as a result of which the required leave was not provided.

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

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

Nevertheless, the employer should not allow employees to pay arrears for vacations - primarily because working without vacations affects both the physical and psychological state of the employee, as a result, labor productivity and immunity decrease, and the employee more often goes on sick leave. Problems are possible, even to the point that an industrial accident may occur.

In addition, when paying, the employer may overpay if the employee’s salary was increased over the last year, since compensation for unused vacation is calculated based on average earnings for 12 months (Regulation on the specifics of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation of 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 payment of compensation, and then rehire him. From a legal point of view, there seem to be no violations. But if this option is used constantly, then inspectors may see a violation of the rights of employees: firstly, their length of service for the next annual paid leave is interrupted, 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 leave.

So, what to do if an employee does not use vacation or does not use it in full, accumulating the remaining parts with the permission of the employer, and what liability may arise for, we figured it out. But what if an employee doesn’t want to leave either this year or next year, and he has one reason or another? Of course, you can get into a situation once or twice, but then the problems will have to be solved directly by both the personnel officer and the employer. Therefore, you shouldn’t let everything take its course. The employee should be subject to disciplinary action, for example, first a reprimand, 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 upon with the trade union, if there is one. It is also advisable to have the employee’s signature confirming his familiarity 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 notice must be confirmed by the employee's signature. If an employee refuses to sign a document, a report should be drawn up about this.

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

4. No later than 3 days before the start of the vacation, it is necessary to pay the employee vacation pay (Article 136 of the Labor Code of the Russian Federation).

Note:

Do not forget that if the employee was not paid in a timely manner for the duration of the annual paid leave or the employee was warned about the start time of this leave later than 2 weeks before it began, then the employer, upon the written application of the employee, is obliged to postpone the leave to another date agreed with the employee .

5. An employee’s return to work during vacation must be documented.

6. Disciplinary action 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 written notice that the time he is at work is not subject to payment, since he is on annual leave according to the approved vacation schedule.

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

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

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

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

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

Leave, and conclude a civil contract with the employee for the contract or provision of services;

issue leave, and bring the employee to disciplinary action.

Some employers provide employees with weekend leave. This, in principle, does not contradict the law, but it will provide unnecessary questions from inspectors.

We also remind employers that you cannot refuse to provide scheduled leave, except in cases of production necessity and with the written consent of the employee. And if an employer illegally denies an employee leave and he goes on leave without permission, he cannot be fired for absenteeism (clause “d”, paragraph 39 of the Resolution 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” ).

compensation upon dismissal dismissal trade unions

The vacation period is a long-awaited time, but situations may arise when the employee himself refuses to go on vacation, having good reasons for doing so. But it is important for the employer to maintain a delicate balance between satisfying the wishes of the employee and labor legislation.

The right to rest must be strictly implemented, but the Labor Code contains some aspects that make it possible to defer this right or replace it partially with a monetary equivalent.

The relationship between the parties to the employment contract is regulated by law. Providing vacations is not a right, but an obligation of the employer, which means that the employee is obliged to take advantage of it.

The Labor Code establishes that all employees must receive a long rest period every year. Article 114 of the Labor Code of the Russian Federation determines that during the absence of an employee who is on regular annual leave, his job is retained. Since rest time is provided by law, it must be paid for. Compensation for the vacation period is calculated based on the average salary of the employee, calculated for a year or less.

Rest time is also standardized by the Labor Code; it is determined by a mandatory minimum of 28 calendar days. The employer does not have the right to reduce the mandatory period, but he can increase it by any number of days based on his own considerations. The main thing is that the increase is recorded in local internal documentation and paid according to the same rules and criteria as the mandatory minimum.

In addition to the indicated 28 days, many categories can count on a legal increase due to special work schedules and working conditions.

Mandatory compliance with the vacation schedule

To ensure timely provision of vacation periods to all employees, special schedules are drawn up. They are prepared by employers annually as a plan for the next calendar year. According to the law, the schedule must be drawn up before mid-December of the current year, and its absence entails administrative punishment for the organization as a whole and those officials who did not ensure its preparation in particular.

The schedule is drawn up by reaching a mutually beneficial agreement between the company management and the hired persons. For the director of an enterprise, it is not very important who goes on vacation and when, the main thing is that the continuity of the production process is maintained. A correctly drawn up sequence makes it easy to solve problems with temporary replacements for absent employees and build work processes without loss of quality and speed of production.

The schedule drawn up for the next year is not an immutable document. It can be supplemented, partially changed or even completely redone. Of course, planning everything for a year in advance can be quite difficult, and many personal and production nuances can affect previously made plans.

You can change the start and end times of rest either at the initiative of the employer or at the request of the employee.

Employers are more limited in this right, since they need compelling reasons to make changes, but employees can initiate changes with greater ease, citing family circumstances or other reasons. Therefore, although the schedule must be observed, this does not mean that it cannot be changed if the parties to the cooperation have reached an agreement on this matter.

Is it possible for an employee to refuse leave?

Many employees are sure that they don’t have to go on vacation if they don’t feel like resting or if they are counting on monetary compensation for the days they didn’t take off. On the one hand, it is obvious that if an employee did not have the opportunity or desire to rest, then he should receive monetary compensation for the time he did not take off. Thus, a person does not lose wages and receives additional compensation for the days of vacation required by law. But on the other hand, not everything is so simple.

Let's look at those groups of working people for whom it is impossible to refuse vacation at all. Minor employees, as well as pregnant women, cannot replace all or at least part of their vacation with money. These categories are required to fully rest, and therefore, even if they have their own initiative, they cannot receive compensation without taking the required days off. Another special category is employees who are employed in jobs with harmful or dangerous working conditions. In addition to regular vacation periods, they are also entitled to additional ones. Additional leave is specifically given so that they can restore the reserve of lost health, so compensation for them is prohibited.

All other workers can refuse to take those days that they are entitled to in excess of the mandatory minimum of 28 days. Article 126 of the Labor Code of the Russian Federation states that, at the request of the working citizen himself, expressed in writing, all days exceeding the legal minimum can be compensated. Moreover, this can be done regularly every year, without restrictions. But you will have to take the mandatory minimum time off in any case.

What to do in case of refusal

In some cases, employers do not know how to properly respond to an employee’s refusal to go on vacation. In case of refusal, the first thing you should talk about with the employee is the reasons that prompted him to make such a decision. Most often, it’s not so much about a complete refusal to rest, but rather about the inability to take advantage of it during a period strictly established according to the schedule. It is possible that the person simply wants to reschedule his vacation. If we are really talking about financial difficulties that the worker wants to solve by receiving compensation, then the employer is obliged to appeal to the legislative framework, justifying his decision.

It should be remembered that the time for exercising the right to annual rest is selected based on the agreement reached between the parties to the labor process. Neither the employee nor the employer can make such a decision alone, and accordingly, it is also impossible to make changes to the schedule.

When an employee approaches the management of an organization with a request to refuse leave, he cannot count on his request being granted with a 100% guarantee. The leader, first of all, complies with the rules of the law. The Labor Code contains a clause that the vacation period can be postponed to the next year, but must be implemented within two years.

Under this exception, the manager may extend the vacation period to the next year and allow the employee to continue working if the request is justified and the organization's activities will not be affected in any way by such a decision.

Notifying an employee about an upcoming vacation

The procedure for granting leave is regulated step by step and does not end with drawing up a priority schedule. The employer is obliged to correctly register the vacation period of each employee.

Article 123 of the Labor Code of the Russian Federation establishes that the management of the organization must ensure timely notification of vacationers about the start time of their vacation.

A whole procedure has been developed for this:

HR department employees are preparing a notification about the imminent start of vacation.
The notice is given at least two weeks before the start of the holiday.
The employee reads the notification and puts his signature on the document.

Violation of the notification procedure or failure to comply with notification deadlines allows employees to change the start time of vacation at their discretion. Lack of notification does not mean that the employee will not go on vacation as scheduled, but it gives him the right to do so. And if the vacationer himself wants to postpone the vacation to another time, then the employer will be obliged to meet him halfway.

Possibility of transferring vacation

A hired person cannot refuse to rest at all, but he is quite capable of transferring vacation from one period to another.

When transferring, it is important to consider the following aspects:

Changing the time should not negatively affect other employees and their plans, that is, you will have to adapt to an existing schedule and look for free periods or change with someone.
The management of the organization can either completely refuse the transfer or offer their own options.

In any case, changing the previously scheduled time will only be possible with the agreement of all parties.

The transfer is initiated by the employee using an application submitted to the director of the organization. If the decision is positive, an order is issued to replace one period with another. Based on this, personnel employees make changes to the priority schedule and the employee’s personal card.

Reason for leave

According to Art. 123 Labor Code of the Russian Federation The order of provision of paid vacations 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 established Art. 372 Labor Code of the Russian Federation.

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

Drawing up a vacation schedule is quite a responsible matter, especially if the organization has a large staff of employees. In such cases, first, as a rule, schedules are drawn up in structural units, and then a consolidated schedule is formed. Drawing up a draft vacation schedule for a unit can be entrusted to the heads of these units. Based on the schedules they submit, the HR department draws up a consolidated vacation schedule. Moreover, the responsibility of department heads to draw up a draft schedule is better fixed in the appropriate order.

When drawing up a vacation schedule, the right of certain categories of employees to vacation at any time and the length of service required to provide such vacation should be taken into account. Don’t forget to include unused vacations from previous years in your schedule.

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

Transferring vacation to next year

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

Providing an employee with leave in the current working year may adversely affect the normal course of work of the organization;

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

Leave transferred 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 Part 1 Art. 125 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 there 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 parts, or one vacation of 14 days, and the remaining 42 days in parts?

From the provisions Art. 125 Labor Code of the Russian Federation, regardless of how many vacation days the employee uses during the year, it can be concluded that one part of the vacation must 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 the employer.

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

How many years can vacations not be used?

According to Art. 124 Labor Code of the Russian Federation It is prohibited to fail to provide annual paid leave for 2 years in a row, as well as to not provide annual paid leave to employees under the age of 18 and to persons employed in jobs with harmful and (or) dangerous working conditions.

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 provided, is a violation of labor legislation and, in the event of an inspection by the labor inspectorate, a fine may be imposed on the organization in accordance with Part 1 Art. 5.27 Code of Administrative Offenses of the Russian Federation.

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

According to Letter of Rostrud dated 06/08/2007 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 leave. Annual leave for previous working periods can be provided either as part of the leave schedule for the next calendar year, or by agreement between the employee and the employer.

Previously, doubts on this issue arose in connection with the ratification of International Labor Organization Convention No.132 “On paid holidays”(Further - Convention) according to Art. 9 in which a 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.

Based Convention some courts refused to recover compensation for unused vacations to those who quit. 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 appeal ruling dated March 27, 2015 in case No. 33‑1227/2015 noted that the deadline for claims for compensation for unused vacation is 21 months after the end of the year for which the vacation is granted (18 months (the period during which the vacation must be granted) + 3 months (the period for the employee to go to court)). The fact that leave in a calendar year was not provided in full and compensation was not paid should have been known after each year of work, as a result of which the required leave was not provided.

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

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

In addition, when paying compensation upon dismissal, the employer may overpay if the employee’s salary was increased over the last year, since compensation for unused vacation is calculated based on average earnings for 12 months ( Regulations on the specifics of the procedure for calculating average wages, approved By Decree of the Government of the Russian Federation dated December 24, 2007 No. 922 ).

To avoid problems with unused vacation and payment of compensation, some employers, after 2 years without vacation, formalize the dismissal of the employee with payment of compensation, and then rehire him. From a legal point of view, there seem to be no violations. But if this option is used constantly, then inspectors may see a violation of the rights of employees: firstly, their length of service for the next annual paid leave is interrupted, 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 leave

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

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

4. No later than 3 days before the start of the vacation, it is necessary to pay the employee vacation pay ( Art. 136 Labor Code of the Russian Federation).

Do not forget that if the employee was not paid in a timely manner for the duration of the annual paid leave or the employee was warned about the start time of this leave later than 2 weeks before it began, then the employer, upon the written application of the employee, is obliged to postpone the leave to another date agreed with the employee .

5. An employee’s return to work during vacation must be documented.

6. Disciplinary action is carried out in accordance with Art. 192 And 193 Labor Code of the Russian Federation.

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

Postpone vacation, except in the case where the employee did not go on vacation at all for 2 years;

Dismiss an employee, pay him compensation, and then hire him (we do not recommend abusing this method);

Apply for leave, and conclude a civil contract with the employee for the contract or provision of services;

Apply for leave and bring the employee to disciplinary action.

Some employers provide employees with weekend leave. This, in principle, does not contradict the law, but it will provide unnecessary questions from inspectors.

We also remind employers that you cannot refuse to provide scheduled leave, except in cases of production necessity and with the written consent of the employee. And if an employer illegally denies an employee leave and he goes on leave without permission, he cannot be fired for absenteeism ( pp. “d” clause 39 of the Resolution 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”).

" № 9/2017

All permanent employees without exception have the right to rest for at least 28 calendar days. And while some people don’t even have that many days, others don’t go on vacation for years. But this is not only inconvenient for the employer and, in particular, for personnel officers, but also fraught with administrative liability. We will talk about how many years an employee may not go on vacation and what an employer should do if some employees do not use their annual vacation, we will talk in the article.

Reason for vacation.

According to Art. 123 of the Labor Code of the Russian Federation, the priority for granting paid vacations 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 established by Art. 372 Labor Code of the Russian Federation.

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

Drawing up a vacation schedule is quite a responsible matter, especially if the organization has a large staff of employees. In such cases, first, as a rule, schedules are drawn up in structural units, and then a consolidated schedule is formed. Drawing up a draft vacation schedule for a unit can be entrusted to the heads of these units. Based on the schedules they submit, the HR department draws up a consolidated vacation schedule. Moreover, the responsibility of department heads to draw up a draft schedule is better fixed in the appropriate order.

Note:

When drawing up a vacation schedule, the right of certain categories of employees to vacation at any time and the length of service required to provide such vacation should be taken into account. Don’t forget to include unused vacations from previous years in your schedule.

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

Let us remind you that in accordance with Art. 693 of the List of standard management archival documents generated in the course of the activities of state bodies, local governments and organizations, indicating storage periods, approved by Order of the Ministry of Culture of the Russian Federation dated August 25, 2010 No. 558, the vacation schedule must be stored in the organization for 1 year. Moreover, the calculation of the period is carried out 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, ends on December 31, 2017. Therefore, it needs to be stored throughout 2017.

Transfer of vacation to next year.

Providing an employee with leave in the current working year may adversely affect the normal course of work of the organization;

the employee agreed to transfer the vacation to the next working year.

Leave transferred 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:

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

How many years can vacations not be used?

That is, if, as a general rule, employees may not take at least 2 years, then employees under the age of 18 and employed in jobs with harmful and (or) dangerous working conditions must use vacation 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 provided, is a violation of labor legislation and, in the event of an inspection by the labor inspectorate, a fine may be imposed on the organization in accordance with Part 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation.

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 in which a 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 to those who resigned. 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 Appeal ruling dated March 27, 2015 in case No. 33-1227/2015 noted that the deadline 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 go to court)). The fact that leave in a calendar year was not provided in full and compensation was not paid should have been known after each year of work, as a result of which the required leave was not provided.

In addition, when paying compensation upon dismissal, the employer may overpay if the employee’s salary was increased over the last year, since compensation for unused vacation is calculated based on average earnings for 12 months (Regulation on the specifics of the procedure for calculating average wages, approved by Decree of the 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 payment of compensation, and then rehire him. From a legal point of view, there seem to be no violations. But if this option is used constantly, then inspectors may see a violation of the rights of employees: firstly, their length of service for the next annual paid leave is interrupted, 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 leave.

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

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

4. No later than 3 days before the start of the vacation, it is necessary to pay the employee vacation pay (Article 136 of the Labor Code of the Russian Federation).

Note:

Do not forget that if the employee was not paid in a timely manner for the duration of the annual paid leave or the employee was warned about the start time of this leave later than 2 weeks before it began, then the employer, upon the written application of the employee, is obliged to postpone the leave to another date agreed with the employee .

5. An employee’s return to work during vacation must be documented.

6. Disciplinary action 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 vacation, except for the case when the employee did not go on vacation at all for 2 years;

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

arrange a vacation, and enter into a civil agreement with the employee or for the provision of services;

issue leave, and bring the employee to disciplinary action.

Some employers provide employees with weekend leave. This, in principle, does not contradict the law, but it will provide unnecessary questions from inspectors.