What if I didn’t take a vacation in a year? Is it possible to replace unpaid vacation with monetary compensation? Does unused vacation expire?

The question: whether or not vacation without time off in 2017 (or as it is often colloquially called “vacation without time off”) will burn out or not is of concern not only to personnel officers, but also to the employees themselves. What to do with the remaining days - can they be transferred to the future or is it necessary to pay monetary compensation? What documents are drawn up? You will find answers to these questions below.

Unused vacation: does it expire or not?

The labor legislation of the Russian Federation regulates the right to annual paid leave for all employees, without exception, in accordance with the provisions of Art. 107, 114, 122 TK. Such rest, used at the discretion of the individual, with preservation of average earnings and with exemption from performing direct duties labor responsibilities, must be provided by employers every year (Article 114). At the same time, in accordance with Art. 124 it is prohibited to refuse to provide annual leave for two years in a row, although, as reality shows, such practice is not uncommon in enterprises.

In this regard, does vacation from previous years expire in 2017 if it has not been used in full? For example, a specialist has 10 days left from 2016. Is it possible to add these unused days vacation for vacation in 2017? In this situation, 10 days are initially provided. past, and then take the current vacation off. If a person resigns, then according to Art. 127 of the Labor Code, he has the right to choose to receive financial compensation for unused vacation for the past year or take the required days off from subsequent dismissal. In the second case, a written statement will be required from the employee.

How to calculate days of unused vacation upon dismissal

Thus, we have decided that unused vacation days do not disappear and are not burned. But how is compensation calculated for days off if a specialist resigns? To calculate the amount you will need to determine the quantity allotted days vacation depending on the length of time the employee works.

Moreover, if a person has worked for 11 months at the time of dismissal, he is entitled to full compensation. In other cases, according to the generally accepted method, 2.33 days of vacation are provided for each month worked. For example, a person leaves an organization after working there for 5 months. and 16 days. According to rounding rules, work experience of this employer is 6 months, that is, the employee is entitled to 13.98 days. vacation (6 months x 2.33).

Calculation of the number of days of unused vacation upon dismissal - example

There is another way to calculate the number of days of vacation not taken off - in proportion to the time worked. The following formula is applied:

  • Number of days = 28 days. / 12 months x Number of months worked.

If you make a calculation based on this technique, according to the conditions of the example, you get:

  • Number of days = 28 / 12 x 6 months. = 14 days

As you can see, the second method is slightly more beneficial for employees. In addition, if, in addition to the main employee, he also has the right to additional leave according to the norms of Chapter 19 of the Labor Code, these days are also included in the calculations when determining the total number vacation days to calculate monetary compensation.

Application for unused vacation - sample

Unused vacation may be provided to the employee according to or according to the vacation schedule with the corresponding days added to general period according to gr. 5. If an application is written, the rest period must be agreed upon with the employer’s administration. The form of drawing up the document is arbitrary. It is necessary to indicate the full name/position of the employee and manager, days of upcoming rest, and the date of compilation.

Application for vacation leave - sample

General Director

LLC "Iskra" Doronin V.P.

from the installer Gvozdenko Yu.I.

Statement

I ask you to grant me another paid leave from June 1, 2017 for 10 (ten) calendar days.

__________________ / Gvozdenko Yu.I./

Pay attention! Replacement monetary compensation at the request of the employee, it is allowed only for days exceeding the standard duration of annual leave - 28 calendar days (Article 126 of the Labor Code).

Can unused vacation expire? - this question often arises among employees and employers. Although more than one year has passed since the ratification of the relevant ILO Convention No. 132 in 2010, which raised this issue. Let's figure it out, do vacations not taken really expire? Can unused vacation be carried over to the next year? What regulations to follow and other questions.

Labor Code on transferring vacation

In accordance with current legislation, an employee has the right to 28 days of annual paid leave (Article 115 of the Labor Code of the Russian Federation). By agreement with the employee, leave can be divided into several parts, one of which must be at least 14 days. Information on employee leaves is recorded in, such schedules are drawn up at the end of the year on future period annually. If the employee did not use due leave during the year (for good reasons), then its unused part can be transferred to the next year (Article 124 of the Labor Code of the Russian Federation). However, according to the law, failure to provide vacation for 2 years is prohibited. That is, a debt of 56 days of vacation is gross violation law.

ILO Convention on Transfer of Holidays

ILO Convention No. 132 on holidays was ratified in Russia in 2010 (Federal Law No. 139 of July 1, 2010). It, in particular, states that the minimum part of the vacation for the year (i.e. 14 days according to the Labor Code of the Russian Federation) must be used during the current year. And the remaining balance (i.e., also 14 days) no later than 18 months. at the end of this year. Thus, if we count in accordance with the Convention, then the vacation arrears cannot exceed 42 days (28 days for the current year + 14 days for last year) for 2 years.

So do vacations from previous years expire?

First of all, it is worth noting that the ILO Convention, as well as the Labor Code, does not indicate the “burnout of vacations”. Experts also note that the ratified ILO Convention stands above federal laws in accordance with the Labor Code and the Constitution of the Russian Federation. Despite the fact that amendments in connection with ratification were not made to the code. However, if local laws court decisions, customs, etc. provide more favorable conditions workers, then these provisions can be considered to take precedence over the Convention.

In addition, the Labor Code states that upon dismissal, an employee must receive compensation for all unused vacations (Article 127 of the Labor Code of the Russian Federation). Therefore, the indication in the Convention for a period of 18 months when leave can be used past period, does not have in this issue force, since the code is applied everywhere in Russia.

In addition, as we have already noted, the code has a clear definition that leave cannot be granted to an employee for more than 2 years, and, therefore, the total debt cannot be more than 56 days (Article 124 of the Labor Code of the Russian Federation). In practice, in Russia, vacation debt is on average 2 years, but it can be longer, 3-5 years.

Also, according to the Convention, the employee must receive leave in proportion to the period for which he has not yet taken leave.

Let's summarize:

Despite the fact that the Labor Code and other Russian regulations, as well as ILO Convention No. 132, do not directly indicate that unused vacation may be lost, the presence of such debt is not the norm. And, above all, this is dangerous for the employer, since failure to comply with the code and labor protection requirements is fraught with administrative liability, which has become stricter since 2015. In addition, there is tax risks. As for the workers themselves, they should not forget about their rights; on the contrary, they need to defend them, referring to both the Labor Code, the Constitution of the Russian Federation and other Russian regulations, and to the ILO Convention, and also, if necessary, to the court.

See also:

The situation is such that after many years of service at work, it happens that the employee does not have time to take annual paid leave. The vacation period begins to accumulate and is lost over time. Many workers are concerned about the question: what to do if there is unfilled vacation and whether unused vacation from previous years expires.

According to Article 114 of the Labor Code of the Russian Federation, every employer must provide annual paid rest to its employee. It doesn’t matter whether an employee goes on maternity leave or is fired—vacation not taken off does not expire. According to Legislative framework Every employee has the right to accumulate vacation pay. How the process of restoring unpaid vacation takes place, what is provided upon dismissal: unrealized time off or compensation, more details in the article.

Can vacation not taken be lost?

According to the Leave Regulations, each employee has the right to receive 28 days off annually. If desired, vacations can be divided into periods. The main thing is that the first part should be at least 14 days. The second part can be processed up to one day. If an employee constantly goes on annual leave, the situation consists of the fact that you just need to know how to fill out the application. If an employee has a day off from work in the previous year, the situation is more complicated.

First of all, the employer must notify his employees not only about the opportunity to go on annual vacation, but also give them the chance to choose a period of rest that suits them. The employee, in turn, must know what day his days off are scheduled for this year. If for some reason he was unable to take annual paid leave, the employer must act as a guarantor that the unused vacation will not disappear, but will accumulate in the vacation pay schedule.

A long day off without a holiday means that the worker was unable to arrange the holidays on time and they automatically transferred to the next year. A situation where an official wants to transfer vacation pay must have good reasons. You can reschedule your annual paid long day off:

  • By the employee’s decision, if the terms of the Employment Contract do not prevent this possibility;
  • At the employer's discretion.

The list of reasons why an employer may not let a ward go on vacation, according to Article 124 of the Labor Code of the Russian Federation, includes:

  • Execution urgent work which only this specialist can do;
  • Difficult financial condition of the company: bankruptcy, crisis;
  • Insufficient number of people who could replace the departing person;
  • During the rest period, the employee performs part of the duties assigned to him in conducting production.

You need to know that even in such situations, vacation pay for previous years cannot be burned out according to the Labor Code of the Russian Federation. Regardless of what position the ward has, whether he goes on maternity leave or decides to take vacation pay upon dismissal, according to the Law, it is possible to accumulate days off and use them in the next working year.

Does unused vacation from previous years expire?

If for some reason the employee does not use all or part of the vacation, the vacation automatically transfers to the next working year. Unused and unspent vacation does not expire. True, it doesn’t take long to accumulate vacation pay.

Vacations not taken from previous years can be postponed no later than one year. Other calendar periods will not be taken into account. Unused days off can be taken into account in the current or next year. If this is not done, they will not be burned, but the employer will not be able to provide them to the worker. In such a situation, it is better to try to exchange the days off from work for previous years for compensation.

Upon dismissal, does unused vacation expire or not in 2018?

Unused vacation or part of the vacation upon dismissal does not expire, in accordance with the Labor Code of the Russian Federation. Upon dismissal, the employer, according to the vacation schedule, summarizes the entire non-vacation period. Therefore, the employee has the opportunity to take a well-deserved rest before leaving his position.

There are situations when a worker wants to receive monetary compensation instead of annual vacation pay. In this case, the employee should know that if the vacation time taken does not expire, this does not mean that its constant accumulation over the past years can be exchanged for monetary compensation. The law states: compensation is provided only to those categories of citizens who have vacations of more than 28 days and those who decide to terminate their employment contract. That is, people who have an extended vacation period and who want to quit can get money.

IN judicial practice It happens that an employer, through fraudulent means, can provide an employee with a reduced amount of vacation pay. If such illegal actions are proven, according to the Law, the manager will be held administratively liable.

Does vacation expire when you go on maternity leave?

According to the Laws and Labor Code of the Russian Federation, vacations not taken off before going on maternity leave do not expire. A pregnant woman can:

  • Write an application to use the part of the vacation that is not taken off and go on maternity leave ahead of schedule;
  • An employee can extend her maternity period using unused days off.

Even if the pregnant woman did not have time to fill out an application for vacation before her maternity leave. She can go out on the required weekend afterwards. Cumulative part Vacation pay is not lost even during a long stay on maternity leave.

Unused vacation - changes in the Labor Code of the Russian Federation from January 1, 2018

The rules for registering unused vacation will change from January 1, 2018. You need to know that if you write an application, you can receive unused vacation pay before dismissal. In this case, the employer must pay compensation for the entire period of non-vacation days off. Even if the deadline employment contract has ended, the period of annual leave does not expire, but is provided regardless of whether it goes beyond the conditions or not.

You must notify your employer of your desire to take an annual day off no earlier than two weeks in advance. During this time, before the start of the rest period upon dismissal, the employee can change his decision and take back his letter of resignation from the workplace.

The employee is going on vacation for 2016 and insists on accruing compensation for unused vacations for early periods(there are unused vacations for the period 2014-2015). The number of vacation days is 28 calendar days. Additional days no vacation. Experts from the GARANT Legal Consulting Service found out whether the employee’s demand was legal

16.05.2016

According to Labor Code employees are granted annual leave while maintaining their place of work (position) and average earnings ( Art. 114 Labor Code of the Russian Federation).

By general rule The duration of the annual basic paid leave of employees is 28 calendar days. Certain categories of employees are granted extended basic leave lasting more than 28 days in accordance with TK RF and other federal laws ( Art. 115 Labor Code of the Russian Federation).

In addition to the annual basic paid leave, some categories of employees are provided with annual additional paid leave (the conditions for the provision of such leave are specified in articles 116-119 Labor Code of the Russian Federation). According to Art. 120 When calculating the total duration of annual paid leave, the Labor Code of the Russian Federation sums up additional paid leave with the annual main paid leave. Thus, annual paid leave includes both the main vacation, including extended ( Art. 115 Labor Code of the Russian Federation), and additional holidays ( articles 116-119 Labor Code of the Russian Federation), when such leaves are granted to the employee. The term “annual paid leave” is a general concept.

When can you replace unused vacation with compensation?

In accordance with part one Art. 126 Labor Code of the Russian Federation in cases not related to the dismissal of an employee, upon his written application, part of the annual paid leave exceeding 28 calendar days can be replaced monetary compensation. When summing up annual paid leave or transferring annual paid leave to the next working year, monetary compensation may replace the part of each annual paid leave exceeding 28 calendar days, or any number of days from this part (part two Art. 126 Labor Code of the Russian Federation). Note that the use in Art. 126 According to the Labor Code of the Russian Federation, the words “can be replaced” means that the payment of monetary compensation upon continuation labor relations is a right and not an obligation of the employer (see letters Rostruda dated 03/01/2007 No. 473-6-0 and dated 06/08/2007 No. 1921-6). Therefore, the employer may refuse to satisfy the employee's request for compensation and insist on the actual use of all vacation.

28 calendar days - minimum quantity days off from work that the employer is obliged to provide to the employee for rest during each year of work. Accordingly, an employee whose individual annual leave exceeds 28 calendar days can claim compensation for part of their vacation (the employee has the right to extended basic vacation and (or) annual additional paid vacation). Provisions for substitution of monetary compensation annual basic paid leave and annual additional paid leave do not apply to pregnant women and employees under the age of 18. It is also not allowed to replace annual additional paid leave with monetary compensation for employees engaged in work with hazardous or hazardous conditions. dangerous conditions labor, for work in appropriate conditions (with the exception of payment of monetary compensation for unused leave upon dismissal, as well as cases established TK RF) (part three Art. 126 Labor Code of the Russian Federation).

Those employees who are entitled to only 28 days of vacation annually, no matter how many days of vacation they accumulate, can receive monetary compensation only upon dismissal ( Art. 127 Labor Code of the Russian Federation).

Thus, labor legislation allows the replacement by monetary compensation of only part of the annual paid leave exceeding 28 calendar days. Cash compensation for all unused vacations is paid only upon dismissal.

The company has the right to refuse compensation to an employee for unused vacation.

In the situation under consideration, the employee did not use annual paid leave for the period 2014-2015. In this case, the number of days of each annual paid leave is 28 calendar days (additional leaves are not provided to the employee).

Under such circumstances, the employee’s demands for monetary compensation for unused vacations are unlawful. Accordingly, the employer must refuse to pay the employee monetary compensation for unused vacations for the periods 2014-2015.

In conclusion, we recall that paid leave must be provided to the employee annually ( Art. 122 Labor Code of the Russian Federation, Art. 3 ILO Convention No. 132 “On Holidays with Paid” (ratified by the Russian Federation Federal law dated July 1, 2010 No. 139-FZ. The Convention entered into force in the territory Russian Federation September 6, 2011)). In exceptional cases, with the consent of the employee, it is allowed transfer of vacation for the next working year, if the vacation was not used in the current year (part three Art. 124 Labor Code of the Russian Federation). Failure to provide annual paid leave for two consecutive years is prohibited (part four Art. 124 Labor Code of the Russian Federation). According to the provisions Art. 114, Art. 122, Art. 124 According to the Labor Code of the Russian Federation, if for some reason employees have unused annual leave for previous working periods, they retain the right to use all due annual paid leave.

One of the questions on which HR specialists have not yet come to a consensus is this: does unused vacation expire or not in 2019? On this occasion there is different points vision. Which one is correct can be found out only after carefully studying the regulatory documents.

Rest in a storehouse

As in previous periods, in 2019, any employee can use all the rest days that he has accumulated while working for the company. If desired, last year's vacation can be added to the current one. This conclusion follows from the provisions of Art. 124 Labor Code of the Russian Federation.

In other words, if an employee has 10 calendar days left unused from last year, they transfer to the current year. Therefore, when going on vacation, an employee first takes last year’s part off, and only then the current one. In fact, it is not necessary to take vacation separately for the past and current periods. In practice, rest days are usually provided at the same time.

Situations where an employee has unused vacation for several years at once are unacceptable. It cannot be that the employee has 5 days of rest left for 2013, 2 days for 2014 and another 15 days for 2015. If such an error is detected, a specialist personnel service must make appropriate adjustments to the personal file and further assume that the employee did not use 22 days of vacation for 2015.

To count the quantity unused vacation days for which compensation is due, use the formula: (Duration of full annual leave / 12) X Number of full months worked – Number of vacation days used

Take into account every year in which the employee did not take vacation or only partially took it off. After all, he had the right to rest annually (Article 114 of the Labor Code of the Russian Federation). At the same time we're talking about not about the calendar, but about the working year. That is unused count vacation days for every 12 working months, starting from the day of employment (clause 1 of the Rules on regular and additional holidays, approved by the NKT of the USSR dated April 30, 1930 No. 169; hereinafter referred to as the Rules).

Do not include in such vacation experience:

  • time when the employee was absent from work without good reasons(including in cases provided for in Article 76 of the Labor Code of the Russian Federation);
  • parental leave until the child reaches three years of age;
  • leaves without pay for a total duration of more than 14 calendar days.

This procedure follows from paragraph 2 of paragraph 28 of the Rules approved by the People's Commissariat of the USSR on April 30, 1930 No. 169, and Article 121 Labor Code RF.

How to show it in graphics

When filling out the schedule, do not forget to consider the following points:

  • You cannot make corrections to the document, or cross out what is written;
  • any changes are made only after their approval by the employee’s immediate superior and receipt of a permitting visa from the head of the company;
  • if an employee postpones his vacation more than once, all information about this must be reflected in the schedule. (also see "".).

According to general practice, unused vacation days can be provided to an employee in two ways:

  1. in accordance with the schedule - in this case they must be added to the total number of days of rest entered in column 5;
  2. based on the employee’s application in agreement with the employer.

In the latter case, the employee will have to write a statement, the form of which will practically not differ from the standard one. There is no need to specify for what period rest days are provided.

Application for unused vacation: sample

Possible problems when filling out the application

Although it is not difficult to create this document, most employees still make mistakes in it. To eliminate such unpleasant situations, personnel officers are advised to have a ready-made sample application for unused vacation, prepared in accordance with the requirements listed above. Each employee planning to go on vacation will have to carefully read the rules for drawing up this document and scrupulously follow them.

Are unused vacations beneficial to the employer?

Every company has irreplaceable employees who almost never go on vacation. For a number of reasons, they do not have time to take off their allotted days, and unused vacations accumulate. It turns out that this state of affairs does not suit many employers. There are several reasons for this:

  • During checks labor inspection Its specialists will probably ask why the company’s employees do not exercise their right to annual vacation. And failure to comply with the requirements of the Labor Code of the Russian Federation for the employer is fraught with the issuance of orders and the accrual of fines. Also see "".
  • In the event of dismissal of an employee who has not taken leave for a long time, the amount of compensation due to him will be quite large. This may have a negative impact on the company's spending budget.
  • An employee who has accumulated a large amount of vacation arrears may suddenly decide to exercise his right to vacation and insist that he wants to take some time off immediately. In this case, the company may not have time to fulfill all legal requirements, namely: timely notify the employee about the start of the vacation and pay him the due amount.

To avoid claims from inspection bodies, employers offer employees various ways repayment of holiday debts.

The simplest and most beneficial option for all parties is to take unused vacation from previous years in full or in parts. In this case, the employee uses his right to rest and receives the amount due to him, and the company will liquidate the resulting debt.

In this case, the employee is forced to write in the application that he does not object to the transfer of money to a more late dates. Few people know that the presence of this inscription does not relieve the employer of the obligation to calculate and pay compensation to the employee for delayed vacation pay. In practice, this legal requirement is ignored, which can lead to negative consequences for both sides: the employee does not receive enough money, and the company risks being accused of committing an administrative offense.

What happens to lost vacation upon dismissal?

At the time of dismissal, most workers usually have a few days on their payroll. non-vacation leave. The company has the right to repay the resulting debt in two ways:

  1. pay the employee monetary compensation for all days of unused vacation;
  2. send the employee on annual paid leave for the number of days he is entitled to, and then fire him.

The right to choose one or another method of compensation belongs to the employee. The employer cannot force him to prefer any specific option.