In December, there was a rumor among employees of many organizations that vacations not taken would expire in 2019. The Labor Code is indeed going to be supplemented with new conditions for providing mandatory days of rest, but these changes will not affect all citizens. For most, nothing will change on this issue. In addition, unused vacation days have nothing to do with the planned amendments to the Labor Code.

Do unused vacations expire in 2019?

According to the requirements of Article 114 of the Labor Code of the Russian Federation, all employed citizens are entitled to days for rest while maintaining their wages and jobs. This is called annual paid leave, the duration of which is usually 28 calendar days. Sometimes employees have the right to additional days due to the specifics of their profession or length of service. If a person has not rested for a certain period and is worried whether his vacation may be burned if he has not taken time off, he need not worry. Unused days accumulate and can be used at another time.

Nothing will change in this matter in the coming year. Rumors that unused vacations from 2019 are being lost have no basis. All unused days can be safely included in the vacation schedule, which all employers had to approve by December 15. If the employee is unable to fully rest, management must save the remainder of his days off from work and transfer them to the next period, but only for one (Article 124 of the Labor Code of the Russian Federation). The employer has no right not to provide an employee with rest time for two years in a row. Also, the following cannot work without mandatory rest days:

• minor workers (under the age of 18);
• persons employed in work with harmful or dangerous working conditions.

For some categories of workers, special conditions for rest are also provided. By the way, company management simply does not have the right not to provide vacation time. This is an administrative offense for which Article 5.27 of the Administrative Code of the Russian Federation provides for a fine in the amount of 30,000 to 50,000 rubles. In some cases, the company may even be suspended for up to 90 days.

Compensation for unused days: during work and upon dismissal

Since compulsory annual leave is paid, the employee is entitled to vacation pay for it. Therefore, sometimes both employers and employees themselves wonder whether it is possible to simply receive monetary compensation instead of absence from work? But, according to the norms of Art. 127 of the Labor Code of the Russian Federation, this is possible only in strictly defined situations:

• upon dismissal from work;
• if there are additional days (beyond the usual 28).

Such additional days of rest are provided for:

• persons specified in Art. 116 Labor Code of the Russian Federation;
• persons with a special nature of work, for example teachers (Article 118 of the Labor Code of the Russian Federation);
• employees with harmful and dangerous working conditions (Article 117 of the Labor Code of the Russian Federation);
• residents of the Far North and territories with a similar status.

They can write a free-form application to the employer and turn unused additional vacation into material benefits. Everyone else can receive money for unused time only upon termination of the employment contract, and they do not need to write any application for this. The calculation of compensation occurs in the same way as the calculation of vacation pay: depending on the average daily salary of the employee. This regime will continue in 2019.

What will change with the arrival of 2019

What will change in the vacation issue? The State Duma is considering a bill that will change the procedure for providing paid vacation days to parents of young children and disabled children. When the amendments are adopted, one of the parents raising a disabled child under the age of 18 or two or more children under the age of 14 will be able to write an application to the employer to provide the required rest at any convenient time. Management will not have the right to refuse this.

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 about employee vacations is recorded in, such schedules are drawn up at the end of the year for the future period annually. If the employee did not use the allotted vacation 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 a gross violation of the 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 the previous year) within 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 for 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 vacation for the previous period can be used has no force in this matter, since the code is universally applied 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 vacation in proportion to the period for which he has not yet taken vacation.

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 are tax risks. As for the workers themselves, they should not forget about their rights; on the contrary, they need to defend them, referring both to 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 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. There are no additional vacation days. 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).

As a general rule, the duration of the annual basic paid leave of employees is 28 calendar days. Certain categories of employees are granted extended basic leave lasting more than 28 days in accordance with 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” mean that the payment of monetary compensation during the continuation of the employment relationship 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 payment of compensation and insist on the actual use of all vacation.

28 calendar days is the minimum number of days off from work that an employer is obliged to provide an 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 employed in jobs with harmful or dangerous working conditions 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 on the territory of the Russian Federation on 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.

The question of what happens to vacation days worries workers, since people are not always able to use them to the fullest. Currently, the problem of how long a person can go without going on vacation and what to do with the remaining days is often discussed. The situation is not simple and requires special attention, since it is necessary to understand the legal grounds for granting leave, what non-vacation days are and how they can be used.

Guaranteed right to rest under labor law

Article 37 of the Constitution of the Russian Federation guarantees the right of workers to legal leave at their place of work. This is fixed and in Chapter 19 of the Labor Code. The law defines various forms of leave and situations for their provision.

Each working person is entitled to a regular annual leave of at least 28 days. Its provision is the responsibility of the employer. At the same time, you can take it either at once or in parts. It is important that one period is at least 2 weeks.

Additional vacation days, for example, hazardous work or irregular working hours. The number of vacation days is usually 3-4. They are provided either together with the annual vacation or separately.

Leave without pay is commonly called administrative leave or unpaid leave. It is used by workers when they need to leave work for one or more days.

IMPORTANT! Leave without pay, who has the right not to provide it. Possible exceptions are recorded in the code, these include the birth of a child, a wedding or the death of a close relative.

For the convenience of recording staff rest days and preserving the production process, it is compiled. According to the procedure established by law, the document must be ready by mid-December, and it will be valid for the entire next calendar year. This is a mandatory document at the enterprise, the maintenance and control of which can be noted by the supervisory authorities. Based on applications for leave, an appropriate order is issued confirming the person’s absence.

IMPORTANT! Postponement of a vacation fixed in the schedule is possible only with the written consent of the person and for a good reason.

The right to rest after registration for work comes only after six months. In this case, it is better to take only the accumulated number of days. Otherwise, there will be a debt for paid vacation pay, which will have to be returned in the event of dismissal.

How many years in a row can you not take a vacation?

An organization can be seriously fined if people's right to annual leave is violated. Therefore, it is believed that all allotted days must be spent during the year. But in practice, most often this does not look like this at all: in the pursuit of the company’s profit, business development and sales growth, there is simply no time to rest. Some careless managers do their best to retain employees by reducing their rest time. It often happens that employees themselves do not go on legal leave. The reasons are usually related to a large volume of work, losses in money (sometimes a vacation day costs less than a working day), and the desire to receive additional money upon dismissal.

The code states that it is a gross violation if workers have not rested for more than two years. Moreover, in 2010 an international convention on the organization of labor was signed. It stipulates that all vacation days that have not been spent within two years are forfeited.

This bill has not yet been adopted, but discussions are ongoing, and it is possible that this will happen in the near future.

Why unused vacations are undesirable for employers

Not allowing staff to take their required rest can have serious consequences for the organization. Several options can be named.

Firstly, providing staff with legal rest is the employer’s responsibility, prescribed in Labor Code of the Russian Federation. Evasion or poor performance of one’s duties may result in a large fine or suspension of activities for up to 3 months. This is well controlled by supervisory authorities, and there is also the possibility of applications from the employees themselves.

Secondly, when planning vacations, the company's budget is distributed fairly evenly. If employees with a large amount of compensation leave, this may not have a very good effect on the organization’s working capital: at some point there may not be enough of it. In the event of a mass dismissal of employees with “debts,” law enforcement agencies may become interested in the company: large transfers of money may raise suspicions of fraud or other illegal transactions.

Thirdly, when staff go on vacation according to a schedule, the risk of production collapse is minimal. If people leave randomly, there is a possibility of disruption in the work process. Also, long work has a negative impact not only on a person’s health, but also on his attitude towards work, resulting in an increased risk of mistakes.

Do unused vacation days from previous years expire?

By Labor Code all accumulated rest days remain with the person, and it does not matter how long they accumulate. There are still debates that unused vacation is lost, but there is no official confirmation of this.

There are currently no changes to the code; all unused vacation days are retained.

What to do with unused rest days

Ideally, the entire period allotted for rest should be spent within a year. Transfer to the next year is possible only for a small part of it. In case of accumulation of a long term over several years, they can be replaced with cash payments. The main condition is a written statement from the person and the consent of the manager. It is important to consider several additional factors:

1. The number of paid vacation days is more than 28.
2. You cannot take compensation for the current period.
3. Pregnant women, minors and those working in harmful or dangerous work are not provided with cash.
4. Maybe from work.
5. Upon dismissal, a cash equivalent is automatically paid.

You should not save allotted rest days for the sake of obtaining material benefits. It is not for nothing that labor legislation devotes an entire chapter to the right to receive rest and describes all the nuances of this process. It is known that not all the work can be done, and the desire to be the best is not always rewarded as it deserves.

Each employee is entitled to leave of one duration or another, but its minimum is 28 calendar days per year (Article 115 of the Labor Code of the Russian Federation).

But if the employee did not take such a vacation or did not go on vacation at all, then these days do not burn out, but simply accumulate. This is a vacation without time off.

Article 115 of the Labor Code of the Russian Federation. Duration of annual basic paid leave

Annual basic paid leave is provided to employees for 28 calendar days.

Annual basic paid leave of more than 28 calendar days (extended basic leave) is provided to employees in accordance with this Code and other federal laws.

The accumulation of unused vacation days is highly undesirable., since negative consequences occur for both parties to the labor relationship, both the employer and the employee:

• lack of rest reduces labor productivity and deprives the employee of the opportunity to regain strength for new achievements;
• the labor inspectorate may raise questions to the employer regarding the infringement of workers' rights to rest, which may lead to the imposition of certain sanctions;
• in case of long-term accumulation of unused vacation, the employer will have to pay a considerable amount as compensation when dismissing the employee;
• If the employee nevertheless decides to use all the accumulated rest days, then the employer may not always have the required amount of funds.

For what period must an employee take accrued days off?

You can accumulate labor leave with the right to receive it later within two years., and the employer is obliged to provide these accumulated days before the end of the second year (Article 124 of the Labor Code of the Russian Federation).

But if it so happens that the vacation has accumulated over a period of more than two years, then in this case the rest days do not expire, but it is not a fact that you will be able to take them off, since the Labor Code of the Russian Federation does not stipulate anywhere that the employer is obliged to provide non-vacation days vacations for past years exceeding a two-year period.

If it is not possible to agree with the employer on the use of these days in kind, then the employee only has the right to count on monetary compensation for vacation days before dismissal.

If you do not take annual paid leave, it is transferred to the next year. If it is not used in the second year, then subsequently it is compensated by a cash payment upon dismissal.

Do I need to put it on the schedule?

Is there an obligation to include vacation time in the schedule? According to the general rules, the vacation schedule contains information about the planned rest of workers for the next working year, that is, the schedule specifies the main and additional (if any) vacation, the accumulated unused part of the vacation is not indicated in the schedule.

In what order is it provided?

The labor legislation of the Russian Federation does not contain any requirements regarding the sequence of use of labor holidays. In any case, it is worth remembering that first of all it is necessary to use the vacation for the next working year.

This must be done so that it does not go into the accumulated category, since using rest days from past years to the detriment of current years loses all meaning eliminating accumulated vacation days.

Therefore, by agreement with management, annual paid leave can be granted for the next working year, and accumulated days can be added to it. These days can also be provided separately by agreement with the employer, at any time.

Is it possible to replace it with monetary compensation?

It is possible, and there are only two such cases:

1. Upon dismissal of an employee. Here the employer pays compensation in full for all accumulated vacation days.
2. At the request of the worker in relation to that part of the vacation that exceeds 28 calendar days (Article 126 of the Labor Code of the Russian Federation). But do not forget that such replacement is prohibited for some categories of workers:
   • pregnant women;
   • minors;
   • workers in dangerous or hazardous work.

How to apply?

What if an employee decides to take unused vacations from previous periods? The procedure for applying for leave begins with the employee submitting an application, in which you must indicate the duration of the rest, its beginning and end.

The law does not provide for the obligation to indicate in his application for what period he intends to take leave. This is a matter for the enterprise's personnel department, which must monitor the progress of its employees' vacations.

But if the employee nevertheless indicated such a period, then it should be taken into account that if this period is included in the two-year period preceding the vacation, then the employer is obliged to provide the unused leave specified by the employee. If it is not included, the employer has no such obligation, since according to Part 4 of Art. 122 of the Labor Code of the Russian Federation, vacations are provided according to the priority established by the employer.

Important! The employer himself decides for what period to provide vacation, which has accumulated over more than two years. After the employee submits an application, the manager issues an order in form T-6.

It indicates the type of leave, its duration, the period from which it is added (the days and their reasons are listed here, for example, for an irregular working day, for a long period of work at the enterprise, etc.), as well as the period for which it is provided .

The order is endorsed by the personnel employee, signed by the manager and given to the employee for review against signature.

What to do if an employee has accumulated days off and refuses to go on vacation?

To answer this question, it is necessary to note that certain conditions are met.:

1. The enterprise must have a properly formalized vacation schedule, which clearly states the rest time of all workers.
2. Management must notify the employee of his upcoming vacation 2 weeks before the start of the vacation. Such notice must be delivered against signature. If a notification is refused, a corresponding act must be drawn up.
3. An appropriate order with the signature of the employee on his familiarization with the specified document is required. If you refuse to familiarize yourself, a report is also drawn up.
4. Vacation pay must be paid no later than three days before the start of the vacation.
5. When an employee goes to work during his vacation, a corresponding act is also drawn up indicating this fact.

After all the above actions, the worker can be brought to disciplinary liability under Art. 192 and art. 193 Labor Code of the Russian Federation. But this is not the best solution.

Alternatively, dismiss the employee with payment of the due compensation, and then rehire him. But it is not advisable to do this on an ongoing basis, since the inspection authorities may have some questions, for example, regarding the infringement of workers’ rights to guarantees for continuous service at the enterprise.

If an employee refuses to take a vacation, arguing that he does not want to lose earnings, then a civil law contract can be concluded with him during his vacation.

Employer's liability

An employer may receive a fine for not taking vacation time for its employees.. Responsibility occurs when the inspection authorities detect a corresponding violation. In Art. 5.27 of the Code of Administrative Offenses of the Russian Federation provides for the following liability:

You can be prosecuted for these violations within a year from the moment they are discovered.

Conclusion

Exercising the right to leave for workers is the employer’s responsibility, violation of which can lead to serious consequences in the form of administrative liability. Therefore, it is very important to keep track of the number of vacation days for each employee and arrange for their provision on time.

Vacation cannot expire, and nevertheless, the employee should go on vacation annually and preferably in full, because restoring strength will help inspire new achievements, which will undoubtedly increase labor productivity.