Not all employees go on vacation every year. There are those who have not rested for three, four or more years in a row. This state of affairs contradicts the Labor Code, so personnel officers and accountants have to urgently apply for leave for past periods. Our article will help you figure out how to correctly draw up a vacation schedule in this situation, in what sequence to provide vacations for past periods, and what is the maximum number of days of rest that can be provided in the current year.

“Ideal” vacation scheme
If you strictly follow the letter of the law, then you cannot “accumulate” vacation for more than two years. This is directly stated in Article 124 of the Labor Code. Therefore, even if the employee does not want to rest, the employer is obliged to issue compulsory leave.
To do this, it is enough to include the employee in the vacation schedule, which, according to Article 123 of the Labor Code of the Russian Federation, is mandatory not only for the employer, but also for the employee himself. Next, you need to notify the person against signature of the start of the vacation no later than two weeks before the start, and also accrue and pay vacation pay. These actions will mean that the employer has complied with the requirements of the law, regardless of the employee’s intentions.
However, in real life, many companies and entrepreneurs do not act this way. As a result, among the workers there are those who have not rested for three, four or more years. To rectify the situation, HR officers and accountants have to urgently apply for leave for past periods.

Should unused vacation be included in the current schedule?
There is an opinion that when drawing up a schedule for the next year, only the vacation provided for the current period should be taken into account. But leave for past periods should be provided upon a written application from the employee. Supporters of this point of view refer to Article 124 of the Labor Code of the Russian Federation, which states that the transfer of vacation to another period is carried out upon the written application of the employee.
But there is another point of view, which we also adhere to. The current schedule must include all vacations, including those granted for previous periods. After all, it is possible that the employee does not write a statement, and then the schedule will become the only basis for granting “overdue” leave.
As for Article 124 of the Labor Code of the Russian Federation, it deals with a situation where the employer did not fulfill his duties. Namely, he did not issue vacation pay or did not promptly warn the employee about the start of vacation. In such circumstances, the reason for postponing the vacation is the employee’s statement. If the leave is not used at the employee’s initiative, an application is not required.

In what order should holidays be granted for past periods?
The Labor Code does not say in what sequence vacations not used in previous periods should be granted. In practice, experts use two different approaches.
The first approach implies that you first need to provide vacation for the current period, and only after that move on to “overdue” vacations. Proponents of this approach argue as follows: since, according to Article 122 of the Labor Code of the Russian Federation, vacation must be granted annually, the current period has priority. An additional argument is the letter of Rostrud dated 01.03.07 No. 473-6-0. It contains the following phrase: “Labor legislation does not contain provisions providing for the use of vacations for working periods in chronological order.” This means that vacation for later periods can be taken before vacation for earlier periods is used.
The second approach, in contrast, is to grant leaves in chronological order. Let's illustrate with an example.
Let's say an employee did not take vacation for 2012, 2013, and so on until today. In this case, the employer must first give leave for 2012, then for 2013, and so on. Vacation for 2018 will be the last one. The basis here is the fact that, thanks to the chronological order, “old debts” are reduced, and the employer gradually corrects the violation. At the same time, the requirement of Article 122 of the Labor Code of the Russian Federation was met, because vacation was granted this year. This approach does not contradict Rostrud letter No. 473-6-0, since this letter does not directly prohibit chronological sequence.
In our opinion, both approaches are acceptable. The employer needs to choose the one that seems more acceptable to him and enshrine it in local regulations (for example, in the order of the manager).

How many days of vacation can be provided during the year?
If an employee has not rested for several years, then the number of unused vacation days can be in the dozens, and sometimes even exceeds 100. The question arises: will the employer break the law if he provides all these days within one year?
The Labor Code does not contain any restrictions on this matter. Simply put, a company or entrepreneur can safely pay off their vacation “debts” to an extent that will not harm the production process. Moreover, in a situation where all “overdue” leave is granted at once, the employer has a significantly increased chance of avoiding conflict with labor inspectors. Thus, when it comes to unused vacation, then any number of days is legal.

12/02/2018, Sashka Bukashka

Whether the vacation will burn out is a question that worries millions of Russians. What to do if a person has accumulated unused vacation over the past year? The new law of 2019, which was actively discussed in winter and spring, what does it say on this topic? Let's figure out whether labor holidays are preserved in 2019 if the employee did not take them off in the previous period, or they expire.

Annual labor leave is guaranteed to all working citizens. During this time, the employee retains his position, place of work and (,). Paid rest must be provided to the employee in each year worked, and for at least 28 calendar days.

Does vacation from previous years expire in 2019?

Quite often there are situations in which a working citizen does not take the required days of “rest” in the next working period. For example, due to production needs. However, Part 4 prohibits Russian employers from not providing their employees with labor rest for two years. But this does not mean that vacation not taken will be burned; the 2019 Labor Code recognizes the statement as incorrect.

At the same time, in Art. 9 of ILO Convention No. 132 (in force in Russia since 2011) provides the following rules: a vacation period (at least two continuous weeks) must be provided and used within one calendar year. And the remaining part of the annual rest is no later than 18 months from the end of the working period for which the pause was granted.

It is precisely these provisions of the Convention that were regarded by some experts as a positive answer to the question: do unused vacations expire in 2019? The Labor Code does not contain such norms. And if you read somewhere that unused vacation will be burned in 2019, then this is not true! Consequently, the question that concerns all citizens: do vacations from previous years expire in 2019 can be answered unequivocally - no, they do not.

In general, the burning of vacations in 2019 is a topic that was initially launched on some not the most professional sites on the Internet. Of course, this is a sore subject for many (after all, not all of our fellow citizens take full rest every year, and many days accumulate and accumulate. It is not clear what a working person should do with these days: the bosses are unlikely to let you rest for 2-3 months at the expense of the previous ones years... That is, theoretically, you can take vacation for 2018 in 2019, but who will give so much, as they say. And we are scared: suddenly, either now it will not be possible to take these days at all, or even vacations not taken will expire in 2019 without compensation.

Let's now understand monetary issues and compensation.

How to get money for unused vacation

The Labor Code regulated the rights of citizens. Let’s determine when an employee can receive money for unused vacations from 2019 and whether these days expire.

If an employment contract with a citizen is terminated, then he is entitled to compensation for all unused rest days. That is, if the employee had unused days for several previous periods, then this vacation does not expire and the employer is obliged to pay the employee in full ().

If the employee continues to work, it is not so easy to receive money for unused annual leave. Firstly, compensation is due only for days of additional rest (over 28 days). Secondly, some categories of citizens do not have the right to replace rest with money (pregnant women, minors and workers in hazardous conditions). Thirdly, the decision to replace unused days with money is made solely by the manager.

It is impossible to receive money for vacations not taken in past periods. For clarity, let's look at an example:

Ivanov I.I. in 2017, I took 10 calendar days off out of 28 allotted. In 2018, the employee did not take any rest due to production needs. Can Ivanov receive compensation in 2019 for the remaining 18 days? 2017 and full annual leave in 2018 (28 days), because the number of days of rest in 2019 will be 54 calendar days, which is 46 days more than the minimum amount of rest.

No, it can't. Since 18 days in 2017 and 28 days in 2018 are not additional days of vacation in 2019, the employee can either take the required period off or receive a compensation payment by resigning from the organization.

What happens if you didn’t take a vacation, and now your bosses won’t let you go for several years, then the vacation you didn’t take will expire in 2019 without any compensation? No, that's certainly not true. All money for these days is mandatory. And here it doesn’t matter how many years you have accumulated days – even 10 years. Upon dismissal, everything must be paid. And nothing will burn.

Unused vacations have been forfeited since 2017, some media outlets hastened to report after Russia ratified the International Labor Organization convention. Is this really true? Vacations not taken will expire in 2017 and the labor code allows this, or did the journalists not understand the topic?

Does unused vacation from previous years expire in 2017?

The right to vacation is one of the most important rights guaranteed to every employee by law. Labor legislation in our country, in principle, is more on the side of the employee, which is understandable - the employee is always the weaker and defenseless party, which depends on the employer.

The Russian Labor Code determines the minimum amount of compulsory rest - 28 calendar days annually. Moreover, at least half of them must last continuously, and the employee, if he reaches a mutual agreement with his employer, can use the second half in parts, even one day at a time.

In today's lifestyle, many people do not take full advantage of their vacation. For some, this is unprofitable due to the fact that vacation pay is actually much less than salary (although the law does not allow this, but if the employee still receives a salary “in an envelope,” the employer can quite legally pay him vacation pay, which is accrued based on from the amount of official earnings, nothing can be done about it), someone preferred to work and receive financial compensation for not using their vacation.

The ratification of the international labor convention took place back in 2010, and it was then that compensation for unused vacation in money was prohibited. The logic is clear - a person should at least sometimes have a good rest, constant work without vacations is very difficult and not useful. Therefore, the opportunity not to use the entire vacation or to use only part of it, receiving compensation for the days of vacation not taken, was closed.

Despite the fact that the convention was ratified several years ago, there are still concerns and even certainties that unused vacations have been lost since 2017. We hasten to reassure you - this is not so.

Unused vacation: expires or not in 2017

So, we found out that unused vacations have not expired since 2017 and there is no reason to think so - the Russian labor code still protects the rights of the employee.

But reasonable questions arise - what happens to those vacations that the employee did not want or could not take before? If a person works for several years in a row in the same organization and in some years he did not go on vacation at all, and in others he used only part of it, then what will happen to the days he did not take off? If you can’t take monetary compensation for them, maybe you can take this vacation this year, going on vacation for six months at once, and let the employer pay for it?

This is also not possible. You need to take 28 calendar days off in the current year (by the way, the current year is not a calendar year that starts on January 1, but a year that starts from the date a person starts working); it will not be possible to transfer rest days to other years.

It turns out that vacation not taken will still expire in 2017 and the labor code will not help in any way? No, you will receive compensation sooner or later - unused vacation upon leaving your job will be paid in full in the form of compensation. If you have accumulated six months of vacation, you will receive compensation for six months. All other options are currently closed.

It is clear that in many cases it all depends on your employer and your relationship with him. If this is a small organization, you can agree on a minor violation of labor laws and formally formalize the vacation, while you continue to work, receiving compensation for unspent vacation days. But it should be understood that such a scheme is not entirely legal, and the employer may be punished for it.

The legal way is to use your vacation completely or accept that you will only receive compensation when you decide to quit your job.

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 basis 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 referred to as 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 all the work cannot be done, and the desire to be the best is not always rewarded as it deserves.

The employee has the right to receive annual paid leave (main and (or) additional) for the current and all previous working years.

Paid leave must be provided to the employee every working year. In exceptional cases, it is possible, with the consent of the employee, to postpone the vacation 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. 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.

In cases not related to the dismissal of an employee, and in the absence of the circumstances specified in Part 3 of Art. 126 of the Labor Code of the Russian Federation, only part of the vacation can be replaced with monetary compensation: the employee must actually use at least 28 days of the total duration of vacation for each working year, the remaining days of vacation can be replaced with monetary compensation.

Let us remind you that employees are granted annual leave while maintaining their place of work (position) and average earnings (Article 114 of the 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 the Labor Code of the Russian Federation and other federal laws (Article 115 of the 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 of the Labor Code of the Russian Federation).

In accordance with Art. 120 of the Labor Code of the Russian Federation, when calculating the total duration of annual paid leave, additional paid leaves are summed up with the annual main paid leave. Thus, annual paid leave includes both the main leave (Article 115 of the Labor Code of the Russian Federation), including extended leave, and additional leaves (Articles 116-119 of the Labor Code of the Russian Federation), when such leaves are provided to the employee. The term “annual paid leave” is a general concept.

In accordance with Art. 122 of the Labor Code of the Russian Federation, paid leave must be provided to the employee in each working year. Only in exceptional cases is it possible, with the consent of the employee, to transfer the vacation 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 provided (Part 3 of Article 124 of the Labor Code of the Russian Federation).

According to Part 4 of Art. 124 of the Labor Code of the Russian Federation prohibits the failure to provide annual paid leave for two years in a row, as well as the failure to provide annual paid leave to employees under the age of 18 and employees engaged in work with harmful and (or) dangerous working conditions.

Let us note that the presence of this prohibition does not deprive the employee of the right to unused vacation for two years, but is only a basis for bringing the employer to administrative liability under Art. 5.27 Code of Administrative Offenses of the Russian Federation. An employee who has not used his annual leave (main and (or) additional) in the corresponding working year is not deprived of the right to use it in the future under any circumstances. By virtue of Art. 114, 122 and 124 of the Labor Code of the Russian Federation, the employee retains the right to use all vacations that were not provided to him in a timely manner. Annual leave for previous working periods can be provided either as part of the vacation schedule for the next calendar year, or by agreement between the employee and the employer (see also letters of Rostrud dated 06/08/2007 No. 1921-6 and dated 03/01/2007 No. 473-6-0 ).

Thus, the employee has the right to use all annual paid leave “accumulated” while working for this employer.

The possibility of replacing part of the vacation with monetary compensation in cases not related to the dismissal of an employee is provided for in Art. 126 Labor Code of the Russian Federation. In accordance with Part 1 of this article, upon a written application from the employee, part of the annual paid leave exceeding 28 calendar days may be replaced by monetary compensation.

Part 2 of Art. 126 of the Labor Code of the Russian Federation establishes that when summing up annual paid leave or transferring annual paid leave to the next working year, monetary compensation can replace a part of each annual paid leave exceeding 28 calendar days, or any number of days from this part.

This means that 28 calendar days is the minimum number of days off from work that the employer is obliged to provide the employee with for rest during each year of work. Accordingly, during the course of work, 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). Replacement with monetary compensation of part of the vacation greater than provided for in Art. 126 of the Labor Code of the Russian Federation (except in case of dismissal), is a violation of labor legislation and may entail administrative liability under Art. 5.27 Code of Administrative Offenses of the Russian Federation.

The provisions on replacing annual basic paid leave and annual additional paid leave with monetary compensation 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 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 by the Labor Code of the Russian Federation) (Part. 3 Article 126 of the Labor Code of the Russian Federation).

Let us note that days of annual paid leave, the replacement of which is permitted by law, can be replaced by monetary compensation only upon a written application from the employee (Part 1 of Article 126 of the Labor Code of the Russian Federation). However, the law does not require that the employee use 28 days of the main vacation. You can use additional vacation, and replace the main days with compensation; you can use the main vacation, and compensate the additional one with money. The main thing is to actually use at least 28 days of the total vacation for each working year. Moreover, to replace part of the vacation with monetary compensation, it is not necessary to wait until the end of the working year or the actual use of 28 days of vacation for the corresponding working year.

We also note that the use in Art. 126 of the Labor Code of the Russian Federation, the words “can be replaced” means that the payment of monetary compensation during the continuation of the employment relationship is the right and not the obligation of the employer (see the above-mentioned letters of Rostrud dated 06/08/2007 No. 1921-6 and dated 03/01/2007 No. 473-6 -0 and). Therefore, the employer has the right to refuse the employee’s request for compensation and insist on the actual use of all vacation.

In a situation where vacations for previous years will not be provided or compensated before the termination of the employment contract, the employee has the right to monetary compensation for all unused vacations upon dismissal, which is paid within the time limits specified in Part 1 of Art. 140 of the Labor Code of the Russian Federation (Part 1 of Article 127 of the Labor Code of the Russian Federation).