The text of article 128 of the Labor Code of the Russian Federation in a new edition.

For family reasons and others good reasons the employee, upon his written application, may be granted leave without saving wages, the duration of which is determined by agreement between the employee and the employer.
The employer is obliged, on the basis of a written application of the employee, to grant unpaid leave:
participants of the Great Patriotic War - up to 35 calendar days per year;
working old-age pensioners (by age) - up to 14 calendar days a year;
parents and wives (husbands) of military personnel, employees of the internal affairs bodies, the federal fire service, bodies for controlling the circulation of narcotic drugs and psychotropic substances, customs authorities, employees of institutions and bodies of the penitentiary system who died or died as a result of injury, concussion or injury received in the performance of duties of military service (service), or as a result of a disease associated with military service (service) - up to 14 calendar days a year ;
working disabled people - up to 60 calendar days a year;
employees in cases of the birth of a child, marriage registration, death of close relatives - up to five calendar days;
in other cases provided for by this Code, other federal laws or a collective agreement.

N 197-FZ, Labor Code of the Russian Federation, current edition.

Commentary on Art. 128 of the Labor Code of the Russian Federation

Comments on the articles of the Labor Code will help to understand the nuances of labor law.

§ 1. Article 128 of the Labor Code divides holidays without pay into two groups:

one of them provides the employee with the opportunity to receive such leave (see part 1 of this article);

the second - gives the employee the right to such leave (see part 2 of this article).

§ 2. The possibility of granting unpaid leave to an employee depends on the validity of the reasons that he names in the application in support of his request. Who assesses the degree of validity of these reasons, the Code does not say.

Due to the fact that in these cases the employer has the right to decide whether to grant leave without pay, he also decides whether or not to recognize the reason given by the employee as valid.

In accordance with Part 1 of Art. 128 The duration of unpaid leave is determined by agreement of the parties.

Collective agreements contain provisions that improve the position of workers, increase the level of legal guarantees for them in comparison with labor legislation.

Many collective agreements determine in which cases (for what reason) employees are granted unpaid (and often with pay) leave, as well as their duration.

If these issues are resolved by the collective agreement (i.e. the employer has already expressed its consent with this decision), then leave without pay (or with pay) for the reasons given in the collective agreement and not less than the duration provided for in it at the request of the employee, the employer obliged to provide.

The time of granting such holidays associated with certain events (wedding, funeral, etc.) is determined by the time of the corresponding event.

In other cases, the time of granting unpaid leave is determined by agreement between the employee and the employer.

§ 3. A number of acts of labor legislation expressly provide for the provision of unpaid leave to certain categories of employees:

1) a civil servant, upon his written application by the decision of the representative of the employer, may be granted leave without pay for family reasons and other valid reasons for a period of not more than one year (see Federal Law of July 27, 2004 N 79-ФЗ "On the State Civil Service Russian Federation" // SZ RF. 2004. N 31. Art. 3215);

2) a municipal employee may be granted leave without pay for a period of not more than one year, unless otherwise provided by federal law (see Federal Law of January 8, 1998 N 8-FZ "On the Fundamentals of Municipal Service in the Russian Federation" with subsequent changes and additions // SZ RF, 1998, N 2, item 224);

3) a sick employee without registration of temporary incapacity for work in medical institution may be granted at his request three days during the year without pay (see Fundamentals of the legislation of the Russian Federation on the protection of the health of citizens of July 22, 1993, with subsequent changes // SZ RF. 1993. N 33. Art. 1318; 1998. N 10. St. 1143; 2006. N 6. St. 640).

§ 4. The duration of unpaid leave and the number of such leaves are not limited by the Code. Restrictions are valid only when they are provided for by federal laws for certain categories of workers (see, for example, § 3 of the commentary to this article).

In other cases, the duration of unpaid leave and their number are determined by agreement between the employee and the employer (if their duration is not determined by the collective agreement).

At the same time, it must be remembered that the time of granted holidays without pay for more than seven calendar days is not included in the length of service, giving the right to the annual basic paid leave (see part 2 of article 121 of the Labor Code).

§ 5. Other cases (besides those specified in paragraph 2 of Article 128), when the employer is obliged to provide additional leave without pay at the request of the employee, include holidays provided:

1) for women - for pregnancy and childbirth, for caring for a child until the child reaches the age of three years (with the payment of state social insurance benefits) (Articles 255 - 256 of the Labor Code).

Parental leave can be used in full or in parts also by the child's father, grandmother, grandfather, other relatives or guardian who actually care for the child (see parts 1 and 2 of article 256 of the Labor Code);

2) persons caring for children (see Article 263 of the Labor Code);

3) those working in the regions of the Far North and equivalent areas - for the time required to travel to the place of use of the annual paid leave and back (see part 3 of article 322 of the Labor Code);

4) to a part-time job - if the duration of the annual paid leave for combined work is less than the duration of such leave at the main place of work, for the days missing before this duration (see part 2 of article 286 of the Labor Code);

5) employees entering educational institutions of higher and secondary vocational education and successfully studying in them, the employer is obliged to provide additional holidays the duration established by the Code and subject to the conditions provided for by the Code (see part 2 of article 173 and part 2 of article 174 of the Labor Code);

6) citizens awarded the title of Hero of Socialist Labor or awarded the Order of Glory of three degrees (full cavaliers of the Order of Labor Glory) are granted additional leave without pay for up to three weeks a year at a time convenient for them (see paragraph 2 of article 6 Federal Law of January 9, 1997 N 5-FZ "On the provision social guarantees Heroes of Socialist Labor and full holders of the Order of Labor Glory" // SZ RF. 1997. N 3. Art. 349);

7) registered candidates from the day of their registration by the relevant election commission until the day of official publication of the general election results. The employer, at the request of the candidate employee, is obliged to release him from work, service on any day and at any time during this period. Monetary compensation to a registered candidate for this period is made by the election commission at the expense of funds allocated for the preparation and conduct of elections.

The type, procedure and amount of compensation are established by federal constitutional laws, federal law, the law of the constituent entity of the Russian Federation (see Federal Law No. 67-FZ of June 12, 2002 "On Basic Guarantees of Electoral Rights and the Right to Participate in a Referendum of Citizens of the Russian Federation" with subsequent changes // SZ RF, 2002, N 24, item 2253);

8) the employer is obliged to grant unpaid leave at their request to proxies of registered candidates, electoral associations, electoral blocs for the period indicated above (see the same Law).

It should be borne in mind that the refusal of the employer to grant the leave provided for by law to a registered candidate, authorized person of a registered candidate of an electoral association, electoral bloc for campaigning and other activities provided for by law that facilitate the election of a registered candidate, list of candidates, as well as the refusal of the employer to release from work in the established by law, a member of an election commission, a referendum commission to participate in the preparation of elections, a referendum entails an administrative penalty (see Article 5.7 of the Code of Administrative Offenses).

§ 6. The granting of unpaid leave in cases where the employer is obliged to do so at the request of the employee does not deprive the employee of the right to apply to the employer for additional leave in addition to other unpaid leave established for him by law.

In such cases, part 1 of Art. 128 TK.

§ 7. The granting of unpaid leave is formalized by a written application of the employee and an order (instruction) of the employer, in which the reason, duration, dates of the employee's departure on leave and last day this vacation.

§ 8. In practice, it is not uncommon for employers to send employees on so-called forced leave due to economic and organizational difficulties that have arisen in the organization's activities.

Such actions of employers are illegal. Leave without pay in accordance with Art. 128 TK are provided at the request of the employee. Forced leave at the initiative of the employer is not provided for by labor legislation.

In the event that employees, through no fault of their own, cannot perform the duties stipulated by the employment contracts concluded with them, the employer is obliged to pay for downtime in accordance with Art. 157 of the Labor Code (see Explanation of the Ministry of Labor of the Russian Federation of June 27, 1996 N 6 "On leave without pay at the initiative of the employer" // Bulletin of the Ministry of Labor of the Russian Federation. 1996. N 8. P. 59).

In cases where, at the insistence of the employer (its representatives), employees apply for leave without pay for a fixed or indefinite period (which is often practiced), the initiative actually belongs to the employer. And in these cases, there is a law that does not allow the granting of leave without pay at the initiative of the employer.

The next commentary on article 128 of the Labor Code of the Russian Federation

If you have questions under Art. 128 of the Labor Code, you can get legal advice.

1. Leave without pay, although regulated by the chapter of the Labor Code relating to holidays, cannot be considered as a type of annual paid leave, basic or additional. With annual leave, it is united only by the fact that the employee retains his place of work (position). But unlike annual leave unpaid leave is granted without regard to seniority and is not paid. It should be considered as a special form of social guarantees for workers.

2. Part 2 of the commented article establishes the categories of employees whose requirement for leave without pay of a certain duration is mandatory for the employer. Family circumstances are defined under which the right to leave without pay for up to five calendar days is received by any employee.

Other cases provided for by the Labor Code or other federal laws, when the employer is obliged, at the request of the employee, to provide leave without pay, include the cases of granting such leave:

combat veterans and military personnel awarded orders or medals of the USSR for service during the specified period, and other persons specified in Art. Art. 16 - 19 of the Federal Law of January 12, 1995 N 5-FZ "On Veterans", - for up to 35 calendar days a year;

workers - heroes Soviet Union, Heroes of the Russian Federation, full cavaliers of the Order of Glory, Heroes of Socialist Labor and full cavaliers of the Order of Labor Glory - for up to three weeks a year at a time convenient for them (Article 8 of the Law of the Russian Federation of January 15, 1993 N 4301-1 "On status of Heroes of the Soviet Union, Heroes of the Russian Federation and full holders of the Order of Glory"; Article 6 of the Federal Law of January 9, 1997 N 5-FZ "On the provision of social guarantees to Heroes of Socialist Labor and full holders of the Order of Labor Glory");

employees admitted to entrance examinations to educational organizations of higher professional education and to state-accredited educational organizations of secondary vocational education - for a period of 15 and 10 calendar days, respectively;

employees - students of preparatory departments of educational organizations of higher professional education for passing final exams - for a period of 15 calendar days;

employees studying in state-accredited educational organizations higher or secondary vocational education in full-time education, for passing intermediate certification - 15 and 10 calendar days per academic year, respectively; for the preparation and protection of graduation qualifying work and delivery of final state exams- respectively four months and two months; for passing the final exams - one month (see Art. Art. 173, 174 of the Labor Code and commentary to them);

part-time employees - if the duration of the annual paid leave at part-time work is less than at the main place of work (see article 286 of the Labor Code and commentary thereto);

military spouses. This category of workers is entitled to receive next vacation simultaneously with military personnel, and the duration of the vacations of the spouses of military personnel can, if they wish, be equalized with the duration of the vacation of military personnel by granting them leave without pay (clause 11, article 11 of the Federal Law of May 27, 1998 N 76-ФЗ "On the status of military personnel ");

people's guards and freelance police officers. They are provided with additional leave without pay for up to 10 calendar days at their place of work (clause 3, article 26 of the Federal Law of April 2, 2014 N 44-FZ "On the participation of citizens in the protection of public order").

3. Employees working in the regions of the Far North and areas equivalent to them, with full or partial combination of annual paid holidays for no more than two years, must be granted leave without pay for the time necessary to travel to the place of use of the leave and back. The total duration of the leave granted shall not exceed six months.

4. The grounds for mandatory granting of unpaid leave may also be established by collective agreements. In particular, an employee who has two or more children under the age of 14; an employee with a disabled child under the age of 18; a single mother raising a child under the age of 14; a father raising a child under the age of 14 without a mother may be provided by a collective agreement with additional annual leave without pay at a time convenient for them up to 14 calendar days. The specified leave, at the request of the employee, may be attached to the annual paid leave or used separately in whole or in parts. The transfer of this leave to the next working year is not allowed (see article 263 of the Labor Code and commentary to it).

5. In determining when an employer is required to grant unpaid leave, federal laws and collective bargaining agreements generally set a maximum duration for such leave. The specific duration of the vacation may be less than these limits and is determined by the employee himself in his written application.

If an employee applies for leave of longer duration than established by law (collective agreement), such an increase in leave may take place by agreement of the parties.

6. An employee who has received leave without pay has the right to refuse to use it and return to execution job duties by notifying the employer.

7. In cases not specified in part 2 of the commented article, other federal laws or a collective agreement, an employee’s application for unpaid leave is not necessary for the employer, who has the right to satisfy the employee’s request or refuse to satisfy it. If the employee's request is satisfied, the duration of the vacation is determined by agreement of the parties. Leave without pay may be granted at any time.

8. On the rules for including unpaid leave in the length of service, giving the right to an annual basic paid leave, see Part 2 of Art. 121 TC and commentary to it.

In the Labor Code, only one article is devoted to unpaid leave - 128. Therefore, there are many issues with the provision and execution of such leave. In our article we will try to answer the most burning ones.

Question 1

An employee wrote an application for leave without providing wages due to the transfer of her son to the army. However, an unfavorable situation has developed in the organization, which does not allow this employee to be released now. Does an employer have the right to refuse leave?

The Labor Code states that an employee may be granted leave without pay for good reasons. The Code does not define the concept of "good reasons". This means that the employer has the right to assess for himself whether the reason indicated by the employee in the application for leave is valid.

The employer can fix in local regulations(for example, in the Regulations on internal work schedule or in a collective agreement) a list of valid reasons under which an employee can apply for leave without pay. At the same time, it is necessary to make a digression that if the absence of an employee can lead to adverse consequences for the organization, then leave without pay for given reasons does not appear.

Reference

After analyzing the labor legislation, we can single out several reasons called valid in certain legal acts:

• family circumstances;
• serious health condition of a close relative (father, mother, wife, husband, son, daughter, sibling) or guardian;
• seeing off to the army;
• a fire or other disaster affecting the family or close relative of an employee;
• vacation of the child, quarantine in a children's institution, seeing off to a summer camp;
• passing exams for obtaining a second higher education.

Question 2

The organization decided to overhaul the office building and send all employees on unpaid leave for the duration of the renovation. How to arrange it correctly?

In this situation, it is better to ask, is it legal? Based on the same article 128 of the Labor Code of the Russian Federation, let's say that leave without pay is granted if two conditions are met simultaneously:

• at the written request of the employee. That is, with this statement, the employee expresses his will to go on vacation. The employer has no right to force you to write such a statement;
• for good reasons. The reason must be valid for the employee. Therefore, even if the employer forces you to write an application for leave without pay due to “office renovation”, Labour Inspectorate will point out this "oversight".

In confirmation of our words, we will quote the still valid Decree of the Ministry of Labor of Russia dated June 27, 1996 No. 6, which clearly states: "forced" leave without pay at the initiative of the employer is not provided for by labor legislation.

There are two ways out of this situation:

1. In accordance with Article 157 of the Labor Code of the Russian Federation, pay employees downtime due to the fault of the employer in the amount of at least two-thirds of their average earnings.

To record the fact of downtime, you should draw up a sheet of downtime in production. The form of the sheet is not approved by law, however, it should indicate the beginning and end of downtime, full name. employees and the reason for the downtime (Example 1 shows how a blank time sheet can be created). Then, on the basis of this document, you should fill out the time sheet.

Example 1

2. You can try to come to an agreement with the workers. However, in this case, the employer will have to make some concessions. Let's explain. According to Article 121 of the Labor Code of the Russian Federation, the length of service giving the right to the annual basic paid leave does not include the time of unpaid leave with a total duration of more than 14 calendar days during the working year. However, the employer will not violate the law if he provides the employee with leave earlier than the period required by law.

One more moment. If the employees nevertheless agree and go on vacation without pay, then the procedure for registering such a vacation must be followed unconditionally. The employee will have to write an application for leave without pay. At the same time, it is better to indicate a really valid reason for going on vacation (see Question 1). Based on the applications, orders must be issued for each employee, in which the employees will put their signatures.

Question 3

How to properly arrange for an employee to go on vacation without saving earnings?

Article 128 of the Labor Code of the Russian Federation states that such leave is granted to the employee upon application. In it, the employee must indicate the duration of the vacation and the good reason why he asks for it (see Example 2).

Example 2

Based on the application, an order is issued unified form No. T-6 (for a sample order, see Example 3).

Example 3

Further, information about the vacation granted is entered into the employee’s personal card (on the 4th page of form No. T-2) and into the time sheet, where the vacation time is marked with the code “DO”, if the vacation is granted by the consent of the employer, or the code “03” if the employee goes on vacation in accordance with the law. These marks are provided by the Index symbols hours worked and unworked, given in the unified form No. T-12, approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1.

Question 4

In what cases is the employer obliged to provide leave without pay, in addition to those listed in Article 128 of the Labor Code of the Russian Federation?

To begin with, we recall to which persons the employer is obliged to provide leave without pay in accordance with article 128 of the Labor Code of the Russian Federation :

• participants of the Great Patriotic War - up to 35 calendar days a year;
• working old-age pensioners (by age) - up to 14 calendar days a year;
• parents and wives (husbands) of military personnel who died or died as a result of injury, concussion or injury received in the performance of military service duties, or as a result of a disease associated with military service - up to 14 calendar days a year;
• working disabled people - up to 60 calendar days a year;
• employees in cases of the birth of a child, marriage registration, death of close relatives - up to five calendar days.

The so-called "other" cases, in which the employer is obliged to provide the employee with leave "without pay", are prescribed either in other articles of the Labor Code, or in Federal laws, or in a collective agreement.

First, consider cases from the Labor Code. It says that leave without pay is required:

• employees admitted to entrance exams to universities - 15 calendar days (Article 173 of the Labor Code of the Russian Federation);
• employees - students of preparatory departments of universities for passing final exams - 15 calendar days (Article 173 of the Labor Code of the Russian Federation);
• employees studying in state-accredited higher educational institutions full-time for passing intermediate certification (15 calendar days per academic year), for preparing and defending a diploma and passing final state exams (4 months), for passing final state exams (1 month). This is also stated in article 173 of the Labor Code of the Russian Federation;
• employees admitted to entrance examinations to educational institutions of secondary vocational education accredited by the state - 10 calendar days (Article 174);
• employees studying in accredited educational institutions secondary vocational education in full-time education, combining study with work, for passing intermediate certification (10 calendar days per academic year), for preparing and defending a thesis and passing final state exams (2 months), for passing final exams (1 month) . About this - article 174 of the Labor Code of the Russian Federation;
• part-time workers, if the duration of their annual paid leave at their main place of work is longer than at part-time work. The duration of the vacation in this case depends on the duration of the vacation at the main place of work (Article 286 of the Labor Code of the Russian Federation).

According to federal law unpaid leave is granted to the following categories of employees (see Table 1).

Table 1. Employees who, in accordance with federal laws in without fail leave without pay

In the collective agreement it may be stipulated that an employee who has two or more children under the age of fourteen may be granted additional annual leave without pay at a convenient time for them up to 14 calendar days. The same guarantees may be provided for employees with a disabled child under the age of eighteen, a single mother raising a child under the age of fourteen, a father raising a child under the age of fourteen without a mother. This is stated in article 263 of the Labor Code of the Russian Federation.

Question 5

The employee has not been to work for a week. His application came in the mail for three weeks of unpaid leave for family reasons. What should an employee do? personnel service in this situation?

As already noted, leave without pay is granted to the employee only with the consent of the employer (of course, if the employee does not fall into the category of persons who have the unconditional right to leave without pay).

Therefore, if the employer, having received an application by mail, does not agree to grant leave to the employee, then the personnel officer must draw up an act on the absence of the employee at the workplace in working time. Next, you should wait for the employee to leave the “vacation” and ask him for an explanation in writing. If he refuses, draw up an act about this.

After compiling all the necessary documents, the employer has the right to either bring the employee to disciplinary responsibility in the form of a remark or reprimand, or dismiss him for absenteeism (subparagraph “a”, paragraph 6 of article 81 of the Labor Code of the Russian Federation).

Question 6

The employee went on leave without pay for 6 months. At this time, the organization took a new employee, concluding a fixed-term employment contract with him. After one month, the employee who went on vacation said that he planned to return to work in the near future. Does he have the right to do so? How do I get this early exit? What to do with an employee hired under a fixed-term employment contract?

The labor legislation does not clearly regulate the issue of early exit of an employee from leave without pay (for example, exit ahead of schedule from leave to care for a child aged 1.5 to 3 years). So we will figure it out on our own.

In this situation, two scenarios are possible. And everything will depend on the design of an urgent employment contract.

Option 1. If a fixed-term employment contract was drawn up without specifying the exact end date, but with the wording “For the duration of the performance of the duties of the absent _____________ (full name and position), who retains the place of work, in accordance with the law”, then there will be no problems . An employee leaving leave ahead of schedule writes a statement of his decision, appropriate changes are made to the order on granting leave without pay, and the employee again takes his workplace. At the same time, the “conscript” is dismissed, since the term of his contract has expired, that is, an event has occurred that caused the contract to expire.

Option 2. If the fixed-term employment contract indicates the exact date of its termination, in this case the consequences can be much more serious. The employer is not entitled to dismiss the “conscript” (after all, the contract has not expired, which means that he has no grounds for dismissal).

It is clear that if the employer is happy with the early return of the employee, then he would better agree with the “conscript”, pay him a decent monetary compensation and dismiss him by agreement of the parties or at the initiative of the employee. If the employer is not ready to incur financial costs (most likely, really considerable), then the question arises: can the employer not accept the “main” employee back before the expiration of his vacation?

The law does not contain a direct answer. Therefore, we turn to a lawyer for advice.

Opinion

Zhanna Perevalova, head of the legal department of MedBusinessConsulting LLC:

In my opinion, the employer has the right not to satisfy the application of this employee for the "early termination" of leave without pay for the following reasons.

According to Article 128 of the Labor Code of the Russian Federation, an employee, upon his written application for family reasons and other valid reasons, may be granted leave without pay, the duration of which is determined by agreement between the employee and the employer. In some cases, the employer is obliged to provide this leave. Leaving aside cases of compulsory leave without pay, at least two conditions are always necessary and sufficient:

• the employee's own will, expressed in a written statement,
• employer's consent.

Moreover, the period of this vacation is determined by agreement of the parties.

Therefore, in the absence of legislative regulation of the issue of "early termination" of unpaid leave, the parties to the employment contract must proceed from the same principles as when it was granted, namely, the two specified conditions will be sufficient:

• own will of the employee who expressed in writing the desire to shorten his vacation,
• the consent of the employer.

If the employer agrees, an appropriate order must be issued in free form (since there is no approved unified form for this case), but containing all the necessary details.

In case of disagreement of the employer, a resolution on this by an authorized person (as a rule, this is the sole executive body) is affixed to the application.

Keywords:

1 -1

Some categories of workers have the right to take annual unpaid leave of a certain duration, and at a convenient time for themselves. In the article, we will consider what categories of workers these are, how leave without pay affects the worker's length of service and how to arrange such a leave.

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Legal justification for granting unpaid leave

In the Labor legislation of the Russian Federation there is a provision according to which the employer in some cases is obliged to provide the employee with unpaid leave (Article 128 of the Labor Code of the Russian Federation).

All cases of mandatory granting of unpaid leave are shown in Table No. 1.

The labor legislation of the Russian Federation allows the employer to grant unpaid leave to the employee upon his written application (due to family obligations and other valid reasons). The duration of such leave is determined by an agreement between the employee and the employer (part 1 of article 128 of the Labor Code of the Russian Federation).

Leave without pay is always the initiative of the employee. If leave without pay is legally established (see Table No. 1), the employer does not have the right to refuse the employee to implement it labor rights. If leave is granted on the basis of part 1 of article 128 of the Labor Code of the Russian Federation, then the consent of the employer is required.

It is not uncommon for employers to send their employees on leave without pay on their own initiative, citing the financial difficulties of the enterprise, lack of orders, reduced workload and other reasons that are not related to labor law. For all these situations, there are other mechanisms: for example, bringing the enterprise to idle time, reducing the number (staff) of employees.

For an employer who sends employees on leave without pay in violation of the requirements of Article 128 of the Labor Code of the Russian Federation, the following administrative sanctions are established (Article 5.27 of the Code of Administrative Offenses of the Russian Federation):

• for officials organizations - a warning or a fine in the amount of 1,000 to 5,000 rubles (in case of a repeated offense, the fine will be from 10,000 to 20,000 rubles or the official will be disqualified for a period of 1 to 3 years);
• for individual entrepreneur- a fine from 1,000 to 5,000 rubles (in case of a repeated offense, the fine will be from 10,000 to 20,000 rubles);
• for legal entity- a fine from 30,000 to 50,000 rubles (a repeated offense will lead the organization to a fine in the amount of 50,000 to 70,000 rubles).

How will leave without pay affect the employee's leave of absence

Employees using leave without pay should be aware that part of such leave, exceeding 14 calendar days during the working year, is not included in the length of service giving the right to annual paid leave (Article 121 of the Labor Code of the Russian Federation). It does not matter if leave is granted without pay. preferential categories employees in accordance with Part 2 of Article 128 of the Labor Code of the Russian Federation or leave by agreement between the employee and the employer in accordance with Part 1 of Article 128 of the Labor Code of the Russian Federation.

Let's explain with an example.

On March 1, 2017, a disabled person entered the organization with the right to 60 calendar days of leave without pay (paragraph 5, part 2, article 128 of the Labor Code of the Russian Federation). The first working period during which up to 60 calendar days of unpaid leave can be used:

During the first year of work, the new employee used the right to unpaid leave three times, and the employer granted these leaves:

1. from June 1 to June 20, 2017 - 20 calendar days (Order No. 35 of May 25, 2017);
2. from November 15 to November 30, 2017 - 16 calendar days (Order No. 57 of November 10, 2017);
3. from February 1 to February 14, 2018 - 14 calendar days (Order No. 21 of January 25, 2018).

Of the 50 calendar days of leave without pay, only 14 calendar days will be included in the length of service giving the right to leave. How will this affect the working period for which the employee is granted annual paid leave?

50 - 14 = 36 calendar days.

The end of the working period should be postponed by 36 calendar days. The working period for which the employee uses his first annual paid leave:

The next work period will begin on April 6, 2018 and end depending on the number of calendar days of unpaid leave that the employee uses in the next work year.

Documentation of unpaid leave

Since unpaid leave can only be granted on the basis of an employee’s application, this is the first document drawn up in any form and sent to the employer for approval (part 1 of article 128 of the Labor Code of the Russian Federation) or for familiarization (part 2 of article 128 of the Labor Code of the Russian Federation) .

Based on the employee's application, an order is issued in a unified or independently developed form (Article 9 of the Federal Law of December 6, 2011 No. 402-FZ "On Accounting"). The order is signed by the head, the employee gets acquainted with the order under the signature.

It is very important to timely and fully reflect information about holidays without pay in the employee’s personal card in form No. T-2, if the organization uses a unified form, or in another accounting document, which the organization independently developed and adopted in exchange for a personal card.

When filling out section VIII "Vacations" of the employee's personal card, each column must be filled in:

• type of vacation;
• work period;
• the number of calendar days of vacation;
• vacation start and end date;
• base.

Let's fill in a fragment of a personal card according to the unified form No. T-2, using the data from the example given in our article.

According to labor legislation, each employee who has worked in one place for at least six months can receive leave (in some cases, not only the main annual, but also additional). Rest time is provided according to the approved schedule, the worker retains his job for this period and he is paid vacation pay. But situations are possible when release from work is required suddenly, for example, upon the death of a close relative. Then the employee can receive a vacation period without pay.

What is a vacation at your own expense

The name of this period clearly explains its specificity. As it should be on vacation, the employee receives a release from work for a certain period, but at the same time, rest days will not be paid. The need for such a break arises due to objective circumstances (examination session, wedding, birth of a child, etc.). Depending on the situation and the category of the worker, unpaid leave can be:

• At the choice of the employee. In this case, the employee has the legal right to such a break and the employer cannot refuse him. For example, the funeral of a father (that is, a close relative) - an employee under the Labor Code is entitled to 5 vacation days, which he is required to provide.
• At the discretion of the employer. In this state of affairs, the employee must ask for a release from the director, and may be refused if the reason is not too good. For example, the funeral of an uncle (that is, not a close relative) - while the law does not guarantee the provision of a working break, leaving the final decision to the head of the enterprise.

At the initiative of the worker

In the case of legislative consolidation of the worker's right to an unpaid work break, the manager cannot refuse him. This opportunity arises for the employee due to:

• Your status. For example, leave without pay is due to the Heroes of the Soviet Union, assistants to candidates for the presidency of Russia and old-age pensioners.
• The situation. For example, Labor Code(TK) guarantees that vacation time will be provided to an employee on the occasion of a wedding or the birth of a child. Students of universities with state accreditation also have a legal right to a working break.

At the initiative of the employer

In the case when an employee does not have a legislative right to a short-term day off, but there is a need (for example, the wedding of his own son), then according to the labor code, the issue is resolved by agreement of the parties. The employee draws up a statement in which he makes a request to the management of the enterprise. As a result, he may receive permission or refusal (for example, due to operational necessity).

The form of a written application for rest without saving pay is also required when the worker has a statutory right to a work break. This is more like informing the management about the desire to exercise their legal right than a request, but formally the director has the right to refuse by imposing the appropriate resolution with a signature.

A common mistake is to confuse dismissal from work at the initiative of the employer and forced administrative leave without pay, to which the management of the enterprise can send employees when production falls. These are completely different concepts! Differences:

• Rest without pay at the initiative of the employee implies the desire of the employee to be released from work duties, and is caused by his personal reasons.
• Forced administrative leave is a violation of the law (in case of problems with production, according to the Labor Code of the Russian Federation, the employer must issue a downtime with payment of at least 2/3 of the salary). It does not imply an employee's desire to get a work break, and is caused by production problems. Such a form labor relations contrary to the law and entails penalties.

Legal regulation

The basic definition of concepts regarding leave at one's own expense is set out in article 128 of the Labor Code of the Russian Federation. It lists the categories of employees who, by law, are entitled to this type of rest (for example, employees in the event of the birth of a child). Other places of the Labor Code supplement this list, for example, articles 173 and 174 extend this right to those who are studying at universities and secondary schools (when passing qualification tests or preparing a diploma). Single mothers or parents of children with disabilities can also expect to be released from work at a convenient time.

If the Labor Code considers mass categories of workers who have the unconditional right to a vacation period without pay, then federal laws establish it for narrower groups. For example, federal law:

• No. 4301-1 of 01/15/1993 defines this privilege for Heroes of the Soviet Union and full holders of the Order of Glory;
• No. 19 of 10.01.2003 gives benefits to proxies of a candidate for the presidency of the Russian Federation;
• No. 76-FZ of May 27, 1998 extends the right to receive unpaid leave at the initiative of the employee to the spouses of military personnel.

Special cases are considered in the labor or collective agreement of a particular enterprise. In these official documents, the employer can expand the rights of the personnel working at the enterprise in comparison with legislative norms, for example:

• guarantee each employee a leave without pay for 7 calendar days at any time during the year);
• provide for special conditions for certain working categories (for example, cleaners or couriers);
• introduce bonuses at the end of the year for those who did not use this type of labor exemption (that is, they devoted more time to work).

Who can claim unpaid leave

Legislation (Labor Code and other legal documents) defines the categories of workers who have the right to be released from work without pay. In a broad sense, all employees of the enterprise can apply for such leave under special circumstances. The employee submits an application where he indicates the reason for the vacation period. If the worker has the legal right to rest, he unconditionally receives release, in other cases, the decision of the authorities to release the employee for a work break will depend on the weight of the reasons.

For family reasons

Article 128 of the Labor Code of the Russian Federation gives reasons why an employee can receive leave without pay for up to 5 calendar days without any obstacles and restrictions. This includes:

• birth of a child;
• wedding;
• death of a close relative.

The weight of other family circumstances for granting a rest period is determined by management. There are two possible scenarios for the development of events after the employee submits an application (if necessary, supporting it with copies of the relevant documents):

• The reason is reflected in the legislation as a reason for a break (own wedding). Then the provision of vacation days is unconditional.
• The circumstance is personal and not regulated by law (sister's marriage). In such a situation, the issue is resolved by agreement of the parties, and it is possible that the consent of the management will not be obtained.

Certain categories of workers in accordance with the Labor Code of the Russian Federation

Labor legislation grants the right to receive unpaid leave to certain groups of workers. Those who are given this opportunity include:

• working disabled people;
• participants of the Great Patriotic War;
• employed pensioners,
• parents, wives and husbands of servicemen who died in the line of duty;
• other categories of employees expressly defined by Russian legislation.

Combining study and work

In the case of training an employee in higher or secondary educational institution, The Labor Code allows the provision of vacation days for passing exams and preparing a thesis. Necessary condition at the same time, it is the presence of state accreditation at the university / secondary school. Articles 173 and 174 of the Labor Code of the Russian Federation regulate the duration of the release from work in this case, for example, when preparing a diploma at a higher educational institution, the leave without pay can be up to 4 months.

childcare

The Labor Code guarantees the right to a two-week unpaid leave for certain categories of parents. These include employees:

• in a family with two (or more) children under 14 years old - copies of birth certificates are attached to the application (if the accounting department of the enterprise does not have such information);
• having a disabled child - required documentary confirmation disability;
• raising a child (children) alone - an appeal to the management is accompanied by a certificate in form 25 from the registry office.

To whom it is mandatory

The main list of persons who have the right to leave without pay is given in article 128 of the Labor Code of the Russian Federation. The list includes:

• participants of the Great Patriotic War;
• working old-age pensioners;
• close relatives of servicemen who died in the line of duty;
• disabled workers;
• all employees upon the birth of a child, marriage or death of a close relative.

This list is supplemented by other articles of the Labor Code of the Russian Federation and other regulatory documents. This may be a federal law (for example, Federal Law No. 138 of November 26, 1996 guarantees the release from work of individual participants in elections to local governments) or a local act (for example, collective agreement), giving certain categories of workers the right to a vacation period.

Maximum duration

The Labor Code (Article 128, etc.) defines the categories of employees who have the unconditional right to receive a break at their own expense. The basis for its submission is the employee's statement indicating the interval of release from work, and according to the law, the manager cannot refuse. The table shows the maximum duration of unpaid leave for different employees or situations:

Can an employee be sent on vacation at their own expense during downtime

There may be situations when, for industrial, economic or other reasons beyond his control, an employee temporarily does not carry out labor activities. According to Article 72 of the Labor Code of the Russian Federation, this period is defined as downtime. For example, due to an accident at an electrical substation, the plant was left without power supply, so turners and millers are unable to work. In such cases, when a work break occurs through no fault of the employee, the legislation (Article 157 of the Labor Code of the Russian Federation) provides for the payment of at least 2/3 of the salary.

It is widely believed that during a forced downtime, management can send staff on administrative leave, but this is not the case. This type of release from work provides for the voluntary consent of the employee and the presence of a reason for the break. Cases when the authorities force the workers to write an application for release from work by force means penalties (up to 20,000 rubles for officials and up to 70,000 rubles for an organization).

Granting leave without pay

Regardless of whether the employee has the right to vacation days, or counts on the understanding of management, the algorithm of actions will be the same. Necessary:

1. Write a statement where you indicate the reasons / grounds for which a vacation period is required. Supporting documents must be attached if necessary.
2. Submit an application to the director of the organization. It is important to consider that the mere fact of submitting this document to the management is not enough - it is required to obtain an approval visa.
3. Wait for the execution of the order, with which the employee must be acquainted under the signature. Going on vacation without an order is considered a violation labor discipline and is subject to penalties up to and including dismissal.
4. In the event of a production need, an early return to execution is allowed. official duties, but the initiator of this should be the employee himself.

Employee's statement indicating the reason

The legislation does not define the form of the application document for vacation time without pay. The application is made in free form, but it must be indicated there:

• surname, name, patronymic and position of the head;
• employee details;
• the reasons why he needs a working break, or the basis for the emergence of legislative law (link to an article of the Labor Code of the Russian Federation, a regulatory legal act, etc.);
• dates of the beginning and end of the vacation period;
• duration (exact number of days) ;
• date of compilation, signature.

Supporting documents

In order for the application to be reliable, it must be accompanied by the necessary documentation. Depending on the situation, these may be copies of certificates or certificates certifying:

• date of marriage;
• birth of a child;
• death of a close relative;
• family composition;
• position in the electoral commission;
• awarded the title of Hero of the Soviet Union.

Leader's order

An application endorsed by the director with permission for the vacation period goes to the personnel officer. This specialist must prepare an order in the T-6 form, which the employee is acquainted with under signature. It is important to understand that the employee has the opportunity to go on vacation only after the release of the order document. This is also true in cases where the employee was entitled to a break from work (for example, due to the birth of a child). If there is no order (and even more so - there is no director's visa on the application), then the absence of an employee at work is considered a violation of discipline and may lead to dismissal.

Accountant's marks in the personal card and time sheet

A break without pay must be recorded in the accounting records. The following information is entered in section VII of the personal card:

• type of vacation period (the specific wording is taken from the order);
• duration in days;
• start and end dates;
• order number.

Data is also entered into the time sheet. The days of absence of an employee are marked depending on how the release from work was issued:

• if there is a legal right, the code “DO” is put;
• at the initiative of the employer - fits "OZ";
• in connection with training - “UD” is affixed;
• annual additional - spelled "DB".

Accounting for the duration of unpaid leave

During a break at his own expense, the employee does not receive wages, but continues to be considered in the state of the enterprise. For this reason, the number of break days affects the length of service worked, the amount of income and the indicators that they determine (for example, the average salary). Therefore, when calculating payments for vacation, sick leave or maternity benefits, the accountant needs to know how to take into account these intervals.

When calculating work experience

In the working period, which gives the right to the next paid vacation, rest intervals at their own expense with a duration of not more than two weeks per year are counted. Long-term leave from work will require re-calculating the timing of the annual paid break in labor activity. For example, an employee got a job on May 1, then:

• at normal conditions he has the right to annual rest after 6 months, that is, on November 1;
• if he used 3 weeks at his own expense, then 21-14 = 7 days will not be counted in the work experience, i.e. he will have the right to a break on November 7th.

For temporary disability benefits

In accordance with federal law No. 255-FZ of December 29, 2006, the calculation of social insurance payments in case of illness is made taking into account income for the previous two calendar years. The amount received is divided by the number of days (730 days) without excluding any time intervals (vacation or public holidays and etc.). This shows that unpaid leave will reduce the amount of social payments if the employee has to fall ill (after all, if he did not go on vacation at his own expense, the income for the billing period would be higher).

When calculating average earnings

In accordance with the law, the break interval without pay is completely excluded from the billing period, along with the period of sick leave and business trips. This directly follows from Article 139 of the Labor Code, which states that the calculation is based on the actual wages and hours worked for the previous 12 calendar months. The exclusion of vacation time from the calculations is convenient for the employee, because it gives an advantage in payments, distributing annual income over a shorter time interval.

For insurance experience when calculating a pension

Regardless of the period during which the employee was released from work, he was not accrued earnings for this period and the employer did not make pension payments. It follows from this that this time interval is completely excluded from the insurance period, which is used to calculate the pension. For example, an employee used his right to a 4-month vacation at his own expense to prepare a diploma and pass state exams. This means that only 8 months will be included in the insurance experience for this year.

Video

According to modern legislation (Labor Code, Article 128), in addition to the main ones, there is a separate category called social view holidays not related to work and provided without pay for the required time. This phenomenon is often practiced at enterprises in crisis situations, but its abuse can be punishable, so it should not violate the freedom of workers. In no case can an employer force employees to go on vacation without pay.

Accounting for vacation days without pay, its interruption and possible difficulties

The days of unpaid leave are completely removed from the billing period when determining the average earnings, regardless of its duration and reasons for obtaining. This rule is enshrined in the Regulations on the peculiarities of the procedure for calculating the average salary, which was approved on December 24, 2007. (paragraph 5, subparagraph "e").

In accordance with the Federal Law No. 157 of 22.07.2008. no more than 14 vacation days (calendar) at their own expense per year are included in the continuous length of service, which gives the right to take annual paid leave. Therefore, if during the year more than 14 days of vacation were received in total, then they are no longer included in the length of service. Employees of the personnel department are required to monitor their number, reminding the employee personally of the excess of days.

Located in unpaid leave has the right to go to work earlier than the deadline specified in the application and order, thus interrupting it, but only in agreement with the employer. This is not prohibited by law and must be decided on an individual basis with the permission of the authorities. In the event that a person falls ill while on vacation without saving his salary, and brings his sick leave to the personnel department, the organization is not obliged to pay him temporary disability benefits.

However, if the case concerns maternity leave, then it must be paid on a mandatory basis, and unpaid leave must be interrupted immediately from the start of maternity leave.

Unscrupulous employees may abuse their right to receive unpaid leave, for example, by not showing up for work and sending an application by mail. In this case, the owner of the company himself must decide how to communicate with such an unauthorized vacationer. He can provide the employee with what he wants, or he can reject the request. In this case, an act is drawn up on the absence of the employee at the place during working hours. Also, the employer has the right to bring the truant to disciplinary responsibility and even dismiss him.

Summing up all of the above, it is worth noting that the possibility of obtaining leave without pay at the initiative of the employee is almost entirely based on the relationship with the employer, it is he who decides whether the subordinate can not come to work without being fired. However, do not forget about the mandatory categories of persons and cases in which the boss must agree that his employee will not be in place for some time of his own free will.