New edition of Art. 126 Labor Code of the Russian Federation
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.
It is not allowed to replace with monetary compensation annual basic paid leave and annual additional paid leave for pregnant women and employees under the age of eighteen, as well as annual additional paid leave for employees engaged in work with harmful and (or) dangerous working conditions, for work in appropriate conditions (except for payment of monetary compensation for unused vacation upon dismissal, as well as cases established by this Code).
Commentary on Article 126 of the Labor Code of the Russian Federation
Article 126 of the Labor Code of the Russian Federation now resolves the question of what part of the vacation is subject to replacement with monetary compensation in the situation of summing up vacations over several years; it is proposed to establish that “a part of the annual paid leave exceeding 28 calendar days, upon the written application of the employee, can be replaced with monetary compensation ". As a result, the practice of compensating for vacations left over by employees from previous years should stop.
By agreement between the employee and the employer, annual paid leave can be divided into parts. Moreover, at least one part of this leave must be at least 14 calendar days.
Recall of an employee from vacation is permitted only with his consent. This recall may occur due to production reasons. The legislator does not establish the form of such consent. To avoid misunderstandings, it is advisable for the employer to obtain such consent from the employee in writing. Recall from vacation is formalized by an order (instruction) of the employer, which, by agreement of the parties, indicates when the unused part of the vacation will be provided to the employee.
The part of the vacation not used in this regard must be provided at the employee’s choice at a time convenient for him during the current working year or added to the vacation for the next working year.
It is not allowed to recall from vacation workers under the age of eighteen, pregnant women and workers engaged in work with harmful and (or) dangerous working conditions (Article 125 of the Labor Code of the Russian Federation).
Labor legislation allows the replacement of annual paid leave with monetary compensation.
Part of the annual paid leave exceeding 28 calendar days, upon a written application from the employee, may be replaced by monetary compensation.
When summing up annual paid leave or transferring 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.
Another comment on Art. 126 Labor Code of the Russian Federation
1. Article 126 of the Labor Code of the Russian Federation allows the replacement of annual paid leave with monetary compensation. Since only that part of the vacation that exceeds 28 calendar days can be replaced with monetary compensation, replacing part of the vacation with monetary compensation is possible if the employee has the right to extended vacation or additional vacation (additional vacations).
2. In the case of simultaneous provision of leave for two years or more (see Article 124, Part 2 of Article 125 of the Labor Code of the Russian Federation and commentary thereto), monetary compensation can replace parts of each annual paid leave exceeding 28 calendar days , or any number of days from these parts. Thus, for each working year, an employee must actually use at least 28 calendar days of vacation.
3. From the text of Art. 126 of the Labor Code of the Russian Federation it follows that in order to replace the corresponding part of the vacation with monetary compensation, a written application from the employee is not enough; the consent of the employer is also required, who can, but is not obliged to replace part of the vacation with monetary compensation.
4. Replacement of annual paid leave, both basic and additional, with monetary compensation for pregnant women and employees under the age of 18 is not allowed.
5. With regard to the replacement of vacation with monetary compensation for employees engaged in work with harmful and (or) dangerous working conditions, Part 3 of Art. 126 of the Labor Code of the Russian Federation (as amended by Federal Law No. 90-FZ of June 30, 2006) created some uncertainty: this provision prohibits monetary compensation for this category of workers only for additional paid leave for work in appropriate conditions, leaving open the question of the possibility of monetary compensation for the main paid holidays and other additional holidays. Based on labor protection requirements, monetary compensation for this category of workers on basic paid leave would lead to the loss of the meaning of providing them with additional leave for work in harmful and (or) dangerous working conditions.
Every officially employed citizen has a number of rights and freedoms that are protected by labor legislation. In particular, this concerns the right to a well-deserved rest or its compensation in monetary terms.
Right to compensation
According to labor legislation, replacing vacation with monetary compensation is possible if the employee voluntarily consents to this. For example, in 2016, an employee did not take his allotted vacation or part of it, thereby transferring it to 2017.
Not every employer can provide an employee with more than 28 calendar days of rest per year, so the remainder is usually compensated in cash. In fact, the unspent part of the vacation is replaced by additional payments. Article 126 of the Labor Code implies that monetary compensation is due only for that part of the vacation that exceeds the 28 calendar days established by law. For example, workers in the Far North are entitled to an additional 24 calendar days of rest. It is these that the employer can replace with a cash payment based on the average salary.
Compensation upon dismissal
Labor legislation in Article 127 clearly states that monetary compensation for unused vacation must be paid by the employer to the employee upon dismissal. The final payment includes payments for time worked, bonuses and additional funds due, and payments for vacations that were not used. The employee's right remains vacation followed by dismissal. For example, before leaving the workplace, a citizen has the right to receive all the rest days due, and not financial compensation. The work experience during the vacation period is not interrupted, and the employee retains his job. It is impossible to fire him during this period of time. An employee has the right to change his mind about resigning at his own request by writing a corresponding statement no less than 14 calendar days before the end of the employment contract.
Who has a vacation of more than 28 calendar days
Vacation of civil servants
According to the law, civil servants have the right to additional leave for length of service and irregular working hours. Rest days for length of service are accrued depending on the employee’s length of service. Read more in this
In addition to workers in the Far North, there are categories of workers who are entitled to rest for more than 28 calendar days. These categories have the right to replace vacation with cash compensation in 2020 at their own request. Such specialists are:
- teaching staff;
- medical workers;
- employees with disabilities;
- scientific workers of higher educational institutions;
- civil servants of the state civil service;
- workers performing research work.
Each employee in this area has the right to rest 28 calendar days a year at the expense of the employer, and for the remaining days to receive compensation in cash equivalent. The employer, in turn, has the right to refuse payment, insisting on proper rest for the employee.
How to get compensation
Since the employer has the right to refuse to replace annual paid leave with monetary compensation, the employee must know exactly how to receive the funds due to him. First of all, you need to write an application addressed to the manager, which indicates the period of additional paid leave, which should be replaced by a financial payment. The employer is obliged to consider the application within three working days, and then issue an appropriate order.
Who is not entitled to compensation?
Employees employed in complex, harmful and dangerous industries and having vacations of more than 28 calendar days do not have the right to replace additional days with financial payments. First of all, this is due to working conditions, which are difficult and harmful to health. That is why the employer has the right to refuse to provide payments on legal grounds. As practice shows, partial compensation is paid to employees engaged in hazardous work, but in total they do not exceed seven calendar days of vacation.
How and when compensation for unused vacation is paid - see the video below:
Employees who are under 18 years of age at the time of the vacation cannot demand that vacation be replaced with money. Article 126 of the Labor Code prohibits minors from receiving compensation in lieu of annual paid rest. The same rule applies to pregnant women going on maternity leave and employer-paid leave.
Registration of compensation
After receiving, reviewing and signing the employee’s application, the employer is obliged to issue an order for compensation for unused vacation according to the established model. The order includes a description of the period that must be replaced by a material payment; the exact dates are specified in the text of the order. In addition, the period by which payments must be accrued in full is indicated.
How is the amount calculated?
For unused vacation, compensation is calculated based on the employee’s average salary. The total annual salary is divided into 12 calendar months, and then divided by the average number of days in one month. The amount received is the average daily wage, which is the basis for calculating compensation for unused vacation. The number of days not taken off is multiplied by the average daily wage, where the result will be the amount of payment.
You can ask a lawyer any questions you have in the comments below.
The law prohibits working without vacation, receiving a cash equivalent instead of the allotted vacation once a year. But this does not mean that there are no options for getting compensation for unused vacation. Not only do they exist, but they are completely legal and can be used in legally permitted situations.
Under what conditions will holiday compensation be paid?
Any employee is entitled to annual paid leave (Article 114 of the Labor Code of the Russian Federation). The duration of the main vacation is 28 calendar days. There is also additional leave that is provided:
- in the conditions of the Far North and regions equivalent to them;
- in harmful and dangerous working conditions;
- in special conditions, with irregular working hours, etc.
If there are doubts about whether it is possible to receive compensation for unused vacation, then by turning to the Labor Code, you can understand that the answer is clearly affirmative.
The equivalent for untaken rest may be assigned if:
- the employee quits;
- the rest he is entitled to exceeds 28 calendar days (Article 126 of the Labor Code of the Russian Federation).
Upon resigning, an employee has the right to receive benefits for all days of earned rest. The amount of compensation is calculated based on the number of vacation days and average earnings for the last year.
The second case in which compensation is possible is a vacation of more than 28 days. Then, for all additional days or part of them, the cash equivalent is charged. For example, if you are entitled to 34 days of vacation, then you need to use 28 of them for rest, and receive compensation for the remaining 6 days.
However, the law does not oblige the employer to strictly follow this rule. The employer has the right not to pay additional vacation days, but to demand their use for rest.
Please note! The rule does not apply to pregnant women, workers under 18 years of age, or workers employed in hazardous and hazardous industries. They must use the additional leave for its intended purpose.
Why is vacation transfer allowed?
The legislator stipulated the occurrence of situations during vacation when annual leave must be interrupted or granted at a different time. Such cases are:
- transfer of leave due to sick leave;
- the need to perform government duties, during which time exemption from work is granted by law;
- in other cases.
Non-payment of vacation pay, notification of vacation less than 14 days before its start also becomes the basis for transferring the vacation to another period agreed with the employee.
If the production process requires the presence of an employee and his going on vacation paralyzes the activities of the organization, with the consent of the employee, the vacation is also postponed to another period of time. However, it must be used within the year following the year of provision. That is, working for 2 years without vacation is acceptable.
Therefore, if you need to find out whether it is permissible to replace vacation with monetary compensation in the event of its postponement, remember that in this case the legislator says “no” (Article 124 of the Labor Code of the Russian Federation).
Workers who are under 18 years of age, as well as those employed in hazardous and hazardous industries, must be granted leave annually; transfers are not allowed.
Use of vacation before dismissal
According to Article 127 of the Labor Code of the Russian Federation, when planning to terminate the contract, an employee can take the leave due to him and then resign at his own request. They write a statement indicating the date of dismissal, which should be the last day of vacation. If the term of the employment contract has expired, the employee has the right to use the allotted vacation before dismissal and the date of termination of the contract will also be the last day of vacation.
This date may not coincide with the previously established end date of the employment contract. If a vacation is taken by an employee who has written a resignation letter of his own free will, he has the right to change his mind and withdraw the resignation letter before the start of the vacation. If another employee is hired in his place, then withdrawal of the application for dismissal is not allowed (Article 127 of the Labor Code of the Russian Federation).
How to get cash coverage
As mentioned above, if an employee is not sure whether it is possible to replace the leave of monetary compensation in 2020, it is worth seeking clarification from the article of the law. The rule stipulates that compensation is paid only upon dismissal, for all required vacation days, or if non-core days are not used. To obtain it you need to do the following:
- Submit a free form application. If there is a special form - on the form. The header of the application indicates the position of the person who will endorse the application and his full name. Next, indicate the full name of the applicant.
- The title of the document is “statement”.
- The text itself is a request to replace vacation days with a cash equivalent. Indicate under what circumstances the additional leave was given, its duration and refer to Article 126 of the Labor Code of the Russian Federation on the right to receive compensation.
- Put the date and your own signature.
After 10 days or on the date of the next payment of wages accepted at the enterprise, the payment must be issued to the applicant. Basic leave cannot be replaced by compensation. This is a violation of the law and the guilty person is subject to administrative liability in the form of a large fine. The dilemma of whether it is possible to take compensation for unused vacation, if it is not the main one, without imposing penalties on the employer, suggests the answer: yes, it is possible.
Watch the video about vacation compensation before dismissal:
Upon dismissal, the employee is required to pay compensation for all days of vacation. If it was not provided within two years, then in two years.
If an employee does not have the right to receive additional leave, then he does not have the right to compensation for vacation days, for example, unused for 2 years and, accordingly, doubled.
How to take a vacation not all at once
According to the Labor Code of the Russian Federation, the division of vacation into parts is possible with agreement with the employer. At the same time, one of the parts should not be less than 14 calendar days (Article 125 of the Labor Code of the Russian Federation). The remaining days can be taken in any proportions. In particular, twice for 7 days, twice for 5 days and 4 days, and so on.
The specialist answers questions in the comments to the article
Every employee has the right to annual paid leave (Article 21 of the Labor Code of the Russian Federation). Is it possible to replace vacation with monetary compensation? Let's figure it out.
Replacement of vacation with monetary compensation
As a general rule, the duration of the annual basic paid leave is 28 calendar days (Article 115 of the Labor Code of the Russian Federation).
An employee may ask for monetary compensation to replace part of the vacation exceeding these 28 days (Article 126 of the Labor Code of the Russian Federation). This is possible if the employee has a longer vacation. For example, disabled employees are entitled to annual leave of at least 30 calendar days (Article 23 of Law No. 181-FZ of November 24, 1995).
Replacement of additional leave with monetary compensation
Some employees are entitled not only to annual basic paid leave, but also additional leave (Article 116 of the Labor Code of the Russian Federation). Such leave, for example, is entitled to employees working irregular working hours (Article 119 of the Labor Code of the Russian Federation). And, in principle, additional leave can be replaced by monetary compensation, taking into account the “28 days” rule.
For example, an employee with irregular working hours is entitled to a basic annual paid leave of 28 calendar days. He is also entitled to additional leave for irregular working hours of 3 calendar days. In total, an employee can rest 31 calendar days per working year. So, an employee can replace three calendar days with monetary compensation (31 days - 28 days).
Application for compensation for unused vacation: sample
In order for the vacation to be replaced by monetary compensation, the employee must write a corresponding application.
Such a statement might look like this:
Replacement of vacation with monetary compensation is not allowed.
As you know, there is an exception to every rule. And the legislation establishes categories of workers who are prohibited from replacing vacation with monetary compensation (Article 126 of the Labor Code of the Russian Federation). The following cannot replace paid annual leave (both basic and additional) with compensation:
- pregnant women;
- minor workers.
And employees employed in jobs with harmful/dangerous working conditions are prohibited from replacing annual additional “harmful” leave with money.
When any leave is replaced by compensation
If an employee quits and at the time of dismissal he has unfilled vacation days left, then the employee can:
- or give them time off before dismissal;
- or receive compensation for days not taken off (Article 127 of the Labor Code of the Russian Federation).
An employee's annual paid leave can be replaced with monetary compensation only in two cases - if the dismissed employee has unused vacation time or if we are talking about replacing a part of the vacation exceeding 28 calendar days with a cash payment (). Let's look at both of these situations in more detail.
Compensation for unused vacation upon dismissal
Upon dismissal, the employee is paid monetary compensation for all unused vacations (). It is worth noting that despite the fact that the right to use vacation for the first year arises for the employee after six months of his continuous work, an employee who has worked for the company for less than six months still has the right to compensation for unused vacation (,).
The employer must pay the amount due to the employee on the day of dismissal, and if the employee did not work on that day, then no later than the next day after he presents the corresponding demand ().
Determine the number of vacation days the employee is entitled to, taking into account his length of service. At the same time, not only employees who have worked a full year have the right to full leave, but also employees:
- have worked for this employer for at least 11 months, which are subject to credit towards the period of work giving the right to leave;
- those who have worked from 5.5 to 11 months, if they are dismissed due to the liquidation of an enterprise or institution or individual parts of it, reduction of staff or work, as well as reorganization or temporary suspension of work, etc. ().
In all other cases, employees are entitled to leave proportional to their length of service. For example, if an employee has an annual paid leave of 28 calendar days, for each month of service he is entitled to 2.33 calendar days of leave (28 days: 12 months).
Thus, the number of vacation days due to an employee can be determined using the following formula:
O = E: 12 x C, where
O – the number of vacation days due to the employee;
E – total duration of vacation;
C – number of months of vacation experience.
Subtract the days already used by the employee from the number of vacation days allotted to the employee. At the same time, often the number of vacation days for which compensation is due upon dismissal turns out to be fractional. Their rounding is not provided for by law, but the Ministry of Health and Social Development of Russia explained that the employer can round the resulting number, although not according to the rules of arithmetic, but exclusively in favor of the employee ().
If the employee has completed a full 12-month pay period:
NW = (W: 12: 29.3) x D, where:
29.3 – average monthly number of calendar days (constant indicator in accordance with);
If an employee has not fully worked one or more months of the pay period:
SZ = (W: (29.3 x M + N)) x KD, where:
SZ – average earnings for vacation days;
W – wages actually accrued for the billing period;
M – the number of full calendar months (when the employee worked all working days or shifts);
N – number of calendar days in incomplete calendar months;
D – number of calendar days of vacation.
In this case, the H indicator for each month must be calculated separately:
N = 29.3: KD x KO, where:
N – number of calendar days in an incomplete calendar month;
KD – number of calendar days in a month;
KO - the number of calendar days worked this month.
The results obtained for the H indicator for each partial month should then be summed up and the resulting total substituted into the formula for calculating average earnings.
Let us remind you that the average daily earnings are calculated for the last 12 calendar months (,). In this case, time, as well as amounts accrued during this time, are excluded from the billing period if:
- the employee retained his average earnings in accordance with the law (for example, annual basic paid leave), with the exception of breaks provided for by the Labor Code of the Russian Federation for feeding a child;
- the employee received temporary disability benefits or maternity benefits;
- the employee did not work due to downtime due to the fault of the employer or for reasons beyond the control of the employer and employee;
- the employee did not participate in the strike, but due to this strike he was unable to perform his work;
- the employee was provided with additional paid days off to care for disabled children and people with disabilities since childhood;
- in other cases, the employee was released from work with full or partial retention of wages or without payment in accordance with the law ().
ATTENTION!
Persons who have entered into an employment contract for a period of up to two months () and seasonal workers () are entitled to vacation not in calendar days, but in working days (at the rate of two working days per month of work). In this regard, the average daily earnings of such employees should be calculated using the following formula:
SZ = (Z: P6) x D, where:
SZ – average earnings for vacation days;
W – actual accrued wages;
P6 – the number of working days according to the calendar of a 6-day working week that fall within the hours worked;
D – number of working days of vacation.
Multiply the calculated average daily earnings by the number of unused vacation days. This will be the amount of compensation due to the employee.
At the same time, the resigning employee has the right to prefer the vacation itself as compensation. In this case, he must submit a written application to the employer for the provision of unused vacation with subsequent dismissal - only employees who are fired for guilty actions cannot exercise this right (). In this case, the day of dismissal is considered the last day of vacation, and the last day of work is the day preceding the first day of vacation (). This is necessary so that the employer can properly fulfill its obligation to formalize the dismissal and pay the dismissed employee.
Compensation for part of annual paid leave
Part of the annual paid leave exceeding 28 calendar days can be replaced by monetary compensation (). This is possible when the employee is entitled to extended or additional leave (,).
In addition, when summing up annual paid leave or transferring leave to the next working year, compensation can be received for the part of each annual paid leave exceeding 28 calendar days, or any number of days from this part. If an employee who is entitled to an annual basic paid 28-day vacation did not use it last year, he will still not be able to receive compensation this year, regardless of how many days of vacation he has accumulated. This is due to the fact that, as stated above, the right to replace part of the vacation with a cash payment can only be used by those employees who are granted extended or additional vacation.
To learn how to correctly determine the period in which the last 12 calendar months of work of an employee applying for monetary compensation instead of vacation falls, read the material “Determination of the billing period when calculating compensation for unused vacation” V "Encyclopedia of solutions. Labor relations, personnel" Internet version of the GARANT system.
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However, there are a number of nuances that are important to keep in mind.
First, to receive compensation, the employee must submit a written application. The employer does not have the right to replace part of the employee’s vacation with compensation on his own initiative.
Secondly, the employee who submitted the corresponding application should not belong to any of the following categories:
- pregnant women;
- workers under 18 years of age;
- workers engaged in work with harmful and (or) dangerous working conditions (if the question concerns).
These employees are prohibited from paying compensation even at their request. But there is an exception here too. It applies to workers engaged in work with harmful and (or) dangerous working conditions. Part of their annual additional paid leave, which exceeds seven calendar days, on the basis of an industry (inter-industry) agreement, collective agreements, as well as the written consent of the employee, drawn up in the form of an additional agreement to the employment contract, can be replaced by separately established monetary compensation ().
At the same time, even if all the above conditions are met, providing compensation for part of the vacation is the right, but not the obligation of the employer. Therefore, he has the right to refuse the employee’s request.
If management nevertheless decides to satisfy the employee’s request, replacing the vacation with monetary compensation must be issued in the form of an order from the employer, issued in free form. The main thing is to reflect for which vacation in which particular working year compensation is provided. In this case, the average earnings for payment of compensation are calculated in exactly the same way as for compensation for unused vacation.
Related documents:
- Decree of the Government of the Russian Federation of December 24, 2007 No. 922 " "
- , approved CNKT of the USSR April 30, 1930 No. 169
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