Granting leave without pay. Leave without pay: the right or obligation of the employer

Labor legislation gives every worker the right to paid leave annually. It is mandatory to provide and the manager does not have the right to prevent the employee from resting. Otherwise, the situation is with vacation at your own expense. There are several nuances here. Next, we will analyze in detail whether the employer can refuse leave at his own expense?

Definition of leave at own expense

Vacation at one's own expense is also called vacation without saving. The correct name given in official records is unpaid leave. As the name implies, this holiday is a type of holiday that is not subject to payment.

The employer releases the employee to rest, but wages for this period are not accrued. The salary accrued for the month is reduced in proportion to the working days on which the employee rested, unless he has a piecework form of remuneration. In this case, he is paid the entire amount earned.

When a vacation at one's own expense falls on a weekend, then, accordingly, it does not affect the amount of payment, since the number of working days will remain unchanged.

Vacation types at own expense

There are several types of vacations at your own expense. There are mandatory ones, which the administration of the enterprise cannot refuse to provide without violating human rights, and there are those that the employer can provide by his own decision, but on the condition that the employee expresses a desire to take such leave.

Sending an employee on leave without pay without his consent in the form of a statement is illegal.

Mandatory

The following types of leave are mandatory:

1. leave for old-age pensioners who continue to work;
2. leave for disabled employees;
3. vacation for veterans and combatants;
4. employees who combine study and work;
5. employees who work part-time with the employer.
6. employees due to special family circumstances (birth, marriage, death).

Let us consider in more detail the mechanism for providing these holidays.

In order for the employer not to refuse to grant leave, the employee must indicate in the application what type of leave without pay he wants to receive and provide evidence that he has such a right.

For certain categories of citizens, vacations at their own expense are established by federal laws and have different durations. For example, disabled people can receive up to 60 calendar days of unpaid leave per year, and combatants in Afghanistan can get two weeks.

The vacation period is considered calendar, not working years, that is, from January 01 to December 31. The legislation does not spell out what to do when an employee comes in the middle of the year and wants a vacation. According to established practice, he is given a part proportional to the months worked. For example, if in the current year he works for six months, he will receive half of the required vacation. Such vacations are not carried over to the next year, and if they were not used in the current period, they are automatically canceled. This applies to all types of vacations at your own expense.

If an employee combines work and the educational process, the employer is obliged to provide him with leave at his own expense (unless, of course, he is entitled to paid study leave) in the amount indicated in the certificate - a call from the place of study. All days exceeding this number must be agreed with the administration.

Employees who are part-time workers are provided with leave at their own expense on a mandatory basis only if the leave at the main place of work exceeds the part-time leave. The employee also has the right to ask for part-time leave for the entire period of paid leave from the main employer, if, for example, he just got a part-time job and does not want to take leave in advance. But the provision of leave at one's own expense in this case is already at the discretion of the employer.

An employee can receive up to five calendar days in the event of the birth of a child, marriage registration or death of close relatives.

These holidays are prescribed by law and the employer cannot refuse to grant them to the employee.

Also, it will not be able not to provide leave to employees if the grounds are prescribed in the local regulatory documents of the enterprise.

Very often, the Collective Agreement prescribes the mandatory provision of leave at their own expense to employees with several children under 14, single parents with children under 14, or with disabled children under 18.

Thus, if the right of an employee to receive leave at his own expense is prescribed in general or local legislation, the employer cannot but provide such leave to the employee without violating the Labor Code of the Russian Federation.

Another thing is if the employee wants a number of days in excess of his allowance. In this case, the employer may refuse him.

In agreement with the employer

In all other cases, which are not listed in the previous paragraph, the consent of the administration of the enterprise is required to receive leave at its own expense. If the manager does not agree to grant leave to the employee, then the latter does not have the right to go on it on his own. In this case, it can be counted as absenteeism and, on this basis, dismiss the employee.

Other nuances when taking a vacation at your own expense

When granting leave at your own expense, you need to consider some of the nuances:

• in order to keep a record of vacation days prescribed by law for certain categories of employees, in order to track the total amount of days already taken off.
• according to the law, if during the year the employee took more than 14 calendar days in total at his own expense, then the vacation period is shifted by this number of days.

Calculation example

Novikov A.A. got a job at Romashka LLC on April 10. Accordingly, the settlement period of annual paid leave will be from April 10 of the current year to April 09 of the next year. In this billing period, he took 19 days off at his own expense. This means that the employee of the personnel department calculates this and automatically shifts the period by 5 days, that is, until April 14th. This means that the next vacation period Novikov A.A. will be calculated from April 15 of the current year to April 14 of the next.

1. Compulsory leave without pay can be included in the vacation schedule at the request of the employee. In this case, the employee of the personnel department must notify him of the beginning no later than 2 weeks, as is the case with the main vacation.
2. If an employee who is entitled to mandatory leave at his own expense does not want to use it, the employer does not have the right to force him, unless the leave is included in the vacation schedule.

Thus, we can conclude that the employer is obliged to provide unpaid leave only in cases stipulated by law and in the amount specified for each category of employees.

Moreover, an employee, without the consent of the employer, has the right to take fewer days than he is granted by law. And the employer can refuse the employee the desire to receive more vacation days.

Unpaid leave, or as it is also called, unpaid leave is one of the types of leave provided for by the relationship between the employee and the employer. It is divided into two categories. Voluntary, when the employee wants to take leave on his own initiative, and forced - when the break in work is forced and initiated by the employer. In this article, we will briefly analyze the main legal aspects of granting unpaid leave in both categories.

Labor Code

I will give several provisions from the Labor Code of the Russian Federation that regulate the procedure for granting unpaid leave to employees.

According to Article 76 of the Labor Code of the Russian Federation, employees have the right to extraordinary leave without pay due to family circumstances, illnesses and other valid reasons. But leave without maintenance at the initiative of the employer is not provided for by the current legislation.

And if, as a result of downtime that does not depend on employees, the work process provided for in the employment contract suddenly stops, then (according to Article 94 of the Labor Code of the Russian Federation) they have the right to pay for downtime. The amount received must not be less than 2/3 of the tariff rate. If the employer does not comply with these requirements, the employee has every right to apply to the labor dispute commission or even to the court.

The provided time off is issued in writing by the employer. During the entire time of the absence of the employee, he retains his workplace and position. All time spent on unpaid leave does not go into seniority and is not taken into account when calculating the annual basic paid leave (Article 121 of the Labor Code of the Russian Federation).

Leave without maintenance terms

As a rule, the employee and the employer decide on an individual basis the question of the period for which the former has the right to leave the workplace, and indeed, whether he has. But there are certain groups of people (their list is indicated in the labor code) to whom employers do not have the right to refuse leave, or provide leave for a shorter period than stated in the relevant article of the Labor Code. I will list the main ones:

1. Working pensioners - up to 14 days a year.
2. Wives and husbands of military personnel who were injured, seriously ill or even died in the course of military service - up to 14 days a year.
3. Working disabled people - up to 60 days a year.
4. Registration of marriage, death of close relatives - up to 5 days a year.
5. Other cases provided for by collective agreements, the labor code or other legal documents.

How to apply for such leave?

There is nothing complicated about this, you just need to understand a number of simple rules. The most basic of them is “unpaid leave must be granted exclusively at the initiative of the employee”. Employers have no right to even influence their employees, hinting to them about the need for vacation at their own expense. In the application, the employee must indicate the reason for which he should be granted leave, and its required duration.

To give you an idea of ​​what this document should look like, I have prepared some examples that you can use as a basis for writing your own application.

Application for leave without maintenance sample No. 1

Statement.

Application example.

Your application must be reviewed by the employer as soon as possible. And if you are a member of one of the previously listed groups of workers who are entitled to guaranteed leave without pay, then you are required to issue it. In other cases, whether leave will be granted or not depends on the decision of the employer. For example, he will need to estimate whether your absence will seriously damage the production process.

Is it advisable?

Going on an unpaid day off, the employee must be aware of all the shortcomings of this decision - the time of mandatory paid leave will be postponed, money will no longer be accrued for some time, and the work / insurance period will go. I am already silent about the fact that a worker who unexpectedly arranges a weekend for himself can thereby spoil relations with employees on whom the boss can entrust his duties. In this regard, I recommend using the right to leave without pay only in case of emergency, and not in order, for example, to make repairs in your house or go out of town for a week.

That's all I wanted to tell. If the article did not mention any points that you or your friends had to deal with when applying for unpaid leave, describe them in the comments.

People's opinions

Indeed, unpaid leave is taken only in extreme cases, when misfortune happens in the family, and it is necessary to go to another city. And for no other reason, they will not be released from production or from the company, they will have to quit. It is worse when they are sent on leave without pay, when the enterprise stops or closes. Then they are forcibly sent for a walk.

Thanks for the good article. I would like to add that, indeed, they are usually sent on vacation without pay in order to save money, and, as a rule, this is not a good sign. If this is a private company, then often the employee is given to understand that they want to fire him. After returning from such a vacation, he may find a new employee at his workplace.

In the second sample, she confused the "Foundation" column. What could be their basis? I am a free person, I don’t ask to pay for my vacation, what does it matter to the authorities what I will do at this time ?!

Not always leave without pay is taken when something happens. Teachers have the opportunity to take a break from overexertion.

The Law of the Russian Federation "On Education" (clause 5, article 56) and the Labor Code of the Russian Federation (article 335) establish the teacher's right to a long vacation. Pedagogical employees of an educational institution, at least every 10 years of continuous teaching work, have the right to a long vacation for up to one year, the procedure and conditions for granting which are determined by the founder and (or) the charter of this educational institution.

So, if you have money, then you can legally relax without losing your job.
I took it at my own expense in the summer so as not to work.

Actually, not everything is so simple. You are indeed a free person, but the administration has the duty to ensure the production process in which you perform a certain function, if you exercise your right to leave without pay, then the administration will have to look for a replacement to a higher place or the production cycle will be disrupted. Thus, the administration may well refuse to exercise your legal right until it finds you a full-fledged replacement, but if it finds it, then you will have a competitor who in the end may well take your place, leaving you without work.

Only in the case of vacations for vague personal reasons. Whether these reasons are valid enough - yes, the boss decides and may refuse to grant leave.
However, there are categories of circumstances when they do not have the right to refuse unpaid leave, and this is regulated by part 2 of article 128 of the Labor Code of the Russian Federation.

These are circumstances such as marriage registration, death of a relative, birth of a child, university entrance exams, session, final exams, and so on. Agree, the reasons are certainly valid, however, many, not knowing about their rights, do not use unpaid leave, for example, to pass the session. They just ask for a day or two.

It should be recognized that the attitude towards unpaid leave on the part of employees and administration has recently changed dramatically. So if earlier the right to receive such leave was interpreted by employees even as a certain benefit, which employers provided extremely reluctantly, now, when many industries are in a practically crisis state, employers are ready to provide unpaid leave to an employee for an arbitrarily long time and sometimes even force them to do so, and employees, on the contrary, do their best to avoid such holidays, as they seriously hit their pocketbook.

We have it almost everywhere now. One friend leaves in December, and not of her own free will, the other in January. And I'm "lucky" in March. And the main thing is not to avoid such a vacation. Well, only for two weeks, and not for a whole month. Many are going to go to the resort during this forced vacation, and there are those who will look for another job. And not because you need a job, but just in case, and while there is free time. So that at the end of the vacation there was a choice to stay at the old job or leave for a new one.

In addition to all the other inconveniences associated with the fact that we are sent on unpaid leave forcibly and at the same time nothing is paid, the length of stay on this leave affects the duration of the usual paid leave, which for each month of stay on unpaid leave is reduced by two and a half day.

The most interesting thing is that many employers refuse to take such a vacation while I worked at a municipal enterprise, they could not let anyone go at all, and if a person wanted to go on paid leave, they were forced to take it without pay so as not to pay vacation pay, just not understanding that that a person has a vacation, for example, for 2010, when his salary was less, then upon dismissal, he will have to pay vacation pay based on the new salary.

Nastasya13

Nastasya13, it's different everywhere, but in recent years, budgetary organizations have begun to refuse to provide annual labor leave, not to mention "unpaid" leave, which is also necessary in the most exceptional cases.

Angelica

Useful tips for those who work on state approvals.

I worked in a state institution, so we were provided with both paid and unpaid leave without any problems. A friend's husband in a private office often sends caretaker grandmothers and other pensioners on unpaid leave. This was the case before the crisis. They are satisfied, because pensioners are more likely to get tired of work.

Too often people take unpaid leave for much more mundane reasons. Who told you that they don't let you go for other reasons? Sometimes a person just gets sick, but doesn’t want to go to the hospital or they won’t give him, because the disease is not so serious. The authorities often meet halfway and provide leave without pay. This is common practice. Nobody quits for a couple of days.

By the way, I agree with some comments that employers now give unpaid leave more willingly than before. But we still try to resort to it less, only in special cases.

We can easily give such leave without pay, though we write the application not quite in this form, it’s a little simpler with us.

They take it in extreme cases, it’s just that rarely anyone takes it, everyone wants to earn an extra penny, the authorities rarely refuse, if only urgent work appears and there is a lot of it in volume.

At our enterprise, they always ask the reason for a vacation without pay, and if there is none at all, they may not be given. Even if there is a reason, they may not let you go if the blockage is at work during the season. At your own expense or not at your own expense, but there must be a reason. Because someone has to do your work instead of you.

I regret that I didn’t take a vacation when I got married, it turned out that I was in advanced training courses, and then the holidays began and I decided not to take a vacation myself, but at work I was given a lump sum of 5000, although I think it depends on the manager.

Dionea, unpaid leave is good because the employee can solve his problems during his absence, but the employer must pay for the employee who works for the absent employee, otherwise a conflict will arise.

As part of the social protection of an employee, he may be granted leave without pay. The possibility of granting such leave to an employee is provided for in Art. 128 of the Labor Code of the Russian Federation.

The duration is determined by agreement between the employee and the employer. The reasons for providing it may vary. In most cases, providing such leave is a right, but not an obligation, of the employer.

So, according to part 1 of Art. 128 of the Labor Code of the Russian Federation for family reasons and other valid reasons, an employee, upon his written application, may be granted leave without pay, the duration of which is determined by agreement between the employee and the employer. But in some cases, providing leave without pay on the basis of a written application of the employee, it is imposed on the obligation of the employer.

Here is a list of "respectful" cases, the duration of such leave and the grounds for granting it:

Vacation type	Duration holidays	Article Labor Code of the Russian Federation
Participants of the Great Patriotic War	Up to 35 calendar days a year	part 2 Art. 128
Working old-age pensioners (according to age)	Up to 14 calendar days a year
Parents and wives (husbands) of military personnel, killed or died as a result of injury, concussions or injuries received during performance of military duties, or due to 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 the event of the birth of a child, registration of marriage, death of loved ones relatives	up to five calendar days
In cases stipulated by the collective treaty	Negotiated in collective treaty
In cases stipulated by federal laws	Negotiated in relevant federal law
testing in educational institutions higher professional education	15 calendar days	part 2 Art. 173
Employees - students of preparatory departments of educational institutions higher professional education for passing final exams	15 calendar days
state accreditation educational institutions of higher work:
	15 calendar days in school year
state exams	four months
for the delivery of the final state exams	one month
Employees admitted to the introductory tests in having state accreditation of educational institutions secondary vocational education	10 calendar days	part 2 Art. 174
Employees studying in state accreditation secondary educational institutions full-time vocational education form of education that combines study with work:
to pass the intermediate certification	10 calendar days in school year
for the preparation and protection of graduation qualifying work and passing the final state exams	two months
for final exams	one month
Leave to care for a child up to 3 years age (up to 1.5 years partially paid state)		part 1 Art. 256
Maternity leave (paid by the FSS of the Russian Federation)		Art. 255
Vacation to a part-time worker (if on the main work duration of the annual more paid vacation than part-time work, then on his leave may be granted upon request. without pay)		part 2 Art. 286
Employees working in the regions of the Extreme North and equivalent areas	Time needed for travel to place use annual leave and back	Art. 322

Note! The legislation does not contain an unambiguous definition of the concept of close relatives. In the Labor Code of the Russian Federation, this concept is not deciphered.

The Family Code of the Russian Federation (Article 14) refers to close relatives of relatives in a direct ascending and descending line (parents and children, grandfathers, grandmothers and grandchildren), full and half-blooded (having a common father or mother) brothers and sisters; Code of Criminal Procedure of the Russian Federation (clause 4, article 5) - spouses, parents, children, adoptive parents, adopted children, siblings, grandfathers, grandmothers, grandchildren; Tax Code of the Russian Federation (clause 18.1, article 217) - spouses, parents and children, including adoptive parents and adopted children, grandfathers, grandmothers and grandchildren, full and half-blooded (having a common father or mother) brothers and sisters; Code of Civil Procedure of the Russian Federation (clause 2, article 281) - parents, children, brothers, sisters.

Thus, it is up to the employer to decide who to classify as close relatives, in the event of whose death the employer is obliged to provide the employee with unpaid leave.

The list given in the table is not exhaustive, since the right to such leave is also provided for by various federal laws. So, for example, all categories of veterans (disabled war veterans, combat veterans, etc.) in accordance with Federal Law No. 5-FZ of January 12, 1995 “On Veterans” are entitled to unpaid leave, the duration of which depends on the category of veteran. The employer's obligation to provide leave without pay is also provided for by a number of federal laws.

In some cases, unpaid leave may be provided for in a collective agreement. The list of such holidays is given in Art. 263 of the Labor Code of the Russian Federation. Moreover, their duration should not exceed 14 calendar days. Vacations include:

- employees with two or more children under the age of 14;

- employees 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.

If the employer refuses to provide the employee with leave without pay, and the employee does not go to work, then in accordance with paragraphs. "a" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation, he can be fired for absenteeism. However, such dismissal, most likely, will not be canceled only if there are no good reasons for granting such leave. After all, the courts are obliged to take into account “that the use of rest days by an employee is not absenteeism if the employer, in violation of the obligation stipulated by law, refused to provide them and the time the employee used such days did not depend on the discretion of the employer” (paragraph 39 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17 .2004 N 2).

It should be recalled that unpaid leave granted by agreement between the employee and the employer without good reason is included in the length of service giving the right to grant annual leave, only in a total amount not exceeding 14 calendar days during the working year (Art. 121 of the Labor Code of the Russian Federation).

If during the working year the employee was granted unpaid leave of 14 days or more, then the boundaries of the employee's working year must be transferred to the number of calendar days that is not included in the length of service for calculating the leave.

Attention! Unpaid leave of no more than 14 days does not shift the boundaries of the working year. But if several such holidays were provided during the working year, then their total duration should be determined. If it exceeds 14 days, the work year boundary will be shifted by the number of days that exceeds 14.

Example 1 During the working year - from December 18, 2009 to December 17, 2010 - the employee was granted unpaid leave of 7 and 10 calendar days. The total duration of these holidays is 17 calendar days. Accordingly, the end of this working year will shift by 3 calendar days (17 - 14). Therefore, the employee's next working year will begin on December 21, 2010 and end on December 20, 2011.

Example 2 During the working year - from December 18, 2009 to December 17, 2010 - the employee was granted unpaid leave of 7, 3 and 4 calendar days. The total duration of these holidays is 14 calendar days. It does not exceed the established duration, respectively, the time of these holidays is included in the length of service, giving the right to annual paid leave.

Note! Unpaid leave provided in accordance with the law (see the table below) is not included in the length of service giving the right to leave.

As noted, the employer does not have the right to send an employee on leave without pay. According to Art. 128 of the Labor Code of the Russian Federation, such leave can only be granted on the basis of a written application from the employee indicating personal reasons and circumstances.

In the Explanation of the Ministry of Labor of Russia dated 06/27/1996 N 6 "On leave without pay at the initiative of the employer", approved by the Decree of the Ministry of Labor of Russia dated 06/27/1996 N 40, it is indicated that "leave without pay may be granted only at the request of employees for family circumstances and other valid reasons. “Forced” leave without pay at the initiative of the employer is not provided for by labor legislation.

According to Art. 72.2 of the Labor Code of the Russian Federation, a temporary suspension of work for reasons of an economic, technological, technical or organizational nature is a downtime. Article 157 of the Labor Code of the Russian Federation provides for payment of downtime due to the fault of the employer in the amount of at least two-thirds of the average salary of an employee. And downtime for reasons beyond the control of the employer and employee is paid in the amount of at least two-thirds of the tariff rate, salary (official salary), calculated in proportion to the downtime.

If the employer sends the employee on his own initiative instead of registering idle time on vacation without pay, then this qualifies as a violation of labor laws. Penalties are provided for such a violation (Article 5.27 of the Code of Administrative Offenses of the Russian Federation):

- an administrative fine on officials in the amount of 1,000 to 5,000 rubles;

- for persons engaged in entrepreneurial activities without forming a legal entity - from 1000 to 5000 rubles. or administrative suspension of activities for up to 90 days;

- for legal entities - from 30 thousand to 50 thousand rubles. or administrative suspension of activities for up to 90 days.

Violation of the legislation on labor and labor protection by an official who has previously been subjected to administrative punishment for a similar administrative offense shall entail disqualification for a period of one to three years.

To receive leave without pay, the employee must write an application to the employer indicating the reason and period for granting the leave.

In the application, in addition to the mandatory details of any document, the following must be indicated:

- date of commencement and duration of unpaid leave,

- the circumstances and reasons for such leave. If supporting documents are available, they should be attached to the application.

With a positive decision, the management issues an order to grant leave without pay in the form N T-6, which must also indicate the period and reasons for granting leave.

We remind you that a note-calculation for granting leave to an employee in this case is not issued. Information on the provision of such leave is entered in sect. VIII Personal card of an employee form N T-2. In the time sheet (form N T-12 or N T-13), a mark is made:

- "OZ" or code 17, if the leave is granted under the conditions provided for by the current legislation of the Russian Federation;

- “TO” or code 16 if the leave is granted with the permission of the employer.

Life dictates different circumstances, not always combined with the work schedule and schedule. If a person needs to be present for some time not at work, but in another place, the employer can help him by providing leave without pay, if this does not contradict the interests of the case. And sometimes the employer is simply obliged to let his ward go for a few days.

In the legislation, provisions on unpaid leave are found only in Art. 128 of the Labor Code of the Russian Federation, therefore, managers and lawyers have to deal with the subtleties, nuances and related documentation, regulating them by local acts.

Leave without pay (SFP) - "what do they eat it with"?

Concepts synonymous with this are “unpaid leave”, “at own expense” and “administrative leave”. All these terms denote the free days allowed to the employee at his request, for which payment is not charged. These days are not related to the main annual leave, additional paid, weekends and holidays.

REFERENCE! All types of vacation are prescribed separately in the Labor Code, which means that they do not affect each other. Even if the employee has already gone on annual and additional leave due to him, no one has the right to prevent him from asking for days at his own expense and obtaining permission if there is the will of the employer or the prescribed legislative norm.

Benefits of administrative leave related to employment:

• preservation of the employee's workplace (you cannot be dismissed from such a vacation, with the exception of the liquidation of the enterprise);
• exclusion of the period of administrative leave from the calculation of the average monthly salary (the amount does not decrease due to an additional non-working period);
• the vacationer remains entitled to tax benefits for these periods;
• leave without FFP does not affect the calculation of financial assistance for the birth of a child.

Cons of this vacation:

• the absence of any payment for these days;
• illness during this vacation does not give the right to pay sick leave;
• being out of work does not go into retirement experience, because contributions to the Pension Fund do not go during the period of absence of wages;
• such leave shall not be counted as a probationary period if taken during its passage.

NOTE! If an employee was released at his own expense for a total of more than 2 weeks per year, then his “working” year will shift by the number of days exceeding 14, that is, these days will not be included in the length of service (Article 121 of the Labor Code of the Russian Federation).

Is the employer obliged or entitled?

The manager has the right to decide whether the employee's vacation will affect the work of the enterprise and whether he can allow it. But there are a number of reasons enshrined in the Labor Code when the opinion of the employer on this matter is not taken into account.

Leave cannot be denied

The law regulates situations when refusal to leave without pay for up to 5 days is unlawful:

• the appearance of a newborn in the family;
• the wedding of the employee himself;
• death of loved ones.

ATTENTION! On the last point: the law does not define the circle of close people whose death may become a mandatory reason for a vacation without SFP. Their list can be fixed in additional documents or in each case remain at the discretion of the employer.

Events that may lead to mandatory administrative leave are not connected in any way: an employee has the right to leave work for 5 calendar days each time, even if these events happened one after another, and even more than once. The employer cannot refuse him.

Who else will be released?

In addition to the unconditional reasons for vacation, there are socially protected categories of workers who cannot be said "no" in response to a request for "unpaid" vacation. These include:

• employees who have reached retirement age (may take additional days off up to 2 weeks during the year);
• parents and widows-widowers of military personnel (up to 14 days);
• military spouses (have the right to extend their regular leave until the end of the spouse's leave);
• disabled (up to 2 months);
• students on the job (for entrance exams, intermediate certification of full-time students, defense of diplomas).

The employer will release at any time and for any reason (for a period of up to 14 calendar days) if he is asked by those mentioned in the collective agreement:

• father-mother of two or more children, if the children are under 14;
• caring for a disabled person under the age of 18;
• single mother;
• father or other person in whose care a child without a mother (up to 14 years of age).

Might as well not let go

All other reasons for leave without FFP are evaluated by the authorities for their respectfulness. Theoretically, an employee can ask to be released for any reason and for any period, but it is up to the manager to decide whether to meet him halfway.

INFORMATION! In a collective agreement, local acts, agreements, reasons can be given that in a given organization will give the right to temporary freedom.

If the manager did not find it possible to agree to the request of the employee, then unauthorized going on administrative leave is regarded as absenteeism, and the culprit may well receive a reprimand upon his return and even be fired.

NOTE! Not necessarily, but the boss has the right to demand from the employee a document certifying the reason given in the application. If the requirement was voiced, and the document was not provided after leaving the vacation, then the time the employee was absent from work may be considered absenteeism.

Voluntarily and nothing else

To force an employee to go on unpaid leave in order to save on the due payments for downtime, the employer has no right. If the labor inspectorate establishes this fact (for example, upon a complaint from an employee), a fine for a company can amount to 30-50 thousand rubles, and for a manager - 1000-5000 rubles.

We follow the procedure

Registration of holidays without SFP is in many ways similar to the protocol for ordinary holidays, but has a number of nuances.

1. Unpaid vacation days are not included in the schedule and are not reflected in it.
2. An employee cannot be recalled from this type of leave.
3. Exit from the administrative leave before the stated deadline is discussed with the employer on an individual basis.

What about replacement?

There are cases when an employee asks for a long unpaid leave, the employer agrees and invites a temporary worker to his position under a fixed-term contract. If the vacationer wants to return to the service earlier than the scheduled time, what should be done with the "conscript"?

It is necessary to study the employment contract concluded with the latter. If it indicates a specific event as termination, namely the exit of the main employee, then the conscript will be fired. If a certain date is indicated in the contract, then the hasty vacationer will have to wait.

The procedure for applying for a vacation without SFP

1. An employee's application for a vacation at his own expense (must contain the start date, duration and reason or preferential basis).
2. Resolution of the authorities (if the reason is not unconditional, and the author of the application does not belong to preferential categories).
3. Issuance and signing of an order to grant this leave (form No. T-6).
4. The signature of the employee is that he is familiar with this order.
5. Reflection of information in a personal card.

Vacation timesheet without SFP

In the time sheet, unemployed employees free days are coded by a combination of letters or numbers with a code (one option is selected). The table shows the generally accepted codes for types of holidays without FFP.

Sample application letter for unpaid leave

FILES

General Director of Vilena LLC
Vikulova E.P. accountant Nikolaev M.S.

STATEMENT

I ask you to grant me leave without pay for 10 calendar days from 09/12/2015 to 09/22/2015 in connection with my own marriage.

08/18/2015. Nikolaev M.S. (signature)

Chief Accountant
Vilena LLC No objection (signature) Petrenko N.L.
CEO
LLC "Vilena" No objection (signature) Vikulova E.P.

NOTE! According to this application, 5 days of unpaid leave will be granted to the employee unconditionally, and another 5 days, which he asks for, at the discretion of the employer (there are no objections in the above example).

O.V. Negrebetskaya

We can say with confidence that there is not a single organization in which employees would not take vacations at their own expense. The article will discuss who is entitled to unpaid leave, what guarantees are provided for employees on such leave, as well as some of the nuances associated with its provision.

Unpaid leave is a special form of social guarantees for employees. The procedure for its provision is regulated by Article 128 of the Labor Code.

PROVISION FEATURES

Unpaid leave, unlike annual paid leave, is granted:

At the request of the employee and at the discretion of the employer;

Without taking into account the length of service of the employee;

Regardless of other holidays.

Unpaid leave can be granted for various reasons. Some of them are provided for by the Labor Code or federal laws, others may be established by a collective agreement.

To whom and when is the employer obliged to provide vacationat your own expense

Consider some of the grounds for granting unpaid leave.

Unpaid leave guaranteed by law. The list of persons who are entitled to such leave and the duration of the leave are given in the table on p. 112. If an employee plans to take a vacation for a longer or shorter period than guaranteed by labor legislation, he must agree this with the employer.

	Normative act	Vacation duration during the calendar year (calendar days/month)
Participants of the Great Patriotic War	Part 2 of Article 128 of the Labor Code of the Russian Federation	Up to 35 days
Working old-age pensioners (by age)	Part 2 of Article 128 of the Labor Code of the Russian Federation	Up to 14 days
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	Part 2 of Article 128 of the Labor Code of the Russian Federation	Up to 14 days
Working disabled people	Part 2 of Article 128 of the Labor Code of the Russian Federation	Up to 60 days
Employees in cases of the birth of a child, marriage registration, death of close relatives	Part 2 of Article 128 of the Labor Code of the Russian Federation
Employees combining work with studies in higher education institutions and employees entering universities	Part 2 of Article 173 of the Labor Code of the Russian Federation
Employees combining work with studies in secondary educational institutions, and employees entering secondary vocational education institutions:	Part 2 of Article 174 of the Labor Code of the Russian Federation
To pass the intermediate certification;
To prepare and defend the final qualifying work and pass the final state exams;
For final exams
Part-time workers, if at a part-time job the duration of the employee's annual paid leave is less than the duration of the leave at the main place of work *	Part 2 of Article 286 of the Labor Code of the Russian Federation	For the entire period, which is the difference between the duration of holidays
Employees - Heroes of the Soviet Union, Heroes of the Russian Federation, Heroes of Socialist Labor, full cavaliers of the Order of Glory	Clause 3 of Article 8 of the Law of the Russian Federation dated 15.01.93 No. 4301-1 "On the Status of Heroes of the Soviet Union, Heroes of the Russian Federation and full holders of the Order of Glory", clause 2 of Article 6 of the Federal Law of 09.01.97 No. 5-FZ "On the provision of social guarantees to the Heroes of Socialist Labor and full holders of the Order of Labor Glory"	Up to 3 weeks
Veterans of military operations, persons awarded orders and medals for participation in the Second World War; military personnel who served for at least six months in military units, institutions, military educational institutions that were not part of the active army during the Second World War; persons awarded with the badge "Inhabitant of besieged Leningrad"; persons who worked during the Second World War at military facilities in the rear of the active fronts	Subparagraph 11 of paragraph 1 of Article 16, paragraph 9 of Article 17, subparagraph 9 of paragraph 1 of Article 18, subparagraph 10 of paragraph 1 of Article 19 of Federal Law No. 5-FZ dated January 12, 1995 “On Veterans”	Up to 35 days
military spouses	Paragraph 11 of Article 11 of the Federal Law of May 27, 1998 No. 76-FZ “On the Status of Military Personnel”	Part of the leave exceeding the duration of the annual leave of a military man at his main place of work
	Clause 4 of Article 22 of Federal Law No. 51-FZ of May 18, 2005 “On Elections of Deputies of the State Duma of the Federal Assembly of the Russian Federation”	From the date of registration of the federal list of candidates by the CEC of the Russian Federation until the day of the official publication of the results of the elections of deputies of the State Duma
Members of the election commission with the right of an advisory vote	Paragraph 3 of Article 16 of the Federal Law of January 10, 2003 No. 19-FZ "On the Election of the President of the Russian Federation"	From the date of registration of a candidate by the CEC of the Russian Federation until the day of the official publication of the results of the presidential elections in the Russian Federation
civil servants	Clause 15 of Article 46 of the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation”

* An employee can take unpaid leave for the entire period, which is the difference between the duration of the holidays, or for a shorter period. Leave of longer duration in this case can be granted only by agreement with the employer.

Unpaid holidays guaranteed by the collective agreement. The grounds for the mandatory provision of unpaid leave may be established by a collective agreement. For example, according to the norms of the collective agreement, the employer will provide leave without pay:

In case of marriage of employees' children for up to five calendar days;

An employee - one of the parents of primary school students (guardian, guardian, foster parent) on September 1 (on the first day of the school year);

In other cases stipulated in the collective agreement and agreement.

Additional annual leave without pay. Such leave for up to two weeks is granted to an employee who has two or more children under the age of 14 or a disabled child under the age of 18, a single mother or father raising a child under the age of 14 (Article 263 of the Labor Code of the Russian Federation). But the employer can provide such leave only if it is provided for by the collective agreement.

If such leave is granted on grounds that are confirmed by an official document, then such a document should be attached to the application.

An employee can take additional leave at a convenient time for him. If an employee wants to add it to annual paid leave or divide it into parts, he must write an appropriate application. Please note that it is impossible to transfer additional leave to the next year (Article 263 of the Labor Code of the Russian Federation).

The employer refused to provide leave at his own expense

The employer has the right to refuse if the employee wants to take a vacation at his own expense for reasons not provided for by laws and the collective agreement (for example, part 2 of article 128 of the Labor Code, which lists the grounds and family circumstances that give the right to unpaid leave). The employer may grant such leave at its discretion. Of course, he will decide this issue taking into account all the circumstances in each specific case.

HOW TO BOOK A VACATION

In order to take unpaid leave, the employee must write an application in any form addressed to the head of the organization. It must indicate the type of leave (without pay or additional), the reasons for the leave and its duration. If there are any documents confirming the reason for the leave, they must be attached to the application. A sample application for additional leave without pay is given below.

Until the moment the head of the organization makes a positive decision to grant the employee leave, the latter cannot take it (unless he is one of the persons to whom the employer is obliged to provide such leave).

Sample application for additional leave without pay

Based on the application, the employer issues an order (instruction) on granting leave to the employee in the form No. T-6, approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1. The employee must be familiarized with the order on leave against receipt. On its basis, the HR specialist must make an appropriate note in section VIII of the employee's personal card (form No. T-2, approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1).

A sample order for granting leave to an employee is given on p. 118.

IS IT POSSIBLE TO RECALL AN EMPLOYEE FROM UNPAID HOLIDAY

The law does not provide an answer to this question. The rules for recall from leave are established in Article 125 of the Labor Code and apply only to annual paid leave. Nevertheless, in many organizations this procedure is also applied to recall from vacation at their own expense. The main thing is to get the consent of the employee.

A recall from unpaid leave, as a rule, is issued by an order drawn up on the basis of a unified form No. T-6. A sample order is shown on p. 119.

PAYMENT FOR UNPAID VACATION

Work Year Offset

During leave without pay, the employer does not have the right to dismiss the employee on his own initiative. This is stated in part 6 of article 81 of the Labor Code. During unpaid leave, the employee retains the place of work (position).

Forced leave at own expense

Labor legislation prohibits the employer from providing unpaid leave on its own initiative. If employees cannot perform their labor duties through no fault of their own, the employer is obliged to pay for downtime in the amount of at least two-thirds of the employee's average salary (part 1 of article 157 of the Labor Code of the Russian Federation). This is stated in the resolution of the Ministry of Labor of Russia dated June 27, 1996 No. 40.

Sample order for recall from unpaid leave

The time of such leave is counted in the total and continuous work experience of the employee. But if during the year the employee was on unpaid leave for more than 14 calendar days, then this period is excluded from the length of service giving the right to annual paid holidays (part 2 of article 121 of the Labor Code of the Russian Federation). This means that the end date of the working year for which the employee is granted annual paid leave will be moved back by the corresponding number of days of unpaid leave. Therefore, it is recommended to inform the employee about this circumstance in advance.

EXAMPLE 1. V.I. Kirpichev joined Silikat LLC on February 1, 2006. During 2007, he was twice on unpaid leave, the total duration of which was 19 calendar days. At what point will he have the right to annual paid leave for the second working year?

DECISION. If V.I. Kirpichev did not take vacations at his own expense, then he would have received such a right from February 1, 2008. But since the duration of unpaid leave during the first working year exceeded 14 calendar days, the end date of the working year has changed. The employee will receive the right to annual paid leave for the second working year on February 20, 2008.

Vacation at own expense and average earnings

When calculating the average earnings, the calculation period excludes the time during which the employee was released from work with full or partial pay or without pay in accordance with the legislation of the Russian Federation (subparagraph “e”, paragraph 5 of the Procedure for calculating the average salary, approved by the Government Decree RF dated December 24, 2007 No. 922). Therefore, if an employee is granted leave without pay, it is completely excluded from the billing period, regardless of its duration.

Social benefits for the period of unpaid leave

If an employee falls ill while on unpaid leave. The conditions and procedure for paying benefits for temporary disability are established by the Federal Law of December 29, 2006 No. 255-FZ "On the provision of benefits for temporary disability, pregnancy and childbirth of citizens subject to compulsory social insurance" (hereinafter - Law No. 255-FZ). According to subparagraph 1 of paragraph 1 of Article 9 of Law No. 255-FZ, temporary disability benefits for the period of release of the employee from work without pay are not assigned.

If the employee fell ill during unpaid leave and recovered only after it ended, the sick leave is issued and paid starting from the first calendar day following the end of the leave. This is stated in paragraph 23 of the Procedure approved by the order of the Ministry of Health and Social Development of Russia dated August 1, 2007 No. 514.

If a child is sick. During the time when the employee did not actually work, including being on leave without pay, the child care allowance is not paid (subparagraph 1, paragraph 1, article 9 of Law No. 255-FZ).

The employee went on maternity leave while on vacation at her own expense. Here the situation is different. If the employment relationship between the organization and the employee was maintained during the entire period of unpaid leave, the employer is obliged to pay maternity benefits to her, since the employee belongs to the insured persons.

Standard tax deduction for the period of unpaid leave

The standard tax deductions established in Article 218 of the Tax Code are provided for each month of the tax period, which is recognized as a calendar year (Article 216 of the Tax Code of the Russian Federation). As you can see, the receipt of such a deduction for each month is not associated with the receipt of a monthly income by the employee. Therefore, for those months when the employee had no income (for example, was on unpaid leave to care for a child up to one and a half years), when calculating personal income tax from wages, he is entitled to standard tax deductions in the amount of:

400 rub. The deduction is granted until the month in which the employee's income reaches 20,000 rubles. (signature 3, clause 1, article 218 of the Tax Code of the Russian Federation);

600 rub. for every child. The deduction is granted until the month in which the employee's income reaches 40,000 rubles. (signature 4, clause 1, article 218 of the Tax Code of the Russian Federation).

The Ministry of Finance of Russia recalled this in a letter dated May 6, 2008 No. 03-04-06-01/118.

EXAMPLE 2. An employee of Lesnye Dali LLC A.K. Kukushkina was on unpaid leave in February 2008. The salary of an employee is 6000 rubles. per month. In January 2008, she was granted a standard tax deduction of 400 rubles. How much should an employee receive the standard tax deduction in March 2008?

DECISION. When calculating personal income tax from wages in March, A.K. Kukushkina is entitled to a standard tax deduction of 800 rubles. (400 rubles for February and 400 rubles for March), since her income for January - March 2008 did not exceed 20,000 rubles.

Vacation at own expense and pension

Pension contributions. The object of taxation of mandatory pension insurance contributions is the object of taxation under the UST (Article 10 of the Federal Law of December 15, 2001 No. 167-FZ “On Compulsory Pension Insurance in the Russian Federation”), that is, payments and other remuneration accrued by the employer in favor of individuals under labor and civil law contracts, the subject of which is the performance of work, the provision of services (clause 1, article 236 of the Tax Code of the Russian Federation). During the period of unpaid leave, no payments are accrued. There is no basis for calculating pension contributions.

Retirement experience. According to paragraph 1 of Article 10 of the Federal Law of December 17, 2001 No. 173-FZ “On labor pensions in the Russian Federation”, the periods of work for which insurance premiums were paid to the Pension Fund are included in the insurance period for assigning a pension.

If an employee is on unpaid leave, he does not work, does not receive a salary, and the organization does not pay insurance pension contributions for him. Thus, the period of unpaid leave cannot be included in the insurance pension record.

Reporting to the FIU. If an employee had periods during the calendar year when insurance premiums for the OPS were not paid for him, this fact must be reflected in the individual information about the insured persons.

The total duration of leave without pay (and other similar periods for which the employee was not paid) is indicated in the column "Leave without pay" of forms SZV-4-1 and SZV-4-2. The duration of such a period is defined in months and days (for example, 1 MONTH 3 DAYS). This is stated in paragraph 43 of the Instructions for filling out the forms of documents for individual (personalized) accounting, approved by the resolution of the PFR board dated July 31, 2006 No. 192p.