Is it possible to take the rest period due to an employee by law ahead of time? It turns out, yes. Those days when an employee goes on vacation, but does not have a full right to it in the form of hours worked, are called vacation in advance. It is natural that all days taken in advance must be worked out.
Is it possible to provide such a vacation in advance for the next year, in a situation with dismissal immediately after the rest? Yes, it is possible, but in this case with the worker. This rule regulates.
Can I take it for next year?
Every employee has such a right (). can be either 28 calendar days or 14, but not less than this.
Important! Vacation in advance is provided at the personal discretion of the management of the organization with prior agreement.
The company's management has no right to refuse the following persons:
- Pregnant women.
- For adoptive parents of children under three months of age.
What to put in a special schedule?
If the worker has already taken his days off in advance in the current year, then this is recorded in a special one for the next year.
Example:
In LLC "Romashka" the schedule for 2018 is drawn up, and the employee Petrov I.I has already walked 28 days, due to him by law, and 14 days in advance.
In an already existing document (chart for 2017), the record will not be reflected in any way. But when forming the schedule for 2018, it will definitely be fixed. At the same time, in column 10, a note is made that the employee took vacation 14 days in advance in 2017. Accordingly, in 2018, Petrov will only be able to rest for 14 days.
Below you will see in the photo a sample vacation schedule with an example of an advance vacation:
Paperwork
To competently require the following documents.
Statement written on behalf of an employee
The application can be made both in free form and on the company letterhead... There is no established form at the legislative level.
To be timely, the document must be drawn up in advance, namely three days before the start of the rest.
Document writing rules are standard... These include:
- Filling in the header of the document in the upper right corner. The surname, first name and patronymic, as well as the position of the authorized person to whom the request is addressed, are indicated here.
- Then the personal information of the worker is recorded, namely the full name and position of the employee.
- In the middle, the name of the document is entered - a statement.
- The line below sets out the request for a vacation in advance, indicating the name, reason and start date.
- If an article of the Labor Code of the Russian Federation is spelled out, on the basis of which the provision of vacation is mandatory, then this is welcome.
- Finally, the initiator signs and dates.
Order
Attention! The order can be issued on the company's letterhead, and it is also allowed to use the unified form T-6.
The order must contain the following information:
- name of the document (order);
- the name of the company with a legal form (LLC, individual entrepreneur, etc.);
- personal personal data of the employee (full name, personnel number, department, position);
- date of document formation;
- a note that the vacation is provided in advance;
- the number of days and the date of the start and end of the vacation;
- visas of responsible persons with transcripts;
- employee's signature after reading the transcript.
Calculation of vacation pay
The vacation allowance is calculated according to a standard formula. The most interesting point in this situation is the issue of calculating unworked days.
Detailed example:
IV Goncharova got a job at LLC "Romashka" as a specialist in the sales department, and after 6 months and 7 days she decided to quit. At the same time, Goncharova used all the rest days in full - 28 days. In order to start the calculation, you should round up and discard seven days. It turns out that after working for six months, Goncharova had the right to annual leave.
How many days did she work? For this, the following formula is used: 2, 33xZ, where Z is the number of full months worked. Thus, it turns out 13.98. It is customary to round off in favor of the employee.
Hence the conclusion: Goncharova was only entitled to 14 days of rest. Consequently, from her severance pay upon dismissal, the accounting staff will withhold the amount for 14 days, which were used in advance. When withholding, you need to proceed from the rule: the amount should not exceed 20% of each salary.
Employee refusal
Important! The employer has every right to refuse to grant leave in advance.
According to the law, the opinion of the employer is of particular importance. This also applies to the privileged categories of citizens mentioned above. Nobody will punish an employer for refusal. This is not provided for by the Labor Code of the Russian Federation.
but citizens in the privileged category have the right to insist on vacation... With a written claim, they have the right to apply to the labor inspectorate, which, in turn, can satisfy the applicant's request and issue a corresponding order to the company.
If a woman in a position asks for leave, she must indicate in the application references to laws, and, as a basis, provide a written opinion from a medical institution. In addition to the application, other papers are attached - certificates, etc. Therefore, it is better to establish relations with the employer immediately upon applying for a job. In order not to go to third-party organizations for help in the future.
What if the rest days are off in advance and the employee quits?
Even lawyers have no unequivocal opinion on this matter. The most important thing is that for days not worked, the employer withholds the required amount from the severance pay... This rule regulates. However, this procedure must be carried out on the basis of the order of the management of the enterprise.
In no case can you keep funds in the following situations:
- If the employee was fired at the initiative of the company's management.
- There was a dismissal by agreement of the parties.
- The worker was declared incapable of work after a medical examination.
- The term of the employment contract has expired.
- The workers were called to serve in the army.
There is such a situation: an employee took a vacation in advance, and when calculating severance pay, it turned out that there was nothing to withhold funds from. Or, on the contrary, the amount exceeds 20% of the share of earnings, and the employee does not want to reimburse it. In this case, the parties must mutually agree. If it was not possible to find a compromise with the employee, then the employer is left with one thing: to forget about it.
Summing up, it is worth noting that the vacation in advance is the days of rest, which the employee takes ahead of the time due to him by law. That is, the employee goes on vacation before he has this right. Anyone can take a vacation in advance, but the last word always remains with the employer.... Therefore, only the management decides whether to provide the vacation in advance or not.
A special schedule necessarily fixes the vacation provided in advance. Registration takes place according to the standard scheme: a statement is written and an order is issued. The vacation allowance is also calculated according to the standard formula.
Question:
The employee's working year starts from January 14 to January 14. The employee has already taken full leave for the period from January 14, 2015 to January 14, 2016. Can an employee take a vacation for next year if the new working year from January 14, 2016 to January 14, 2017 has not yet begun. Judging by article 122, there are no prohibitions on the provision of vacation in advance. Or can it take several calendar days on account of future vacation.
Answer:
The Labor Code of the Russian Federation does not contain provisions prohibiting the provision of paid leave in advance. Labor law experts hold the view that it is an employer's right, not an obligation, to provide an employee with paid leave in advance. The answer below will contain excerpts from expert consultations on this issue (see the annex to the answer for consultations).
According to Article 122 of the Labor Code of the Russian Federation, paid leave should be provided to the employee annually.
Art. 122, "Labor Code of the Russian Federation" dated 30.12.2001 N 197-FZ (as amended on 13.07.2015) (ConsultantPlus)
As can be seen from this provision, the legislator does not make it dependent on the completion of a full working year in order to get paid leave. In other words, the possibility of granting two leaves for different working years in one calendar year is not excluded.
However, leave should not begin earlier than the working year for which it is granted. Based on this, it can be concluded that if the employee has the right to use the annual paid leave for the next working year, there are no grounds for refusing to grant leave. And if such a right has not come, then we believe that there is no obligation for the employer to provide leave for the next working year, the right to which has not come yet.
(Question: The employee's wife is on maternity leave. In this regard, he wrote an application asking for annual paid leave. Can the employer refuse to grant such leave if in 2014 the employee has already used his leave? ( Expert consultation, 2014) (ConsultantPlus))
Since the employee has already taken paid annual leave in the current working year in January, she has lost the right to use the annual paid leave before pregnancy and childbirth. The employer has no obligation to provide leave in advance, but he has the right to provide such leave.
(Question: ... The employee has been hired since 01.07.2013. She used up her next vacation in full in January 2014. Is it possible, on the basis of a pregnancy certificate, to grant her leave for a future period before maternity leave in August 2014? (Expert consultation, 2014) (ConsultantPlus))
Leave for the second and subsequent years of work can be granted at any time of the working year in accordance with the order of granting annual paid leave established by the employer.
From these provisions of the Labor Code of the Russian Federation, it can be concluded that the employee's right to use leave before the beginning of the working year for which he is granted is not provided.
Thus, if an employee in the situation under consideration asks for leave for the next working year (when the current working year has not ended), then, in our opinion, this request should be refused.
{Question: An employee who used the main annual paid leave for the current working year applied to the employer with a demand to grant her maternity leave, and in front of him - an annual paid leave for the next year. Is the employer obligated to fulfill this requirement? (Expert consultation, 2015) (ConsultantPlus))
The explanation was given within the framework of the services of "LINE OF CONSULTATIONS" by the legal consultant of LLC NTVP "Kedr-Consultant" Igor Makshakov, August 2015
When preparing the answer, the SPS ConsultantPlus was used.
This clarification is not official and does not entail legal consequences, provided in accordance with the Regulation of the LINE OF CONSULTATIONS (www.site).
An employee has the right to work with one employer after six months (Article 122 of the Labor Code of the Russian Federation). But due to various circumstances, he may need rest days earlier. Is it possible to take a vacation in advance for a period that has not yet been worked out? We will answer this question in our article.
Provision of vacation in advance
Every employee can count on 28 days of paid leave every year. In the first year of work, if the employer does not object, the employee can go on vacation after having worked for less than 6 months. The vacation will be "advance" and in the case when after six months of work, the vacation is provided for more than 14 days.
After the first year, the employee will go on vacation according to the schedule approved by the organization. The employer can meet halfway and provide him with a vacation in advance for the next year, but it must be borne in mind that an employee has not worked a single day to receive such a vacation.
When it is impossible to refuse to grant a vacation in advance
Granting leave for the period not yet worked is the right of the employer. In some situations, the question “is it possible to give leave in advance?” Does not arise, since the employer is obliged to provide it to certain categories of persons, despite the unworked six-month period. According to the Labor Code of the Russian Federation, such persons include:
- employees under the age of 18,
- employees who have adopted a child under 3 months old,
- employees who wrote a vacation application in advance before or immediately after maternity leave,
- employees wishing to take leave during the maternity leave of their spouse (Article 123 of the Labor Code of the Russian Federation),
- one of the parents raising a disabled child under 18 years of age (Article 262.1 of the Labor Code of the Russian Federation),
- part-time workers whose vacation coincides with vacation at the main place of work (Article 286 of the Labor Code of the Russian Federation).
Vacation provided in advance: possible consequences
The main risk of an employer granting such a vacation is a situation when the employee took the vacation in advance and quit without completing the required period. As a result, the money paid in the form of vacation pay is lost for the enterprise. What to do in this case?
The employer can make a deduction for the vacation used in advance upon dismissal of the employee. The debt for unworked paid vacation days is withheld from the salary of the resigning person (clause 2 of section 1 of the Rules on Vacations, approved by the National Committee of the USSR dated 04/30/1930 No. 169, which are still in force in the part that does not contradict the Labor Code of the Russian Federation). To do this, it is necessary to issue an order to withhold the corresponding amount before the payment to the quitting employee of the calculation.
But this measure is not always applicable.
Firstly, the Labor Code of the Russian Federation limits the amount of deductions from wages - it cannot exceed 20% of its amount (Article 138 of the Labor Code of the Russian Federation). If the amount of "advance" vacation pay is more, you will not be able to withhold it in full. The employee can return this money voluntarily, but only if he himself agrees to this. When the employer goes to court, as a rule, the decision is made in favor of the employee.
Secondly, it is impossible to make deductions for vacation in advance upon dismissal on such grounds as:
- liquidation of an enterprise (clause 1 of article 81 of the Labor Code),
- reduction of the number / staff (clause 2 of article 81 of the Labor Code),
- change of the owner of the property of the enterprise (clause 4 of article 81 of the Labor Code),
- the employee's refusal to transfer to another job that he needs for medical reasons, or in the absence of such work for the employer (clause 8, part 1 of article 77 of the Labor Code),
- conscription of an employee for military or alternative civilian service (clause 1 of article 83 of the Labor Code),
- restoration of an employee who previously worked at this place, by a court decision, or by the State Labor Inspectorate (clause 2 of article 83 of the Labor Code),
- recognition of the employee's inability to work on the basis of a medical certificate (clause 5 of article 83 of the Labor Code),
- an emergency situation in which work is impossible (war, natural disaster, epidemic, etc.) (clause 7, article 83 of the Labor Code).
- death of an employee, or recognition of him as missing (clause 6 of article 83 of the Labor Code).
How to calculate your vacation in advance
"Advance" vacation pay is calculated in the same way as when paying for regular regular vacation - from the actual accrued wages and hours worked (Article 139 of the Labor Code of the Russian Federation):
- the average daily earnings are determined - the amount of salaries for the months worked is divided by the number of months of work, and then divided by 29.3;
- the amount of vacation pay is calculated - the average daily earnings are multiplied by the days of vacation;
- personal income tax is withheld from the received vacation pay.
Example 1
An employee who got a job on 04/01/2017 took leave from 09/01/2017 for 14 calendar days. The amount of salary for 5 months worked is 150,000 rubles.
Average daily earnings = 150,000 rubles. : 5 months : 29.3 = 1023.89 rubles.
Vacation = 1023.89 rubles. x 14 days = 14 334.46 rubles.
Amount on hand = 14,334.46 rubles. - 13% = 12,471.46 rubles.
Example 2
The employee for family reasons was granted 28 days of paid leave on 01.09.2017, relating to the period from 01.11.2017 to 01.10.2018. The amount of vacation pay received is 25,000 rubles. On October 31, 2017, the employee leaves at his own request, while the calculation is in his hands - 28,000 rubles. What will be the amount of deduction from the employee for the vacation in advance upon dismissal?
Since all 28 days of vacation have not been worked out, you need to withhold the entire amount of vacation pay. But upon dismissal of his own free will, the employer can withhold no more than 20% of the calculation amount, so the amount to be withheld will be: 28,000 rubles. x 20% = 5600 rubles.
For each month officially worked, the employee earns 2.33 days of full paid rest. Thus, for a year of work, 28 vacation days are accumulated. These are the minimum indicators that can increase depending on the characteristics of labor activity. You can take advantage of annual paid leave only after six months of continuous work. In labor law, there is the concept of a vacation in advance - this is the right to use the days of rest that the employee will work out in the future.
Legislation on granting leave to an employee in advance
There is no single clarification in the legislation, but in practice it is considered that the rest received in advance is the opportunity to use the paid vacation period before the end of the current calendar year. This practice is allowed by law and is widely used in the organization of the work of enterprises.
The provision of vacations in advance is carried out taking into account the following principles:
- the vacation period is included in the total length of service;
- the duration of the rest is at least 2 weeks.
ATTENTION! The employer may refuse to provide preliminary rest and it will not be possible to challenge such a decision.
Who can not be denied a vacation in advance
V Labor Code a list of persons who are prohibited from denying the right of preliminary leave is indicated. These include:
- minor employees;
- guardians of an infant under the age of 3 months;
- female employees awaiting a sick leave for pregnancy and childbirth;
- parents of two or more children;
- participants of the Second World War;
- part-time workers;
- military personnel and their spouses.
If the management obliges a representative of one of these categories to work out the prescribed period and then submit an application, then such a decision can be challenged by sending a complaint to the CCC ().
ATTENTION! The fact of the preliminary use of the right to rest must be recorded without fail in. For this, a special column is provided at number 10.
What types of vacations cannot be provided in advance
The employer takes into account the risks that the employee may terminate the contract early without completing the allotted time, and also assesses the consequences of the temporary absence of the person for production efficiency.
Only days of annual paid leave can be received in advance. For study leave, at own expense, such an opportunity is not provided. Prohibition approved Labor Code and applies to all categories of workers, regardless of the benefits available. In addition, vacation can not be granted in advance for the next year.
Conditions for granting leave in case of incomplete work period
The exercise of this right is possible only subject to the following conditions:
- only the employee himself can initiate the rest in advance;
- permission of the head;
- extraordinary days are not displayed in the vacation schedule;
- vacation pay is paid in full.
If the management of the company refuses to pay, then the employee has the right to arrange a vacation without pay.
Calculation of vacation pay
The amount of deductions depends on the working time after employment. At the same time, only those months that have already been worked out are taken into account. The calculation algorithm is as follows:
- calculation of the total amount of profit for the past 12 months (if the term of work in this organization is less, then a shorter period is considered);
- the amount received is divided by the number of days worked;
- the result is multiplied by the number of vacation days.
The formula includes days that have not been worked. Receiving payments is available for actually worked hours and for future periods.
Calculation example
Ivanova got a job at the enterprise on February 4. On June 14 of the same year, she turned to the management of the company with an application for a full, paid leave of 28 days. The HR officer performed the following calculations:
- 4 - the number of full months worked.
- 4 * 2.33 (vacation days counted for one month) = 9 (accumulated days).
- 28 - 9 = 19 (days provided in advance).
The director satisfied the application, and the order was passed on to the accountant, who made the following calculations:
- 26,000 + 28,000 + 31,000 + 29,000 = 114,000 (4 months cumulative income).
- 114,000 - 13% = 99,180 (salary after tax).
- 99 180/114 = 870 (the amount of vacation pay for one day).
- 870 * 28 = 24 360 (the full size of the wellness benefits).
Thus, Ivanova received vacation pay in the amount of 24 thousand 360 rubles.
The procedure for granting leave
The procedure is drawn up according to the algorithm:
- receiving an appropriate application from the employee, which confirms his desire to go on premature rest (the company's management cannot force the employee to do this);
- the application must contain a resolution of the director, allowing you to arrange the rest in advance;
- preparation and transfer of the order to the personnel department of the company for implementation;
- calculation of cash payments according to the rules described above.
You must submit an application at least 10 days before the start date of the vacation period.
Sample application
The duty to calculate the vacation falls on the employee of the personnel department. The employee checks the date of employment of the person, as well as information about the use of rest days at the moment. The accounting department, in turn, is authorized to form the amount of vacation pay, taking into account the fact that the amount per day provided in advance will later be withheld from wages.
When submitting an application for registration of a vacation in advance, a working citizen must understand the fact that he will have to voluntarily return to the enterprise part of the cash payments, namely the amount of vacation payments that have not yet been earned in the current year.
ATTENTION! If a citizen refuses to voluntarily compensate for the costs of the company, then the money will be collected compulsorily.
Withholding for unworked months upon dismissal will not be carried out only if the contract is terminated due to
Everyone knows that annual leave is always earned, not just given. All calendar vacations are distributed in time, for each employee and are brought together in one schedule. But there are times when you need to go on vacation ahead of time, then it is not always clear whether the law provides for the opportunity to take a rest for the days not yet worked.
It turns out that Article 122 of the Labor Code (hereinafter referred to as the Labor Code of the Russian Federation) determines the provision on granting leave in advance only after a person has worked at the enterprise for the prescribed period. For correct registration, you need to know whether there are risks for the employee or
How unworked vacation days are calculated
To calculate deductions from an employee, you first need to determine the accounting period - the number of days that were taken by subordinates, but have not yet been worked out.
To do this, they simply take the standard period of time, which falls on annual leave according to the law, and divided by the number of months in a year: 28/12 = 2.33 days.
If an employee, for example, has worked only 10 months, then the calculation will give the following results: 27 days - (2.33 x 10 months) = 3.7 days.
By the days received, you need to multiply the amount of vacation pay (1,550 rubles x 3.7 days = 5,735 rubles), and the employee's future debt (5735 rubles) will be obtained, which he can either work out or pay the employer in money.
Deductions when granting vacation in advance
The right of the employer to withhold from the employee the amount of debt due to the resulting unworked working days due to premature leave on vacation, is given by Article 137 of the Labor Code of the Russian Federation, as well as the Rules on regular or additional vacations, which were approved by the NKT of the USSR No. 169 dated 04/30/30, in force still.
Despite the fact that the amount of debt for the working year turned out to be, the general Rules cannot be deducted from the employee in amounts greater than 20%. This is spelled out in Article 138 of the Labor Code of the Russian Federation. When there is not enough money to fully cover the employee's debt to the enterprise, then an agreement between the employer and the employee may be a possible way out.
Sometimes an employee may agree to perform his job duties for a certain number of days, so that the taken leave is fully worked out. And only after that the employer can give his consent to his dismissal, sign the application. Nevertheless, the employee may refuse, not fulfill the employer's request to work days, then the subordinate must either pay his debts in money, or he will be forced to do so through the courts.
In this case, the judicial institution will sometimes be on the side of the employer, and the retiring employee will have to somehow compensate for the taken leave of absence - work or pay. But sometimes the court can decide the case in favor of the employee.
If it will not be possible to return the debt from the employee at all, then, in order not to suffer damage due to taxes, you can simply wait out the time to write off the debt properly.
You need to write it off as a bad debt, which should be included in non-operating expenses. This is stated in Articles 391 and 392, as well as subparagraph 2 of paragraph 2 of Article 265 of the Tax Code of the Russian Federation. There are cases in which it is impossible to withhold funds in any way. These include layoffs of the following order:
- when the subordinate refused to be transferred to another job for health reasons or for other reasons provided for by law (clause 8 of article 77 or article 73 of the Labor Code of the Russian Federation);
- during the liquidation of the enterprise (clause 1 of article 81 of the Labor Code of the Russian Federation);
- during periods of downsizing (clause 2 of article 81 of the Labor Code of the Russian Federation);
- when the owner of an enterprise or a company changes and people have to be fired (clause 4 of article 81 of the Labor Code of the Russian Federation);
- providing a pregnant woman with rest;
- dismissal in connection with military service (clause 1 of article 83 of the Labor Code of the Russian Federation) and other cases described in articles of labor legislation.
You can take paid leave only after the subordinates have worked for 6 months. Or, by prior agreement with the employer, you can go on annual leave earlier, even if you have not worked half a year yet.
If the employee is going to quit after the vacation, then the amount of vacation pay will be withheld from his severance pay, or earnings. But this is not done in all cases. If the employee does not want to pay, then he must work off the days off and then quit.
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