Few employers agree with the long absence of a specialist. Is it legal to split vacation? What does labor legislation say about this? And how to divide the given period correctly? We will talk about all the nuances further.
Regulatory features of the division of vacation into parts
The duration of regular annual vacations is regulated by the Labor Code of the Russian Federation and in accordance with Art. 115 is 28 calendar days. Decreasing the time off period is illegal; an increase is possible by agreement with the employer. The terms of rest of the personnel are set by the enterprises in the vacation schedule, which is drawn up taking into account the wishes of the employees, the industry specifics of the company.
The initiator of the division of leave into parts can be both the head of the organization and the employee himself. Is it possible to organize a vacation not once, but 2 or 3 times a year? Russian legislation takes into account the needs of legal entities and individuals and provides for the division of leave into parts - in the Labor Code of the Russian Federation, Art. 125.
This section of the Code establishes that an employee can take annual leave in parts, subject to an agreement with the employer and a minimum duration of at least one segment of 14 calendar days. The duration of the remaining period is not limited in any way and is determined by the individual independently. In this case, the agreement with the employer is carried out solely on the employee's good will.
Note! If a person has already taken half of the vacation, splitting it, the second half of 14 days cannot be divided under any circumstances. The employer also has no right to withdraw from such a holiday. This is considered a violation of the requirements of International Convention No. 132 of 6.09.11.
The main conditions for dividing the next vacation:
- At least one part must be at least 14 calendar days in duration.
- The division must be agreed with the employer and the employee.
- The duration of one of the segments is not subject to change in order to comply with the norms for dividing the leave into parts according to the Labor Code of the Russian Federation (Article 125).
It is not allowed to split the following types of leave:
- Training - refers to the target, is provided for a specific period specified in the help call.
- Unpaid - since the salary for the employee for the period of unpaid leave is not saved, the duration of such a period is established by agreement of the parties, which means that it does not imply separation.
- Children's - along with the educational one refers to the target periods of release from work, it is prohibited to make changes in the terms.
How is the division of leave into parts drawn up?
There are 2 ways to arrange vacation division. The procedure applies to both and additional days. It is recommended that all approvals be approved in writing to avoid possible labor disputes with employees.
Holiday split design options:
- Self-preparation of an application- an individual submits a document addressed to the head of the organization indicating the desired time frame. Then the approval takes place and in case of a positive decision, an order is issued in the form of T-6.
- Drawing up an annual vacation schedule- this method provides for preliminary agreement of the rest periods with the staff. The entry of days occurs in parts, in the appropriate column, each employee signs on familiarization with the information.
Algorithm of actions for an accountant:
- Acceptance of an application from an employee - be sure to check the presence of the specialist's full name, start / end dates of vacations in parts, dates of filling out and the presence of a personal signature.
- Approval of the statement by the head.
- Issuance of an order for the release of the T-6 form.
- Filling out a note-calculation in the form of T-60.
- Entering information into a personal card and timesheet.
Note! The specified procedure is given for a situation when the employee independently submits an application for dividing the vacation into parts. If the length of the rest periods is determined by the employer, a vacation schedule is required.
Example
Suppose that an employee of the company is granted a vacation of 14 calendar days from December 4 to December 17, 2016. The period from December 2015 to November 2016 is taken to calculate vacation pay. The salary for the specified time is 25,000 rubles. There were no excluded periods.
Average daily earnings = (25,000 x 12) / 12 / 29.3 = 853.24 rubles.
Holiday pay = 853.24 x 14 days = 11,945 rubles.
The amount to be issued "on hand" = 11 945 - 13% of personal income tax = 10 392 rubles.
Important:
- If an employee of the company does not agree to divide the next vacation, according to the explanations of Rostrud in the letter No. 2143-6-1 dated 17.07.09, the employer is prohibited from unilaterally approving the division of vacation into parts.
- If the employer tries to split the second half of the vacation into small segments - according to Art. 8 of the Labor Code, local acts of the enterprise that worsen working conditions are not legal and cannot be applied.
- If the leave is divided into small parts and is provided exclusively on weekends, this practice does not attract the approval of the labor inspectorate and may lead to a conflict with the inspectors. After all, weekends in any case are non-working days (Article 107) and cannot replace legal vacation periods.
Last modified: January 2019
The Labor Code of the Russian Federation, adopted in 2001, reflects the specifics of labor relations in relation to the new economic conditions, in particular, a more flexible approach to granting an employee an annual paid leave is envisaged. This backbone legislative act provides not only the possibility of choosing the time of vacation in the optimal period for the employee, but also such a completely new form as the division of vacation into parts.
This article will talk about in which cases the employer provides the opportunity to divide the main vacation time, what procedure must be followed by both parties to the employment relationship, as well as how you can split the vacation according to the law, what documents are needed in order to split the annual paid leave.
Conditions for dividing leave
The main standard for providing time for vacation, provided for by the provisions of the Labor Code of the Russian Federation, is 28 days. This is the minimum vacation time. However, at the same time, the law allows for the possibility of dividing the main vacation time into parts, due to the specifics of the production activities of a company, enterprise or organization. In this case, there are two positions of interests - the employer and the employee.
- On the part of the company, there is an interest in the fact that the employee does not leave for long periods in order to ensure the efficiency of the production process.
- It is sometimes more preferable for an employee to divide the vacation time into at least two parts in order to use it, for example, for rest in different seasons of time, or for solving personal issues.
The basic condition under which the breakdown of vacation time is possible is the mutual consent of the parties and, first of all, the employee. In this case, the law is to protect the interests of hired personnel, allowing them to choose the most optimal rest regime for themselves.
Another important condition for dividing vacation into parts is the minimum length of service of an employee hired at a given enterprise. It must be at least 6 months old.
However, here, too, the Labor Code of the Russian Federation provides for a number of preferential provisions for certain categories of workers. So, for the provision of vacation, including the right to share it less than 6 months after the start of employment at the enterprise, may apply:
- minors under the age of 18;
- those who are adoptive parents of children under 3 years of age;
- women who, according to the law, are entitled to maternity leave, as well as benefits for caring for a child under 3 years old;
- workers whose work is associated with particularly harmful working conditions, including in areas with extreme climatic conditions (the Far North, for example).
- those employees who work in combination mode;
- those workers whose activities are related to the performance of seasonal types of production;
- workers who perform labor functions under short-term employment contracts or contracts - lasting less than 2 months;
- those employees who perform some official functions remotely, i.e. through information systems and networks, as well as those that are classified as home-based. This also applies to disabled workers.
Another important condition for how to divide the leave according to the Labor Code is the prohibition of employers to unilaterally make a decision on granting leave in parts, for an employee. This, in addition to the Labor Code of the Russian Federation, is also stipulated by a special normative act - (Letter of Rostrud dated July 17, 2009 N 2143-6-1). Moreover, the violation by the employer of this provision is punished in accordance with the Code of Administrative Offenses (Article 5.27), which provides for a fine in the amount of 10 to 50 thousand rubles for the responsible manager who made such a decision.
It can be useful: .
General scheme for dividing the vacation into parts
The general scheme for dividing leave into parts, provided for in Art. 125 of the Labor Code of the Russian Federation, consists of two main options:
- Option one - in 28 days is divided into two equal parts of 14 days. It is also allowed at the request of the employee, at his own discretion, the distribution of these two parts of the leave according to the season, of course, upon reaching a compromise with the employer.
- Option two - the first part of the vacation of 14 days is indivisible and the employee must use it in full. The second part, consisting of 14 days, can be split into smaller periods, up to the point that the employee can take 1 day of vacation during the year. Again, this format must be agreed with the employer.
At first glance, this scheme may seem simple, but it also contains a lot of all sorts of questions, such as, for example, is it allowed to divide the vacation into parts in special cases. There are such cases:
- the employer has the right to postpone all or part of the vacation for another period of time due to production needs. However, such a decision must be motivated and supported by a written order of the head of the organization or company;
- due to special circumstances arising in the course of the production process, the employer may recall the employee from his leave. At the same time, the rest of the unused vacation, even one day, is added to the next period of annual paid vacation;
- in some cases, the employee himself may initiate the postponement of vacation, in particular in view of the onset of temporary incapacity for work, including of a production nature, or during the period when the employee is forced to perform any state or public duties - for example, military training, participation in jury trials , in election commissions, etc.
Thus, the division of vacation into parts in one proportion or another may depend on many conditions. When granting leave in this format, both parties - the employer and the employee, must consider the best options and come to a mutual agreement.
How to arrange the division of vacation into parts
In order to receive leave in parts for workers, there is a certain algorithm or procedure, which consists of the following steps:
- Step one - submitting an application. The application must contain the main motivation of the employee, an indication of the duration of the vacation and the duration of its parts. The general view of how to draw up an application is presented in the given sample.
Sample application for a part of the vacation.
- Step two. The employer draws up a vacation schedule and enters there those periods that are indicated by the statements of employees.
- Step three. Coordination and approval of vacation schedules, including those that are divided into parts. At this stage, both employees and their employer must fully agree on a vacation schedule.
General format of the vacation schedule:
- Step four. The employer, after agreeing on the vacation schedule with his employees, issues a written order for the organization, with which all interested employees are informed against signature. Each employee has the right to receive a copy of such an order, certified by the seal and signature of the manager, or his administrative staff - the secretary or the personnel department.
- The data on the vacation schedule, with a detailed indication of how the vacation is divided, is entered in the employee's personal card, as well as these data are to be recorded in the "Timesheet".
After all these formal actions are performed in strict accordance with the above procedure, it can be considered that the employee has the full right to take advantage of his vacation in any desired proportion, which is directly protected by the labor legislation of the Russian Federation.
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Every employee is entitled to annual paid leave. It is provided in accordance with the schedule approved at the enterprise and can be divided into parts. Let's take a closer look at how you can share a vacation and how it is documented.
According to article 115 of the Labor Code of the Russian Federation, an employee can expect a minimum of 28 days of paid rest per year. This period can be divided into parts, adhering to the rules specified in article 125 of the Labor Code of the Russian Federation and other norms of labor legislation.
Dividing the vacation into parts
The division of leave into parts (Labor Code of the Russian Federation, article 125) is possible by agreement between the employee and the employer. Moreover, at least one of the parts cannot be shorter than 14 days. Consequently, the rest of the period can be divided into any number of parts. For example, an employee can take 14 days to rest for the first time, and after a while take another two vacations a week each. Note that Labor Code does not prohibit taking even 1 paid day off, and the employer cannot establish rules at the enterprise that limit the minimum duration of rest. After all, according to Article 8 of the Labor Code of the Russian Federation, the employer cannot adopt local regulations containing norms that worsen the rights of workers in comparison with those contained in labor legislation.
However, in practice, employers are extremely reluctant to divide the rest into periods of 1 to 5 days, since this is associated with paperwork. In addition, when scheduling, the employer assesses the production need for a particular employee at a specific time frame, and frequent and short rest periods can negatively affect the company's performance. In many organizations, for the period of absence of an employee, it is necessary to appoint a replacement for him, which also complicates the procedure for registering a vacation. In particular, such difficulties are encountered in organizations, the functioning of which is possible only if there is an established quorum. For example, various expert commissions.
How to arrange
The company draws up a vacation schedule no later than two weeks before the start of the new year. The employer approves this document taking into account the opinion of the staff and the production needs of the enterprise. It is not necessary to acquaint personnel with this document, but some enterprises prefer to do this under signature in order to avoid misunderstandings.
The division of rest must be agreed between the employee and the employer. This fact must be documented. Often, employees write a corresponding statement addressed to the manager. A sample form is provided below.
At least two weeks before the start of the vacation, the employer sends the employee an appropriate notification, where he must put a mark on familiarization.
If an employee wants to be given an unscheduled rest, he must write a corresponding statement. In some cases, the manager can meet halfway and sign a statement.
The fact that the employee is resting should be reflected in the report card. For this, the code "OT" or "09" is used.
Is the employee obliged to share the vacation at the request of the employer
Quite often, due to the specifics of the company's activities, the manager cannot let the employee rest for 28 days in a row. In such cases, unscrupulous employers try to force the employee to divide this period into parts. However, they have no legal basis for this, since it contradicts the norms of the Labor Code of the Russian Federation, as well as the clarification given in the Rostrud Letter dated 17.07.2009 No. 2143-6-1.
With regard to days off during rest periods, the employer has no right to force the employee to include days off during this time. For example, when an employee wrote an application for the period from April 2 to April 6, that is, from Monday to Friday. In fact, he will rest for 7 days, but he will only be paid for 5 days.
If an employee divides the rest time into several parts that go in a row, but do not cover weekends or holidays, it is highly likely that the employer will not sign such a statement. For example, if you have two applications: from 2 to 6 April and from 9 to 13 April. Human Resources will ask you to rewrite the statement to include weekends.
Responsibility for violation of the norms of the Labor Code of the Russian Federation
For unscrupulous employers, liability is provided for violation of labor legislation. In part 1 article 5.27 of the Code of Administrative Offenses of the Russian Federation there are sanctions in the form of a warning or a fine in the amount of:
- from 1000 to 5000 rubles - for the head of the organization and individual entrepreneur;
- from 30,000 to 50,000 - for the organization.
Eligible for vacation. He, by agreement of the parties, can be divided into a certain number of parts.
This is guaranteed by the provision of Article 125 of the Labor Code of the Russian Federation, which clearly states that it is permissible to split the annual paid vacation, but with the proviso that one of the parts cannot be less than 14 days.
Is it possible to divide the next vacation and into what parts?
In order for the rest to be divided, a number of conditions must be met:
- Consent must be shown by both the employer and the employee.
- The duration of one of the parts cannot be changed (see above).
- This procedure requires the approval of the top executive of the organization.
Before the request is recorded in the application, you should know what types of vacations are generally prone to splitting. Let's look at the division of vacation into parts in different specific cases in more detail.
Annual paid vacation
The annual paid vacation can be divided into parts, as well as. As a matter of fact, the division of annual paid leave into parts is fixed in the already mentioned article of the Labor Code of the Russian Federation.
Study leave
If we refer to the classification of types of leave, then it refers to the target, which are provided for the implementation of specific tasks.
The basis for obtaining it is the corresponding document - help call.
This document comes to the organization from the educational institution in which the employee is studying.
Since it specifies specific dates, there can be no question of any division. Vacation is provided only for the period specified in the inquiry-call.
Without pay
This "division" is initially meaningless, since it is determined by agreement of the parties. And it is impossible to divide what is not.
Another thing is that an employee can leave for several times during the year for various reasons. But it is not possible to divide it.
IMPORTANT. Only annual paid leave can be divided into parts. Any other, whether targeted or unpaid, cannot be divided. And, for the most part, it is inherently impractical.
Consent of the parties
Does the employer have the right to divide the vacation without the consent of the employee? At the very beginning of the article, it was noted that the division of leave is a contractual procedure. In other words: just as an employee cannot divide his vacation without the employer's permission, so the employer does not have the right to arbitrarily break it.
ATTENTION. The employer is not required to agree to the sharing of leave. Indeed, in many ways, this is the privilege of the few, and not the exclusive right of everyone. And the employee should take this into account. Especially if you can't agree.
Splitting the vacation: how many parts of it can be? We have already mentioned the obligatory part of the vacation, the presence of which during the rest of any employee is required. But what can we do with the remaining 14 days at our disposal (if we take into account that the main vacation is 28 days)? The answer is simple: divide them as much as you like.
How to correctly calculate vacation days,.
The Labor Code of the Russian Federation does not impose any restrictions on this. The only condition is: minimum time period - 1 day... This is obvious, but some employees miss this point.
IMPORTANT. The available 14 days can be divided as you like. And split into 14 intervals, and into two, etc. If only the employer would agree to all this.
Now that we have figured out the question: "Can the employer share the vacation without the employee's consent?"
Holiday division procedure
Only by agreement with the employer can the employee share his vacation. This clearly follows from the provisions of Article 125 of the Labor Code of the Russian Federation.
But how should this consent be obtained by the employee? There is not a word about the form of such consent in the code itself.
Based on common sense and legal norms, two possible forms can be distinguished, which will be detailed below.
Oral
Something like an oral agreement is concluded between the employee and the employer. guaranteeing the employee the fulfillment of his request. True, this is possible, mainly, in small enterprises, when the maintenance of unnecessary documentation is impractical for many reasons. In other cases, the second form is the best solution.
Written
An employee can state the essence of his request in a statement addressed to the manager. The scale of the problem allows you to save on paper, that is, instead of A4 paper, you can use A5. And with the details of the form, difficulties are unlikely to arise. All you need is:
- addressee (manager);
- addressee - sender (employee, indicating the position (profession));
- name of the type of document (application);
- text;
- signature.
IMPORTANT. It is not necessary to explain in the text of the statement what caused the desire to divide the rest into parts. But it is better to do this anyway, since the employer can satisfy the request if the desire to go for splitting is caused by objective reasons. Whereas purely personal motives can be ignored.
The picture below shows a sample application for dividing vacation into parts:
Schedule crushed leave
It will not be difficult for the personnel service to make an appropriate record that the rest is divided into parts. This will require in the column "number of calendar days of vacation" indicate the number of numbers corresponding to the parts, and in the column "planned date of vacation" indicate opposite the date of its start. More detailed information on changing the vacation schedule is presented.
That is, the entry can be like this:
- 13 14.05.2015;
- 12 17.08.2015;
- 3 29.12.2015;
- (vacation parts) (start dates.
REFERENCE. By dividing the rest days into the appropriate number of parts, the employee has the right to go on vacation according to the dates reflected in the vacation schedule. If necessary, the dates can be changed again. If it succeeds.
If you need to extend your vacation, and you do not know how holidays are taken into account, read this.
Conclusion
Dividing a vacation into parts is not as complicated a procedure as it might seem at first glance. Each employee is capable of sharing their vacation. Therefore, if the need arises, it is worth referring to this article, since the required amount of information is fully presented here.
New edition of Art. 125 of the Labor Code of the Russian Federation
By agreement between the employee and the employer, the annual paid leave may be divided into parts. Moreover, at least one of the parts of this leave must be at least 14 calendar days.
The recall of an employee from vacation is allowed only with his consent. The unused part of the leave must be granted at the choice of the employee at a time convenient for him during the current working year or added to the leave for the next working year.
It is not allowed to recall workers under the age of eighteen, pregnant women and workers employed in work with harmful and (or) dangerous working conditions from vacation.
Commentary on Article 125 of the Labor Code of the Russian Federation
By agreement between the employee and the employer, the annual paid leave may be divided into parts. At the same time, at least one of the parts of this leave must be at least 14 calendar days (Article 125 of the Labor Code of the Russian Federation).
The recall of an employee from vacation is allowed only with his consent. The unused part of the leave must be granted at the choice of the employee at a time convenient for him during the current working year or added to the leave for the next working year.
No recall from vacation is allowed:
1) employees under the age of 18;
2) pregnant women;
3) employees engaged in work with harmful or hazardous working conditions.
Annual paid leave should be extended in cases where:
1) the employee falls ill during the vacation;
2) the employee performed public duties during the vacation (if the law provides for exemption from work for this);
3) in other cases provided for by law or a local regulatory act of the organization.
Annual paid leave by agreement between the employee and the employer is postponed to another period if the employee was not paid timely for this vacation or the employee was warned about the start time of the vacation less than two weeks before its start.
In exceptional cases, when the granting of leave to an employee in the current working year may adversely affect the normal course of the organization's work, it is allowed, with the employee's consent, to postpone the vacation to the next working year. In this case, the vacation must be used no later than 12 months after the end of the working year for which it is granted.
Another commentary on Art. 125 of the Labor Code of the Russian Federation
1. Part 1 of Art. 125 of the Labor Code of the Russian Federation establishes a general rule on the division of leave into parts. This possibility is allowed by agreement between the employee and the employer. The number of parts into which the vacation can be divided is not determined by law and is established by agreement of the parties. Part 1 of Art. 125 of the Labor Code of the Russian Federation only requires that at least one part of the vacation be at least 14 calendar days. This requirement is in line with ILO standards.
The provision of each part of the leave is carried out in compliance with the general rules regarding the warning of the employee about the arrival of the vacation period and the payment of the average wage.
2. The recall of an employee from vacation is, in essence, a way of dividing the vacation into parts, and the initiator of such a division of the vacation is the employer. Part 2 of Art. 125 of the Labor Code of the Russian Federation does not determine what circumstances may serve as a basis for recalling an employee from vacation. In any case, such withdrawal is allowed only with the consent of the employee. Refusal to return to work upon recall from vacation cannot be considered as a violation of labor discipline (paragraph 37 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).
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