Any employee of a private or state enterprise may exercise his right to go on unpaid leave. Unforeseen family circumstances or health problems among close relatives who need care may force him to take such actions. Let's consider the procedure for registering and granting leave without saving wages.
2. B, marked “BEFORE” or “16” (in case of provision of unpaid leave with the permission of the employer), marked “OZ” or “17” (in case of provision of unpaid leave provided for by law).
How can an employee return to work early from unpaid leave?
Labor Code The Russian Federation provides every employee with the opportunity to return to their work duties ahead of schedule.
The only condition for ending unpaid leave is the agreement of the parties (employer and employee). To do this, the employee must submit a written application addressed to his boss.
It can be free-form, but must contain:
– mandatory details;
– employee’s explanation;
– the exact date when the employee will be ready to begin his duties.
After the management’s resolution, the HR department will issue an order, on the basis of which the accounting department will again calculate the wages of the employee who has interrupted his time off. A corresponding entry about the termination of unpaid leave will also be made in the employee’s personal card.
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Within social protection An employee may be granted leave without pay. The possibility of providing such leave to an employee is provided for in Art. 128 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 circumstances and others good 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 unpaid leave based on a written statement from the employee, it is made the employer's responsibility.
Here is a list of “excusable” cases, the duration of such leave and the grounds for its provision:
Type of vacation Duration
vacationsArticle
Labor Code of the Russian FederationTo the participants of the Great Patriotic War Up to 35 calendar
days a yearpart 2
Art. 128Working old age pensioners (according to
age)Up to 14 calendar days
days a yearParents and wives (husbands) of military personnel,
killed or died due to injury,
concussion or injury received during
performance of duties military service,
or due to a disease associated with
military serviceUp to 14 calendar days
days a yearWorking disabled people Up to 60 calendar days
days a yearFor employees in cases of birth of a child,
registration of marriage, death of loved ones
relativesUp to five
calendar daysIn cases provided for by collective
agreementStipulated in
collective
agreementIn cases provided for by federal
lawsStipulated in
appropriate
federal law
tests in educational institutions
higher vocational education15 calendar
dayspart 2
Art. 173Workers - students of preparatory courses
departments of educational institutions
higher professional education for
passing final exams15 calendar
days
state accreditation
educational institutions higher
work:15 calendar
days in school
year
state examsfour months for passing the final state
examsone month Employees admitted to introductory
tests in having state
accreditation of educational institutions
secondary vocational education10 calendar
dayspart 2
Art. 174Workers studying in graduate schools
state accreditation
educational institutions of secondary
professional education full-time
form of education that combines study with
work:to pass intermediate certification 10 calendar
days in school
yearfor preparation and defense of graduation
qualifying work and final exams
state examstwo month to pass final exams one month Parental leave up to 3 years old
age (up to 1.5 years partially paid
state)part 1
Art. 256Maternity leave
(paid by the Federal Social Insurance Fund of the Russian Federation)Art. 255 Vacation for a part-time worker (if on the main
work duration of annual
paid leave more than
part-time job, then according to him
upon request he may be granted leave
without salary)part 2
Art. 286For workers working in the extreme regions
North and equivalent areasTime required
to travel to
place
use
annual leave
and backArt. 322 Note! The legislation does not contain an unambiguous definition of the concept of close relatives. This concept is not defined in the Labor Code of the Russian Federation.
Family code Russian Federation(Article 14) refers to close relatives as relatives in a direct ascending and descending line (parents and children, grandparents 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, grandparents, grandchildren; Tax Code of the Russian Federation (clause 18.1, article 217) - spouses, parents and children, including adoptive and adopted parents, grandparents and grandchildren, full and half (having a common father or mother) brothers and sisters; Code of Civil Procedure of the Russian Federation (clause 2 of Article 281) - parents, children, brothers, sisters.
Thus, it is up to the employer to decide who is considered a close relative, in the event of whose death the employer is obliged to provide the employee with leave without pay.
The list given in the table is not exhaustive, since the right to such leave is provided for by various federal laws. 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 leave without pay, the duration of which depends on the category of the veteran. The employer's obligation to provide unpaid leave 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 Labor Code of the Russian Federation. Moreover, their duration should not exceed 14 calendar days. These include vacations:
- employees with two or more children under 14 years of age;
- employees with a disabled child under 18 years of age;
- a single mother raising a child under 14 years of age;
- a father raising a child under 14 years of age without a mother.
If an employer refuses to provide an employee with unpaid leave, and the employee does not go to work, then in accordance with paragraphs. "a" clause 6 of Art. 81 of the Labor Code of the Russian Federation, he can be fired for absenteeism. However, such dismissal will most likely not be canceled only if there are no valid 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 truancy if the employer, in violation of the statutory obligation, refused to provide them and the time the employee used such days did not depend on the discretion of the employer” (clause 39 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated 17.03 .2004 N 2).
It should be recalled that leaves without pay, provided by agreement between the employee and the employer without valid reasons, are included in the length of service giving the right to annual leave, only in a total amount not exceeding 14 calendar days during the working year (Article 121 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 are not included in the length of service for calculating the vacation.
Attention! Leave without pay lasting no more than 14 days does not shift the boundaries of the working year. But if several such leaves were granted during the working year, then their total duration should be determined. If it exceeds 14 days, the working 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 vacations 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; accordingly, the time of these vacations is included in the length of service, which gives the right to annual paid leave.
Note! Leave without pay, provided in accordance with the law (see 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 be granted only 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 June 27, 1996 N 6 “On leaves without pay at the initiative of the employer”, approved by the Resolution of the Ministry of Labor of Russia dated June 27, 1996 N 40, it is stated that “leave without pay can be granted only at the request of employees for family reasons.” circumstances and other valid reasons. “Forced” leaves without pay at the initiative of the employer are not provided for by labor legislation.”
According to Art. 72.2 of the Labor Code of the Russian Federation, temporary suspension of work for reasons of an economic, technological, technical or organizational nature is 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 employee’s average salary. 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 an employer sends an employee on his own initiative, instead of registering downtime, on leave without pay, then this is classified as a violation of labor legislation. Penalties are provided for such a violation (Article 5.27 of the Code of Administrative Offenses of the Russian Federation):
— administrative fine for officials in the amount of 1,000 to 5,000 rubles;
- on persons carrying out entrepreneurial activity without forming a legal entity - from 1000 to 5000 rubles. or administrative suspension of activities for up to 90 days;
- on legal entities— from 30 thousand to 50 thousand rubles. or administrative suspension of activities for up to 90 days.
Violation of labor and labor protection legislation by an official who was previously subject to administrative punishment for similar administrative offense, entails 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 the leave.
In addition to the mandatory details of any document, the application must indicate:
— start date and duration of unpaid leave,
- circumstances and reasons for such leave. If supporting documents are available, they should be attached to the application.
If the decision is positive, management issues an order to grant leave without pay in Form N T-6, which must also indicate the period and reasons for granting leave.
We remind you that a note-calculation about granting leave to the employee in this case is not issued. Information about the provision of such leave is entered in section. VIII Personal employee card form N T-2. The following mark is placed on the working time sheet (form N T-12 or N T-13):
— “OZ” or code 17, if leave is provided under the conditions provided for by the current legislation of the Russian Federation;
— “BEFORE” or code 16, if leave is provided with the permission of the employer.
Often, for family reasons, an employee needs to take leave at his own expense. Therefore, whether or not to release an employee on unpaid leave without pay is, as a rule, the right of the employer.
Moreover, unpaid leave is given for family reasons and other valid reasons. Moreover, if you carefully study the norms, it turns out that sometimes this is also the responsibility of the company. Moreover, depending on the basis on which the employee goes on vacation without saving earnings, there is a method for calculating his length of service.
For family reasons and other valid reasons, an employee, upon his written application, may be granted, the duration of which is determined by agreement between the employee and the employer (Part 1). When considering applications, attention is paid to specific reasons and the circumstances that necessitated such leave. After all, granting leave without pay on the basis of Part 1 of Article 128 of the Labor Code of the Russian Federation is a right and not an obligation of the employer, therefore he has the right to refuse to provide it to an employee. In this case, the employer must take into account both the validity of the reasons indicated by the employee in the application, and the possibility of causing harm to the organization if leave is granted at his own expense.
Family circumstances and other valid reasons mean certain events and social needs that arose in personal life employee. An employer cannot send an employee on leave at his own expense without pay on his own initiative.
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Article 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.
How many days can you take at your own expense from work according to the law?
Is it possible to go on leave without pay for a year? How long can you take a vacation at your own expense under the labor code without pay? For what period can a working pensioner and a pregnant woman be sent?
The employer is obliged, based on a written application from the employee, to provide leave without pay:
participants of the Great Patriotic War - up to 35 calendar days a year;
for working old-age pensioners (by age) - up to 14 calendar days per year;
parents and wives (husbands) of military personnel, employees of internal affairs bodies, the federal fire service, drug control authorities and psychotropic substances, customs authorities, employees of institutions and bodies of the penal system, killed or died as a result of injury, concussion or injury received while performing the duties of military service (service), or as a result of a disease associated with military service (service) - up to 14 calendar days days in a year;
for working disabled people - up to 60 calendar days per year;
employees in cases of the birth of a child, marriage registration, death of close relatives - up to five calendar days;
in other cases provided for by this Code, other federal laws or a collective agreement.
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Providing vacation leave at your own expense, without pay, is MANDATORY
In some situations, providing leave without pay is the obligation of the employer established by the Labor Code of the Russian Federation. For example, employees to whom the employer is obliged to provide leave without pay are (Article 128 of the Labor Code of the Russian Federation):
- working old-age pensioners (by age);
- parents and wives (husbands) of military personnel who died or died as a result of injury, concussion or injury received during service, or as a result of an illness associated with military service;
- working disabled people;
- workers in cases of birth of a child, registration of marriage, death of close relatives.
In addition to the above situations, the Labor Code contains mention of several more cases when the employer is obliged to provide leave without pay. For example, such leave is due to those employees who combine work and study in educational institutions of higher and secondary vocational education or enroll in them.
The Labor Code, other federal laws or a collective agreement may provide for other cases when the employer is obliged to provide leave without pay. For example, Part 2 lists the categories of employees to whom the employer is obliged to provide leave without pay in connection with admission to educational institutions of higher professional education and training in them, these are:
- employees admitted to entrance examinations to educational institutions of higher professional education;
- employees - students of preparatory departments of educational institutions of higher professional education;
- employees studying in state-accredited educational institutions of higher professional education on a full-time basis, combining study with work.
The employer’s obligation to provide leave at his own expense is established not only in the Labor Code, but also in other federal laws. So, in accordance with paragraph 11 of Article 11 of the Law of May 27, 1998 No. 76-FZ “On the status of military personnel”, military spouses receive leave at their request is provided simultaneously with military leave. In this case, the duration of the spouses' leave can be equal to the leave of military personnel at their request. Just the part of the leave of military spouses that exceeds the duration of annual leave at their main place of work is provided without pay. At the same time, the employer does not have the right to refuse unpaid leave without pay in this case.
The following employees can take leave at any time at their own expense until 14 days according to the Labor Code of the Russian Federation.
- Single mother with a child under 14 years old,
- employee who has two or more children under the age of fourteen,
- employee who has disabled child under the age of eighteen
In addition to the Labor Code, the employer’s obligation to provide unpaid leave to certain employees is established in the following federal laws:
- dated November 26, 1996 No. 138-FZ - to individual participants in the election process for the duration of elections to local government bodies;
- dated 01/09/97 No. 5-FZ - Heroes of Socialist Labor and full holders of the Order of Labor Glory;
- dated June 12, 2002 No. 67-FZ - to the candidate’s proxies during the referendum;
- dated January 10, 2003 No. 19-FZ - to individual participants in the election process of the President of the Russian Federation (candidate’s proxies, members of the election commission with advisory voting rights);
- dated May 18, 2005 No. 51-FZ - to individual participants in the process of election of State Duma deputies (candidate’s proxies, members of the election commission with advisory voting rights);
- dated 05.27.98 No. 76-FZ - to spouses of military personnel in relation to part of the leave exceeding the duration of annual leave at their main place of work;
- dated January 15, 1993 No. 4301-1 - To the Heroes Soviet Union, Heroes of the Russian Federation and full holders of the Order of Glory (additional leave for up to three weeks a year at a time convenient for them)
The duration of leave without pay if the employer is obliged to provide it is determined by federal law, which provides for such leave at one’s own expense. Information on the duration of the said leave without pay, which is provided without fail, is given in the table.
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The period of compulsory leave at your own expense without pay
| Employees who are granted leave | Duration of vacation |
|---|---|
| All employees in cases of birth of a child, registration of marriage, death of close relatives | Up to 5 calendar days for each reason |
| Working disabled people | Up to 60 calendar days per year |
| Working old-age pensioners (by age) | Up to 14 calendar days a year |
| Employees who are parents, wives (husbands) of military personnel who died or died as a result of injury, concussion or injury received during the performance of military service duties, or as a result of an illness associated with military service | Up to 14 calendar days a year |
| Workers – participants of the Great Patriotic War | Up to 35 calendar days per year |
| Employees admitted to entrance examinations in educational institutions of higher professional education | 15 calendar days |
| Workers – students of preparatory departments of educational institutions of higher professional education | 15 calendar days (for passing final exams) |
| Workers studying in state-accredited educational institutions of higher professional education on a full-time basis, combining study with work | 15 calendar days per academic year (for passing intermediate certification); 4 months (to prepare and defend the final qualifying thesis and pass the final state exams); |
| Employees admitted to entrance examinations at state-accredited educational institutions of secondary vocational education | 10 calendar days |
| Workers studying in state-accredited educational institutions of secondary vocational education on a full-time basis, combining study with work | 10 calendar days per academic year (for passing intermediate certification); 2 months (to prepare and defend the final qualifying thesis and pass the final state exams); |
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Documentation of leave without pay
Regardless of whether the leave is mandatory or not, in order to provide it, the employee must write a statement where the employee must indicate the reason for the unpaid leave. In some cases, the employer is obliged to provide such leave (for example, in the event of a wedding or death close relative) ().
To the director
LLC "Gasprom"
A.V. Ivanov
from the cashier
A.V. Petrova
STATEMENT
I ask you to grant me unpaid leave from April 3, 2019 for 15 calendar days for family reasons.
17.03.2019 . . . Petrova. . . . A.V. Petrova
Based on the employee’s application, issue an order to grant leave. The order must be signed by the manager, the employee must be familiarized with the order for signature.
The unified form of the order for granting leave (Form No. T-6) was approved by Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1.
An organization may, at its own discretion:
- or use standardized forms of documents if this is approved by the head of the organization in the order on accounting policies;
- or use independently developed forms approved by the head (provided that they contain all the necessary details provided for by Law of December 6, 2011 No. 402-FZ).
Do not draw up a calculation note for the provision of leave (on Form No. T-60 or on a self-developed form). The fact is that this form is provided for calculating payments that an employee is entitled to when going on vacation (instructions approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1). And when an employee goes on unpaid leave, vacation pay is not accrued.
Also, information about the vacations provided must be entered into the employee’s personal card:
- in section VIII of form No. T-2, approved by Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1), if the organization uses a unified form of the document;
- in the appropriate section of the personal card if the organization uses an independently developed document form.
Reflect similar information in the employee’s personal account (on Form No. T-54 or on a self-developed form).
In the time sheet, vacation time is marked with the code “DO” if the vacation was granted in accordance with the employer’s permission, or with the code “OZ” if the employee goes on vacation based on the provisions of the current legislation of the Russian Federation.
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DURATION of vacation at your own expense, without pay
Upon written request from the employee, the employer may provide the employee with leave without pay. The duration of leave without pay is established by agreement of the parties: employee and employer in calendar days. Non-working holidays are not included in the number of calendar days of vacation only if they fall on paid vacation: main or additional (Part 1 of Article 120 of the Labor Code of the Russian Federation). Thus, if holidays fall during the period of unpaid leave, then they are included in the number of calendar days of such leave and do not extend it.
The maximum duration of leave at one's own expense is not regulated by law. The employer and employee decide by agreement of the parties how long the leave will be granted. Thus, the employer has the right to provide vacation at his own expense for any period: several days, weeks, months and even years. This follows from the Labor Code of the Russian Federation.
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Conventions, Marks in the time sheet
OZ- Vacation without pay under the conditions provided for by the current legislation of the Russian Federation
BEFORE- Unpaid leave granted to an employee with the permission of the employer
UD- additional leave in connection with training without pay
DB- Annual additional leave without pay
Note: See all Conventions for time sheets
Days of unpaid leave are completely excluded from the calculation period when calculating average earnings, regardless of its duration. Reason - subparagraph “e” of paragraph 5 of the Regulations on the specifics of the procedure for calculating average wages, approved by the Decree of the Government of the Russian Federation dated December 24, 2007
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Guarantees for an employee on leave without pay
As a rule, an employee cannot be dismissed at the initiative of the employer while he is on such leave. Since, according to the employee, he cannot be dismissed at the initiative of the employer while he is on vacation, with the exception of the case of liquidation of the organization or termination of activities by an individual entrepreneur.
Sickness benefits must also be paid when the employee himself gets sick or is injured while on annual leave - main or additional (clause 1, part 1, article 9 of the Law of December 29, 2006 No. 255-FZ). During illness, the vacation period is extended. At the employee’s request, the unused part of the vacation can be provided to him immediately or transferred to the future (Article 124 of the Labor Code of the Russian Federation).
For all other periods of release from work (except annual holidays) with or without salary, sick leave benefits are not paid to employees. For example, an employee is not paid benefits for the day of his participation in court hearing as a juror, as well as days attributable to personal leave or parental leave.
If during unpaid leave the employee went on maternity leave, then the employer is obliged to pay her maternity benefits, since the employee is one of the insured persons. Moreover, unpaid leave must be interrupted from the moment maternity leave begins. Maternity benefits are paid to the employee in the amount of 100% of average earnings (clause 1 of Federal Law No. 255-FZ of December 29, 2006).
If the employee does not have actually accrued wages and actually worked days in the pay period and before it, the average earnings must be calculated based on the official salary, the tariff rate established for the category of the employee, the official salary, and allowance (remuneration). Reason - clause 11 of the Regulations on the specifics of the procedure for calculating benefits for temporary disability, pregnancy and childbirth for citizens subject to compulsory social insurance, approved by Decree of the Government of the Russian Federation of June 15, 2007 No. 375.
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The employer does not have the right to send employees on leave without pay on their own initiative.
This is a violation of labor legislation, for which he can be fined in accordance with parts 1 and 4 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation.
The inadmissibility of forced leaves without pay due to the temporary suspension of the organization’s activities was emphasized by the Russian Ministry of Labor (Resolution of the Russian Ministry of Labor dated June 27, 1996 No. 40). In the Labor Code of the Russian Federation, the employee’s initiative () is also considered a condition for granting leave at one’s own expense.
A situation where employees, due to the fault of the employer, are unable to fulfill their job duties. During downtime, employees must be paid at least 2/3 of their average earnings (Part 1
When annual leave has been used, and a situation arises in life that vacation is needed right now, the employee can take additional days rest by contacting your employer with an application for leave at your own expense. What this leave is, who has the right to use it and what features it has, we will consider in this article.
Vacation without pay
Vacation, which is commonly called “at your own expense,” is regulated by Art. 128 Labor Code of the Russian Federation. IN labor legislation The concept of “vacation without pay” is used. It is often also called administrative.
Based on the law, such leave is granted:
- for family reasons and other valid reasons;
- duration, which is agreed upon by the employee and the employer.
This means that the employer is not obliged to provide the employee with unpaid leave, and if it is unprofitable for him to leave the employee during this period or he considers the reasons given by the employee to be unjustified, he can refuse him leave (read about exceptions below).
Advantages and disadvantages
In addition to the fact that the vacation we are considering is not paid, you also need to take into account the following:
- no insurance premiums are paid during this period, which means the pension does not increase;
- if an employee falls ill during this period, the days on which he was on vacation will be excluded from sick pay;
- despite the fact that maximum term not established by the legislator, in Art. 121 of the Labor Code of the Russian Federation there is a rule according to which, in the case of a vacation duration of more than 14 days, the calculation of the calendar year for assigning paid leave is shifted by the amount of the excess.
However, unpaid leave also has positive points. All of them are that the employee can legally be released from work at any time. If, of course, the employer gives his consent and the work process at the enterprise does not suffer from this. This is a safety net for parents of frequently ill children, a chance for young fathers to be close to their family in the first days of their child’s life, and freedom for those who love to travel. You just need to remember that abuse of this right can have a negative impact on the employee’s reputation.
Labor legislation guarantees employees paid leave (annual and additional). However, an employee has the right to count not only on paid leave: the Labor Code of the Russian Federation provides for the possibility of providing leave without pay. This species Only one article of the code is devoted to vacations. Accordingly, employers have many questions related to its use. In what cases does an employer have no right to refuse to provide unpaid leave? How to register it? What is the maximum duration of unpaid leave? You will find answers to these and some other questions by reading the article.
When is unpaid leave granted?
According to Art. 128 of the Labor Code of the Russian Federation, leave of this type can be granted:- At the discretion of the employer (but after considering the reason why the employee requests unpaid leave and his production capabilities, he may decide to refuse to provide such leave).
- By force of law (when an employer cannot refuse to provide an employee with leave without pay).
Let's say a few words about unpaid leave by decision of the employer. Part 1 of Art. 128 of the Labor Code of the Russian Federation establishes that 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. From this rule we can conclude that the mandatory conditions for granting such leave are appropriate circumstances, a written statement from the employee and the consent of the employer.
Let us note that the employer, when deciding to grant leave, at his own discretion evaluates the reasons why the employee requires leave, and if he considers them insignificant or disrespectful, he has the right to refuse. We recommend that you approach this issue objectively, since in the event of a dispute, the court or regulatory authority may side with the employee. For example, the Perm Regional Court considered a case on declaring an order to apply disciplinary measures illegal. B. applied to her employer for unpaid leave for a day, without indicating the reason why it was required. Accordingly, the employer refused to provide leave, but B. did not return to work. For this she was reprimanded. The court, having examined the case materials, found out the reason for the absence - the need to appear at the prosecutor's office and the court (the summons was documented with the relevant documents) - and recognized the order to apply disciplinary action illegal (Appeal ruling of the Perm Regional Court dated August 12, 2013 in case No. 33-7452).
Of course, the court does not always side with the employee. If he does not show up for work after the employer refuses to provide unpaid leave, the court may recognize the application of disciplinary measures up to and including dismissal for absenteeism as legal and justified (see, for example, Determination of the Moscow City Court dated September 8, 2015 No. 4g/8 ‑8669/2015, Appeal ruling of the Omsk Regional Court dated 09/02/2015 in case No. 33‑6239/2015).
When will an employer's refusal be unlawful?
As we found out, in some cases the employer is obliged to satisfy the employee’s request for leave without pay. In particular, according to Part 2 of Art. 128 of the Labor Code of the Russian Federation, the employer must provide the following leave:- participants of the Great Patriotic War - up to 35 calendar days a year;
- for working old-age pensioners (by age) - up to 14 calendar days per year;
- parents and wives (husbands) of military personnel, employees of internal affairs bodies, the federal fire service, authorities for control of the circulation of narcotic drugs and psychotropic substances, customs authorities, employees of institutions and bodies of the penitentiary system, who died or died as a result of injury, concussion or injury, received while performing the duties of military service (service), or as a result of an illness associated with military service (service) - up to 14 calendar days a year;
- for working disabled people - up to 60 calendar days per year;
- employees in cases of the birth of a child, marriage registration, death of close relatives - up to 5 calendar days.
Given in Art. 128 of the Labor Code of the Russian Federation, the list of grounds when an employer does not have the right to refuse leave is far from exhaustive: relevant cases can be established by the Labor Code of the Russian Federation or other federal laws.
For example, according to Art. 173 of the Labor Code of the Russian Federation, the employer is obliged to provide leave without pay to employees admitted to entrance examinations upon admission to higher education. educational institution, as well as students of preparatory departments educational organizations higher education to pass the final certification - 15 calendar days. The employer is required to provide slightly less - 10 calendar days of unpaid leave - to employees who combine work with obtaining secondary vocational education (Article 174 of the Labor Code of the Russian Federation).
note
An employee with two or more children under the age of 14, an employee with a disabled child under the age of 18, a single mother raising a child under the age of 14, a father raising a child under the age of 14 without a mother, a collective agreement annual additional holidays without maintaining wages at a time convenient for them for up to 14 calendar days (Article 263 of the Labor Code of the Russian Federation).
In some cases, unpaid leave is granted to part-time workers. So, by virtue of Art. 286 of the Labor Code of the Russian Federation, if at a part-time job the duration of annual paid leave is less than at the main place of work, then the employer, at the request of the employee, must provide him with leave of the corresponding duration without pay.
But not only the Labor Code defines cases when an employer cannot refuse unpaid leave: such cases can also be established by other federal laws. For clarity, we present them in a table.
| Rule of law | Categories of workers | Duration |
| Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation” | Civil servants | Up to a year |
| Federal Law of March 2, 2007 No. 25-FZ “On Municipal Service in the Russian Federation” | Municipal employees | Up to a year |
| Federal Law of May 27, 1998 No. 76-FZ “On the status of military personnel” | Military spouses | Part of the spouses' leave exceeding the duration of the annual leave at the main place |
| Federal Law of 01/09/1997 No. 5-FZ “On the provision of social guarantees to Heroes of Socialist Labor, Heroes of Labor of the Russian Federation and full holders of the Order of Labor Glory” | Heroes of Socialist Labor, Heroes of Labor of the Russian Federation and full holders of the Order of Labor Glory | Up to 3 weeks per year |
| Law of the Russian Federation of January 15, 1993 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” | Heroes of the USSR, Russian Federation and full holders of the Order of Glory | Up to 3 weeks per year |
| Federal Law of January 12, 1995 No. 5-FZ “On Veterans” | Invalids of war | Up to 60 days a year |
| WWII participants | Up to 35 days a year | |
| Combat veterans | ||
| Worked at sites during the Second World War air defense, construction of defensive structures, naval bases, airfields and other military facilities | ||
| Federal Law of June 12, 2002 No. 67-FZ “On Basic Guarantees voting rights and the rights to participate in a referendum of citizens of the Russian Federation" | Proxies of candidates participating in elections, as well as proxies of electoral associations | For the period of office |
| Federal Law No. 20-FZ dated February 22, 2014 “On elections of deputies State Duma Federal Assembly of the Russian Federation" | Proxies of a political party, candidates nominated in electoral districts | For the period of office |
Let us note: the refusal to grant leave guaranteed by labor legislation and the subsequent disciplinary punishment of employees who went on such leave without the consent of the employer is recognized by the courts and regulatory authorities as unlawful. Thus, Z. went to court with a demand against the Municipal House of Culture and Arts named after. G.V. Kalinichenko" on reinstatement after dismissal for absenteeism. During the consideration of the case, the court found that, based on the decision of the election commission of the municipal district, Z., as an authorized representative of the candidate for the position of head of the district, was issued certificate No. 1 stating that she is an authorized representative of the candidate. The employer was notified about this.
08.08.2014 Z. received a phone call, she was informed that she needed to appear at the administration of the Moscow Region, where she stayed from 13.00 to 18.00. 08/11/2014 Z. submitted an explanatory note, in which she indicated the reasons for her absence and details of the identity of the authorized representative, and attached a certificate from the administration of the Moscow Region. However, the management of MU still fired Z.
By virtue of Art. 43 of Law No. 67-FZ, during the period of authority of the authorized representative, the employer is obliged to give the authorized persons, at their request, unpaid leave. Since such leave was not granted to Z., even though she did not write a statement, but informed management about the need for absence by telephone, the dismissal was considered illegal: there was a good reason for leaving work - carrying out activities related to elections, about than Z. subsequently provided a certificate (Appeal ruling of the Moscow Regional Court dated March 18, 2015 in case No. 33-5980/2015).
For your information
Cases for granting unpaid leave may be established by collective agreement or industry agreements. For example, the Industry Agreement on Organizations Federal agency according to technical regulation and metrology for 2015 - 2017, a woman who has a child under the age of 16 is given the right to one additional day off per month without pay.
To summarize the section, we say that if the employer has provided the number of days of unpaid leave in full determined by law, collective agreement or agreement, then upon a new request during the same year, the employer has the right to refuse such leave to an employee of a preferential category. For example, a disabled employee in April and August 2015 received unpaid leave for 30 days (in total, according to Article 128 of the Labor Code of the Russian Federation, a disabled person has the right to count on 60 days a year). If he asks for unpaid leave again, for example, in November, the employer has the right to refuse to provide such leave and this will not be a violation of the law.
Duration of unpaid leave
How long can unpaid family leave be granted? The Labor Code does not give a clear answer to this question and does not establish restrictions. Therefore, according to general rule such leave can last a day, a week, several months or any other period that is agreed upon between the employee and the employer.However, some regulations There is a time limit for taking unpaid leave. For example, on the basis of clause 15 of Art. 46 of the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation,” the duration of leave without pay, provided for family reasons and other valid reasons to civil servants, cannot be more than a year. A similar period is established for unpaid leaves of municipal employees.
note
What to do when an employee has several reasons for taking leave without pay, for example, an employee who is retired and disabled, respectively, has the right to 14 and 60 calendar days of leave? Labor legislation does not contain the answer. We believe that in this case the employee has the right to count only on longer leave.
Please note that it is necessary to keep records of unpaid leave for several reasons.
Firstly, as we have already said, this will help the employer justify the refusal to provide leave to employees to whom, as a general rule, the employer is obliged to provide it (Appeal ruling of the Altai Regional Court dated January 22, 2014 in case No. 33-502/2014).
Secondly, the number of days of unpaid leave is important for calculating length of service for the provision of annual paid leave. Let us remind you that according to Part 1 of Art. 121 of the Labor Code of the Russian Federation, the length of service that gives the right to annual basic paid leave includes the time of unpaid leave provided at the request of the employee, not exceeding 14 calendar days during the working year. Vacation time (vacations) without pay exceeding 14 days is not subject to inclusion in the specified length of service.
Failure to include such time is reflected by an increase in the working year by the corresponding number of days, which in personnel records means a shift in the beginning or end of the working year in which leave without pay was used (Appeal ruling of the Krasnoyarsk Regional Court dated March 18, 2013 in case No. 33-2432).
For example, an employee got a job at an institution on March 10, 2015. The duration of his unpaid leave in 2015 was 20 days. Since he was granted more than 14 days of administrative leave, the length of the working year will increase by the number of days exceeding 14 - 6. Thus, the working year will begin on 03/10/2015 and end on 03/15/2016.
We prepare documents
Unpaid leave is provided only at the initiative of the employee (providing such leave at the initiative of the employer - for example, in the event of a reduction in the volume of work - is a violation of labor legislation), that is, the employer needs an application from the employee. The application must indicate the reasons why leave is needed so that the employer can make an informed decision, and of course, the desired dates.The employer can express agreement (disagreement) with the statement by making an appropriate note on it, for example, “I don’t object”, “Agreed”. Based on such an endorsed application, an order is issued to grant leave without pay. For this, the unified form T-6 (T-6a) or a form approved by the institution is used. The order must indicate the type of leave, the number of calendar days of leave and the dates on which it falls.
For your information
Some workers go on vacation without waiting for an order. In this case, if they do not belong to preferential categories for whom leave must be granted, the employer can record absenteeism and apply disciplinary measures up to and including dismissal. For example, the Leningrad Regional Court in its Ruling dated July 3, 2014 No. 33-3394/2014 indicated that the presence of a manager’s resolution on an application requesting additional unpaid leave does not indicate that the employee has reached an agreement with the employer on this issue, since the provision of leave must be formalized by order.
The order for granting leave is signed by the head of the organization or another authorized person (Part 4 of Article 20 of the Labor Code of the Russian Federation). Be sure to familiarize the employee with the order and sign it.
If the institution employs remote employees, unpaid leave for them can be arranged through an exchange electronic documents with enhanced qualified signatures (Parts 4, 5 of Article 312.1 of the Labor Code of the Russian Federation).
And of course, information about unpaid leave must be included in section. VIII personal card.
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